Rose's Stores, Inc.Download PDFNational Labor Relations Board - Board DecisionsNov 6, 1975221 N.L.R.B. 383 (N.L.R.B. 1975) Copy Citation ROSE 'S STORES, INC Rose's Stores, Inc. and Atlanta Printing Specialties and Paper Products Union No. 527, AFLr-CIO. Case 10-CA-11131 November 6, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On June 30, 1975, Administrative Law Judge Almira Abbott Stevenson issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that Rose's Stores, Inc., Fairburn, Georgia, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, as so modified. 1. Substitute the following for paragraph 1(c): "In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board 's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless all of 'the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products Inc, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (C.A. 3, 1951) We have carefully examined the record and find no basis for reversing her findings. APPENDIX 383 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge any of you for supporting Atlanta Printing Specialties and Paper Products Union, No. 527, AFL-CIO, or any other Union. WE WILL NOT coercively question you about your union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them by Section 7 of the National Labor Relations Act, as amended. WE WILL offer Kenneth Golson, Clifford Gillette, and Gary Stewart immediate and full reinstatement to the jobs they held prior to their discharges on February 21, 1975, or, if their jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges. WE WILL make whole Kenneth Golson, Clif- ford Gillette, and Gary Stewart for any loss of pay they may have suffered as a result of their discriminatory discharges, plus interest at 6 percent per annum. ROSE'S STORES, INC. DECISION STATEMENT OF THE CASE ALMIRA ABBOT STEVENSON, Administrative Law Judge: This case was heard in Atlanta, Georgia, April 29 and 30 and May 1, 1975. The original charge was filed and'served on the Respondent February 25, 1975; the amended charge was filed and served March 25, 1975. The complaint was issued March 27, 1975, and amended at the hearing. The issues are whether or not the Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended, by interrogating two employees; and whether or not it violated Section 8(a)(3) by discharging three employees February 21, 1975, 2 days after they attended a union meeting. For the reasons fully set forth,below, I conclude that the Respondent violated the Act as alleged in the complaint. Upon the entire record,' including my, observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the Respondent and the General Counsel, I make the following: The record does not reflect that G C Exh 7, offered in evidence, was received. As the Respondent had no objection to that exhibit , it is hereby received in evidence 221 NLRB No. 79 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTION The Respondent is a North Carolina corporation engaged in the operation of retail stores in North Carolina, Georgia, and Tennessee, as well as the warehouse in Fairburn, Georgia, involved in this proceeding. During the past calendar year the Respondent had a gross volume of sales in excess of $500,000; it purchased and received at its Fairburn, Georgia, warehouse goods and materials valued in excess of $50,000 directly from points outside Georgia. The Respondent admits and I conclude that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION The Respondent admits, and I conclude, that the Charging Party is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Evidence The Fairbum Warehouse is a storage and distribution facility approximately 105,000 square feet in size, and employs a complement of about 50 employees. It is run by the' Respondent's admitted agents, Allen F. Harris, operations manager, and Linwood H. Ivey, warehouse manager. Paychecks for the employees are made out at the Respondent's home office in Henderson, North Carolina, about 460 miles away, and sent to Fairburn by mail or by company truck which makes a daily run between the two locations. The three employees involved in this case were classified as general warehousemen. Kenneth Golson was hired during the spring of 1973; he attended the Respondent's management training program in Athens, Georgia, for several months during the spring of 1974, but returned to his warehouse job in Fairburn at his own request in May, without completing the course. Clifford Gillette was hired in the fall of 1973. Gary Stewart was hired as part time in June 1973, and as full time in March 1974. On or about February 9, 1975, Kenneth Golson contacted an official of the Charging Party Union with regard to the possibility of organizing the Respondent's warehouse employees. A meeting was scheduled between union officials and employees to be held at the union office in Atlanta on the evening of Monday, February 17, but was postponed until Wednesday evening, February 19. Only three of the Respondent's employees attended - Golson, Gillette, and Stewart. All three signed union authorization cards; Golson and Gillette took blank cards to obtain signatures of other employees if possible. Two days after the union -meeting, on Friday afternoon, February 21, Golson, Gillette, and Stewart were terminat- ed by Managers Ivey and Harris. The basic question is whether the terminations were for attending the union meeting , as the General Counsel contends, or for cause, as the Respondent contends. During the workday after the union meeting, the three employees who had attended spoke to other employees during break periods about the meeting, and, Golson informed some employees he would meet with them at an A & P parking lot after work and discuss the union matter further. Six to ten employees showed up at the parking lot and Golson gave out union authorization cards to four of them. The record does not reveal the location of the A & P parking lot vis-a-vis the Respondent's warehouse. Golson conceded that he took every precaution to keep manage- ment from finding out about the union activities, and there is no direct evidence that any of the above-described activities came to management's attention. The General Counsel relies on the following to`support his assertion that management did learn about the union meeting attended by the three alleged discriminatees. It is not disputed that' about 9 o'clock on Thursday morning, Jim Sanders, a truckdriver whose work required him to visit the front office frequently, came out of the office and asked Golson how the union meeting went the night before, who attended, and what was said. Golson told Sanders that he, Gillette, and Stewart attended, and it seemed to be a good plan; he asked Sanders to'come to the A & P parking lot after work and sign a union card. At that point, Sanders, who both Golson and Gillette said had been favorably disposed toward unionization, told Golson, "no, he was not for the Union, and that it would shut the warehouse down tight if we got one in," and went back into the office. About an hour and a half later, according to Golson and Gillette, Manager Ivey walked by them as they were working in the warehouse and said to them, "How did the union meeting go last night?" and passed on by without waiting for an answer. This question, which Ivey denied asking, is the basis for the 8(a)(1) violation alleged in the complaint. The following evidence, was received relevant to the discharges on Friday afternoon. There is no substantial dispute as to Golson's discharge interview. Golson was summoned to the office where Managers Ivey and Harris were present. Ivey told him, "I think that you have been expecting this," and handed him a termination check, which contained his pay for his last week's work, vacation pay, and a week's severance pay. Golson asked whether there was going to be a layoff or whether it was a termination. Ivey said it was a termina- tion. Golson requested a pink slip stating why he was being fired; Ivey said Rose's did not have pink slips. Golson then asked Ivey to write the reason on a piece of paper for the unemployment office. Ivey complied, writing, "not work- ing up to his ability and poor attendance," and Ivey and Harris signed the slip. At the same time, Ivey made out a discharge record for the Respondent's files to the effect that Golson had "not been giving his best," and "was not working as well as expected and for attendance." Golson contended he had received no prior complaints about his attendance or not working up to his ability. On one occasion, before Christmas 1974, Golson said, Ivey complimented him for trying to keep up with everybody else despite a back injury he suffered on the job the previous July. ROSE'S STORES, INC. 385 When Golson hurt his back in July 1974, Ivey placed him on light duty. Golson testified he was not absent thereafter except for vacation time and excused sick leave for which he was paid in full. Stewart and Gillette were called into the office separately on Friday afternoon. Ivey discharged each of them in Harris' presence , and handed them checks. Stewart said the only reason given him at that time was that Ivey had been checking up on his records and that he "hadn't been doing so well lately ." Gillette said the reason given him was not doing what he was capable of and for talking. Both employees testified that Ivey and Harris disavowed responsibility for the discharges , and declared that the Henderson home office ordered them . Ivey denied saying this and Harris could not recall Henderson being men- tioned ; both testified that Ivey alone made the decision and so advised Harris, as discussed below. They testified in effect that Ivey told Stewart and Gillette their work was not up to par and the Respondent had to get someone who would get the job done . Gillette and Stewart returned to the warehouse the Monday following their discharges and obtained slips signed by the two managers to the effect that they were dismissed for talking and interfering with other people's work, and that they had been warned . The file records, signed by Ivey and Harris, stated that Stewart had been standing around talking , his performance was not up to par, and that he was not giving his best; and' that Gillette was not working, but was talking and interfering with other people 's work, and the company needed someone to do the work. The record shows that Gillette and Stewart are friends with a mutual interest in music. They conceded that on several occasions Ivey remonstrated with them for talking with each other, split them up , and told them to get back to work . They insisted that work was the subject of their conversation on every such occasion . The last time Ivey spoke to them in this manner was around Christmas, 1974, when, according to Stewart , Ivey said that he was not going to tell them again . However , just a week before their terminations , they said, Ivey told them they were two of the, hardest workers in the warehouse . As indicated below, Ivey denied this. Ivey and Harris testified they had no knowledge of any union activity among the employees before the discharges, and that they learned of the union activity for the first time when they received a copy of the charge in this proceeding. Ivey testified that there is no formalized system of disciplinary action and no policy of giving employees written reprimands . Ivey handles disciplinary matters, and makes the decisions about discharging employees. Ivey sometimes reduces reprimands to writing for the file, but does not give a copy to the employee affected., With regard to discharges, he and Harris said it is company policy to effect them at the end of a week because, Ivey said, paychecks must be obtained from Henderson , and they both pointed out that the policy gives the remaining employees the weekend to cool off in the event they object to the discharges. With regard to Golson , Ivey testified he was a good employee until he returned from the management training program , but after that his attitude changed and he made mistakes in writing up freight . Early in December, Ivey said he asked Golson whether he had seen the doctor lately, and Golson told him the doctor had said to resume his normal duties. Ivey instructed Golson to return to the warehouse the next day but to be careful not to overexert and irritate his injury. At the same time , Ivey said, he pointed out that Golson's attendance was not good and to improve it, although Ivey thought Golson was going to the doctor whenever he missed work. There was no further discussion between them of Golson 's injury, although Ivey was never advised that Golson was cured . Ivey's next talk with Golson was after he missed work Friday, February 7, 1975, when Ivey says he told Golson his attendance definitely would have to improve and his work needed improvement . Golson said he would try. On Monday, February 17, Golson called to say he was sick . Ivey told him to bring a doctor's excuse, but Golson never brought one. That afternoon Ivey reviewed Golson 's record which showed Monday to be his ninth absence in 1975, and informed Harris he had decided to terminate Golson. Harris asked if Ivey had "proper warnings on him." Ivey said he had given Golson verbal warnings and he knew he was in trouble , and Ivey needed to replace him with a man who could get the job done . Harris testified that he told Ivey, "it's your decision , if you think you can do it, that's what we'll do." The record shows that at the time of Golson's back injury, he was referred to a Dr . Thomasson who discharged him as "cured" August 8 , 1974. Thereafter , however, Golson obtained treatment from a Dr. Warren , ;huroprac- tor, on six occasions in November 1974 , although he was absent only 3 of those days. The Respondent 's insurance company paid for the chiropractor but thereafter referred Golson to another medical doctor, Dr. Wood . Golson was excused for half a day on two occasions thereafter in 1974 - November 29 and December 3. On December 3, he was examined by Dr . Wood . Golson saw Dr . Wood again December 10, but the record does not show that he missed work that day. The Respondent's attendance record shows that between January 1 and February 21, 1975, Golson called in sick nine times . Golson testified that he visited either Dr. Wood or a Dr . Whitaker on eight of those occasions. The insurance company has no record that Golson visited Dr. Wood at any time during 1975 before his discharge, and Dr. Whitaker is otherwise unidentified. According to Ivey, there is a company rule requiring dismissal for excessive absenteeism but he takes it upon himself to make this determination after reviewing the employee's record and talking to him. Ivey testified that he usually excuses six absences for sickness without question- ing an employee, but does question an employee after that and usually docks his pay. Although Ivey avowed that Golson never said his 1975 absences were due to his back injury, Ivey conceded that all of Golson's absences in,1975 were excused, and he was not sure that Golson's pay was docked for the seventh, eighth, and ninth day he called in sick. There is evidence that an employee named Waller was discharged on Friday, October 12 , 1973, for unsatisfactory work . Allen Patterson was discharged on Friday, March 29, 1974, for missing 10 days since the first of that year, 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD although the record does not reveal whether any of his absences were excused. The record shows that Ivey reprimanded Stewart and Gillette in September, as well as in December 1974, for standing around talking. Ivey and Harris testified that in January and February 1975 talking, loafing, and interfer- ing with other people's work became a general problem among the employees. The volume of freight coming into the warehouse increased 50 percent in January and 100 percent in February over the comparable months of 1974, and employee resistance to working overtime compounded the Respondent's problem. Ivey and Hams therefore held several meetings with employees at which they appealed to them to stop loafing and talking, pointed out that this would reduce the need to work overtime and that if the employees did not, "we'd have to make changes to get the job done." Employees Charles Bryant, Jimmy Whitley, and Wade Talley were suspended for a day for standing around talking on overtime January 9, 1975, Tally being told he had already had several chances in the past. This "solved the problem" for those three employees, Ivey said. The work of Stewart and Gillette also improved, Ivey said, and on February 14 he told them so and asked them to keep it up. However, he said, he observed them back together again two or three times on both Monday and Tuesday the following week, and on Tuesday he decided to replace them. Ivey so informed Harris who asked him if he had issued reprimands to them. Ivey said yes, and Harris told Ivey to do what he thought best to get the job done. As Hams was scheduled to visit the Henderson office, Ivey asked him to bring checks for the three dischargees when he returned on Friday. Ivey said he observed Gillette and Stewart together again on Friday morning and when he approached them they showed him a paper with guitar chords on it; Ivey laughed, because he could not believe it The Respondent also presented the testimony of Jimmy Moms, who said he had been employed in the warehouse for 2 years but whom Golson testified he did not know. Morris said he had worked with the three alleged discnminatees on a daily basis observing their work for a year, and that they were goof-offs. Stewart and Gillette were frequently told to do more work and were not the hardest workers in the warehouse, he said, although he named two other employees, Teal and Hines, who were spoken to more often than they about talking. Morris also testified that he himself first heard of the union activity in the plant after the three were discharged. B. Findings and Conclusions Based on my observation of the demeanor of all the witnesses and careful study of the entire record, I am persuaded that Kenneth Golson was the most truthful person who testified. Although not infallible in all respects, he appeared to be an intelligent, substantially honest, forceful young man. Moreover, I do not credit Ivey's vague, imprecise, and jejune testimony to the effect that Golson's "attitude" changed after his voluntary return from the management training program many months ago, that he made mistakes, and that Ivey told Golson, albeit only one time, that his work needed improvement. Moms' testimony that Golson was a goof-off is discounted as motivated more by ambition than by integrity. With regard to Golson's alleged excessive absenteeism, there is no question but that he suffered an injury on the job on July 31, 1974, and that he has not fully recovered. Ivey's testimony that he told Golson in early December, at the time Golson returned to his normal duties, that his attendance was not good, is not supported by the Respondent's attendance records. Thus Golson missed 6 days' work in August and 4 days in September. In October, however, he missed no work; in November he was absent 3-1/2 days; and he missed only one-half day in the entire month of December. As Ivey admitted, he thought all of Golson's absences were occasioned by visits to a doctor, as he excused them, and as the record shows that Golson's attendance was actually improving at the time Ivey says he admonished him, this testimony is totally unbelievable. With regard to January and February 1975, I do not doubt that there was a large increase in the workload, and that attendance and attention to duty increased in importance. It is also clear that Golson's attendance deteriorated However, it is plain that Ivey believed that his absences were the result of his back injury, as Golson testified they were Thus, Ivey had cautioned Golson in December not to overexert and irritate his injury, Ivey admitted he was never advised that Golson was cured, he excused these absences, and he was unable to deny Golson's testimony that the Respondent paid for them. In these circumstances, I cannot credit Ivey's testimony that he told Golson, without mentioning his injury, after his February 7 absence, that his attendance definitely had to improve. I therefore find that Ivey did not speak to Golson about his absences despite his professed practice of doing so after an employee missed 6 days for sickness, and that the reason he did not was because he was convinced they were caused by the injury Golson suffered on the job. Ivey's further testimony that he finally told Golson, when he called in sick on Monday, February 17, to bring a doctor's excuse and that Golson failed to do so, is inconsistent with Ivey's contention that he made the decision to fire him Monday afternoon, before he found out whether or not Golson would bring the excuse. Accordingly, I find that the reasons advanced for the discharge of Golson are not supported by credible evidence and were not the real reasons the Respondent discharged him. As I have found above that Golson was a more credible witness than Ivey, as Golson's testimony that Ivey asked him and Gillette how the union meeting went was supported by Gillette and does not appear in all the circumstances unlikely, I credit these two employees' testimony in this regard, and discredit Ivey's denial. Accordingly, I find that by mid-morning, Thursday, February 20, Ivey had discovered that they attended the union meeting the night before . Because it is improbable that he would not have, I infer that he had also discovered the attendance of the only other employee present - Stewart. The work record of Gillette and Stewart was not impressive, as they received two reprimands for talking when they should have been working. However, Jimmy ROSE'S STORES, INC: Morris , found above to be unduly favorable toward the Respondent , said that two other employees, Teal and Hines, (who did not attend the union meeting), had to be spoken to more often than they for talking, and the record indicates that Teal and Hines were not discharged until some time after the events herein. Moreover, the three employees who had been guilty of the same offense of talking instead of working in January, one not for the first time, had merely been suspended for a day, and Ivey conceded the suspensions had solved his problem with them . It is also clear that Stewart and Gillette's conduct did improve, and that Ivey told them so only a week before he discharged them. His assertion that they immediately thereafter retrogressed so badly that he decided to discharge them is completely unconvincing. If they really had begun talking and loafing again, it would have been more reasonable for Ivey to suspend them for a day than to suddenly discharge them for conduct he had tolerated for some months without taking any disciplinary action harsher than two verbal reprimands, particularly when his prior experience must have led him to believe suspensions would solve the problem. I find therefore that the reasons given by the Respondent for the discharge of Stewart and Gillette are not supported by credible evidence. I have found that the Respondent did not discharge these employees for the reasons advanced. I have also found that management discovered before noon on Thursday that they were the ones who attended the meeting the night before. Harris' testimony that he told Ivey to go ahead and discharge Golson "if you think you can do it" strongly suggests that the decision was made at a time when management had doubts about getting away with it; i.e., not before they knew about the union meeting, but after they knew about it. From Thursday morning until Friday afternoon was just about long enough to have the checks made up and brought from the home office. In view, therefore, of the Respondent's failure to show cause for the discharges, the disparity in the Respondent's treatment of these employees, its knowledge of their attendance at the union meeting, and the timing of the discharges as soon after learning about the union meeting as practicable, I find that the Respondent discharged them February 21, 1975, because they attended the meeting. I conclude that by this conduct the Respondent discriminat- ed against Golson, Gillette, and Stewart in their tenure of employment to discourage membership in a labor organi- zation, thereby violating Section 8(a)(3) and (1) of the Act. I also find that Ivey's question of Golson and Gillette, "How did the Union meeting go last night?" was in context coercive, and that the Respondent thereby interfered with the exercise of employee rights guaranteed by Section 7, in violation of Section 8(a)(1) of the Act. 2 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and Order, and all objections thereto shall be deemed waived for all purposes IV. REMEDY 387 In order to effectuate, the policies of the Act, I recommend that the Respondent be ordered to cease and desist from the unfair labor practices found and, in view of the nature thereof, to cease and desist from infringing in any manner on its employees' rights guaranteed by the Act. N. L. R B. v. Entwistle Manufacturing Company, 120 F.2d 532 (C.A. 4, 1941). Having found that the Respondent discriminatorily discharged three employees, I also recommend that it be ordered to offer these employees immediate and full reinstatement to their former jobs, or if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of earnings suffered by reason of the discrimination against them, plus interest at 6 percent per annum. F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 The Respondent, Rose's Stores, Inc., Fairburn, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee for supporting Atlanta Printing Specialties and Paper Products Union, No. 527, AFL-CIO, or any other Union. (b) Coercively interrogating employees about their union activities. (c) In any manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Kenneth Golson, Clifford Gillette, and Gary Stewart immediate and full reinstatement to their former jobs or, if their jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, and make them whole for their lost earnings in the manner set forth in the section of this Decision entitled "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 records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its warehouse in Fairburn, Georgia, copies of the attached notice marked "Appendix." 3 Copies of the notice, on forms provided by the Regional Director for 3 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Region 10, after being duly signed by an authorized the Respondent to insure that the notices are not altered, representative of the Respondent, shall be posted by the defaced, or covered by any other material. Respondent immediately upon receipt thereof, and be (d) Notify the Regional Director in writing within 20 maintained for 60 consecutive days thereafter, in conspicu- days from the date of this Order, , what steps the ous places, including all places where notices to employees Respondent has taken to comply herewith. are customarily posted. Reasonable steps shall be taken by Copy with citationCopy as parenthetical citation