J. J. Newberry Co.

National Labor Relations Board - Board Decisions

Aug 20, 1963

144 N.L.R.B. 33 (N.L.R.B. 1963)

J. J. NEWBERRY COMPANY 33
J. J. Newberry Company and Retail Clerks Union Local 503, Re-
tail Clerks International Association, AFL-CIO. Case No.
17-CA-2059. August 20, 1963
DECISION AND ORDER
On May 22, 1963 , Trial Examiner Horace Ruckel issued his Inter-
mediate Report in the above-entitled proceeding , finding that the Re-
spondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Intermediate Report. Thereafter,
the Respondent filed exceptions to the Intermediate Report and a brief
in support thereof.
Pursuant to the provisions of Section 3(b) of the Act , the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers , 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
Intermediate Report, the Respondent 's exceptions and brief , and the
entire record in the case , and hereby adopts the findings , conclusions,
and recommendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.'
1 The following shall be added immediately below the signature line in the Appendix
attached to the Intermediate Report:
NOTE.-We will notify the above-named employee if presently serving in the Armed
Forces of the United States of her right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and amended charge filed respectively on October 1 and December
20, 1962, by Retail Clerks Union Local 503, Retail Clerks International Association,
herein called the Union, the General Counsel for the National Labor Relations
Board, respectively called the General Counsel and the Board, through the Regional
Director for the Seventeenth Region (Kansas City, Missouri), issued a complaint
dated December 28, 1962, against J. J. Newberry Company, herein called Respond-
ent, alleging that Respondent had engaged in and is engaging in, unfair labor prac-
tices affecting commerce within the meaning of Section 8 ( a)(1) and (3) and
Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat.
136), herein called the Act. Specifically, the complaint alleges in substance, that
Respondent, through its officers and agents, interrogated employees as to their
attitude toward the Union, threatened others, and on or about September 28, 1962,
discharged Inez Foraker because of her union activity. Respondent has filed an
answer denying that it has engaged in any unfair labor practices.
144 NLRB No. 10.
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held before Trial Examiner Horace A. Ruckel
at Springfield, Missouri, on February 19 and March 6, 1963, at which the parties
were represented by counsel. Upon the conclusion of the hearing the parties waived
oral argument but have filed briefs.
Upon the record as a whole and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation maintaining an office and place of business
at Springfield, Missouri, where it is engaged in the retail sale of various goods and
products. It annually sells and distributes goods and products at retail, the gross
value of which exceeds $500,000. Respondent's branch store in Springfield, Mis-
souri, annually purchases goods and products valued in excess of $50,000 directly
from outside the State of Missouri.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union Local 503, Retail Clerks International Association , AFL-CIO,
is a labor organization admitting employees of Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. The discharge of Inez Foraker
The Union's organizing activities at Respondent's store began on Tuesday morn-
ing, September 18, 1962, at a meeting at the home of Inez Foraker, who had been
employed by Respondent 10 years as a saleslady. Her discharge 10 days after the
meeting is hereafter discussed. In addition to Foraker, the meeting was attended by
Virginia Lane, a fellow employee, by the husbands of Foraker and Lane, and by
one King, a representative of the Union whose presence was procured by Foraker's
husband. Both Foraker and Lane signed up with the Union on this occasion.
Foraker's vacation of 1 week had begun the previous day and because she was due
to leave town that evening it was decided to hold the next meeting, also at her home,
on September 27.
Foraker returned to town on Saturday, September 22, and worked a full day the
following Monday. During the day, however, she observed from the posted work
schedule that she was due to work on Tuesday, Wednesday, and Thursday, only
from 11 a.m. to 2 p.m. When Foraker questioned Thomas, her immediate super-
visor and assistant store manager, about this and asked if her work was satisfactory,
he said that she was slow but that the schedule had been prepared by Allen Hubbell,
store manager. Hubbell was on his vacation at the time and Thomas stated that
he would speak to him about Foraker's schedule upon his return the following
week At the same time, Thomas, according to his own testimony, told Foraker
that if her work did not improve within the next few days, he would have to let her
go.
Foraker worked on Tuesday for 6 hours, and on Wednesday, Thursday, and
Friday of that week, for 3 hours each day. On Tuesday and Wednesday she dis-
tributed union application cards in the women's restroom and at the store lunch
counter and obtained the signatures of 10 to 15 employees. On Thursday evening,
the second meeting was held at her home, attended by about 15 employees including
Fern Harvill, basement forelady. On the following day, Friday, September 28, at
noon, when Foraker asked Thomas what hours she was scheduled to work on
Saturday, he told her that he was not satisfied with her work and discharged her.
He testified that her work had not improved since the previous Monday, although
he cited no specific instance of poor work performance during this period and the
record does not reveal that he spoke to her concerning her work after the previous
Monday, until her discharge.
Both Thomas and Hubbell testified, however, that they had not been satisfied with
Foraker's work over a period of time (according to Hubbell 11/2 years), but did
not discharge her because they wanted "to give her a chance " According to the
testimony of both of them, they discussed discharging Foraker on September 10, and
decided to do so at the end of the week, Saturday, September 15. Thomas testified
that she was not discharged at this time simply because, when he got around to it,
Foraker had left. As has been said, Foraker's vacation began the following Monday.
Respondent made no effort to reach Foraker at her home that weekend to tell her
not to return to work, nor during the following week until Friday, September 21.
J. J. NEWBERRY COMPANY 35
When Thomas called her on that date, as well as on Saturday, September 22, Foraker
was out of town. It is Thomas' further testimony that he scheduled Foraker for
work a full day on Monday, September 24, upon her return from her vacation, al-
though he had decided to discharge her on the 15th, because she had "gone to the
trouble" of reporting to work. He admitted, however, that when he scheduled her
to work Monday he had, at the same time and before talking with her about her
schedule for the remainder of the week, and hence before telling her she was not
satisfactory, laid out her schedule through Thursday On Tuesday, he gave her work
for 6 hours, although she had originally been scheduled for only 3, and gave her 3
hours of work on Wednesday and Thursday.' On Thursday morning he scheduled
her for work on Friday. Respondent's assignment of work on Tuesday, Wednesday,
Thursday, and Friday of this week is without explanation in the record, if Respond-
ent's contention that it had decided to discharge her is to be credited. Nor does it
appear that any complaint as to her work was made during this period. Thomas
testified however, that she continued to be slow.
The testimony of both Thomas and Harvill is that Thomas consulted Harvill
about the discharge during Thursday morning and that Harvill persuaded him to
schedule Foraker for work the following day because of the absence of another
employee due to illness. Accordingly Foraker's discharge was postponed again and
finally consummated Friday noon, September 28.
Harvill testified that at the time Thomas consulted with her on Thursday she had
no knowledge of the meeting scheduled at Foraker's home that night and was not
informed of it until that evening after work. Thomas admitted that he found out
about the meeting on Friday, but not until after he had discharged Foraker.
Conclusions
I am unable to credit the testimony of Thomas and Hubbell that Respondent
determined on September 10, before the Union became active in the store, to dis-
charge Foraker on September 15. If I were to credit this, I would still find incredible
the further assertion that this decision was not effectuated because Foraker had left
the plant before Thomas could speak to her. I am further unable to understand why,
having missed her there, Thomas made no attempt to reach her at her home until
the following Friday. I also find unpersuasive Thomas' asserted reason for letting
her return to work on Monday after having decided to discharge her, that she had
"gone to the trouble" of coming to work, particularly in view of the fact that she
thereafter worked on Tuesday, Wednesday, Thursday, and Friday.
If I had any remaining doubt that Respondent was discriminatorily motivated in
discharging Foraker, it would be removed by the precipitate nature of the discharge
when it was finally made. Foraker regularly worked Saturdays. When, according
to Respondent, it decided on September 10 to discharge her, the discharge was to be
effectuated on Saturday, September 15, the end of her workweek. Foraker worked
but was not discharged on that day, allegedly because Thomas forgot about it until
she had left. Foraker's avoidance of discharge that weekend as well as on Monday,
Tuesday, Wednesday, and Thursday of the week following her return from vaca-
tion, would seem to border on the miraculous if Thomas, as he asserted, had in fact
decided to discharge her. While Respondent may have considered discharging her
as far back as September 10 when Thomas talked to Hubbell, 1 do not believe that
it reached the decision to do so until Thomas heard of Foraker's activity in the
Union,2 and I conclude and find that it was occasioned by this activity and not by
anything relating to her work performance, and that it was in violation of Section
8(a)(3) of the Act.
B. Interference , restraint, and coercion
The complaint alleges various instances of interrogation of employees as to their
union activity, and other acts of interference, restraint, and coercion by Respondent
acting through Hubbell, Thomas, and John Shumate, the latter assistant store man-
ager, and all of them admitted to be supervisory employees.
1 Work schedules were, as a rule, not made out for a full week
2 It has been found that on Monday, September 24, when Foraker returned from her
vacation and complained to Thomas about her work schedule, Thomas promised to speak to
Hubbell about it when the latter returned from his vacation the following week Unless
Thomas was gulling Foraker, it would thus appear that as late as September 24 Thomas
had not intention of discharging her.
727-083-64-vol. 144-4
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to the uncontradicted testimony of Anna Henry who attended the meet-
ing at Foraker's home on the night of September 27, on the following afternoon at
the store (the day of Foraker's discharge), Shumate asked Henry how she felt about
the Union, if she was for it, against it, or neutral. The uncontradicted testimony
of employee Bernice Akin is that on October 1, Hubbell, store manager, asked her
how she felt about unions.
Anita Russell testified that in the latter part of October, Thomas said to her with
reference to another employee, Hale, who had obtained permission to be absent
that day, that he hoped she was enjoying the day but that if the Union came in em-
ployees would probably not be able to take time off. Thomas' version of the con-
versation was that he said that he hoped Hale was enjoying her day off, since during
the Christmas rush Respondent would not be able to give its employees time off.
Russell's further testimony is that on another occasion when Thomas was approving
a discount on purchases made by two other employees, he said if the Union came
in there would not be any more discounts. Thomas' testimony is that he asked the
employees if the Union gave a discount. I found Thomas not to be a convincing
witness, but vague and on occasion hesitant and evasive. I do not credit his account
of the remarks testified to by Russell.
By interrogating employees concerning their union affiliation and stating or imply-
ing that if the Union came into the plant Respondent would withdraw certain
privileges previously accorded employees, Respondent violated Section 8(a)(1) of
the Act.
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with the operations of 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 Respondent has engaged in the unfair labor practices set forth
above, I recommend that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act. Respondent having dis-
charged Inez Foraker because of her support of the Union, I recommend that
Respondent offer her immediate and full reinstatement to her former or substantially
equivalent position without prejudice to her seniority or other rights and privileges
and make her whole for any loss of pay she may have suffered by reason of Respond-
ent's discrimination against her by payment of a sum of money equal to that which
she normally would have earned as wages from the date of her discharge to such date
as Respondent shall offer her reinstatement, less her net earnings during said period.
Such backpay shall be computed on a quarterly basis in the matter established by
the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294, and with interest
thereon at the rate of 6 percent per annum as prescribed by the Board in Isis
Plumbing & Heating, 138 NLRB 716.
As the unfair labor practices committed by Respondent are of a type which strikes
at the very roots of employee rights safeguarded by the Act, I shall recommend
that Respondent be ordered to cease and desist from infringing in any manner upon
the rights guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. Retail Clerks Union Local 503, Retails Clerks International Association, AFL-
CIO, is a labor organization within the meaning of the Act.
2. J. J. Newberry Company is engaged in commerce within the meaning of the
Act.
3. By discriminating with respect to the hire and tenure of Inez Foraker, thereby
discouraging membership in the Union, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8 (a) (3) and (1) of the Act.
4. By interrogating employees concerning their affiliation with the Union, and by
threatening to withdraw benefits previously accorded employees if the Union came
into its plant, Respondent has interfered with, restrained, and coerced employees in
violation of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
J. J. NEWBERRY COMPANY 37
RECOMMENDED ORDER3
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this case, it is recommended 4 that Respondent, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in and activities on behalf of the Union or any
other labor organization of its employees, by discharging any employee, or in any
other manner discriminating in regard to hire or tenure of employment, or any term
or condition of employment.
(b) In any other manner interfering with, restraining, or coercing its employees in
the exercise of their right to self-organization, to form, join, or assist labor organiza-
tions, including the above-named labor organization, to bargain collectively through
representatives of their own choosing, or to engage in other concerted activities for
the purpose of collective bargaining or mutual aid or protection, or to refrain from
any or all such activities except to the extent that such right may be affected by an
agreement authorized by Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer to Inez Foraker immediate and full reinstatement to her former or sub-
stantially equivalent position without prejudice to her seniority and other rights and
privileges.
(b) Make whole Inez Foraker for any loss of pay she may have suffered by
reason of the discrimination against her, by payment to her of a sum of money equal
to the amount she normally would have earned as wages from the date of her dis-
charge to the date of Respondent's offer of reinstatement, in the manner set forth in
the section entitled "The Remedy."
(c) 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 all other records relevant or necessary to
the determination of backpay due and to the reinstatement and related rights pro-
vided under the terms of this Recommended Order.
(d) Post in its store in Springfield, Missouri, copies of the attached notice marked
"Appendix." 5 Copies of said notice, to be furnished by the Regional Director for
the Seventeenth Region, shall, after being signed by Respondent's representative, be
posted by Respondent immediately upon receipt thereof and 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.
(e) Notify the Regional Director for the Seventeenth Region, in writing, within
20 days from the date of this Recommended Order, what steps Respondent has taken
to comply herewith.6
It is recommended that the complaint be dismissed insofar as it alleges acts and
conduct in violation of Section 8(a)(1) of the Act not specifically found to be
violative of that section.
3 In the event that this Recommended Order be adopted by the Board, the word "Order"
shall be deemed substituted for the words "Recommended Order "
In the event that this Recommended Order be adopted by the Board, the word "ordered"
shall be deemed substituted for the word "recommended."
5In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "A Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order"
0In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director 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 Re-
lations Act, we hereby notify our employees that:
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in or activities on behalf of Retail
Clerks Union Local 503, Retail Clerks International Association , AFL-CIO,
or any other labor organization of our employees, by discharging , or otherwise
discriminating in regard to the hire and tenure of any employee 's employment
or any other term or condition of employment.
WE WILL NOT question , in an unlawful manner , our employees concerning
their union affiliation and activities or threaten them with loss of benefits if they
engage in protected union or concerted activities.
WE WILL NOT in any other manner interfere with , restrain , or coerce our em-
ployees in the exercise of their right to self-organization , to form labor organiza-
tions, to join or assist the above-named labor organization , or any other labor
organization , to bargain collectively through representatives of their own choos-
ing, and engage in other concerted activities for the purpose of collective bar -
gaining or other mutual aid or protection or to refrain from any or all of such
activities.
WE WILL offer Inez Foraker immediate and full reinstatement to her former
or substantially equivalent position without prejudice to her seniority or other
employment rights and privileges , and make her whole for any loss of pay she
may have suffered by reason of the discrimination against her.
All our employees are free to become or remain , or to refrain from becoming
or remaining, members of the above labor organization , or any other labor
organization.
J. J. NEWBERRY COMPANY,
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, 1200
Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Balti-
more 1-7000, Extension 2732, if they have any questions concerning this notice or
compliance with its provisions.
Ottenheimer and Company , Inc. and Amalgamated Clothing
Workers of America , AFL-CIO. Case No. 9-CA-2585. August
20, 1963
DECISION AND ORDER
On March 1, 1963, Trial Examiner James V. Constantine issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondent and the Charging Union filed
exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Rodgers and Leedom].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report, exceptions, and
144 NLRB No. 8.