Levinson's Owl Rexall Drugs, Inc.

National Labor Relations Board - Board Decisions

Dec 6, 1966

161 N.L.R.B. 1531 (N.L.R.B. 1966)

LEVINSON'S OWL REXALL DRUGS, INC. 1531
WE WILL NOT in any like or related manner interfere with , restrain, or
coerce our employees in the exercise of their right to self-organization , to form,
join, or assist any labor organization , to bargain collectively through repre-
sentatives of their own choosing , and to engage . in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
WE WILL, upon request, bargain collectively with San Diego Typographical
Union , AFL-CIO, as the exclusive representative of the employees in the
appropriate unit with respect to rates of pay, wages , hours of employment, and
other conditions of employment and, if an understanding is reached , embody
such understanding in a signed agreement.
All of our employees are free to become or remain , or to refrain from becom-
ing, members of the above -named union or any other labor organization.
BLADE-TRIBUNE PUBLISHING 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.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, Eastern
Columbia Building, 849 South Broadway, Los Angeles , California 90014 , Telephone
688-5229.
Levinson 's Owl Rexall Drugs, Inc. and Retail Store Employees
Union, Local 373, Retail Clerks International Association,
AFL-CIO. Case 2O-CA-374. December 6, 1966
DECISION AND ORDER
On July 26, 1966, Trial Examiner Herman Marx issued his Deci-
sion 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 cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner further found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint and recommended that•.the complaint be, dismissed with
respect to those allegations. Thereafter,' the General Counsel' and the
Charging Party filed exceptions to portions ^of' the Trial Examiner's
Decision and briefs in support of their exceptions, tnd the Respond-
ent filed an answering brief. , • ' - ' • • - '
Pursuant to the provisions of Section •3(b) of the' National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to, a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
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
161 NLRB No. 133.
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, as modified herein.
1. The Trial Examiner found, and we agree, that the Respondent
violated Section 8(a) (1) of the Act by the following conduct : (1)
interrogating employees -in private interviews as to whether they had
been contacted by the Union; (2) interrogating job applicants as to
their union affiliation; 1 (3) stating to employee Baierline that pre-
mium pay would be discontinued in the event of unionization; (4)
threatening to discharge Baierline if Respondent found out that she
favored the Union; (5) stating to employee McDonald that she
"would no longer have a job" at the store if she had any intention of
joining a union or "trying to get (one) in the store"; and (6) telling
these two employees that the Respondent would never be unionized.
2. The Trial Examiner further found that Respondent did not dis-
charge Beverly Marsh for discriminatory reasons. We do not agree
with this finding.
Beverly Marsh, who had worked for the Respondent for more than
10 years, joined the Union on April 13, 1965. She was one of the
employees interviewed later that month about the Union's organiza-
tional campaign by the store manager, John Frommelt, who referred
to her long service with the Respondent and. told her the Respondent
did not want any union and would appreciate her "loyalty in this
matter."
Several days after she received a union leaflet early in May, Marsh
brought the leaflet to work with her and discussed it with Robert
Frommelt, the assistant store manager, telling him, among other
things, that benefits provided by the Respondent did not compare
favorably with those provided by a union contract.
On June 25, John Frommelt berated Marsh in a public area of the
store loudly and angHly for causing an unnecessary shipping cost
expenditure of $7 or $8. Frommelt left the store soon thereafter, and
Marsh, who was emotionally upset because of the reprimand, tele-
phoned her physician and was advised to come to his office immedi-
ately. Unable to locate any of the Frommelts in the store, Marsh told
floorlady Duncan to inform John Frommelt that she was leaving.
Marsh then went to her physician's office. She returned to the store
after an absence of about 20 minutes of her working time, sought out
John Frommelt, and asked him not to admonish her publicly again.
Frommelt thereupon discharged her for the stated reason of her
absence from work.
1 As it is unnecessary to a decision in this case, Member Zagoria would not adopt the
Trial Examiner 's statement that "The Union affiliation query in the job application forms
is not, of course, per se unlawful."
LEVINSON'S OWL REXALL DRUGS, INC. 1533
These facts reveal that Marsh had worked for Respondent for
more than 10 years as a satisfactory employee until a few weeks after
she disclosed her interest in the Union. As found by the Trial Exam-
iner, the Respondent used coercive means to discourage unionization
of its employees, and did so in Marsh's case by a special appeal to her
"loyalty." After Respondent learned of her interest in the Union, in
disregard of its appeal, it reacted to what can only be viewed as a
minor mistake at worst, in connection with the shipping cost inci-
dent, in an unprecedented manner aptly described by the Trial
Examiner as "intemperate." Indeed, the Respondent's angry public
reprimand was so intemperate that it caused Marsh to require medi-
cal attention. Having reported her absence to the most responsible
person in the store at the time, Marsh was gone for 20 minutes of her
working time. Although the Respondent had no rigid rule regarding
short absences from work, it summarily discharged Marsh without
warning upon her return to the store. No other employee had ever
been discharged for such a reason, and the only other discharge at
this store during the past 3 years had been for theft. In these cir-
cumstances, we agree with the Trial Examiner that the penalty of
discharge was much out of proportion to the offense, but, unlike the
Trial Examiner, we find that it can only be explained as a manifesta-
tion of hostility toward the only employee who had disclosed to ,the
Respondent her interest in the benefits which the Union claimed to
offer.
In view of all the circumstances, therefore, including Respondent's
violations of Section 8(a) (1), and its expressed determination to
prevent the unionization of its stores, we find that the Respondent
seized upon Marsh's 20-minute absence as a pretext to conceal its
determination to'rid itself of a senior employee because she revealed
herself as a union adherent in spite of the Respondent's unlawful
attempt to dissuade her, in violation of Section 8(a) (3) and (1) of
the Act.2
AMENDED CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and the entire rec-
ord in this case, we hereby adopt the present Conclusions of Law 1,
2, and 3, renumber the present conclusion of law 4 to number 5, and
substitute the following for new conclusion of law 4.:
"4. By discriminatorily discharging Beverly F. Marsh to discour-
age membership in oi activities on behalf of the Union, the Respondent
2 We do not rely upon the settlement agreement entered into at the conclusion of the
hearing in Case 20-CA-2971 , whereby the Respondent reinstated Joyce Baierline , , who was
discharged after testifying at the hearing in this case ; and agreed to pay, her backpay
in the amount of approximately $1,700
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (3) and (1) of the Act."
THE REMEDY
As we have found that Respondent has engaged in unfair labor
practices in violation of Section 8(a) (1) and ( 3) of the Act, we shall
order it to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
As we have found that Respondent discriminatorily discharged
Beverly F. Marsh, we shall order her reinstated to her former posi-
tion if it still exists or , if not, to a substantially equivalent position,
and made whole for any loss of pay she may have suffered by reason
of her discriminatory discharge, for the period from the date of her
discharge to the date on which she is offered reinstatement , less her
net earnings during such period. Her backpay shall be computed on a
quarterly basis in the manner prescribed by the Board in F . W. Wool-
worth Company , 90 NLRB 289, and shall include interest at 6 per-
cent per annum , as provided in Isis Plumbing & Heating Co., 138
NLRB- 716.
In view of the nature of the unfair labor practices committed, we
shall order Respondent to cease and desist from in any manner
infringing upon rights guaranteed to its employees by Section 7 of
the Act. Entwistle Mfg. Co., 23 NLRB 1058, enfd . as modified 120
F.2d 532 (C.A. 4). , .
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Levinson's Owl Rexall Drugs, Inc., Napa, California, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in, or activities on behalf of Retail
Store Employees Union, Local 373, Retail Clerks International As-
sociation, AFL-CIO, or any other labor organization, by discharging
or otherwise discriminating against employees in any manner with
regard to their rates of pay, wages, hours of employment, hire, tenure
of employment, or any term or condition of their employment.
(b) Threatening employees with loss of benefits, discharge, or
denial of employment if they select a labor organization to represent
them, or telling them that the Respondent will never be unionized.
(c) Unlawfully interrogating any employee or applicant for
employment as to their union affiliations, or as to whether they have
been contacted '15y any labor organization.
LEVINSON'S OWL REXALL DRUGS, INC 1535
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of their rights to self-organization, to form
labor organizations, to join or assist the above-named labor organiza-
tion, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain fi om any or all such activities, except
to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employ-
ment, as authorized in 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 which the Board finds is
necessary to effectuate the policies of the Act
(a) Offer to Beverly F Maish immediate and full reinstatement to
her former or a substantially equivalent position, without prejudice
to her seniority and other rights and privileges, and make her whole
for any loss of pay she may have suffered as a result of the Respond-
ent's discrimination against her, with interest at 6 percent per
annum, as set forth in the section of the Board's Decision entitled
"The Remedy "
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay due
under the terms of this Order
(c) Post at their drug stores in Napa, California, copies of the
attached notice marked "Appendix " 3 Copies of said notice, to be fur-
nished by the Regional Director for Region 20, after being duly
signed by the Company's representatives, shall be posted by the Com-
pany 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 the Company to insure that said notices are
not altered, defaced, or covered by any other material
(d) Notify the Regional Director for Region 20, in writing,
within 10 days from the date of this Order, what steps have been
taken to comply herewith
IT IS FURTHER ORDERED that the complaint herein be, and it hereby
is, dismissed insofar as it alleges unfair labor practices other than as
found herein by the Board
3 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "a Decision and Order " the words "a Decree of
the United States Court of Appeals Enforcing an Order '
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 Retail Store Employ-
ees Union Local 373, Retail Clerks International Association,
AFL-CIO, or any other labor organization, by discharging or
otherwise discriminating against employees in any manner with
regard to their rates of pay, wages, hours of employment, hire
or tenure of employment, or any term or condition of their
employment
WE WILL NOT threaten employees with loss of benefits, dis-
charge, or denial of employment if they select a labor organiza-
tion to represent them, or tell them that this Company will never
be unionized
WE WILL NOT unlawfully interrogate employees, or applicants
for employment, as to their union affiliations, or as to whether
they have been contacted by any labor organization
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist the above-named
labor organization, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to,
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, except to the extent
that such rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized by Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959
WE WILL offer Beverly F Marsh immediate and full reinstate-
ment to her former or a substantially equivalent position, without
prejudice to her seniority and other rights and privileges, and
make her whole for any loss of earnings she may have suffered
by reason of the discrimination against her, with interest thereon
at 6 percent per annum
All our employees are free to become, or refrain from becoming,
members of the above-named Union, or any other labor organization.
LEVINSON'S OWL REXALL DRUGS, INC,
Employer
Dated---------------- By-------------------------------------
(Representative) (Title)
LEVINSON'S OWL REXALL DRUGS, INC 1537
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
If employees have any question concerning this notice or com-
pliance with its provisions, they may communicate directly with the
Board's Regional Office, Room 13050 Federal Building, 450 Golden
Gate Avenue, Box 36047, San Francisco, California, Telephone 556-
3197
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
The complaint alleges that the Respondent, Levinson's Owl Rexall Drugs, Inc,
has violated Section 8(a)(1) of the Naitonal Labor Relations Act, as amended
(herein the Act),' by interrogating employees concerning their union activities,
membership, and interest, and by threatening to terminate employees if they
selected a labor organization as their bargaining representative, and has discharged
an employee, Beverly S Marsh, because of her activities for, or membership or
interest in, a labor organization named Retail Store Employees Union, Local 373,
Retail Clerks International Association, AFL-CIO (herein Local 373 or the
Union), thereby violating Sections 8(a) (1) and 8(a) (3) of the Act a
The Respondent has filed an answer denying, in material substance, that it com-
mitted the unfair labor practices imputed to it
A hearing has been held upon the issues betore Trial Examiner Herman Marx.
All parties appeared and were afforded a full opportunity to adduce evidence,
examine and cross-examine witnesses, and submit oral argument and briefs 3
Upon the entire record, from my observation of the witnesses, and having read
and considered the briefs filed with me, I make the following findings of fact
FINDINGS OF FACT
I NATURE OF RESPONDENT'S BUSINESS, JURISDICTION OF THE BOARD
Levinson's Owl Rexall Drugs, Inc (herein the Company), is a California cor-
poration, maintains its principal office and place of business in Napa, California,
where it is engaged in the business of selling drugs, cameras, and other products
at retail, operating two drug stores, respectively known as store Nos 1 and 2, in
Napa, and is, and has been at all material times, an employer within the meaning
of Section 2(2) of the Act
During the year preceding the issuance of the complaint, the Company derived
gross revenue in excess of $500,000, from the conduct of its business, and in the
course of its operations, purchased and received goods and merchandise valued
in excess of $50,000 from suppliers in California who had received such products
directly from places located outside the said state By reason of such purchase and
receipt of products, the Company is, and has been at all times material to the
issues, engaged in interstate commerce , and in operations affecting such commerce
within the meaning of Section 2(6) and (7) of the Act Accordingly, the
National Labor Relations Board has jurisdiction over the subject matter of this
proceeding
129USC See 151 etseq
2 The complaint was issued on November 12, 1965, and is based upon a charge filed with
the Board by the Union on August 4 1965 Copies of the charge and complaint, and of a
notice of hearing, hale been duly ser%ed upon all parties entitled thereto The hearing
was held on February 8, 9, and 10, 1966, in San Francisco, California
3 The General Counsel has filed, with his brief, a motion, dated April 25, 1966, for
correction of the transcript of the hearing in specified particulars No opposition has been
submitted The motion is granted, and the transcript is amended in the particulars
requested
264-188-67-vol 161-98
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Local 373 is, and has been at all material times, a labor organization within the
meaning of Section 2(5) of the Act.
HI. THE ALLEGED UNFAIR LABOR PRACTICES
A. The allegations of interrogation and threats
Since 1956, the Company has followed the practice of having a job applicant
fill in a printed form bearing the caption "Employment Application," which
includes a question as to the applicant's "union affiliation" and a space for his
reply. The Respondent purchases the application blanks from a local stationery
store, and at least two other employers in Napa use such forms.
During the 6-month period ending August 4, 1965, when the charge in this
proceeding was filed, 24 individuals submitted data about themselves to the Com-
pany on such forms. Of these applicants, 1 entered "Retail Clerks Union" in
the space for union affiliation; another inserted the words "union member"; 8 left
the space blank; and 14 answered in the negative. The legality of the inquiry as to
union affiliation will be decided at a later point.
Apart from that matter, the issues in this proceeding center on store No. 2,
which has about a dozen nonsupervisory employees, and is managed by the Com-
pany's secretary-treasurer, John Frommelt.4
During the month of April 1965, as a result of an organizing campaign by or on
behalf of Local 373, a number of the store's employees signed cards authorizing
the Union to be their collective-bargaining representative. The organizing campaign,
which was begun in March 1965, came to John Frommelt's attention at one point
or another, and in or about the third week in April he separately spoke to seven
or eight _ of the- store's nonsupervisory employees on the subject of union repre-
sentation,- interviewing each in private:
One sales clerk, Joyce Baierline, called by the General Counsel, testified that
Mr. Frommelt asked her whether she had been approached by the Union; that
she replied in the' negative; and that he then said that the Union would probably
communicate with her, and proceeded to tell her that in the event of unionization
she would make less money, "besides having to pay dues," and would "possibly"
lose premiums, called "P.M's," paid, in addition to her regular wages, for selling
certain products; that the Company had never been unionized and did not intend to
become so; and that she would be discharged if he learned that she was "for the
Union."
Another clerk, Charlotte McDonald, testifying in somewhat similar vein, quotes
Mr. Frommelt as saying that what they would earn in extra wages through union-
ization, they would "pay back" in union dues, that the Company would never be
unionized, and that if she had any intention of joining a union or "trying to ^get•
(one) in the store," she would "no longer have a job there."
A third interviewed employee, Beverly S. Marsh, who had worked for the Com-
pany for about a decade (and is the alleged discriminatee named in the complaint),
also called by the General Counsel, testified in substance, that Mr. Frommelt
alluded to her "many years" of employment; said (as quoted in the amended
transcript), that the Union (which had made prior efforts to organize the employ-
ees), had become "active" again and that she knew how the Company felt about
the Union; and stated that the Company does not want any union, and would
appreciate her "loyalty in this matter."
A fourth employee, Carl Shimell, the store's stockboy, similarly called by the
General Counsel, testified that Mr. Frommelt asked him whether he had been
"contacted" by the Union, and that he replied in the negative, and, as he "wasn't
too happy for the Union anyway," told Mr. Frommelt that he "had been in the
Union and . . . wasn't about to get right back in the Union."
Mr. Frommelt , in substance , denied making the threats imputed to him by Mrs.
Baierline and Mrs. McDonald , and, stating that what he said to each one inter-
viewed was "basically ,the same," he testified that he asked each if he (or she)
"had been approached by the Retail Clerks Union," and received an affirmative
reply for some and a negative one from others; and that he then told each that the
Union had lost "previous elections" at the store, and that the employees had free-
*As is evident, John Frommelt is a supervisor within the meaning of Section 2(11)
of the Act
LEVINSON'S OWL REXALL DRUGS, INC. 1539
dom of choice in any election that would be held , should examine "both sides,"
and should feel free to ask him any questions pertaining to the Company or "their
individual situations."
As support for Mr . Frommelt , the Respondent called two employees, Helen
Duncan, who "manages" the cosmetics department (but is not shown to be a super-
visor within the meaning of the Act ), and Lillian Beem . Substantially all that
occurred , according to Mrs. Duncan , was that Mr . Frommelt told her that the
Union was "trying to organize again and had contacted some of the other employ-
ees," and asked her if she had been "contacted"; and she replied in the negative.
Mrs. Beem 's version of her interview is much the same, except that she says she
replied affirmatively to Mr. Frommelt's query.
There can be no doubt, from what has been said, that Mr. Frommelt asked at
least some of the interviewed employees whether they had been "contacted" by
the Union, and the material issue in the premises is whether he made the inhibiting
remarks to Mrs. Baierline and Mrs. McDonald that they respectively describe. On
that question , especially when appraised in the light of the evidence bearing on all
the interviews , the qualitative weight of the evidence , in my judgment, rests with
the General Counsel-
For one thing , Mr. Frommelt's account of what he told the employees , and his
claim that what he said to each was "basically the same," are in material conflict
with the testimony of Mrs. Beem and Mrs. Duncan , who were called by the
Respondent in his support . According to him , he not only asked those interviewed
whether the Union had approached them, but he spoke to them about the results
of "previous elections ," the employees ' freedom of electoral choice, the desirability
of examining "both sides," and the availability of management to answer questions.
But, if Mrs. Beem and Mrs. Duncan are to be believed ,, he did substantially no
more than to say to each that the Union was organizing , and to ask each if she
had been "contacted" by the organization.
For another matter , the Respondent 's relevant evidence has a stilted and artifi-
cial cast . The private setting that Mr . Frommelt provided for each interview does
not quite fit the image he draws of himself giving each employee what was prac-
tically a set speech (which, he testified , "might have fluctuated in a word or two").
And I find it difficult to believe that he would go to the trouble of summoning Mrs.
Beem for a private talk, ask her if she - had been "contacted" by the Union, receive
an affirmative reply, and then as she claims , "say no more" to her about the matter.
In contrast , the remarks imputed to Mr. • Frommelt in the General Counsel's evi-
dence vary materially from one witness to another , taking on enhanced plausibility
at least in Mrs. Marsh 's case from the fact that the statements she attributes to
him deal with her special situation , and not with broad generalizations uniformly
applicable to all those interviewed , as his testimony would lead one to believe.
Mrs. Marsh had been in the Company's employ for about a decade , and she
plausibly quotes Mr. Frommelt as alluding to her "many years" of service, and in
effect depicts him as invoking her "loyalty " for that reason . Significantly , too, Mr.
Frommelt conceded, under . cross-examination , that he "refreshed" the memory of
the employees regarding "P.M.'s" and other "benefits" during the interviews, but
one looks in vain for any indication in his testimony under direct examination
that he did so . In fact, he expressly denied , under direct examination , that he dis-
cussed P.M.'s with Mrs . Baierline , denying," also, that he made any comparison
of benefits offered by the Company with union benefits. Plainly, the concession
that he did "refresh" the recollection of employees he interviewed as to P.M.'s
adds weight to Mrs. Baierline 's account.
Moreover, Mr. Frommelt does not credibly explain the privacy of the inter-
views . He admittedly had convened a "group meeting " of the employees only a
day or two earlier , had then expressed his understanding that they "were being
approached by the Union ," and, according to him, had told them "the same thing"
he claims he later said to each privately .5 Then, why the private interviews? He
tendered the explanation that the "main purpose" of the privacy was to afford the
employees more freedom "to ask" about benefits given employees by the Company.
e \ir Frommelt intimated at one point that the interviews occurred after may 1, 1965,
but elsewhere gave testimony to the effect that they took place toward the end of April
or early in May. The precise date is of no large moment , but I am satisfied from the testi-
mony of Mrs . Balerline , Mrs. Marsh, and Mrs . McDonald , who estimated the period in
relation to other events , the actual or approximate dates of which , are known, that the in-
terviews were conducted on or about the third week in April.
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But this is beyond rational belief, for it implies that employees such as Mrs
Marsh and Mrs Duncan , each of whom had worked in the store for about a
decade , and Mrs Baierline , who had been employed there for several years, were
unaware of benefits available to them in so relatively small an enterprise There is
no evidence that they lacked such information or had any questions to ask, and
it is a fact, made evident by the several accounts of the interviews , that no ques-
tions were put to Mr Frommelt Indeed , if anybody was the interrogator on any
subject , it was he, and not any of the employees , as his own testimony makes
clear In short, I do not credit Mr Frommelt's excuse for the privacy of the
interviews , and the very fact that the justification he offers does not weather inspec-
tion adds weight to a conclusion that his purpose was to use privacy as a means
of encouraging those interviewed to give him information about any contact they
had had with the Union , and their organizational sentiments (succeeding in
Shimell's case at least ), and of bringing pressure to bear upon the employees to
reject unionization , doing so in Mrs Marsh 's case by an appeal to her loyalty, and
in that of Mrs Baierlrne and Mrs McDonald by threatening them with reprisal
We have no means of knowing the full scope of the private interviews, for it
is not certain that all those interviewed on the occasion in question testified, Mr
Frommelt's account of what he told the employees is not credible , and Mrs Beem
and Mrs Duncan were, in my judgment , less than candid , but whatever the full
reach of his remarks , I am persuaded that he used the occasion of the private
interviews to make the coercive statements imputed to him by Mrs Baierlrne and
Mrs McDonald , whose versions I credit Against the background of these threaten-
ing remarks , Frommelt 's inquiries of employees whether they had been contacted
or approached by the Union would tend to have an inhibiting effect upon the
employees' right of self-organization , and the sum of the matter is that the Com-
pany interfered with, restrained , and coerced employees in the exercise of rights
guaranteed them by Section 7 of the Act, thus violating Section 8 (a)(1) of the
Act, as a result of each of the following (1) John Frommelt's queries of employees
whether they had been "contacted" or approached by the Union, (2) his statement
to Mrs Baierline that the P M 's would "possibly be taken away" (meaning,
plainly, in the event of unionization), (3) his threat that she would be discharged
if he found out that she favored the Union, (4) his statement of Mrs
McDonald that she "would no longer have a job" at the store if she had any
intention of joining a union or "trying to get (one) in the store", and (5) his
assertions to the effect that the Company would never be unionized and had no
intention to be so 6
I take a different view, however, of testimony by the store janitor and shipping
clerk, Stanley Gaston, describing an alleged conversation with Mr Frommelt
According to Mr Gaston, on April 2, 1965, the day after he signed an authorization
card (and, it may be noted, about 3 weeks before the interviews described
above), Mr Frommelt summoned him to the store office, and asked him if he was
aware that "the Union was trying to organize ," and he replied that he had had a
visit the night before from a Clerks Union organizer (James Walker, who had pro-
cured Mr Gaston' s signature on the authorization card) Then, Mr Gaston testi-
fied, John Frommelt stated that Mr Gaston knew at the time he was hired that the
store was not unionized , that the Company did not intend to have a union shop, and
he (Mr Frommelt ) did not "like to have people working for (him) that are
unhappy", and that if Mr Gaston desired a union shop he should seek employment
elsewhere John Frommelt denied having such a conversation with Mr Gaston, indi-
cating, in substance, that he had an interview with Mr Gaston some weeks later
"similar" to the others
Mr Frommelt's testimony regarding his interviews is far from candid, as pre-
viously described, but the relevant burden of proof is upon the General Counsel,
and Mr Frommelt's lack of candor does not automatically make the General Coun-
sel's case The General Counsel did not learn of the alleged April 2 conversation
6 Particularly in the context of the threats of reprisal , Frommelt 's statements that the
Company would never be unionized and had no intention of being unionized were as much
as to say that the Company would not deal with a union under any circumstances and
we ould resort to economic reprisals to prevent unionization Similarly , the allusion to the
possible loss of "P M ' s" was an implied threat that the premium payments would be dis
continued if the employees supported the Union It may be noted in that regard that
there is no evidentiary basis for a prediction that the Union would seek the discontinuance
of P M 's if chosen by the employees to repiesent them
LEVINSON'S OWL REXALL DRUGS, INC. 1541
until the hearing in this case , almost a year later, moving, after he had rested his
case, to reopen it and amend the complaint to allege remarks attributed to John
Frommelt by Mr. Gaston as a violation of the Act . But the union organizer, James
Walker, testified that he learned about the alleged conversation from Mr. Gaston
on the same day it supposedly occurred . If that is the case, it seems odd that the
Union , which is the charging party here, did not give the information to the Gen-
eral Counsel until after the hearing started, almost a year later. The General Coun-
sel ventured the explanation at the hearing that "oftentimes . . employees .. .
are hesitant to talk ," but that generalization will not suffice if for no other reason
than that it is not evidence . Moreover , no reason appears why Mr. Gaston was
singled out for interrogation and admonition several weeks before the others were
interviewed . And, finally, I am unable to overlook the possibility that Mr . Gaston
harbors resentment against John Frommelt , and has colored his testimony , because
the latter has more than once admonished and warned him of discharge ( for con-
siderations related to his work performance , and not necessary to describe here).
In sum, Mr. Gaston 's account of his alleged conversation of April 2 with John
Frommelt has no greater weight than the latter 's denial in the premises, and thus I
base no findings on Mr. Gaston 's relevant testimony.
The union affiliation query in the job application forms is not, of course, per se
unlawful .? On the other hand , I find no automatic absolution for the Respondent- in
the evidence that it had used the forms for about 10 years, and has purchased them
from a local stationery store where , apparently , they are on sale to the general pub-
lic. One may assume, arguendo , the Respondent's innocence of purpose in using the
forms prior to the Union's organizational campaign in 1965 ( although there is no
evidence of any legitimate need or purpose of the query ), and the question would
still remain whether the Respondent had a lawful right to inquire into the union
affiliation of job applicants in the context , or against the background of, a union
organizational campaign , in the course of which an executive of the Company made
threats, expressly or by implication, that the Company would not deal with the
Union under any circumstances , and would "possibly" eliminate P.M.'s in the event
of unionization ; and that it would discharge employees if they favored or supported
the Union.
To be sure , so far as the record shows, threats were made to only two employees,
but then the store is a relatively small enterprise in a community that is not large
(having a population of about 22 ,000), and it requires no gift of prophecy, but,
rather , ordinary experience with human beings and their natural tendency to dis-
cuss matters of common interest , to believe it likely that the coercive impact of
John Frommelt 's threats would not be confined to the employees to whom they
were made, but extend beyond them .8 With that in mind , the legal status of 'the
"union affiliation" query prior to Mr. Frommelt 's misconduct appears to me to be
beside the point , for against the background of his threats, and in the absence of
any showing of legitimate need or -purpose of the information as to "union affiliar
tion ," to permit the continued use of the query would be as much as to give the
Company a vehicle, under color of law , to screen out union adherents to effectuate
John Frommelt's expressed determination that the drug stores would never be
unionized.
The sum of the matter is that in the period since John From'melt's interviews, the
interrogation of job applicants as to their union affiliation, has interfered with the
free exercise of rights guaranteed employees by Section 7 of the Act; that by such
queries, the Company has violated Section 8 ( a) (1) of the statute ; 9 and that effec-
tuation of the policies of the Act requires that the Company discontinue the use of
4 Clark Printing Co., Inc, 146 NLRB 121 , 123, and cases cited
It is interesting to note that a third ( 8 out of 24 ) of the job applicants during the
G-month period preceding August 4, 1965 ( a period in which the union organizational
campaign and Frommel't's countermeasures took place ), omitted any reply to the "union
affiliation" query. The proportion of those who failed to reply seems high, and raises a
suspicion that at least some omitted a response because they feared to give one, but in
the absence of evidence as to the reason for any of the omissions , I draw no inference in
the premises I deem it of no significance , by the way , that the Respondent did not insist
that applicants who omitted the reply remedy the omission It is enough , in that connec-
tion , to point out that the record does not establish that any of those applicants were em-
ployed, and that we have no effective means of determining what interpretaion the Re-
spondent placed upon the omissions
9 N L R B v Tidelands Marine Service , Inc, 339 F 2d 291, 292 ( C A 5) ; Transamerican
Freight Lines , Inc, 122 NLRB 1033 , 1034, footnote 3
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any form, and refrain from any other inquiry, that has the effect of seeking infor-
mation from any employees ( or job applicants , who are employees within the
meaning of the Act), as to any union activity , interest, or affiliation of any employee,
or as to any contact between any labor organization and any employee.
B. The diseha,ge
About the beginning of May 1965, the Union distributed to employees, including
Mrs. Marsh, copies of a leaflet setting forth wage rates and medical, retirement,
holiday, and 3-week paid vacation benefits provided by union contract, according
to the leaflet , and suggesting a comparison with rates and conditions provided by
the Company.
Several days later , about May 3 or 4, Mrs. Marsh, who had several weeks earlier
signed an authorization card, brought her copy of the leaflet to work with her,
with a view to discussing its contents with the management, and placed it on a
counter in the camera department, her principal duty station. Shortly thereafter,
John Frommelt's brother, Robert, who is assistant store manager and, like his
brother, supervises the employees, came by, and exhibiting the leaflet , Mrs. Marsh
remarked to Robert Frommelt that the benefits provided by the Company did not
seem "to stack up" well compared to those listed by the Union. A conversation
ensued, in the course of which Robert Frommelt defended working conditions at
the store , and Mrs. Marsh compared some unfavorably with conditions provided
by union contract , as set forth in the leaflet , stating among other things, that
her wage rates was lower than those listed, that "hospital benefits" provided by the
Company were not adequate, and that she did not have a 3-week paid vacation.
On June 25, 1965, Mrs. Marsh, in the course of her duties, had occasion to
prepare unsold greeting cards for return to the supplier for credit. To that end,
she divided them into several groups, each weighing less than 20 pounds; wrote
the suppliers name and address on a separate tag for each group , using an address
form which contains the printed phrase "Via Parcel Post" (although the tag is
also routinely used by the Company to address freight shipments); and brought
the groups to a room at the rear of the store where she left them for packing and
shipment by Stanley, Gaston, together with a written instruction on each group to
"ship separately."
Under the Company's standing operating practice, Mr. Gaston has routinely
shipped packages weighing less than 20 pounds by parcel post, but with respect
to heavier packages he has customarily ascertained parcel post costs and freight
charges (which, unlike those for parcel post, are the same for 'weights up to 100
pounds), and,secured'instructions as to the means of shipment from one of the
Frommelt brothers. ,
Noting that the -several groups of cards were destined for the same addressee,
and having some question whether they should be shipped separately, Mr. Gaston
asked Mrs. Marsh to verify the instructions for separate shipment, and she con-
firmed them. Thereupon, each group was separately packed for shipment, and as
each package weighed less than,20 'pounds, Mr. Gaston shipped each by parcel
post. Had the cards been sent in a single package by freight, the shipping cost
would have been almost $7 or $8 less.
Later that day„ learning,,of the parcel post expenditure, and deeming it large,
John Frommelt inquired of Mr. Gaston about the matter, and the latter replied
that he had been instructed by Mrs.. Marsh to ship each group of cards in a
separate package, and had sought and secured from her a confirmation' of these
instructions.
Shortly thereafter, about 4:10 or 4:15 p.m., John Frommelt sought out Mrs.
Marsh in a public area of the store and rebuked her loudly and angrily for the use
of parcel post to make the card shipments, telling her that her shipping instructions
to Mr. Gaston were "a damned stupid thing," that $7 or $8 had gone "down the
drain ," and that it was her responsibility to designate the method of shipment, or
to "check with someone," if she did not know what course to take. Mr. Frommelt
left the store soon thereafter on some business.
Following his departure, Mrs. Marsh, who was emotionally upset by the rebuke,
began to weep, had difficulty in regaining her composure, and telephoned her phy-
sician . He advised her to come to his office immediately. She looked about for one
of the Frommelts, saw none, and told Mrs. Duncan to inform John Frommelt
that she was leaving, but did not say where she was going . Mrs. Marsh left the
LEVINSON'S OWL REXALL DRUGS, INC 1543
store It was then about 4 30 p in 10 She proceeded to her physician 's office, and
returned to the store about 5 55 p in She had been absent from her duties,
without authorization by the management , for about 20 minutes of working time,
the period between 5 and 6 p in being her regularly scheduled meal period on
her shift 11
John Frommelt returned to the store during Mrs Marsh 's absence and was given
the message she had left with Mrs Duncan by his brother, who had received it
from Mrs Duncan
Upon her return to the store , Mrs Marsh sought out John Frommelt and admon-
ished him not to speak to her publicly again in the way he had , and he asked her
to come to his office There , he asked her whether she had absented herself from
work , she replied in the affirmative , and he discharged her 12
The General Counsel maintains that Mrs Marsh's manifestation of interest in
union benefits in her discussion of the leaflet with Robert Frommelt early in May
induced hostility by the management toward her , and a belief by it that she was
a supporter of the Union , and that John Frommelt discharged her for that reason,
io Testimony by John Fronnnelt that he returned to the store between 4 20 and 4 25
p in implies that Mis Marsh had 2lieady left the store by that time He subsequently
stated that he did not return before 4 30, but, in any case I am satisfied that Mis
Marsh left about 4 40 Her testimony in that regard is given corroborative weight by
an employee , Larry Dent , who was called by the Respondent and gave testimony warrant
ing an inference that Mrs Marsh left about 25 minutes after her conversation with John
Frommelt , which took place about 4 10 or 4 15 p m
It According to Mrs Marsh what she told Mrs Duncan was that she was leaving, and
she quotes Mrs Duncan as replying "All right " Apparently with this testimony in mind
there is some intimation in the General Counsel ' s case implied rather than clearly stated,
that the management , through Mrs Duncan acquiesced in the absence But the latter
although a cut above other employees in responsibilities functioning as manager of the
cosmetics department and as store floorlady , with authority to approve acceptance of
customers ' checks, and used by the management to transmit its instructions to employees,
was not Mrs Marsh's supervisor , and is not shown to have been a supervisor within the
meining of the Act Such a status is not established by a generaliiatron by Mrs Balerli re
who also works in the cosmetics department , that Mrs Duncan ' give ( s)" her ' orders and
dnections ," since, for all that appears , these are routine or merely transmitted by Mrs
Duncan from the management Nor is there any evidence that Mrs Duncan is empowered
to authorize absences Such authority is not established by testimony by Mrs Baterline
that she "possibly" had had occasion to inform Mrs Duncan of an intention to be absent,
or that she would be late Significantly , Mrs Marsh had never previously notified Mrs
Duncan that she would be absent, having in the past taken such a matter up with one of
the Frommelts or her immediate supervisor , Robert McCormick , who was on vacation on the
day of Mrs Marsh ' s discharge In all the circumstances I think it more likely than not,
and have thus found above , that Mrs Marsh , as Mrs Duncan testified , left a message
with the latter for John Frommelt that she was absenting herself, although I note that
even if one accepts Mrs Marsh ' s version of her conversation with Mrs Duncan , the record
does not establish that the absence was authorized by the managemeint
i Mrs Marsh and John Frommelt differ on details of their conversation in the office,
but there is no dispute that he discharged her, and indicated to her that her absence was
the reason whether the indication was given in the context of a query of whether she had
absented herself, followed by her afflimative reply and discharge , as he in effect describes
it of whether , as she tells it, he said that the next time she left the floor "early," she
could "just keep walking ," and then told lieu, "As a matter of fact, you can just keep
walking now " The end result regarding the motivation for the discharge remains the same
whichever account one accepts, but I note that I see no reason to credit Mrs Marsh's
details of the conversation rather than John Frornmelt ' s Although Mr Frommelt was un
candid at a number of points in his testimony , I am not disposed contrary to the General
Counsel in his brief , for reasons that will presently appear, to accept Mrs Marsh ' s testy
mony in every instance where it conflicts with that of Mr Frommelt Be that as it may
the General Counsel appears to view Mr Fiommelt ' s prior knowledge of Mrs Marsh s
absence as negating Mr Frommelt 's claim that he asked her whether she had been absent
but human beings in conditions of stress such as those that undoubtedly prevailed in the
office, do not usually measure their words with eye dropper precision and one may plausibly
believe, and I think it likely , that Mr Frommelt asked her whether she had absented her
self either to give her an opening to explain her absence ( winch she did not do, as is
evident from both accounts ), or as a rhetorical preface to her discharge
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seizing upon her 20-minute absence from work on June 25 as a pretext to dis-
charge her because of her interest in the Union. These claims are buttressed by the
General Counsel with another to the effect that during the period between the
leaflet discussion and Mrs. Marsh's discharge, the management, because of her
interest in union benefits, attempted "to force" her to quit by adopting an attitude
of hostility toward her and making her work burdensome.
As support for this, Mrs. Marsh testified that John Frommelt became exceedingly
unfriendly to her, giving her direct orders to do things instead of being asked to do
something, gave her more tasks than she had time to complete, and found fault
with just about everything (she) did. Mrs. Baierline gave testimony to similar
effect, and Mrs. McDonald attributed to both Frommelt brothers a coolness toward
Mrs. Marsh and a more peremptory manner of giving her instructions in the period
in question. The General Counsel also stresses the fact that at some point following
the leaflet discussion, the management forbade employees from other departments,
who had occasion to make a sale in the camera department, to ring up the sale
there, requiring them to use register facilities in their respective departments, thus,
according to the sense of Mrs. Marsh's testimony, discouraging employees from
other departments from assisting her when needed , and imposing a greater burden
upon her.
John Frommelt testified, in effect, that he discharged Mrs. Marsh because she
absented herself from work without permission of the management, and both he
and Robert Frommelt denied, in substance, the change in attitude toward her
attributed to them. John Frommelt also stated that the cash register requirement
was put into effect (1) because there were "discrepancies in the cash count" of
two register drawers in the camera department, suggesting the possibility of errors
in the use of one drawer to make change for the other by employees outside the
camera department; and (2) because Mrs. McDonald, who was stationed in the
liquor and tobacco department "was spending too much . . . time" in the camera
department, "and not enough in her own." According to John Frommelt, he
instructed Mrs. McDonald "to stay in her own department and ring on her own
cash register"; and he gave testimony to the effect that for the occasions when Mrs.
Marsh needed relief or assistance, sufficient help was available from among person-
nel whose duties included work in the camera department, which was served not
only by Mrs. Marsh, but by its manager, Robert McCormick, who devoted all his
time to it; Robert Frommelt, whose functions included the relief of employees in
the camera and other departments; and a part-time employee, Larry Dent, who,
in the "first part of May" (1965) as "mainly employed in the liquor department,"
but thereafter (in other words, for substantially the period between the leaflet dis-
tribution and Mrs. Marsh's discharge about 7 weeks later), divided his time "half
and half" between the liquor and camera departments.
There is no claim by the Respondent that Mrs. Marsh 's role in the greeting
card shipments of June 25 precipitated her discharge, but the General Counsel
places much emphasis on the affair, maintaining in his brief that John Frommelt
"falsely accused her of ordering (Mr.) Gaston to ship the material parcel post,"
thus, so the argument goes, manifesting an "attitude and conduct toward (Mrs.)
Marsh that . . . could only have been an outgrowth and climax of the Respondent's
hostility toward her."
As support for this thesis, Mrs. Marsh testified that she had no responsibility
"whatsoever" in determining how the greeting cards were to be shipped, and to
that, the General Counsel added testimony by Mrs. Baierline, who has had occasion
"to prepare" cosmetic sundries for return to the supplier, that she plays no role in
determining how it is to be sent, simply placing the merchandise in a bag or box
in the back room with the address and other information not material here.
Emphasis is also placed by the General Counsel on evidence by Mrs. Duncan,
under cross -examination, that "unless it is a small , light package ," she does not
take the responsibility for designating the shipment method.13
13 Mrs. Duncan, who was called by the Respondent, gave no testimony concerning shipping
responsibility on her direct examination Under cross-examination, she testified, without
objection, that it is the responsibility of the sales clerk returning merchandise to desig-
nate "how it is supposed to go." Then the 'General Counsel produced a prehcaring affidavit
by her, and, without objection, she affirmed as "true" a statement there to the effect that
she does not take the responsibility for the mode of shipment, "unless it is a small, light
package."
LEVINSON'S OWL REXALL DRUGS, INC 1545
The case the General Counsel makes for Mrs Marsh 's self-exoneration is less
than persuasive For one thing, Mrs Baierline 's testimony does nothing for his
theme, for, as John Frommelt testified , without dispute , returns of cosmetics, with
some particular exceptions involving special sales, follow a specified procedure, in
which the items are not immediately returned, but retained in the back room until
a representative of the supplier calls at the store and authorizes the given return
One may infer from this that Mrs Baierline 's function in connection with her
returns , which, as she testified , are "ordinarily small , just one or two items," is
to deliver them to the back room to await the given supplier's authorization for
disposition , and that there would thus be little or no occasion for her to designate
a method of shipment The return of special cosmetic sale items that do not require
the supplier 's authorization are, it is also undisputed , usually handled by Mrs Dun-
can For another matter, Mrs Duncan's statement that she has no responsibility
for designating the shipment method unless "a small , light package" is involved
obviously does not support a conclusion that sales personnel have no responsibility
for the mode of shipment , for the thrust of the statement is that the responsibility
exists in the case of "small , light" packages
But whatever one makes of the testimony of Mrs Baierline and Mrs Duncan,
the fact is that testimony offered by the General Counsel himself does much to pre-
vent acceptance of Mrs Marsh's claim that she had no responsibility whatever for
determining the method of shipping the greeting cards , for it was the General Coun-
sel who adduced evidence, through Mrs Gaston, that Mrs Marsh had given writ-
ten instructions that each group of cards she delivered to the back room be shipped
separately, that each group weighed less than 20 pounds, and that Mr Gaston
therefore shipped each by parcel post under the store's policy of using the method
automatically for packages weighing less than 20 pounds The very fact of the writ-
ten instructions for separate shipments , not to speak of the oral confirmation Mrs
Marsh subsequently gave Mr Gaston , runs counter to her disavowal of responsibil-
ity, and gives corroborative weight to testimony by John Frommelt that there were
standing instructions, expressed by him at a meeting of the employees in October
1964, that sales personnel preparing merchandise for shipment, were to designate
the method, and if they were in any doubt, to have the merchandise weighed (by
implication , with a view of choosing a method that would conserve cost ), and that
he had criticized Mrs Marsh on two occasions for failing to make such designation
Significantly , too, the General Counsel offers no reason , through Mrs Marsh or any-
one else , why she would make a point of instructing Mr Gaston to "ship separately"
unless she had some responsibility in the premises , nor does she deny that she was
aware of the policy of parcel post shipment of packages weighing less than 20
pounds 14
Against that background, Mrs Marsh's disavowal of any responsibility for deter-
mining the method of shipment appears to me to lack candor I do not credit it,
and am persuaded that she gave the separate shipment instructions because it was
her responsibility to designate the method of shipment What is more , her written
and oral instructions to ship each group of cards separately was, in view of the
store's parcel post shipment policy, as much as to direct Mr Gaston to ship each
package by parcel post, albeit she did not say in so many words, and, certainly, Mr
Gaston was warranted in thus construing her instructions, and in telling John From-
melt, as he did in substance , that he had acted upon them in sending the packages
by parcel post
One may agree that John Frommelt behaved intemperately in angrily imputing
stupidity to Mrs Marsh in a public part of the store , but his display of distemper is
a matter separate from the question of her responsibility for the choice of ship-
ment method, and on that issue, whatever view one may take of his judgment and
manners, the fact remains that she was responsible for designating the shipment
method and had given Mr Gaston shipping instructions that resulted in a substan-
tially greater cost than was necessary , and that John Frommelt was justified, in all
the circumstances, in holding her responsible for the method of shipment and the
additional cost it entailed
14 It Mould be surprising indeed, if an employee with Mrs Marsh's long tenure who had
prepared merchandise for return on pievious occasions would be unaware of the parcel
post policy Moreover the very fact that she specified separate shipment for each group
each of which weighed less than 20 pounds in the absence of any explanation by her of
the specification suggests that she had the policy in mind when she provided for separate
shipments
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, I find no substantial support in the record for the General Counsel's
claim that John Frommelt's distemper was rooted in hostility toward Mrs. Marsh
because she had manifested an interest in union benefits to Robert Frommelt some
seven weeks earlier. It should be unnecessary to point out that within the immense
range of variables in human behavior, responding to similar conditions, many men,
for varying reasons, will overreact where others will not; some will explode with
feeling where others will be little moved; and some carry a burr of constant irrita-
bility, transferring their discomfort to those about them, where others are blessed
with relative serenity. In the light of such variables in the human condition, to find,
on this record, cause and effect in Mrs. Marsh's leaflet discussion with Robert From-
melt and John Frommelt's anger toward her almost 2 months later appears to me
to be no more than an arbitrary assumption.
That view of the matter is no way diminished by the opinions and conclusions
upon which the General Counsel rests his claim that after the leaflet discussion, the
Frommelt brothers turned unfriendly, cool, and peremptory toward Mrs. Marsh, and
unjustifiably found fault with her, all with the aim of forcing her to quit because
she had shown interest in union benefits in her discussion with Robert Frommelt.
Acceptance of the opinions and conclusions would be a risky business, quite apart
from the inference the General Counsel would draw from them, and this is abund-
antly evident upon an examination of the record. For example, although Mrs. Baier-
line testified under direct examination that after the leaflet incident, John From-
melt "seemed to be constantly picking on (Mrs. Marsh), that the work wasn't good
enough, it wasn't suitable," she subsequently testified that she had never heard "any-
one from management" reprimand Mrs. Marsh prior to the date of the latter's dis-
charge when she was criticized for the parcel post shipment. Elsewhere in Mrs.
Baierline's testimony, it appeared that what she meant by "picking on" was that
Mrs. Marsh "was being given more jobs than she could handle," and as a result,
according to Mrs. Baierline, that made the Frommelts "unhappy," but asked at one
point what "evidence" there was that Mrs. Marsh could not complete her work in
a given day, she replied, "I can't recall," and subsequently all she could muster
about the "unhappiness" of the management was that she heard John Frommelt say
"something to the effect one day" that Mrs. Marsh "wasn't selling enough cameras."
Significantly, too, Mrs. McDonald, after attributing to the management an unfriendly
and peremptory attitude toward Mrs. Marsh, testified under cross-examination that
the Frommelt brothers adopted that attitude toward all the employees.
The speculative reach of the descriptions of the alleged change in manner toward
Mrs. Marsh becomes even more apparent when one attempts to pyramid upon
them, as does the General Counsel, a claim that the managerial attitude toward
her stemmed from her expressed approbation of union benefits. The guesswork
entailed in acceptance of such a claim is perhaps best illustrated by the effort to
translate John Frommelt's anger over the extra shipping cost into hostility toward
Mrs. Marsh because in her talk with Robert Frommelt almost 2 months earlier she
had spoken approvingly of union benefits described in the leaflet.
Nor is the General Counsel's case materially aided by the testimony that she was
given too much work. In the main, this, too, is a conclusion, and the risk of follow-
ing it is demonstrated by Mrs. Baierline's testimony that she is unable to recall any
"evidence" that Mrs. Marsh could not complete her tasks. Similarly, I find no per-
suasive support - for the General Counsel in the restriction of the use of camera
department register facilities to management and camera department personnel.
There is nothing inherently implausible in the operational reasons John Frommelt
gives for the limitation . His testimony that camera department cash registers reflected
some discrepancies is undisputed , and I see no reason to reject the plausibility of
this as a reason for the limitation on the use of the cash registers to management
and camera department personnel. Furthermore, Mrs. Marsh admittedly asked Mrs.
McDonald "a lot of times" to look after the camera department, while the former
was briefly absent, and it is not beyond rational belief that John Frommelt would
view the "lot of times" as unnecessary and impairing the efficiency of the liquor
department , and, as he testified in effect , would deem the staff expressly authorized
to work in the camera department sufficient to provide relief for one of their num-
ber, as occasion required . It may be that this attitude imposed some added burden
on Mrs. Marsh, but one may as reasonably believe that what was involved was the
exercise of a business judgment as to conclude that the object was to punish Mrs.
Marsh for having expressed approval of union benefits to Robert Frommelt on one
occasion. The sum of the matter is that the record will not support a conclusion
that the following leaflet discussion , the Frommelt brothers adopted an attitude of
LEVINSON'S OWL REXALL DRUGS, INC. 1547
hostility toward Mrs. Marsh, and imposed undue burdens upon her, with the aim
,of forcing her to quit because she had manifested an interest in union benefits.15
That result highlights a weakness in the General Counsel's claim that the reason
given by John Frommelt for the discharge was a pretext, for it does not plausibly
appear why the management would wait almost 2 months after Mrs. Marsh's
manifestation of union interest to discharge her, nor why it would choose a time
when the camera department had a reduced force, since Mr. McCormick was absent
on a vacation not due to return until July 5. It is true that the Respondent is dis-
posed to use coercive means to discourage unionization of its employees, as evi-
denced by the threats made to Mrs. Baierline and Mrs. McDonald, and that the
penalty of discharge for an employee of such long tenure as Mrs. Marsh because
of a 20-minute unauthorized absence seems, standing alone, much out of propor-
tion to her offense.
But the absence does not stand alone, and must be viewed in the context of events
on June 25. John Frommelt had held Mrs. Marsh responsible for the shipping waste
of $7 or $8, and I find no reason to doubt that he was genuinely angry over it,
whatever view one may take of his manners. Had he had any purpose to discharge
Mrs. Marsh upon a pretext, it seems to me that he would have done so at that point.
But he did not do so, and for all that appears, the matter was dropped until Mrs.
Marsh chose to resume the discussion upon her return from the physician's office,
doing so by admonishing him not to speak to her in public again in the way he had.
Whether the admonition was justified is beside the point, for, assuming its justifica-
tion, one may reasonably believe that the rebuke from his subordinate did not sit
well with Mr. Frommelt. Moreover, Mrs. Marsh offered him no explanation of her
absence, although she had an opportunity to do so when he asked her whether she
had absented herself from work.
Taking into account the time lapse of almost two months between the leaflet dis-
cussion and Mrs. Marsh's dismissal, and the full sequence of events on the day of
the discharge, I am unable to view the unauthorized absence as so unnatural a jus-
tification for the discharge as to warrant a conclusion that it was a pretext to con-
ceal an unlawful motive for the discharge. In short, the General Counsel has not
sustained his burden of proving by evidence of preponderant weight that the dis-
missal violated the Act, and, accordingly, I shall recommend dismissal of the rele-
vant allegations of the complaint.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Company has engaged in unfair labor practices violative
of Section 2(a) (1) of the Act, but that the record does not support a finding that
the discharge of Beverly S. Marsh was unlawful, I shall recommend below that the
Company cease and desist from the unfair labor practices found, and take certain
affirmative actions designed to effectuate the policies of the Act; and that so much of
the complaint be dismissed as alleges that the discharge was unlawful.
"The General Counsel sees support for his view of the purpose of the camera depart-
ment cash register restriction in testimony by Mrs. Marsh that there was no comparable
restriction in the liquor department. However, the reasons given by John Frommelt for
the camera department limitation were directed to particular conditions there. Thus, if
those reasons are plausible, there would be no occasion to provide a comparable restriction
in the liquor department. I note, also, a claim by the General Counsel, based on Inference
drawn from the testimony of Mr. Dent and Mr. McCromick, and in effect contradicted by
both Frommelts, that Mrs. Marsh did the bulk of the work Involved in making an excise
tax Inventory that was supposed to be completed by July 1, 1965, but was not finished
until later. Mrs. Marsh's portion of the work was done, upon Mr. McCormick's direction,
while the latter was on vacation during the latter part of June. The thrust of this evidence
appears to be that this Imposed an undue burden upon her, although it is not quite clear
whether the General Counsel claims that the assignment was part of the alleged plan to
force her to quit. In any case, the record will not: support such a claim.
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding, I make the following conclusions of law:
1. Levinson's Owl Rexall Drugs, Inc., is, and has been at all material times, an
employer within the meaning of Section 2(2) of the Act.
2. Retail Store Employees Union, Local 373, Retail Clerks International Associ-
ation, AFL-CIO, is, and has been at all material times, a labor organization within
the meaning of Section 2(5) of the Act.
3. By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act, as found above, the said Company
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The record does not establish that the discharge of Beverly S. Marsh violated
the Act.
[Recommended Order omitted from publication.]
Thompson Industries, Inc., and Circuit Controls Corporation,
Its Wholly-Owned Subsidiary and International Union, United
Automobile, Aerospace and Agricultural Implement Workers of
America (UAW), AFL-CIO. Case 7-CA-5354. December 7,
1966
DECISION AND ORDER
On July 20,1966, Trial Examiner Alvin Lieberman issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom, and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. He also found that the Respondent had not engaged in
other unfair labor practices alleged in the complaint and recom-
mended dismissal of those allegations. 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, as amended, the National Labor Relations Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Brown and
Zagoria].
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 rec-
ord in this case, and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations only to the extent consistent with
this Decision and Order.
161 NLRB No. 139.