Heck's Discount Store

National Labor Relations Board - Board Decisions

Feb 5, 1965

150 N.L.R.B. 1565 (N.L.R.B. 1965)

HECK'S DISCOUNT STORE 1565
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Boston
Five Cents Savings Bank Building , 24 School Street , Boston , Massachusetts, Tele-
phone No. 523-8100 , if they have any question concerning this notice or com-
pliance with its provisions.
Heck 's, Inc. d/b/a Heck 's Discount Store and Retail Clerks Union
Local 1059, Retail Clerks International Association , AFL-CIO.
Case No. 9-CA-3158. February 5, 1965
DECISION AND ORDER
On October 28, 1964, Trial Examiner W. Gerard Ryan issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the attached Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision and a supporting
brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the National Labor Relations Board has delegated its
powers in connection with this case to a three-member panel [Chair-
man McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed.' The Board has considered the Trial
Examiner 's Decision, the exceptions and brief,•and the entire record
in this case, and hereby adopts the findings,2 conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order, the Order recom-
' We do not find it necessary to rule on Respondent ' s exception to the admission of
Sprague's testimony as hearsay , since , in any event, the Trial Examiner did not rely on it
in making his findings
'We agree with the Trial Examiner's finding that the department heads are super-
visors and his consequent conclusion that Respondent must be charged with Department
Head Wilkes' knowledge of Menshouse's union activities. Regardless of the supervisory
status of the department heads, the record also clearly favors the inference that McCann,
the manager of the Ashland store and an admitted supervisor, had personal knowledge of
Menshouse 's activities before her layoff on March 31, 1964. We base this finding on the
following uncontroverted facts :`Menshouse personally obtained signed union cards from 11
of the small number of employees at the store ; McCann admitted that several weeks before
be laid off Menshouse, he had heard rumors about union activity in the store , Darnall,
Respondent 's operating manager, whose office was located in another store out of State,
admitted that he was aware of similar rumors before the layoff ; and McCann gave
Darnall the names of S or'10 union adherents only 3 days after the layoff. The in-
ference is strengthened by the Trial Examiner' s determination that Respondent's ex-
planation for the layoff w as pretextual.
150 NLRB No. 143.
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mended by the Trial Examiner and orders that Respondent, Heck's,
Inc. d,/b/a Heck's Discount Store, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Recom-
mended Order, with the following modifications :
1. Amend paragraph 1(e) to read :
"In any other manner interfering with, restraining, or coercing
employees in the exercise of their rights under the Act."
2. Amend the first line of the fifth indented paragraph of the
Appendix attached to the Trial Examiner's Decision to read :
WE WILL NOT in any other manner ... .
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was held before Trial Examiner W. Gerard Ryan at a hearing in
Ashland, Kentucky, on July 14 and 15, 1964; on the complaint of General Coun-
sel and the answer of Heck's, Inc. d/b/a Heck's Discount Store, herein called the
Respondent. The issue litigated was whether the Respondent violated Section
8(a)(1) and (3) of the National Labor Relations Act, as amended.' The parties
waived oral argument. Only the Respondent has filed a brief.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a West Virginia corporation engaged in the retail sale of various
merchandise including ready-to-wear clothing, sporting goods, hardware, household
goods, toys, and cosmetics at various locations in the States of West Virginia and
Kentucky. Respondent's store located at Ashland, Kentucky, is the only location
involved in this proceeding. During the past 12 months, which is a representative
period, Respondent, in the course and conduct of its business operations, had a
gross volume of retail sales in excess of $500,000. During the same period,
Respondent had a direct inflow, in interstate commerce, of material, goods, and
products valued in excess of $50,000, which it purchased and received and which
were shipped directly to its retail stores located in Kentucky and West Virginia,
from points outside of those States. At all times material herein, Respondent is and
has been an employer as defined in Section 2(2) of the Act, and engaged in commerce
and in operations affecting commerce as defined in Section 2(6) and (7) of the Act.
The foregoing findings are admitted by the answer.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union Local 1059, Retail Clerks International Association, AFL-CIO,
herein referred to as the Union, is, and has been at all times material herein , a labor
organization within the meaning of Section 2(5) of the Act.
HI. THE UNFAIR LABOR PRACTICES
A. The 8(a)(1) violations
The complaint alleged, the answer admitted, and I find that on or about the dates
indicated below the Respondent at its Ashland, Kentucky, store in violation of Section
8(a) (1) of the Act interfered with, restrained, and coerced its employees in the exer-
cises of rights guaranteed in Section 7 of the Act by the following acts and conduct:
(a) The conduct of Fred L. Haddad, president of the Respondent and an admitted
supervisor, on or about April 3, 1964, in requesting employees who were sympathetic
toward the Union to identify themselves personally to him and informing them that if
no employee did so he would conclude that there was no interest in the Union at the
store and he would act accordingly.
'The charge was filed April 7, 1964, by the Union and served on Respondent on
April 8, 1964. The complaint issued on May 27, 1964.
HECK'S DISCOUNT STORE 1567
(b) The conduct of Ray O. Darnall, the Respondent's operating manager and an
admitted supervisor , on or about April 4, 1964, in interrogating employees individually
in the office concerning their sympathies and activities on behalf of the Union.2
There is no evidence that President Fred L. Haddad on or about 'April 3, 1964,
promised employees the benefits of distribution of stock in order to discourage mem-
bership in or activities on behalf of the Union . The complaint to that extent should be
dismissed.
The complaint alleged and the answer denied that Joseph C. Weekley was a super-
visor who on or about March 30, 1964 , announced that one of the employees was going
to be discharged that day because of her activities on behalf of the Union ; interrogated
employees regarding their activities on behalf of the Union ; and threatened employees
with discharge if information that they were engaging in activities on behalf of the
Union came to the attention of Haddad, the Respondent 's president.3
The first issue to be resolved is whether department heads are supervisors within
the meaning of the Act.
Employee Mildred McCreery testified that when she was hired James E. McCann,
the manager at the Ashland store in charge of day-to-day activity , introduced her to
Joseph Weekley, the department head of the toys and housewares department, and
indicated he would be her supervisor. McCreery testified she deals directly with
Weekley for any information she requires , for time off ; that he takes care of com-
plaints, does the necessary bookkeeping for the department, and makes markdowns in
prices. She further testified that he also waits on customers the same as others. She
testified further that if Weekley needs people to work overtime he obtains approval
from McCann and then asks the girls and tells them to work late. On one occasion
according to McCreery she once asked McCann for time off and he replied it was okay
with him if it was okay with Weekley. That happened to be the time that Weekley
was in the hospital and she was unable to take time off.
On cross-examination McCreery testified that she does not think Weekley has the
power to hire or fire or transfer her to another store and she does not know if he could
grant a pay raise. She testified Weekley is the only one in the houseware and toy
department to whom she would go with any problems that arose. On one occasion she
testified further that she was reprimanded by Weekley before Christmas and he really
"chewed her out."
Employee Robert Bond testified that McCann told him that Joseph Weekley is his
supervisor ; that Weekley has transferred him from toys to housewares ; that he sees
Weekley for time off; that Weekley is paid by the month while others are paid by the
hour; and that Weekley is paid about $390 per month whereas others in the department
get about $101 every 2 weeks. At one time he went to McCann with a request and
McCann told him it was all right with him if it was all right with Weekley. Bond
testified further that Weekley would give the employees "a talking to" if they did
wrong; that Weekley selected the employees for overtime work; that Weekley keeps
the records in the department ; that temporary transfers are worked out between the
departments ; and that Weekley attends supervisors ' meetings once a month at the
home office.
Bond testified further that Weekley recommended him to McCann for the position
of department head when Weekley was transferred to the Huntington store.
On cross-examination Bond testified that McCann told the employees that Weekley
was the department head and they were to do as Weekley told them; and to take their
problems to Weekley and if the problems were too big to bring them to McCann. He
testified that Weekley had no authority to fire or give pay increases and that at times
Weekley stacked shelves with merchandise as did other employees. Bond testified that
Weekley gave him specific jobs to do such as cleaning the warehouse, displaying wax
on the counter , etc. Bond testified that Weekley had no authority to dock him for
lateness ; but he did have authority to grant him time off during the day but if he
wanted an entire day Weekley would have to consult McCann.
Employee June Menshouse , called by the General Counsel, testified that her first
supervisor was Carlton Boothby who was succeeded by Robert Wilkes in mid-February
1964. She testified that Boothby notified her and three other named employees after
2In his testimony Darnall admitted that on April 3 he learned from Manager McCann
the names of the active union adherents and on the basis of that information questioned
8 or 10 employees individually from 3 to 9 pm on April 4
3 The complaint was amended at the hearing to add to paragraph 4 "Robert Wilkes-
Department Head : Shoes, Clothing, and Domestic Department " The General Counsel
stated he was not alleging that Wilkes engaged in any unfair labor practices but amended
the complaint in order that as a supervisory employee his remarks would be binding
on Respondent
775-692-65-vol. 15 0-10 0
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
calling them together that they were going to have a new department head who would
be Bob Wilkes and they would take their orders from Wilkes. She testified that Wilkes
did the necessary bookkeeping for the clothing department and told her what items
were to be on sale. She testified further that he attended supervisors' meetings and
sometimes waited on customers if the girls were busy; that she received her instructions
from him and went to him "for anything that came up on the floor." In her prehear-
ing affidavit she admitted saying that her department head had no particular authority
over her.
James E. McCann, called by the General Counsel under rule 43(b), testified that
there are seven departments in the Ashland store each of which has a department head
who is paid on a monthly salary basis (except Department Head Clarke).
McCann testified further that department heads write up an order for requested
additional merchandise and submit it to McCann who either approves or disapproves
and forwards it to the home office for approval. He testified that department heads
report any misconduct to him and department heads order employees to correct mis-
takes such as price changes, etc.; and they report to him for approval if they need
employees to work overtime with the names of employees who would like to work
overtime.
When called later by the Respondent as a witness, James E. McCann testified that
the duties of department heads are to display merchandise, work with employees, show
them markups, take the markdowns for advertisement, correct price changes if wrong,
and show employees what to do and how to do it. He testified further that where
problems arise such as misunderstandings between employees in his own department
or between himself and an employee or between an employee in his department and
an employee in another department the prescribed duty of the department is to bring
such problem to the manager of the store. According to McCann's testimony a depart-
ment head has no authority to discipline an employee and if a department head was
attempting that he was exceeding his jurisdiction.
The Respondent called as a witness Russell Isaacs who testified that he is the comp-
troller and a director of the Respondent; that the Company has a confidential payroll
which includes all management people paid by salary; that department heads are not
on a confidential payroll but are paid biweekly the same as regular employees; and
that they punch timeclocks and receive overtime pay computed on an hourly basis as
shown by the timecards.
On cross-examination Isaacs admitted that if department heads take time off during
the day they are not docked as are the hourly employees. He testified that the manager
is a salaried employee; and that the assistant managers are salaried employees but are
not paid extra for overtime.
Ray Darnall, called by the Respondent, testified that he is the Respondent's operat-
ing manager working directly under the president controlling the operations of all five
stores.
Darnall testified that the store manager is in direct control of everything in the
store; then there are two assistant managers and then there are department heads in
each department. Darnall referred to department managers who are also referred to
in the record as department heads. Darnall testified that the department managers
have no powers except asking the manager for extra help and that all the decisions are
made by the manager. He testified that the department head talks with salesmen and
writes up an order for merchandise which is submitted to the manager for approval;
or if the department head needs additional merchandise he will ask the buyer for his
department who works out of the St. Albans store. Darnall continued to testify that
the department head helps or suggests to employees that they display the merchandise
properly; checks to see if it is marked correctly and works right along with the
employees in correcting mistakes and errors. He testified the department head is
expected to do exactly the same work as other employees. Darnall testified that there
are regular meetings for department heads once each month at St. Albans, the home
office. Those attending the meeting are the department heads, the manager, the
assistant managers, all the buyers, and in some cases if the department head is absent
someone within his department will attend the meeting. Department heads meet with
the buyers for their department to discuss merchandise or what they need for an
advertisement. He testified that the meeting is not restricted to department heads as
someone else will come in his place if he is absent. Darnall continued to testify that
if problems arise among employees the department head has the duty to take such
information to the manager who will act upon it after the manager has arrived at a
decision. He testified that the department head has no authority to settle grievances
between employees in his department and has no authority to discipline employees nor
to hire or fire nor grant wage increases and no one but the manager has authority to
assign or transfer employees within the store.
HECK'S DISCOUNT STORE 1569
It is clear from the record that a department head has no authority to hire or fire,
grant wage increases , or assign or transfer employees within the store. The depart-
ment head also works with the other employees in his department.
Uncontradicted credible evidence in the record establishes the following:
'(1) Employees were introduced to the department heads by the manager as the
department head and informed they were to do what the department head told them
to do.
(2) Department heads permit employees to take time off during the day although
it is necessary for the manager's approval in order to take off an entire day.
(3) The department head obtains from the manager approval to work overtime and
selects the girls for overtime either before or after the manager approves the request
for overtime.
(4) A request for time off by employee McCreery made to the manager was
approved subject to the approval of the department head.
(5) Employees are expected to go to the department head with any problems that
arise.
(6) Department heads are paid monthly salaries of approximately $ 390 compared
to hourly rates of approximately $1.10 per hour by the hourly workers who average
about $101 every 2 weeks . Thus the department head is paid approximately $152
more in a month than are the hourly employees.
(7) When employee Bond went to the manager with a request , the manager
approved it subject to the approval of the department head and later the department
head accused Bond of going "over his head" to Manager McCann.
(8) When Department Head Weekley was transferred to the Huntington store
he recommended employee Bond to the manager for his position of department head.
(9) The department head directed Bond to do specific jobs such as cleaning out the
warehouse and displaying wax on the counters.
(10) Department heads consult with salesmen and then write up the order for
merchandise which is submitted to the manager for approval or disapproval and the
manager refers it to the home office for final decision; or the department head if he
needs additional merchandise will ask the buyer for his department who works out of
the home office at St. Albans.
(11) Department heads report to the manager any misconduct by the other
employees.
(12) Department heads attend department head meetings at the home office in the
St. Albans store once a month . The meeting is also attended by the managers and
assistant managers who meet with the president , comptroller , and buyers.
(13) When department heads take time off during the day they are not docked as
are the other employees who are paid on an hourly basis.
(14) Department heads have the prescribed duty if problems arise between
employees to take such information to the manager who acts upon it after he had
arrived at a decision.
(15) The duties of department heads are to display merchandise , work with
employees , show them markups , take the markdowns for advertisements , correct price
changes if wrong, and "show employees what to do and how to do it."
It is clear from the foregoing that the department head has the authority to and does
direct responsibly the action of employees under him. As is evidenced not only by
his directing and assigning work but by his attendance at supervisory meetings, his
handling of employee requests for time off, his monthly salary approximately $152
higher than the other employees who are paid on an hourly basis, the department head
is also in the category of persons generally regarded as foremen and persons of like
or higher rank. Under these circumstances , and considering the fact that they are re-
garded by other employees in the department as part of management , I conclude that
Weekley and Wilkes were supervisors within the meaning of the Act. Moreover, even
if they were found not to be supervisors the Respondent would still be responsible for
their conduct because it is evident from the foregoing they have been held out and
identified to the employees by the Respondent as agents of management.
I find that on or about March 30, 1964, in violation of Section 8(a) (1) of the Act,
Joseph C . Weekley interrogated employees regarding their activities on behalf of the
Union and threatened employees with discharge if information that they were engag-
ing in activities on behalf of the Union came to the attention of the Respondent's
president . My reasons follow:
Joseph C 'Weekley did not testify . Employee Mildred McCreery testified and I
credit her testimony which is uncontradicted that on the day following the layoff of
June Menshouse , Weekley asked employees if they knew anything about the Union
and if they had signed a paper for the Union . McCreery answered that she did not
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
know what he was talking about. Weekley informed them that if a union was brought
into the store or if they were "for the Union" they would either be fired or President
Haddad would move the store back to West Virginia.
Robert Bond whose testimony is credited and uncontradicted testified that on the
day Menshouse was discharged (March 31) Weekley asked him about 3:30 p.m. in the
warehouse if he had heard any union talk in the store; that Weekley said there had
been some going around and they would discharge the one who started it.
There is no evidence (other than hearsay evidence) to prove the allegation in the
complaint that Weekley on or about March 31, 1964, announced that one of the
employees was going to be discharged that day because of her activities on behalf of
the Union. Accordingly, the complaint to that extent should be dismissed.
I find the evidence to be insufficient to prove the allegation in the complaint that
the Respondent on or about April 13, 1964, granted wage increases to its employees
with an object of discouraging sympathy for, membership in, or activities on behalf of,
the Union. The complaint to that extent should be dismissed.
B. Violation of Section 8(a)(3) of the Act
The complaint alleged, the answer denied, and I find that in violation of Section
8(a)(1) and (3) of the Act the Respondent on or about March 30, 1964, laid off
employee June Menshouse from woik and at all times thereafter has refused to'rein-
state her to her former or substantially equivalent position because of her membership
in,'sympathy for, and activities in behalf of, the Union. My reasons follow:
June Menshouse worked for the Respondent as a shoe clerk in the clothing depart-
ment in the Ashland, Kentucky, store from November- 18, 1963, until her layoff on
March 31, 1964. During that entire time she always worked full time and was never
laid off. When she was hired employee Betty Cole was the only girl in the shoe
section . When Cole left on December 31, 1963, James E. McCann, the manager of
the store, told Menshouse "This is your department. There's no question that you can
take over-You've already proved yourself." On January 5, 1964, she was given a
raise in pay of 5 cents per hour.
Menshouse's first supervisor was Carlton Boothby and her next supervisor was
Robert Wilkes, who became department head in the clothing department replacing
Boothby on or about mid-February 1964.
On March 6, 1964, Menshouse and employee Callihan first contacted the Union.
They talked to Farrell Sprague, the International representative of the Union. At that
time Menshouse and Callihan signed cards and took some cards to get signed by other'
employees. Of the 15 signed cards in evidence 13 were signed in Menshouse's
presence and 2 were signed in the presence of Farrell Sprague .4
About March 10, 1964, Robert Wilkes, the department head in her department, said
to Menshouse that he thought if they had a union things would not be as haphazard as
they were. He told Menshouse he sure would like somebody to get one started to
which Menshouse replied she would see what she could do about it., The next day she
obtained a card and he signed it .5
Menshouse returned all the signed cards to Sprague at a meeting at her home.
For more than 2 weeks prior to her layoff she had been working a "double turn";
i.e., 10 a.m. to 9 p.m.
On March 31, 1963, 10 minutes before closing time, McCann came to the shoe
department and told Menshouse he was going to have to let her go because there were
too many employees in that department. She pointed out that Eva Maynard had less
seniority but McCann said they had been on his back all day on the telephone from
St. Albans and he either had to get rid of her or they would come down and do it
themselves. McCann also told her she was a good employee and if they had need for
her services they would call her. At the time of the hearing she had not been called
back to work.6 The foregoing findings are based on the credited testimony of
Menshouse.
The Respondent's defense of economic necessity for the layoff of June Menshouse is
without merit. Ray Darnall, the operating manager who works directly under Presi-
dent Fred L. Haddad, testified that in the latter part of January or the first of February
after discussing the situation of overstaffing in the clothing department with Russell
The record shows there were approximately 32 employees in the store
The card is in evidence as General Counsel's Exhibit No. 2A Another card in
evidence is General Counsel's Exhibit No. 2L signed by Gayle Clarke, the department
head in the cosmetics department Both cards were signed in her presence.
6 The Respondent's brief at page 6 states that she was recalled on August 3, 1964. The suf-
ficiency of an offer of reinstatement may be explored if necessary in compliance proceedings.
HECK'S DISCOUNT STORE 1571
Isaacs, the comptroller of the Company, he discussed the subject with James E.
McCann who was manager with overall authority over all the employees in the Ash-
land store . At that time Respondent's Exhibit No. 1 shows there were eight em-
ployees in the clothing department in the Ashland store up to mid-February. Darnall
testified further that he let the situation ride, hoping to- be able to afford the extra
people; but checking weekly into the situation found they were making no profit in that
department and told McCann around the middle of February that something would
have to be done about the overstaffed clothing department. Then the day came
(March 31) when he called McCann and told him that either McCann would take
care of the problem or he (Darnall ) would personally come down and take care of it;
that is, the layoff of one person in the clothing department . Darnall testified he did
not mention any name and left the selection of the employee up to Manager McCann.
On cross-examination Darnall again testified that he first became aware of over-
staffing about February 1 and discussed it again in mid-February and asked McCann
to consider the situation .? In the latter part of March he testified he arrived at the
actual decision to lay off an employee.
James E. McCann testified that the matter of overstaffing was first brought to his
attention about mid-February and not as Darnall had testified in latter January or first
of February. McCann testified that in mid-February he was told to cut one employee
from the -payroll but he did nothing then but waited to see if someone would quit "or
something." He testified further that it was not until March 31 that he laid off June
Menshouse on direct order from Darnall to lay off an employee; that no one was
reemployed and they are still operating the same way as the night she left. What both
Darnall and McCann did not mention or explain is that in mid-February a ninth
employee was added to the clothing department notwithstanding their professed con-
cern that the clothing department was overstaffed with eight employees.
Respondent's Exhibit No. 1 shows that there were eight employees in the clothing
department in the Ashland store for the pay periods January 4 and 18 and February 1
and 15; and there were nine employees for the three pay periods ending February 29
and March 14 and 28. For the week ending April 11 (the pay period in which
Menshouse was laid off) the number of employees was reduced to eight which was the
number prior to February 15, 1964.
On the basis of the foregoing contradictory evidence adduced by Respondent, I
reject the defense that it was necessary to lay off one person for economic reasons
because of overstaffing the clothing department, because after her discharge there were
eight employees still there. The ninth employee was added to the clothing department
in mid-February at the very time McCann said he was ordered to lay off one employee
but did not do it hoping some employee would quit. So instead of reducing the
number of employees from eight , the number of employees was increased to nine in
mid-February in the clothing department at the Ashland store. Accordingly, the layoff
of Menshouse did not correct the overstaffing that was complained of in January and
February.
Accordingly, I find that the Respondent's. asserted reason for the layoff- of June
Menshouse on March 31 , 1964, that it was necessary for economic reasons to reduce
the number of employees in the clothing department, was a pretext, and that the true
reason for her layoff was because the Respondent was motivated by her activities on
behalf of the Union. In the absence of a valid explanation of her layoff, the war-
ranted inference is drawn that the Respondent acted on knowledge of her union activity
and discriminatorily imposed a layoff. (Ambox, Incorporated, 146 NLRB 1520.)
Here the Respondent had actual notice of her union activities in that she had
obtained union cards signed in her presence from her department head, Wilkes, and
also from Department Head Gayle Clarke. Thus the corporate Respondent here is
chargeable with its supervisors' or agents'. knowledge. Owens-Coining Fiberglas
Corporation, 146 NLRB 1492. The inference that Respondent acted from a discrimi-
natory motive is supported further by the Respondent's opposition to unionization
demonstrated by its 8(a) (1) violation as found supra, to wit, by requesting employees
who were sympathetic to the Union to identify themselves to the president of the
Respondent ; and by interrogation and threats.
The foregoing findings are based upon consideration of all the evidence in the record
and the testimony of June Menshouse, which I credit. I further find and conclude that
the layoff of June Menshouse on March 31, 1964, was discriminatorily motivated in
violation of Section 8(a)(3) and ( 1) of the Act, and the Respondent's failure to
recall her was similarly motivated . I further find that the proffered reason for the
layoff and failure to recall is a pretext to cloak the real discriminatory motives for
such action.
7 At that time in mid-February, Darnall testified that he did not demand a layoff
1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in connec-
tion with the operations of the Respondent described in section I, above, have a close,
intimate , and substantial relation to trade , traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices , I shall
recommend that it cease and desist therefrom , and that it take certain affirmative
action which is necessary to effectuate the purposes of the Act.
I shall recommend that the Respondent offer June Menshouse immediate and full
reinstatement to her former or substantially equivalent position (The Chase National
Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827), with-
out prejudice to her seniority or other rights or privileges, and that the Respondent
make her whole for any loss of pay she may have suffered as a result of the discrimi-
nation against her , by payment to her of a sum of money equal to that which she
normally would have earned from the date of the discrimination against her to the
date of the offer of reinstatement , less her net earnings ( Crossett Lumber Company, 8
NLRB 440, 497-498), during said period. The payment to be computed on a quar-
terly basis in the manner established in N.L.R.B. v. Seven-Up Bottling Co. of Miami,
Inc., 344 U.S. 344, with interest thereon computed at the rate of 6 percent per annum.
I shall recommend also that the Respondent preserve and , upon request, make avail-
able 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 amounts of backpay and the right to reinstatement
under the terms of these recommendations.
In order to make effective the interdependent guarantees of Section 7 of the Act, I
shall recommend further that the Respondent cease and desist from infringing in' any
manner upon the rights guaranteed in said section . N.L.R.B . V. Express Publishing
Co., 312 U.S. 426; N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4).
Upon the basis of the above findings of fact, and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By laying off June Menshouse on March 31, 1964, the Respondent discriminated
in regard to hire and tenure of employment of employees , thereby discouraging mem-
bership in labor organizations , and engaged in unfair labor practices within the mean-
ing of Section 8 (a) (3) and (1) of the Act.
4. By the foregoing conduct, by requesting employees who are sympathetic toward
the Union to identify themselves, by interrogating employees concerning their sympa-
thies and activities on behalf of the Union , and by threatening employees with loss of
employment for engaging in union activities , the Respondent interfered with,
restrained , and coerced its employees in the exercise of the rights guaranteed in Section
7 of the Act, and thereby has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the meaning
of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case , I recommend that the Respondent, Heck's, Inc. d/b/a
Heck's Discount Store, its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in any labor organization of its employees, by
discriminating in regard to their hire or tenure of employment or terms or conditions
of employment.
(b) Requesting employees who are sympathetic toward the Union to identify them-
selves and , if they do not do so , to conclude there is no further interest in the Union.
(c) Interrogating employees concerning their sympathies and activities on behalf
of the Union.
(d) Threatening employees with loss of employment for engaging in union
activities.
(e) In any like or related manner interfering with , restraining , or coercing employ-
ees in the exercise of their rights under the Act.
HECK'S DISCOUNT STORE 1573
2. Take the following affirmative action which is found to be necessary and appro-
priate to effectuate the policies of the Act
(a) Offer to June Menshouse immediate and full reinstatement to her former or
substantially equivalent position , without prejudice to her seniority or other rights and
privileges , discharging , if necessary , any employees hired since March 31, 1964, to
replace her; and make her whole for any loss of pay she may have suffered as a result
of the discrimination against her , by payment to her of a sum of money equal to that
which she normally would have earned from the date of the discrimination against her,
to the date of the offer of reinstatement , less her net earnings ( Crossett Lumber Com-
pany, 8 NLRB 440 , 497-498 ), during said period the payment to be computed on a
quarterly basis in the manner established in N.L R .B. v. Seven-Up Bottling Co. of
Miami, Inc., 344 U.S. 344 , with interest computed at the rate of 6 percent per annum.
(b) Preserve and, upon request, make available to the Board and its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and other records necessary and useful to deter-
mine the amount of backpay due and the rights of reinstatement under the terms of
this Recommended Order.
(c) Post at its plant in Ashland , Kentucky , copies of the attached notice marked
"Appendix." 8 Copies of such notice, to be furnished by the Regional Director for
Region 9, shall , after being signed by an authorized representative of Respondent, be
posted immediately upon receipt thereof, and be maintained for a period of 60 con-
secutive days thereafter , in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the Respondent
to insure that such notices are not altered , defaced , or covered by any other material.
(d) Notify the Regional Director , in writing , within 20 days from the date of receipt
of this Decision and Recommended Order, what steps Respondent has taken to com-
ply herewith ,9
8 In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice .- If the Board ' s Order is enforced by a decree of a United
States Court of Appeals , the notice will be further amended by the substitution of the
words "a Decree of the United States Court of Appeals , enforcing an Order" for the
words "a Decision and Order."
9In the event this Recommended Order is adopted by the Board , this provision shall
be modified to read: "Notify the Regional Director for Region 9, in writing, within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Relations
Act, as amended , we hereby notify you that:
WE WILL NOT discourage membership in, or activity on behalf of , Retail Clerks
Union Local 1059, Retail International Association , AFL-CIO, or any other
labor organization of our employees by discriminating in regard to hire or tenure
of employment or any term ' or condition thereof except to the extent permitted
under Section 8 (a) (3) of the Act.
WE WILL NOT request employees who are sympathetic toward the union to
identify themselves.
WE WILL NOT interrogate employees concerning their sympathies and activities
on behalf of the union.
WE WILL NOT threaten employees with loss of employment for engaging in
union activities.
WE WILL NOT in any other matter interfere with , restrain , or coerce our employ-
ees in the exercise of their right to self-organization to form, to join, or assist
labor organizations , to bargain collectively through representatives of their own
choosing , or to engage in any concerted activities , for the purpose of collective
bargaining or other mutual aid or protection , or to refrain from any or all such
activities.
WE WILL offer June Menshouse immediate and full reinstatement to her former
or substantially equivalent position , without prejudice to her seniority or other
right and privileges , and WE WILL make her whole for any loss of earnings she
may have suffered as a result of discrimination against her.
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become and remain, or refrain from becoming or
remaining , members of any labor organization , except to the extent that such rights
may be affected by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8(a)(3) of the Act.
HECK'S, INC. d/b/a HECK'S DISCOUNT STORE,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Room 2023
Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No. 381-2200,
if they have any questions concerning this notice or compliance with its provisions.
Westinghouse Electric Corporation (Mansfield Plant ) and Local
711, International Union of Electrical , Radio and Machine
Workers, AFL-CIO. Case No. 8-CA-3123. February 5, 1965
DECISION AND ORDER
On June 2, 1964, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices alleged in the com-
plaint and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exami-
ner's Decision. Exceptions to certain of the findings, conclusions,
and recommendations of the Trial Examiner, with supporting briefs,
were filed by the Respondent, the General Counsel, and the Charging
Party. The Charging Party, in addition, filed a brief in reply to the
exceptions and brief of the Respondent.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent consistent herewith.
Westinghouse Electric Corporation, the Respondent herein, is en-
gaged in the manufacture of major appliances (laundromats, dryers,
built-in ovens, etc.) and portable appliances (hair dryers, griddles,
toasters, electric irons, etc.) at its Mansfield Plant. The Union is the
statutory bargaining representative for some 3,000 hourly rated
employees at this facility. The Mansfield Plant is organized into
various departments including a maintenance department, a tool-and-
die department, a portable appliance department, and a major
appliance department.
Since the early 1940's contracting out has been a continuing phase
of Respondent's method of operation at Mansfield. Although the
150 NLRB No. 136.