Sea-Mart Shopping Center

National Labor Relations Board - Board Decisions

Oct 4, 1965

155 N.L.R.B. 30 (N.L.R.B. 1965)

3O DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yard Bird of Olympia , Inc., d/b/a Sea-Mart Shopping Center 1
and Retail Clerks Union, Local 309, Retail Clerks International
Association , AFL-CIO. Case No. 19-CA-3001. October 4, 1965
DECISION AND ORDER
On June 8, 1965, Trial Examiner William E. Spencer issued his
Decision in the above-entitled case, finding that the Respondent had
not engaged in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed, as set forth in
the attached Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's Decision and a brief
in support of the exceptions, and the Respondent filed a brief in sup-
port of the Trial Examiner's Decision.
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 and the entire record in this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the following modi-
fication, noted below.
We agree with the Trial Examiner that Pearl Dorris was dis-
charged for cause, for it is apparent to us that it was Dorris' in-
competence which occasioned her discharge. Practically from the
time of her employment 3 months before her discharge, and 21/2
months before the union demand that she be paid the contract wage
rate, the Respondent had been concerned with Dorris' job perform-
ance. Hired as a cashier, she was at the end of a month transferred
to the yardage department, and a few weeks later to the girls' depart-
ment. Her three jobs were successively less demanding and in each
she proved unsatisfactory. Having come at a time when the Respond-
ent had about exhausted its efforts to place Dorris in a suitable job,
the Union's demand that Dorris be paid the alleged contract rate,
which would have been in effect a pay raise, simply magnified the
nearly insoluble problem of finding a satisfactory position for her.
In these circumstances, we find it was Dorris' incompetence and not
the union demand which caused her discharge. Consequently, as
recommended by the Trial Examiner, we shall dismiss the complaint.
i The name of the Respondent appears as corrected at the hearing.
155 NLRB No. 10.
SEA-MART SHOPPING CENTER 31
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders
that the complaint be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Trial Examiner
William E. Spencer in Olympia, Washington, on March 31, 1965, upon a complaint
of the General Counsel of the National Labor Relations Board, the latter herein
called the Board, dated January 26, 1965, and the duly filed answer of the Respond-
ent. The complaint, based upon a charge filed November 27, 1964, by Retail Clerks
Union, Local 309, Retail Clerks International Association, AFL-CIO, herem called
the Union, alleged, in substance, and Respondent's answer denied, that the Respond-
ent, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act,
as amended, herein called the Act, discharged its employee, Pearl Dorris, because
of her union and concerted activities.
Upon the entire record in the case, my observation of the witnesses, and considera-
tion of the briefs filed with me by the General Counsel and the Respondent, re-
spectively, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Washington corporation with its principal office and place of
business located in Olympia, Washington, where it is engaged in operating a depart-
ment store, during a representative 12-month period, sold and distributed products
having a gross value in excess of $500,000, and received goods valued in excess of
$50,000 which were transported to its place of business in Olympia from outside
the State of Washington.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
On or about October 14, 1964, the Respondent discharged its employee, Pearl
Dorris, rather than pay her a higher wage than she was then receiving, as demanded
by the Union and herself. It is alleged that the discharge was violative of Sec-
tion 8 (a)(1) and (3) of the Act. I find that it was not.
At all times material the Respondent had a bargaining agreement with the Union
which established a wage scale for its employees. When the Union discovered that
Dorris was not receiving the wage it considered her entitled to under the agreement,
its secretary, Doris Ross, on September 29 and again on October 9, telephoned
officers of the Respondent and requested that Dorris' wages be raised to conform
with the wage scale contained in the agreement. The latter conversation was with
Noel Cole, manager of Respondent's operation in Olympia, its only operation
involved in this proceeding. Cole replied that Dorris was not worth the wage
demanded.
About October 14, Cole spoke to Dorris where she was at work, and according to
her credited testimony said, "I hear you are not happy." To this she replied that
she was not unhappy but thought that a hundred dollars for 2 weeks' work "wasn't
very much money." Cole then said that he thought he should be the one who de-
cided how much she should be paid, that not even Joyce Klontz, the departm, .it
head, was drawing journeyman wages; that he had been trying ever since the
Union called him to decide what to do. Dorris admitted that she would not have
remained in Respondent 's employ at the wage she was then receiving, and at the
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time of the discharge, which occurred during or at the conclusion of this conversa-
tion, that she told Cole she would not continue to work for less than $1.50 an
hour. She was then receiving $1.34.1
It is assumed though not found that under the Union's bargaining agreement with
Respondent, Dorris' experience entitled her to the wage the Union demanded. I
would not think however that this would put the Respondent to the alternative of
keeping one in its employ at the stipulated wage whom it regarded as incompetent
to receive such a wage, or being found guilty of an 8(a)(1) and (3) violation.
Upon the entire evidence I have no doubt that the Respondent believed, as Cole
stated to Ross and, indeed, to Dorris herself 2 that Dorris was not worth-in terms
of competency-the stipulated wage. It could not keep Dorris in its employ unless
it paid her the stipulated wage, or the wage demanded by Dorris as a condition for
remaining in its employ, and accordingly it discharged her. There is no evidence
of antiunion bias on the part of Respondent, such evidence as there is, with the
exception of the discharge itself, indicating amicable relations between the Union
and Respondent.
The mere assertion of a right under a bargaining agreement if made in good
faith, even though the right asserted may not be supported by the contract itself,
may be protected union and concerted activity as the Board has held (Mushroom
Transportation Co., Inc., 142 NLRB 1150, 1157-1158), but in my opinion it does
not follow that insubordination or other breach of plant discipline based on an
employee's unilateral determination of his contractual rights, or, as here, an em-
_ployee's refusal to continue to work unless paid a stipulated wage, even though that
employee's refusal is based on a belief that the bargaining agreement entitles her to
such higher wage, is protected union or concerted activity. Had the employee in
question merely asserted a claim, or filed a grievance, and been discharged therefor,
we would have a different problem. I attempted to make such a distinction in an
earlier decision (Traylor-Pamco, 154 NLRB 380, 387, footnote 6, October 12,
1964) but here it is more clearly defined. This is not an appropriate forum, I think,
in which to seek enforcement of the terms of a bargaining agreement.
I shall recommend dismissal of the complaint.
CONCLUSIONS OF LAW
The Respondent is an employer within the meaning of Section 2(2) of the Act,
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
The Union is a labor organization within the meaning of Section 2(5) of the Act.
The Respondent has not engaged in the alleged unfair labor practices.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed.
'Cole testified that he had already decided to discharge Dorris for Incompetency at
the time he first learned of the Union's protest on her wages, and was supported in this
by Klontz. I do not credit this testimony. Klontz' testimony Is Inconsistent with that
given in a prehearing affidavit, and Cole's statements to Dorris at the time of her dis-
charge, while bearing out his position that he did not consider her work satisfactory,
showed clearly that the Union's demand for a higher wage entered into the discharge
considerations.
Dorris testified:
I said, "Has my work been satisfactory?" And be said, no, not exactly that he was
honest, that his wife had always told him how honest he was.
Old Homestead Bread Co. (Town Talk Bread) and Charles E.
Cosens. Case No. 17-CA-92611. October 5,1965
DECISION AND ORDER
On July 21, 1965, Trial Examiner Sydney S. Asher, Jr., issued his
Decision in the above-entitled proceeding, finding that the Respondent
155 NLRB No. 8.