Joseph Horne Co.

National Labor Relations Board - Board Decisions

Nov 24, 1970

186 N.L.R.B. 754 (N.L.R.B. 1970)

754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joseph Horne Co. and Retail Clerks International
Association, Retail Store Employees Union Local
1407, AFL-CIO. Case 6-CA-4826
November 24, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On June 26, 1970, Trial Examiner Lowell Goerlich
issued his Decision in this proceeding, finding that
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 Trial
Lxaminer's Decision. The Trial Examiner also found
that Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and
recommended that the complaint be dismissed as to
them. Thereafter, the General Counsel and Respon-
dent filed exceptions to the Trial Examiner's Decision
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
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 the proceeding, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner to the extent consistent with this
Decision.
The Trial Examiner found that Respondent violated
the Act by maintaining an invalid no-solicitation
rule,' threatening to discharge an employee if she
should engage in union activity, and by discharging
an employee for engaging in union organizing
activities. We affirm these findings but rely on a more
limited rationale than the Trial Examiner in conclud-
ing that the discharge was illegal. We find it
unnecessary to reach the Trial Examiner's alternate
finding based on his interpretation of American Ship
Building Co. v. N.L.R.B., 380 U.S. 300.
Ruth M. Klaus, a regular part-time clerk, was
employed by Respondent from November 1965, until
r The Respondent excepts to the Trial Examiner 's finding that the rule
violated Section 8(a)(3) since the complaint alleged that it violated Section
8(a)(l) and a violation of Section 8(a)(3) was not proved in this respect.
This was obviously a typographical error and is hereby corrected.
Respondent also argues that the rule is ambiguous and that, though the
rule may technically be unlawful , its supervisors were instructed to permit
lawful union activity and that the rule was not applied in an unlawful
manner . We do not agree that the rule is ambiguous ; it broadly prohibits
her discharge on November 24, 1969, allegedly for a
failure to comply with Respondent's credit authoriza-
tion procedures which permitted an impostor using a
stolen credit card to defraud the store of some $23.
Since August 1969, Klaus had been engaged in union
activities and at the time of her discharge was the
leading union advocate in the Respondent's store,
having solicited approximately 40 clerks and obtain-
ing some 30 signed authorization cards.
On October 10, 1969, Klaus sold a $23 piece of
luggage on credit without obtaining the required
authorization. On November 1, 1969, the store
manager, James Clagg, was advised by the assistant
credit manager that the owner of the card denied any
knowledge of the transaction. Clagg contacted Hazel
Pizzano, personnel manager, had her investigate and,
upon determining the identity of the clerk involved,
told Pizzano to review the matter and find out what
Klaus' attitude was. Pizzano later reported that Klaus
had shown great concern and offered restitution.
Clagg testified that because Klaus was a rather long-
time employee he decided to obtain more information
and contacted John Blakeley, credit sales manager,
for a fuller investigation and his opinion. On
November 22, 1969, the day of the discharge, Clagg
received a memo from Blakely which, inter alia,
stressed the seriousness of the offense. Clagg then
determined to fire Klaus but first contacted Robert
Neil, labor relations manager, and Larry Stoneberg,
vice president and operating superintendent to
confirm his decision. Thereafter, Clagg called in
Klaus, reviewed the situation, declined her offer of
restitution, and terminated her, but upon her inquiry
about references gave her his card. Based on the
credited testimony, he told her at this time that he
would give her the best of references.
We agree with the Trial Examiner's finding that the
Respondent was well aware of Klaus' union activities.
In particular, we find that any doubt Respondent
might have had concerning Klaus' union involvement
was removed on November 20, when Thomas Best
asked Thomas Palmer, Klaus' supervisor, where she
was and then identified himself as a union organizer
when Palmer, whom Best did not know, asked if he
could help. Respondent's animus toward the Union is
amply demonstrated by its threat (found to be a
violation of 8(a)(1)) to discharge employees for
engaging in lawful union activity. The pretext for her
discharge, though plausible standing alone, becomes
any unapproved solicitation on company property or time . The fact that
supervisors were instructed to permit lawful union activity and the absence
of evidence that the rule was enforced unlawfully are irrelevant in this
context, since there is no evidence that this information was communicated
to employees. A no-solicitation rule which is overly broad, whether
enforced or not, has an inhibiting effect on lawful organizational activities
and is therefore illegal.
186 NLRB No. 104
JOSEPH HORNE CO. 755
tenuous when viewed in the light of the evidence
relating to Respondent's authorization practices and
problems. Respondent continually urges that this is
the only case of fraud Clagg had encountered and that
Klaus' failure to follow procedure not only cost the
store $23 but also deprived it of the opportunity to
recover a stolen card and apprehend a felon. That the
Respondent was genuinely concerned with the failure
of employees to follow authorization procedures is
established beyond doubt by the record. It is also well
established, however, that this concern stemmed from
the fact that failure to follow such procedures was
almost a way of life for its employees; a yet up to
Klaus' discharge no employee was fired for this
offense. Failure to obtain authorization was the
subject of numerous memoranda, from the credit
sales manager to store managers, which almost
invariably requested that violations detected by spot
checks be reviewed with the sales clerks involved but
did not mention possible discharge.
In a memorandum of April 9, 1970, certain
categories of violation are discussed, including "Lost
or Stolen Plate" which is identified as a category
separate from "Fraud," although the only difference
which appears from the definitions given is that fraud
may refer only to those instances where the company
had concluded that the transaction did in fact involve
someone other than the rightful owner. In both cases a
card has been reported as lost or stolen and has
subsequently been used to make a purchase. The
memorandum recites that an analysis of transactions
in Respondent's stores on March 21, 1970, showed
there were 25 charges involving a lost or stolen card
and that they could result in a direct loss to the
Respondent. Thirty-five violations of authorization
procedures in other categories, which are said to be
almost certain losses or to entail litigation or collec-
tion expenses, are also recited. This was in a single
day, one which showed a "marked improvement."
It is extremely difficult to accept Respondent's
contention that Klaus' discharge stemmed from the
result of her failure to obtain the required authoriza-
tion. Presumably, credit authorization procedures
exist to prevent the very situation Klaus found herself
involved in, and anyone violating the procedure runs
a risk that the violation will result in a loss to the
Respondent. Respondent certainly is not running a
roulette game where an employee bets his job on
whether or not his failure to follow procedure will
result in a loss. Logically, the seriousness of the
offense turns not on the actual result but on the
average result of such an offense. That Respondent in
fact recognizes this is demonstrated by its continuing
concern with violations of its procedures whether or
not they actually result in losses.
What Klaus did was no more, nor less, serious than
what other employees did who improperly processed
transactions which, fortuitously, did not result in any
loss and, a fortiori, were certainly no more serious
than other authorization violations which caused
losses to the Respondent but did not result in the
employees involved being fired.
The reason Respondent gives for Klaus' discharge is
not believable in the light of the record. Clagg' s initial
stress on Klaus' reaction when confronted with her
mistake, coupled with his later disregard of it along
with her offer of restitution, might otherwise be
passed off as the kind of human inconsistency which
results from a change of mind upon consideration, but
in context it is strong circumstantial evidence of
unlawful motivation since her discharge followed
soon after credited testimony establishes that Respon-
dent gained positive knowledge of her union activity.
Respondent's union animus is established by its
threat, fulfilled here, to discharge any employee found
engaged in union activity. We find, in agreement with
the Trial Examiner, that Klaus' discharge violated
Section 8(a)(3) of the Act.
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 Trial Examiner, as modified herein,
and hereby orders that the Respondent, Joseph
Horne, Co., Bethel Park, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as modified below:
1. Delete paragraph 1(b) of the Trial Examiner's
Recommended Order and substitute the following
therefor:
Maintaining a no-solicitation rule which prohibits
employees from soliciting for a union during their
nonworking hours in nonselling areas of the store.
2. Delete paragraphs four and five from the
Appendix attached to the Trial Examiner's Decision
and insert the following therefor:
WE WILL NOT maintain a no-solicitation rule
which prohibits our employees from soliciting for
a union during their nonworking hours in nonsell-
ing areas of our store.
WE WILL NOT threaten to discharge employees
for engaging in lawful union activity.
2 At the store where Klaus was employed the failure to obtain
authorization ranged from 15 to 35 percent on the days for which data are
available At one store the high reached 46 percent
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH , Trial Examiner : A charge was filed
by Retail Clerks International Association , Retail Store
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees Union Local 1407, AFL-CIO, on November 26 , III . THE UNFAIR LABOR PRACTICES
1969, and was served on the Joseph Horne Co., the
Respondent herein, by registered mail on November 26,
1969. A complaint and notice of hearing was issued on
March 26, 1970, in which it was alleged that the
Respondent had violated Section 8(a)(1) of the National
Labor Relations Act, as amended, herein referred to as the
Act, by threatening discharge of employees for participat-
ing in union activities and by unlawfully interrogating
employees as to their union membership , activities, and
sympathies . Without objection the complaint was amended
by including another incident of unlawful interrogation and
an allegation charging that the Respondent had maintained
in effect an invalid no-solicitation rule. In the complaint it
was also alleged that the Respondent had violated Section
8(a)(3) of the Act by discriminatorily discharging employee
Ruth M . Klaus on November 22, 1969.
The Respondent filed timely answer denying that it had
engaged in or was engaging in any of the unfair labor
practices alleged.
The case came on for hearing on April 30 and May 1,
1970, at Pittsburgh , Pennsylvania . Each party was afforded
a full opportunity to be heard , to call, examine, and cross-
examine witnesses , to argue orally on the record , to submit
proposed findings of fact and conclusions , and to file briefs.
All briefs have been carefully considered by the Trial
Examiner.
Upon the whole record and upon his observation of the
witnesses the Trial Examiner makes the following:
FINDINGS OF FACT, CONCLUSIONS, AND REASONS
THEREFOR
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Pennsylvania corporation engaged
in the retail sale of goods and appliances at its various retail
stores located in the State of Pennsylvania. During the 12-
month period immediately preceding the issuance of the
complaint Respondent had a gross volume of business in
excess of $500,000 and received goods and materials valued
in excess of $50,000 for use at its Pennsylvania retail outlet
directly from points outside the State of Pennsylvania. At
all times material herein the Respondent is and has been an
employer as defined in Section 2(2) of the Act engaged in
commerce and operations affecting commerce as defined in
Section 2(6) and (7) of the Act, respectively.
H. THE LABOR ORGANIZATION INVOLVED
Retail Clerks International Association , Retail Store
Employees Union Local 1407, AFL-CIO, herein referred to
as the Union , is now and has been at all times material
herein a labor organization within the meaning of Section
2(5) of the Act.
The No-Solicitation Rule
The General Counsel claims that the following rule is an
invalid no-solicitation rule, viz:
SUBJECT: SOLICITATIONS OFEMPLOYEES
POLICY: EXCEPT UPON APPROVAL OF THE
OPERATING COMMITTEE, NO SOLICITA-
TIONS OF EMPLOYEES FOR ANY PUR-
POSE SHALL BE PERMITTED ON COMPA-
NY PROPERTIES OR ON COMPANY TIME.
The Company will cooperate in fund-raising campaigns
for recognized charitable organizations which have
been approved by the Operating Committee.
Management will provide for payroll deductions for
employees who wish to participate in such fund-raising
efforts.
No other solicitation of any kind will be permitted on
Store properties.
The rule appears in a Joseph Horne Co. booklet entitled
"Personnel Policies and Procedures" which is distributed to
the Respondent's employees. The booklet contains a letter
addressed to "Dear Co-Worker" which among other things
states, "On the following pages you will find those policies
which most affect you. . . . Please read them carefully so
that you will know what we can expect of you and what you
may expect from us." The record is barren of any credible
evidence to the effect that the rule above set forth has been
changed or amended in any way or is not administered as
written. Thus, the Trial Examiner finds that the rule as
written was maintained in effect at all times material herein.
In view of the Board's holding in Peyton Packing
Company, Inc., 129 NLRB 1275, 1280, 1281, the rule is
unlawful on its face. In the Peyton Packing Company case,
supra, a rule which provided "The only soliciting allowed at
[the] plant will be for the United Fund or other recognized
and established charities, and these must be approved by
the Company. No other soliciting of any kind will be
allowed," was declared "an unlawful restriction upon the
rights of employees to self-organization" and that by
promulgating said rule, to the extent that it was applicable
to nonworking time , Respondent interfered with, re-
strained, and coerced its employees in the exercise of the
rights guaranteed by Section 7 of the Act, within the
meaning of Section 8(a)(1) thereof. The Trial Examiner
finds no substantial variance between the Peyton Packing
Company rule and the rule in the present case.
While it is true that an employer may promulgate and
enforce a rule prohibiting union solicitation during working
hours, time outside working hours is an employee's time to
use as he wishes without unreasonable restraint, although
the employee is on company property. N.L.R.B. v. Illinois
Tool Works, 153 F.2d 811, 814 (C.A. 7). The Respondent's
rule clearly bars union solicitation on company property
during the employees' nonworking time "except upon
approval of the operating committee ." Additionally the
credible record reveals no need for such a rule in order to
JOSEPH HORNE CO. 757
maintain production or preserve discipline on the Compa-
ny's premises.' Under these circumstances the rule is not
saved by the proviso "except upon approval of the
operating committee" for the rule, as reasonably construed,
might well deter an employee from engaging in union
activities on company property during nonwork time or
cause the employee to believe that he was acting at his peril
by engaging in union activities (such as soliciting another
employee) on company property during nonworking time.
N. L. R. B. v. Illinois Tool Works, supra, 814; N. L. R. B. v.
Walton Mfg. Co., 289 F.2d 177, 180-181 (C.A. 5)
Accordingly the Respondent by maintaining in effect an
invalid no-solicitation rule is in violation of Section 8(a)(3)
of the Act.
Other Alleged 8(a)(l) Violations
First. During June 1969 Ruth M. Klaus, the alleged
disciiminatee, employee Gladys Nedzesky, and Clarence
Flowers, an admitted supervisor, were "talking about
different subjects." According to Klaus, she commented,
"Cal, I wish to God we could get a Union in this store, so
we would be treated like human beings." Flowers replied,
.. don't talk about it, because my orders are if anybody
is caught talking about it, or discussing it, they were to be
fired immediately."2
About 3 weeks before November 22, 1969, the date Klaus
was discharged, Klaus told supervisor Flowers ". . . guess
what, we're getting a Union in here." Flowers replied, "You
are?" "Yes," Klaus responded. Whereupon Flowers asked
Klaus if she had signed a card Klaus answered in the
affirmative. Flowers said, "I don't think anybody in my
department has signed up, at least that I know of." 3
In agreement with the General Counsel the Trial
Examiner finds the words used by Flowers constituted a
threat of discharge of employees who engaged in lawful
union activity and was in violation of Section 8(a)(1) of the
Act. On the other hand in disagreement with the General
Counsel, the Trial Examiner views the interrogation by
Flowers as a natural reaction to an employee's voluntary
communication to him, viz. "we're getting a Union in here."
In fact the question appears superfluous since the answer
sought by the question is obvious from Klaus' opening
remark.
Under these circumstances the interrogation did not
interfere with, restrain, or coerce employees in the exercise
of rights guaranteed in Section 7 of the Act.
Second- Wilma Parker testified that Mildred McCudden,
an admitted supervisor, asked her on December 11, 1969, if
she had heard anything about the union . Parker answered,
"Yes." Whereupon McCudden asked her if she thought it
would get in. Parker answered that she didn't know; that all
she knew was that the Union passed out pamphlets.
McCudden's version differed. She testified that Parker
mentioned that she had been approached to sign a union
card and she didn't know what to do. She asked McCudden
what she should do. McCudden replied ". . . you don't
stand to gain any benefits by signing one, you already have
them, but this decision is entirely yours."4
The Trial Examiner is uncertain as to which version
actually reflects the true facts. Thus the Trial Examiner
finds against the General Counsel on the issue.
The Discharge of Ruth M. Klaus
First • The Union commenced an organizational drive of
the Respondent's South Hills Village Store in early August
1969 at which time Thomas Best , an organizer for Local
1407, commenced distributing union literature at the
Respondent's employees' entrance. On the second morning,
as Best and Russel Klapach, another union organizer, were
passing out union literature at the employees' entrance,
Robert Neil, director of personnel, approached the
organizers and asked them what they were doing. Best, who
was acquainted with Neil, replied that it was none of Neil's
business but continued, "We are out to organize this store."
Neil left but soon returned with a barrel marked "Trash"
which he placed at the employees' entrance. Thereafter Neil
and South Hills Village Store Manager James Clagg
"[stood ] on the top landing watching people go to work."
Some time in October, Neil appeared at the store again
and asked the organizers what they were trying to do. Best
replied, ". . . we know the law and you know the law and if
we are violating the law, call the police." 5
Second: Ruth M. Klaus was a regular part-time clerk who
since November 1965 had been employed at the Respon-
dent's South Hills Village Store. Except for the incident
upon which her discharge was predicated she had been a
satisfactory employees At the time of her discharge on
November 22, 1969, she was employed in the patio
department. Her supervisor was Thompson Palmer. Prior
to August 1969 Clarence Flowers had been her supervisor.
Klaus first met Union Organizer Best in August 1969
outside of the employees' entrance at which time she
introduced herself to him and asked him if he could help
the employees because they needed a union. Best suggested
that Klaus contact him. Approximately a week later Klaus
and Best met in the coffeehouse in the mall wherein the
I Since the rule barred union solicitation on company property during
the employees' nonworking time the burden was on the Respondent to
demonstrate that the rule was necessary for production or discipline
NLRB v Varo, Inc, 74 LRRM 2096 (C A 5)
2 Gladys Nedzesky testified, " the subject of the Union came up
and Mr Flowers told us that he had orders to fire anyone who joined the
Union or report them to be fired"
3 Flowers denied that he had mentioned union to Klaus or engaged in
the conversation above detailed The Trial Examiner has examined the
demeanor of Klaus, Flowers, and Nedzesky in the light of the testimony
and the record as a whole and concludes that Klaus and Nedzesky were
credible witnesses On the other hand Flowers left the Trial Examiner with
a strong conviction that Flowers was dissembling
3 Parker remembered that McCudden had said, "We were getting as
much as downtown anyway and it's up to you whether you believe in it or
not, or not believe in it, but would be for or against it, the Union "
.,
The foregoing findings are based upon Best's uncontradicted
testimony Neil did not appear as a witness His unexplained failure to be
called warrants the inference that, if his testimony had been adduced, it
would not have been favorable to the Respondent Interstate Circuit v
United States, 306 U S 208, 225, 226, N L R B v Wallick and Schwalm
Company, 198 F 2d 477, 483 (C.A 3), N L R B v Ohio Calcium Co, 133
F 2d 721 (C A 6) Clagg testified but did not touch on these subjects
6 Store Manager Clagg characterized Klaus as a "satisfactory
employee " Merchandise Manager Shawman told Klaus that her "sales had
been good," and that she should "keep up the good work " Section
Manager Palmer informed Shawman that Klaus had been "very
conscientious" in her work Shawman had promised Klaus a raise in pay in
February 1970
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
South Hills Village Store is also located. Best gave union
applications to Klaus and "told her to contact people and
to start signing them up and mail them back." In September
1969 Best asked Klaus to form a committee and informed
her that two people inside the store were working for the
Union, one in men 's clothing and the other in the
foundation department. Such a committee was formed
which met in October 1969 at the Pioneer Inn Restaurant.
At this meeting Klaus handed Best some signed applica-
tions which she had obtained that week. Organizing
procedures were discussed. Until her discharge Klaus
maintained her contacts with Best.
Klaus solicited approximately 40 clerks in about 10
departments? and obtained signed union applications from
30 clerks. During the week in which she was discharged she
had obtained about 10 signed applications. In soliciting for
cards, among other things, Klaus told employees that the
"best thing" for employees to do so they "wouldn't have to
do scrubbing in July would be to sign a Union up, because
the Union would get in and help us." These solicitations
took place "in the store in the departments on the floor .. .
in the mall and outside of the mall and in the ladies room,
and in Sun Drug." In November Klaus requested more
application forms from Best. Best brought them to the store
and handed them to her at her counter. She put them in her
purse. Best visited Klaus on other occasions. His visits were
observed by managerial personnel who knew his identity.8
As noted above in June 1969, Klaus had commented to
Supervisor Flowers that "I wish to God we could get a
Union in this store," and again in a conversation about 3
weeks before she was discharged she told Flowers she had
signed a union card.
On November 19, 1969, Klaus telephoned Best. She
asked Best to bring her more applications and to pick up
the executed ones she was holding. On the next day, after
distributing leaflets between 9 and 10 o'clock at the
employees' entrance, Best appeared in the store at the
camera department and inquired of Supervisor Thompson
Palmer whether Klaus was present. Palmer, Klaus'
immediate supervisor, answered in the negative.9 Best also
mentioned Thomas Braken, another employee. Thereafter,
when Braken arrived at the store Palmer told him that a
union man was looking for him and Ruth Klaus. Later
employee Braken telephoned Klaus and told her "to keep
the Union man away from [him]." Klaus then telephoned
Best and "told him not to come in, because they were
supposed to be waiting for him that night, the police were."
Third: In August 1969, at a management meeting Clagg
read a statement for "The Guidance of Supervisors and
Executives" furnished by "the personnel department, in the
downtown store," to which was attached a part addressed
"To our Supervisors." The statement was also distributed to
each "management person" in the store. Among other
things it was recited, "It has come to our attention that
certain Joseph Horne Co. employees have been solicited
recently by a union to become members. We believe that it
is our responsibility to tell them of their rights under the law
and to express your company's point of view with reference
to any union 's objectives. . . . Should there be an election,
we will ask your participation as supervisors to the end that
our employees do not feel it necessary to be represented by
any union in order to receive fair treatment as to their terms
and conditions of employment."
Under "Examples Of What You Can Say" supervisors
were told:
As supervisors, you should endeavor to provide equal
supervision to all, but you should also feel free to
express your point of view and to state the Company's
viewpoint in your own manner of expression.
1. "Ever since the end of World War II, unions have
won but a very few department store elections and have
lost a great many. In several locations in this country,
unions have been engaged in long and costly strikes."
2. "If unions are all that they claim to be, why is it true
that their membership at our Main Store is lower than it
has been for many years. Since 1950, many departments
have withdrawn and considerably less than 50 [percent]
of our employees are represented."
3. "You can be sure that the outsiders will tell you
only that which they wish you to hear. They will not tell
you the reasons why the unions have lost so many free,
secret ballot elections, and about their record in many
strike situations."
4. "Our employees have nothing to gain from
participation in unions because it is long-standing
company policy to maintain personnel conditions equal
to or better than those of competitive stores in the area
of each of the Horne stores. This policy includes any
stores that may be unionized as well as those that are
not."
5. "Ask the organizers and continue asking them what
is the true situation about dues or assessments and
possible compulsory union membership as a condition
of employment as well as possible picketing duty, and
even being called out on a strike. Do not be content
with general answers."
The Respondent further advised, "If an election should
be held, we will also directly communicate with every one
of our employees to give that side of the story which you
can be sure they are not hearing from those persons outside
of the store or within the store
Fourth: On October 10, 1969, a person appeared with an
Associates charge card issued to Minor Hawks and bought
a piece of Grasshopper luggage for $23.32. Klaus, the clerk,
allowed him credit without clearing the transaction through
credit authorization.
I Klaus testified that she solicited employees "on the patio, and toys,
housewares, hardware, the drapery department, the service desk . . . in the
gift department . . . in the yard goods department ... in men's clothing,
and in men's accessories , and in the infant's department."
8 Clagg admitted that Best was in the store on at least one occasion.
9 The Trial Examiner believes that Best appeared at the store and asked
for Klaus as he testified ; however, it is the opinion of the Trial Examiner
that his memory was overactivated and that he in fact did not identify
himself to Palmer. Palmer's lapse of memory was even more conjured than
Best's activated recollection . Palmer testified that he had neither seen Best
passing out union literature nor in the store. In view of the normal
notoriety which attaches to a union representative distributing handbills
together with Best's repeated presence at the employees' entrance
distributing union handbills and in the store , Palmer's testimony is viewed
as deliberate subreption . The Trial Examiner is convinced that Best
approached Palmer who recognized Best and inquired for Klaus . The Trial
Examiner has considered the demeanor of the witnesses and the
uncontroverted testimony of employee Braken which is credited . Braken
testified, "when I came in Tom [Palmer I told me that a Union man was in
looking for me and Ruth Klaus."
JOSEPH HORNE CO. 759
On November 1, 1969, Clagg received a telephone call
from the assistant credit manager of the Respondent which
was followed by the memorandum set out below.
Attached is a photo copy of the transaction we
discussed today. Please note:
1. Account number not written on salescheck,
but is keyed in register???
2. No authorization and over floor limit for no-
carry.
3. No identification noted on salescheck.
Our customer denies all knowledge of this sale. He
claims he has not lived at that address shown for about
two years. We can't dis-allow any fraud claims since we
can't prove otherwise. Obviously, this will have to be
written off as a loss.
We will appreciate anything you can do on this to
prevent a recurrence.
Clagg received the memorandum on November 4, 1969.
Clagg conferred with Personnel Manager Hazel Pizzano
who upon investigation advised Clagg that Klaus was the
clerk responsible for the sale. Clagg directed Pizzano to
review the matter with Klaus and report the full details to
him. Among other things he asked her to find out what
Klaus' "attitude was towards it."
On the same day Pizzano reviewed the matter with Klaus.
Palmer was present. Klaus told Pizzano that the account
number put into the register was from an Associates charge
plate. According to Pizzano, she said, "Ruth, don't you
know that that is wrong. . . . [Y]ou only put Horne's
numbers into the machine . . . you know a Charge
Associate's plate is used for identification only. Any sale
over ten dollars, without a Horne's plate, you must call
downtown for authorization." According to Pizzano, Klaus
responded, "I do know that, I know I was wrong ... I have
done it before, I don't know why I did it." 10 Pizzano told
her "in the future to be more careful." Klaus asked Pizzano
whether she could make restitution. Pizzano replied that
she would take the matter up with Clagg.
On November 10, 1969, Pizzano reported to Clagg. She
related that Klaus had obtained the account number from
an Associates charge plate and admitted that "she had done
wrong, and she had done it before, and she didn't know
why she did it, and she offered to make restitution."
Pizzano also reported that Klaus "had shown great
concern." Clagg said that "that would help." About 10 days
later Pizzano told Klaus that she had talked to Clagg and
"he was glad to know she had shown great concern." I I
Upon the receipt of Pizzano's report, because Klaus was
"a rather long time employee," according to Clagg, he
"felt" that before he took action he should obtain
additional information. He called John Blakeley, credit
sales manager, and after advising him that Klaus was a
longtime employee he wished him "to fully investigate this
particular transaction." Clagg asked that the matter be
investigated "more fully than what was in the
information" 12 which had been submitted to him. He also
asked for Blakeley's opinion. On Saturday, November 22,
1969, Clagg received the following reply, dated November
21, 1969:
I have finished the review of the above mentioned
charge as we discussed after you received A. L. Hassler
memo regarding it. I had hoped to get this to you
sooner, but I had several months film researched to get
some signatures comparisons. The results are attached.
What happened in this case is very serious and is a
violation of Company policy and procedure. Under no
circumstances should a salesperson do what was done.
No authorization, no identification, and account
number entered without the first two sources. As I
mentioned to you on the phone we cannot have this
happening or our entire sales procedure is in jeopardy.
Clagg explained his reaction to the situation as follows:
... at that time I read his letter totally and the fact
that he considered it a very serious charge transaction and
so forth which has been read into the record. Taking
this information and this exhibit four A [Blakeley's
memorandum] into consideration, along with the facts
presented to me by Mrs. Pezzino [sic], indicating that
this was not a misunderstanding of the procedure but
rather an intentional violation of our procedure, a
violation which had taken place not once but many
times, and the fact that she had been there many years
and certainly had been exposed to all of the various
bulletins and information regarding this particular type
of transaction. I made the decision at that time that she
should be released. [Emphasis supplied.]
Clagg also conferred with Robert Neil, labor relations
manager of the Respondent, and Larry Stoneberg, vice
president and operating superintendent of the Respondent,
sometime after Pizzano's report to him, but before
Blakeley's November 21, 1969, reply. Clagg said he
conferred with Neil and Stoneberg because it was "the first
incident of this particular nature that had ever been
brought to [his] attention," that is to say "the account
number was not written on the sales check but was keyed
into the register. No authorization on an over the floor limit
and no identification noted on the sales check and also the
charge associates plate had been used." 13 Clagg talked to
11 Klaus testified
A Well Mrs Pezzino [sic] came down with the sales slip she
showed it to me, a copy of it And she said is that my number on the
sales slip and I said yes She said to me, you sold this luggage, and I
said yes and then she asked me where I got this number that I rang on
the register and I said from an Associates Charge a Plate and she said
to me, why didn't you get authorization, and I said because it was
under fifty dollars, and she at that time said, well it has been changed
to ten dollars and I said I'm sorry, but I didn't know that She said
that the man had said that he did not buy the luggage and he would
not pay for it, and so I asked her if she was doubting the sale, the
legitimate sale, by that I asked her if she meant that I took it or sold it
to my friends or something. And she said absolutely not, and I said
well what would it be now, if this man says he did not buy it. She said
it is a loss to the store, so I told her if she wanted me to pay for it.
would, and she said well, she was sent to talk to me and she would
report back to Mr Clagg and she left
11 Klaus' version was as follows " she said that she had talked to
Mr. Clagg about this sale of luggage, and she told Mr Clagg how upset I
had been about it And so Mr. Clagg was going to forget about it since I
had been so sincere she said If I had been a smart aleck, he would have
pursued it further, and she said she thought that she would tell me this to
set my mind at ease
12 No significant additional information was submitted to Clagg
11 Later in his testimony Clagg said, "I wanted to talk to an experienced
man, in the company, which I considered Mr Neil, to verify myjudgment,
primarily because this was the very first case of fraud, that I had
encountered as store manager . " ( Emphasis supplied) In view of the
many infractions of like character , Klaus' violation was not unique
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Neil first. Of this Clagg testified, "I told him what the
decision was that I had arrived at, and asked for his opinion
on my decision." (Emphasis supplied.) Neil suggested that
Clagg confer with Stoneberg. Again quoting Clagg, ". . . he
[Stoneberg] agreed with the conclusion that I had arrived at
[that the sales person involved should be released.]"
(Emphasis supplied.)
Clagg admitted that Klaus was the only employee he had
ever spoken to "regarding a violation of company policy or
procedure." Clagg said he did not "normally handle that
type of a violation"; he said that he would not have
"normally handle[d]" the investigation of Klaus' case, and
that he did not "normally" handle credit authorization
violations by clerks. These were normally handled by the
operating assistant manager. The only such violation which
had been brought to his attention was the Klaus case. The
discharge of Klaus was not discussed with her immediate
supervisor.
On November 22, 1969, Clagg called Pizzano to his office
and told her he was going to discharge Klaus that evening.
He indicated that he "considered this credit procedure very
serious" and asked Pizzano to make sure she had a
replacement for her that evening.
Klaus appeared at Clagg's office. Clagg told her that "he
had no alternative but to dismiss [her], because [she]
deliberately violated the store policy. [She] did not get
authorization on that check...." Klaus asked for another
chance; Clagg refused although he gave Klaus his card and
told her he would give her "the best of references." 14
Later in the evening Clagg called Pizzano to his office
where he told her he had discharged Klaus. He directed
Pizzano to make out the necessary papers and told her to
write as the reason: "Serious Violation of Company Credit
Authorization Procedures" which she did.
The Employer's publication "Employee Conduct and
Regulations" dated March 1, 1969, did not list "violation of
Company credit Authorization Procedures" as an offense
"which will be dealt with severely and ... may result in
immediate dismissal." In fact it is not mentioned at all.
Likewise the Respondent's publication "Personnel Policies
and Procedures" does not include "Violation of Company
Credit Authorization Procedures" as an offense which "will
be dealt with severely and will undoubtedly and may result
in immediate dismissal." Following the list of such offenses
appears, "Supervisors are required to submit to the
Personnel Director warning notices of any violations of the
above regulations."
Fifth: Prior to September 18, 1967, the Respondent used
the Associates credit card for imprinting customer charge
sales. When this card was used sales persons were required
to obtain credit authorizations for sales in excess of $50.
Sometime before September 18, 1969, the Joseph Horne
Co. credit card was issued. In a memorandum issued by J.
B. Blakeley, credit manager, effective September 18, 1967, it
was set forth that "If the customer does not have a Horne
Charge Card the salesperson is to manually write on the
14 Clagg admitted that he gave Klaus his personal card and told her she
could use him for reference.
15 Sargent Eaton , assistant store manager, admitted the conversation
"about the fact that she had not gotten authorization on her sales" but
denied that an Associates card had been used . He testified , ". . . there was
no action taken, other than the, fact to tell her, that on repeated violations,
sales check the customer's name and address information
and complete the sales transaction in the normal manner. If
the sale is $10 or more the salesperson must call for
authorization."
Klaus testified that it was her understanding that after the
Joseph Horne Co. card was issued, if an Associates charge
card was presented the salesperson was required to procure
credit authorization only when the sale was over $50.
Employee Gladys Nedzesky corroborated Klaus' testimony
in this respect and stated she followed this rule. Employee
Lucy Slocum testified that the salesperson was required to
obtain credit authorization on an Associates card when the
sale was over $25. In December 1969, Slocum learned from
another clerk that credit authorization was required for a
purchase over $10 on an Associates card. She sought
verification from her supervisor who was unable to give it.
Later she reported to Slocum that the information was
correct. Slocum testified that, in late February or early
March 1970, the assistant store manager, Sargent Eaton,
brought to her attention the fact that she had not received
an authorization for a sale in "the neighborhood of $25.00"
on an Associates card and a sale of over $50 on a Joseph
Horne Co. plate. Slocum responded that she was sorry. The
assistant store manager replied that she should not "feel
bad, because he had many others that had done the same
thing." 15
Anna McHugh testified that shortly after Klaus was
discharged her supervisor, Tom Palmer, asked her if she
knew why Klaus had been fired. She answered, ". . . for
violating the store policy." Whereupon Palmer informed
McHugh that she also had violated store policy in that she
had made a fraudulent sale over $50 without authorization,
However, he said, ". . . don't worry about it ... I took
care of it." Several weeks later, Assistant Store Manager
Eaton called McHugh to the office and showed her a sales
check for over $50 on a Joseph Horne Co. card for which
she had not obtained authorization. McHugh admitted the
mistake. Eaton said that she should "see that [she] didn't do
it again." About a week later Eaton asked McHugh if she
understood that if she incurred "another violation of this
type that [she ] would be subject to dismissal." 16
Kenneth Fisher testified that on several occasions he
made sales of over $50 on the Joseph Horne Co. charge
card without obtaining credit authorization. He was not
disciplined.
The Respondent conducted two spot checks of credit
authorizations in 1969, May 2 and December 31, 1969.
Checks were also made on January 31 and March 21, 1970.
These checks or unauthorized transaction analyses as they
were called indicated whether the specific sales transaction
for which authorization was required was in noncompli-
ance with the Respondent's authorization procedures "with
a Horne charge card or without a Horne charge card." The
analysis was sent to the store involved, together with the
sales checks, for a review.
The analysis of May 2, 1969, indicates that at the South
or on a second or repeated violation , that she could be subject to
dismissal ." The matter had been brought to Eaton's attention by the credit
department.
16 Eaton denied that the discussion with McHugh had anything to do
with the failure to get an authorization.
JOSEPH HORNE CO.
Hills Village Store 37 out of 151 sales transactions requiring
authorization did not comply with the sales procedure
requirements. On December 31, 1969, the figure was 12 out
of 73 sales transactions; on January 31, 1970, the figure was
35 out of 153 sales transactions; and on March 21, 1970, the
figure was 22 out of 145 sales transactions. The percentages
of unauthorized transactions for the South Hills Village
Store varied from 15.1 to 34.6 percent. The high in other
stores reached in some cases 46.2 percent. On February 4,
1970, J. B. Blakeley informed the various store managers,
"In comparison with the last review, it is not encouraging to
note we have lost ground in our compliance percentage."
A spot check of sales checks revealed that there were a
substantial number of violations which did not involve
Joseph Horne Co charge card.17
Sixth: On the basis of the foregoing facts the question is
whether the Respondent's "true purpose" or "real motive"
in discharging employee Klaus was to "discourage
membership in any labor organization." See N. L. R. B. v.
Brown Food Store, 380 U.S. 278, 287; Local 357, Internation-
al Brotherhood of Teamsters [Los Angeles-Seattle Motor
Express] v. N.L.R.B., 365 U.S. 667, 675 In the considera-
tion of this question the Trial Examiner is aware of the rule
that "Management can discharge for good cause or bad
cause, or no cause at all" except "when the real motivating
purpose is to do that which Section 8(a)(3) forbids."
Portable Electric Tools, Inc. v. N.L.R.B., 309 F.2d 423,426
(C.A. 7). It is also taught that "[t]he Board is not compelled
to accept the employer's statement when there is reasonable
cause for believing that the ground put foreward by the
employer was not the true one, and that the real reason was
the employer's dissatisfaction with the employee's union
activity." The Great Atlantic & Pacific Tea Co., Inc. v.
N. L. R. B., 354 F.2d 707, 709 (C.A. 5).
The Respondent claims that the true reason for which the
Respondent discharged Klaus was because of a "Serious
Violation of Company Credit Authorization Procedures."
The Trial Examiner does not believe that the ground stated
was the true motivating cause.18 The Trial Examiner is
convinced that the "true reason" or "real motive" of the
Respondent in discharging Klaus was to discourage
membership in a labor organization and to interfere with
employees' "right to self-organization and to form, join or
assist labor organizations." Persuasive factors in this
respect are: (1) The occurrence of the discharge during the
early stages of a union organizational campaign which
campaign was noticed by the Respondent; (2) the union
animus of the Respondent as disclosed by both its
placement of a trash barrel for receipt of union literature
11 Blakeley testified that the most frequent violation of credit
procedures involved the failure to obtain authorization when a driver's
license , Associates plate, or other item was presented for identification and
the sale was over $10
18 In this respect even though such reason was a cause for discharge a
"discharge which is partially motivated by the employee's protected
activity violates the Act despite the concurrent existence of an otherwise
valid reason " N L R B v Princeton Inn Co , 73 LRRM 3002 (C A 3)
"Thus, where there are legitimate reasons for the discharge of an employee,
the question is whether those were in fact the only grounds for the
dismissal , or whether they were `put forth as a mere pretext tojustify an
impermissible discharge ' " N L R B v Pembeck Oil Corp, 404 F 2d 105.
110 (C A 2)
19 Cf N L R B v. Lexington Chair Co, 361 F 2d 283 (C A 4), in which
761
under the watchful eye of management representatives, by
its 8(a)(1) violations, and by its contemporaneous publica-
tion of "The Guidance of Supervisors and Executives" in
which is disclosed that the Employer was opposed to the
Union's organizational objectives; (3) the Employer's
knowledge of Klaus' union affection and union activities;
(4) Store Manager Clagg's pretermitting attitude toward
Klaus (when he learned "she had shown great concern")
which was discernible before he had conferred with Neil
and Stoneberg; (5) Manager Clagg's interest in the
investigation and discharge of an employee for a credit
authorization procedure infraction which was not his usual
practice; (6) the lack of disciplinary action taken against
numerous other employees who violated credit authoriza-
tion procedures; 19 (7) the confusion among the employees
as to what in fact the regulations were regarding the use of
the Associates plate; (8) the high level participation in
Klaus' discharge by Labor Relations Manager Neil and
Vice President and Operating Superintendent Stoneberg
without credible explanation; 20 (9) the omission of
"Violation of Company Credit Authorization Procedures"
from the published list of offenses for which disciplinary
action taken might result in discharge; (10) Clagg's
willingness to give Klaus "the best of references"; ( 11) the
discharge of a qualified employee for an offense which was
not published as a dischargeable offense; 21 and (12) the
severity of the penalty in relation to the offense and the
timing of the discharge.
The sockdolager lies in the testimony of Clagg. Clagg
testified that when he received the note from Credit
Manager Blakeley on November 22, 1969, to the effect that
"What happened in this case is very serious and is a
violation of company policy and procedure. Under no
circumstances should a sales person do what was done .. .
we cannot have this happening or our entire sales procedure
is in jeopardy," he then and there "made the decision at that
time that she should be released," (Emphasis supplied.) but
in another breath he testified that prior thereto he
contacted Personnel Relations Director Neil, to whom he
related "the decision" which he "had arrived at," and Vice
President Stoneberg, who "agreed with the conclusion that
[he] had arrived at." Thus it is trenchant that the decision to
discharge Klaus was reached before Clagg received
Blakeley's communication and that he could not have
relied, as he claimed, on Blakeley's opinion in respect to
Klaus' violation of company procedures as expressed in the
note. Blakeley's note was but the icing on the cake to gloss
over the pretextual nature of the discharge. Accordingly the
Trial Examiner concludes and finds that by the discharge of
the court of appeals in enforcing a Board Order finding an 8(a)(3) violation
stated
The sudden assertion of previously unenforced rules, coinciding
with a union campaign, has previously been held by this court to be an
unfair labor practice
See also Levinson'r Owl Rexall Drugs, Inc, 161 NLRB 1531, 1533
20 Such high level treatment is incongruous with the character of the
offense which was committed innumerable times by other employees with
no disciplinary action taken.
21 "The discharge of qualified workers who are also union activists is a
circumstance of suspicion which may give rise to a justified inference of
violative discrimination Betts Baking Co v N L R B, 380 F 2d 199, 204
(C A 10)
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ruth M. Klaus on November 22, 1969, Respondent
discriminated against her in violation of Section 8(a)(3) of
the Act.
There is another reason for the same holding.
Section 8(a)(3) prohibits discrimination in regard to
tenure or other conditions of employment to discourage
union membership. . . . It has long been established
that a finding of violation under this section will
normally turn on the employer's motivation.l[iAmerican
Ship Building Co. v. N.L.R.B., 380 U.S. 300, 311.]
However, a "wide range of employer actions taken to
serve legitimate business interests in some significant
fashion, even though the act committed may tend to
discourage union membership," are permitted under
Section 8(a)(3) as "essential if due protection is to be
accorded the employer's right to manage his enterprise."
Idem. at 311: But "there are some practices which are
inherently so prejudicial to union interests and so devoid of
significant economic justification that no specific evidence
of intent to discourage union membership or other
antiunion animus is required. In some cases, it may be that
the employer's conduct carries with it an inference of
unlawful intention so compelling that it is justifiable to
disbelieve the employer's protestations of innocent pur-
pose." Idem. at 311-312.
The discharge of Klaus was inherently so prejudicial to
union interest and so devoid of significant economic
justification that no specific evidence of intent to discour-
age or other antiunion animus is required. The economic
justification advanced by the Employer is plainly apocry-
phal. In its best light the discharge of Klaus must be viewed
as a deterrent against a salesperson's extension of credit
without the proper procedural authorization. But had the
Employer been really interested in obtaining this result by
the discharge method, such method would have been
indiscriminately followed in respect to all employees who
violated the credit authorization procedures. The Employ-
er's lack of interest in this direction is apparent from its
omission from the published list of offenses for which
disciplinary action taken could result in discharge; there
was nothing published to employees on the subject.
Moreover, the discharge method for deterring violations of
credit authorization procedures was not followed before or
after Klaus' discharge. Such disparate treatment disavows a
claim of economic justification. Indeed employees who had
committed like infractions could not escape the realization
that the discharge of Klaus, an ardent union partisan,
during the early stages of a union organizational campaign,
for an offense which they were committing daily (See
"Unauthorized Transaction Analysis") was bottomed on
her union affection and union solicitation activities (Klaus
had obtained 30 signed union applications) rather than on
the violation of company credit authorization procedures.
Thus the discharge of Klaus for an infraction common to
many employees could not have been reasonably read by
the employees otherwise than that the discharge based
upon such a specious excuse was a warning to employees
22 ... an employer 's protestation that he did not intend to encourage
or discourage must be unavailing where a natural consequence of his
action was such encouragement or discouragement . Concluding that
encouragement or discouragement will result , it is presumed that he
that they would be treated likewise if they persisted in
engaging in union activity . Additionally the Employer was
well aware of the current union organizational campaign
which was in progress at the time of Kalus ' discharge.
Hence a natural consequence of the Employer's action was
the discouragement of union activities22 which the
Employer knew or had reason to have known.
Under the facts which must have been known to the
Employer and the employees a foreseeable result of the
discharge of Klaus was to "discourage membership in any
labor organization ." Any other conclusion would be at
odds with the realities of the industrial world and in
opposition to sound reason . Thus the Employer's conduct
must be deemed to have been "inherently destructive of
important employee rights" and an unfair labor practice
must be found "even if the employer introduces evidence
that the conduct was motivated by business considera-
tions." N.LR.B. v. Great Dane Trailers, Inc., 388 U . S. 26. In
that the Employer committed acts inherently prejudicial to
employee interests, the reasonable and foreseeable conse-
quences of which were to discourage employees ' member-
ship in a labor organization, the Respondent 's "real
motive" must be deemed unlawful and the discharge of
Klaus a violation of Section 8(axl) and (3) of the Act. Since
the Respondent 's motive was clearly unlawful its asserted
reasons for the discharge of Klaus become immaterial for
the mere existence of an alternate ground for action taken is
no defense where , as here , the Employer's actual motiva-
tion is based on unlawful discrimination . Webster Wood
Industries, Inc., 169 NLRB No. 14. ". . . [TJhe existence of
a proper reason for discharge is no defense if the discharge
was actually made for an improper purpose ." The John
Klann Moving and Trucking Co. v. N.LR.B., 411 F.2d 261
(C.A. 6).
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and it will
effectuate the purposes of the Act for jurisdiction to be
exercised herein.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed them by
Section 7 of the Act Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
4. By unlawfully discharging Ruth M. Klaus from
employment on November 22, 1969, the Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(l) and (3) 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.
intended such consequence . In such circumstances intent to encourage is
sufficiently established. The Radio Officers' Union of the Commercial
Telegraphers Union, A.F.L. v. N. L. R. R, 347 U.S. 17, 45.
JOSEPH HORNE CO. 763
THE RECOMMENDED REMEDY
It having been found that the Respondent had engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. It
having been found that the Respondent unlawfully
discharged Ruth M. Klaus and thereby violated Section
8(a)(3) and (1) of the Act, it is recommended that the
Respondent remedy such unlawful conduct. It is recom-
mended that the Respondent remedy such unlawful
conduct. It is recommended in accordance with Board
policy23 that the Respondent offer Ruth M. Klaus
immediate and full reinstatement to her former position or,
if such position no longer exists, to a substantially
equivalent position without prejudice to her seniority or
other rights and privileges and make her whole for any loss
of earnings she may have suffered as a result of the
discrimination against her by payment to her of a sum of
money equal to the amount she would have earned from the
date of here discriminatory discharge to the date of an offer
of reinstatement, less net earnings during said period, to be
computed on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company, NLRB 289, and
including interest at the rate of 6 percent per annum in the
manner set forth in Isis Plumbing & Heating Co., 138 NLRB
716.
RECOMMENDED ORDER24
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, it is
recommended that the Respondent, Joseph Horne Co., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Retail Clerks
International Association, Retail Store Employees Union
Local 1407, AFL-CIO, or any other labor organization, by
disc riminatorily discharging any of its employees or
discriminating in any other manner in respect to their hire
or tenure of employment or any term or condition of
employment.
(b) Maintaining in effect an invalid no-solicitation rule.
(c) Unlawfully threatening discharge of employees for
engaging in lawful union activity.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
right to self-organization, to form labor organizations, to
join or assist Retail Clerks International Association, Retail
Store Employees Union Local 1407, AFL-CIO, or any
other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
concerted activities for the purpose of mutual aid or
protection as guaranteed in Section 7 of the Act, or refrain
from any or all such activities.
2 Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Ruth M. Klaus immediate and full reinstate-
ment to her former position or, if such position no longer
exists, to a substantially equivalent position without
prejudice to her seniority or other rights and privileges and
make her whole for any loss of pay that she may have
suffered by reason of the Respondent's discrimination
against her, in accordance with the recommendations set
forth in the section of this Decision entitled "The
Recommended Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Recommended Order.
(c) Notify the aforementioned person 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, as amended, after discharge from the
Armed Forces.
(d) Post at its South Hills Village Store, Pittsburgh,
Pennsylvania, copies of the attached notice marked
"Appendix." 25 Copies of said notice, on forms provided by
the Regional Director for Region 6, after being duly signed
by Respondent's representative, shall be posted by it
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.
(e) Notify the Regional Director for Region 6, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.26
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act other
than those found in this Decision.
21 See The Rushton Company, 158 NLRB 1730, 1740
24 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and Recommended Order herein
shall, as provided in Section 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
2 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 be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
26 In the event that this Recommended Order is 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 Respondent
has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
A TRIAL EXAMINER FOR THE NATIONAL
LABOR RELATIONS BOARD , AFTER A HEARING
IN WHICH ALL PARTIES WERE PERMITTED TO
INTRODUCE EVIDENCE, FOUND THAT WE DIS-
CHARGED RUTH M. KLAUS BECAUSE SHE WAS
FOR THE UNION AND THAT THIS VIOLATED THE
LAW.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Act gives all employees these rights:
To organize themselves;
To form, join, or help unions;
To bargain as a group through a representative
they choose;
To act together for collective bargaining or
other mutual aid or protection; and
To refuse to do any or all of these things
We were also ordered to assure our employees that:
WE WILL give Ruth M. Klaus back her job or, if her
job no longer exists, a substantially equivalent job, her
seniority, and her backpay which she lost because we
laid her off.
WE WILL NOT discharge any employee for the same
reason for which the Trial Examiner found that we
discharged the above-named employee.
WE WILL NOT maintain an invalid no-solicitation
rule.
WE WILL NOT unlawfully discharge employees who
are lawfully engaging-in union activity.
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, as
amended, after discharge from the Armed Forces.
All of you are free to become or remain, or refrain from
becoming or remaining, members of any labor organiza-
tion.
Dated By
JOSEPH HORNE CO.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 1536
Federal Building, 1000 Liberty Avenue, Pittsburgh, Penn-
sylvania 15222, Telephone 412-644 2977.