The Wm. H. Block Co.

National Labor Relations Board - Board Decisions

Jun 28, 1965

153 N.L.R.B. 616 (N.L.R.B. 1965)

616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unless and until we have demonstrated our exclusive majority representative
status of the employees at that plant pursuant to a Board-conducted election
among the employees of the said Company.
WE WILL NOT give effect to the Supplemental Agreement dated August 4,
1964, between Dura Corporation and ourselves, or to any extension, renewal, or
modification thereof.
WE WILL NOT in any like or related manner restrain or coerce the employees
of Dura Corporation at its Adrian Division plant, Adrian, Michigan, in the
exercise of the rights guaranteed in Section 7 of the Act.
LOCAL 620, ALLIED INDUSTRIAL WORKERS OF
AMERICA, AFL-CIO,
Labor Organization.
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.
In the event of any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 963-9330.
The Wm. H. Block Company and Retail , Wholesale and Depart-
ment Store Union , AFL-CIO. Cases Nos. 25-CA-1879 and 25-
CA-1902. June 28,1965
DECISION AND ORDER
On November 2, 1964, Trial Examiner Sidney D. Goldberg issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in certain of the unfair labor practices alleged in
the complaint and that a prior settlement agreement precluded his
consideration of the other unfair labor practices alleged, and recom-
mending that the complaint be dismissed, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General Counsel filed
exceptions to the Decision and a brief in support thereof, and the
Respondent filed a brief in support of the 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 these cases to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in these cases, and finds merit in certain of the General Counsel's excep-
tions. Accordingly, the Board adopts the Trial Examiner's findings,
conclusions, and recommendations only to the extent consistent with
our Decision and Order.
153 NLRB No. 30.
THE WM. H. BLOCK COMPANY 617
The Trial Examiner found, assuming "strong union animus on the
part of Respondent and its officials," that Paul Harlan was discharged
by Respondent on October 4, 1963, for cause. The Trial Examiner
also found that Allen Maxwell was lawfully discharged by Respond-
ent in December 1963. In his opinion, the Respondent's union animus,
clear on the record, was not of the "quality" necessary to warrant an
inference of illegal motivation and not "reasonably connected with
these discharges." We do not agree.
The instant case is somewhat unusual in that a substantial portion
of the evidence revealing Respondent's antiunion conduct in general
and unlawful conduct with respect to Harlan and Maxwell, in particu-
lar, occurred outside the 10(b) period of this complaint. Such evi-
dence, however, is not thereby removed from our consideration in
determining whether or not these employees were lawfully discharged
within the 10(b) period. In Bryan Manufacturing Company,' the
Supreme Court pointed out that "earlier events may be utilized to shed
light on the true character of matters occurring within the limitations
period." Particularizing this principle, the Court cited the rationale
adopted by the Board in Axelson Manufacturing Company, 88 NLRB
761, 766, that : "Events obscure, ambiguous, or even meaningless when
viewed in isolation may, like the component parts of an equation,
become clear, definitive, and informative when considered in relation
to other action. Conduct, like language, takes its meaning from the
circumstances in which it occurs. Congress can scarcely have intended
that the Board, in the performance of its duty to decide the validity of
conduct within the 6 months period, should ignore reliable, probative,
and substantial evidence as to the meaning and the nature of the
conduct...."
It is therefore of no special significance in the circumstances of this
case that evidence of Respondent's antipathy toward Harlan and Max-
well because of their union activity occurred in March or April 1963,
more than 6 months before the charge was filed in this case, while the
actual discrimination against these employees, now alleged to be viola-
tive of Section 8(a) (3), (1), and (4) of the Act, occurred in October
and December 1963, within the 10 (b) period. These earlier events,
including testimony as to the Respondent's historic rules regulating
the conduct of its employees, are necessarily relevant and probative
in shedding light on Respondent's discharge of Harlan and Maxwell
assertedly for violation of company rules.
In the instant case, the Trial Examiner did not have the benefit of
the full Board's unanimous finding that Respondent unlawfully sus-
pended Paul Harlan and Larry Bolton in April 1963, because of their
1Local Lodge No. 1424 , International Association of Machinists , AFL-CIO, at al (Bryan
Manufacturing Co.) v. N L It B., 362 U S. 411.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union activity rather than, as contended by Respondent, their breach
of a no-solicitation rule .2 Nor did the Trial Examiner have the benefit
of the Board's unanimous opinion in the same decision that Respond-
ent unlawfully interrogated Maxwell during the above period and
threatened him with the loss of his job by pointing out "the dire eco-
nomic risk faced by a man of Maxwell's years getting involved in that
venture [unionism]."
The above findings of the Board were based upon a preponderance
of the evidence adduced before the Trial Examiner in that case. Har-
lan and Maxwell were discharged a few months following their testi-
mony, adverse to Respondent, in that proceeding. Much of the testi-
mony was repeated at the hearing in the instant case and is, of course,
fully pertinent in assessing Respondent's motivation in discharging
these employees.
In March 1963, Local 512, Retail, Wholesale, and Department Store
Union, AFL-CIO, began an organizing drive among Respondent's
employees in its service building. Paul Harlan, who signed a card on
March 28, as one of the first to sign. The very next day Manager Cun-
ningham reported to Operations Director Roller that Harlan was
planning to conduct a campaign on behalf of the Union. Director
Roller and other executives of Respondent immediately embarked
upon an antiunion campaign of restraint and coercion, including inter-
rogating employees to discover their union sympathies and the names
of union solicitors. In this task Roller was joined by Manager Winin-
ger and Personnel Director Kimberlin as well as lesser supervisors in
the service building. Thus, Kimberlin told Allen Maxwell that Kim-
berlin knew Harlan and Bolton were passing out cards, that they
wouldn't get anywhere with it, and pointed out to Maxwell that at his
age "jobs were hard to find." Harlan and Bolton, who had been
warned by Roller not to solicit for the Union, were unlawfully sus-
pended on April 19 for engaging in this activity. On April 22, the
following Monday, Maxwell was again interrogated by Kimberlin in
the latter's office. Maxwell was told that Harlan and Bolton had been
laid off. Maxwell was then asked if he would be willing to sign a
statement to the effect that cards were being passed out on company
time. Kimberlin noted that other employees had "graciously" signed
statements. Although his grey hairs and need for a job had pointedly
been called to his attention, Maxwell resisted Kimberlin's pressure and
told the latter that he had no proof of what Kimberlin was suggesting
and could not sign such a statement.
Here, as in the prior proceeding, Respondent defends its disciplining
of Harlan on the ground that he had violated a valid no-solicitation
rule, which encompassed all forms of solicitation on company time.
2 The Wm H. Block Company, 150 NLRB 341.
THE WM. H. BLOCK COMPANY 619
With respect to Maxwell, not previously the victim of Respondent's
discrimination, Respondent alleges that he was discharged for violat-
ing a company rule against the "smell of liquor" on an employee's
breath.
It is in the context of Respondent's history of union animus in gen-
eral and specific attempts to curb Harlan's and Maxwell's union activ-
ity in particular that these discharges must be considered.
As to Harlan, the record in the instant case shows that he was dis-
charged on October 4, 1963, as a consequence of his efforts on Septem-
ber 28 to dispose of some damaged cigarettes at $1 per carton. All told,
at the end of the day Harlan had talked to six or seven persons about
the cigarettes, each inquiry taking 2 or 3 minutes. Included among
these persons was his immediate supervisor, Richard Harlan, the Tat-
ter's assistant, Gene McCombs, and the company buyer. None of the
latter indicated that Harlan was engaged in a horrendous activity
meriting discharge. Nevertheless, this minor incident was thoroughly
investigated by Respondent's highest officers as a grave, if not criminal,
act by Harlan. Director Roller reported the matter immediately to
Manager of Operations Hinnefeld, who contacted company counsel
and thereafter, on the advice of counsel, contacted the police with a
request that Harlan's cigarette activities be investigated. Such con-
duct on the part of Respondent would be understandable if Harlan
made a practice of engaging in this or similar activity. But Respond-
ent was well aware that this was a one-time episode with small likeli-
hood of repetition. It would seem most doubtful that Harlan had any
idea his offering of cigarettes on a casual basis to a few employees was
the type of solicitation absolutely forbidden by Respondent's rules or
that such sales may have been actually unlawful. Certainly, his inno-
cence in approaching his immediate supervisor argues against any
attempt at subterfuge or deceit on his part. The question arises there-
fore, why Respondent was aroused to such frenetic efforts over what
would appear to be a relatively harmless misdemeanor.
Respondent contends, first, that Harlan violated Respondent's
no-solicitation rule, this time, unlike the previous case, in an area left
open to Respondent's discretion. Second, Harlan was, in any event,
an undesirable employee as evidenced by three written warnings
served on him June 20, July 2, and September 18, 1963, immediately
before, during, and after his testimony in the previous case.
With respect to the no-solicitation rule, it should be noted initially
that the Board has already held that rule to have been unlawfully
adopted "for the purpose of defeating union organization" rather
than "in furtherance of an employer's legitimate interest of serving
production, order and discipline." Obviously the sudden and strict
enforcement of such a rule against a union adherent, previously the
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
victim of unlawful discrimination, raises substantial doubt as to the
validity of Respondent's motives. As the Board previously found,
the history of Respondent's plant activity shows that for many years
solicitation for gambling, ticket sales, and collections of various kinds
continued unabated with the knowledge and, in some instances, the
participation of Respondent's supervisors. Only with the advent of
the Union in March 1963 was the no-solicitation rule enforced and then
primarily against union adherents. Indeed, betting pools and collec-
tions continued after the warnings and suspension of the two union
supporters in April 1963, without action by Respondent. Although
Harlan was summarily discharged for a minor episode involving the
brief sale of cigarettes, employee Ellis Hylton openly sold water-
melons and other vegetables at the service building on company time
in the summer of 1963. In August, he was accosted by a supervisor
and ordered to discontinue the practice. He disobeyed the order and
continued his business venture in the afternoon. Apprehended a sec-
ond time by management, he was given only a warning notice and no.
further discipline.
Respondent seeks to justify the above disparate treatment by point-
ing to Harlan's three warnings. Prior to his unlawful suspension in
April 1963, Harlan had never been given a written warning. Of the•
three warnings administered to him, two were for such seemingly
innocuous offenses as going to a restroom other than the one closest to,
his work station to smoke a cigarette, and taking 5 minutes too long at
both the beginning and end of a 15-minute relief break. As regards the
latter offense, Supervisor Wininger, who issued the warning, admit-
ted that employees were customarily allowed 2 or 3 minutes to return
to their posts. During this period most of the warnings given other
employees related to more substantial offenses, such as consistent late-
ness, frequent absences, disturbing other employees, not calling in to
report an absence, or conduct drawing complaints from customers.
Contrary to the Trial Examiner, we are of the opinion that the timing
of these warnings, at the critical point when Harlan was about to begin
or had just finished his testimony in the prior case, warrants an infer-
ence adverse to Respondent. While past or present union activity
does not free an employee from managerial discipline, Respondent's
persistent efforts to unlawfully coerce its employees in the exercise of
their statutory rights and the very minor nature of the warnings sud-
denly administered to Harlan persuade us that the then current unfair
labor practice charge against Respondent of unlawfully suspending
Harlan was not unrelated to such warnings.
On the basis of the entire record, we conclude, and find, that
Respondent seized upon Harlan's sale of cigarettes as a pretext to dis-
charge him because of his active efforts on behalf of the Union, includ-
THE WM. H. BLOCK COMPANY 621
ing his testimony in the prior proceeding. Accordingly, we find that
Respondent thereby violated Section 8(a) (3), (1), and (4) of the
Act.
As for Maxwell, this employee, whose testimony like Harlan's was
adverse to the Respondent in the hearing held in the summer of 1963,
was discharged by Respondent on December 21, 1963, because Man-
ager Wininger, corroborated by Director Roller, detected "a strong
odor of whiskey" on Maxwell's breath as he was leaving for the day.
There is no evidence, nor does the Respondent contend to the contrary,
that Maxwell was to any extent inebriated or incapable of properly
performing his work duties. Nor does it appear that Maxwell was in
any other respect an undesirable employee. He had been employed
by the Respondent since 1958. While numerous witnesses testified
that Maxwell did, indeed, have the odor of whiskey about him, they
unanimously agreed that they had never seen him take a drink on the
job and that his work had never been affected by his habit of having
beer with his lunch. Respondent insists that it had a good-faith belief
that Maxwell had been drinking on the job because of the whiskey
odor and that it was solely for this reason, rather than Maxwell's
union activity or testimony on behalf of the Union in the preceding
Board hearing, that he was discharged. We cannot accept Respond-
ent's explanation.
For 5 years Respondent was well aware that Maxwell carried with
him the "odor of whiskey." One supervisor testified that he detected
whiskey on Maxwell two or three times a week for this entire period.
The odor was apparently so strong that during Maxwell's first year this
supervisor conducted a search of the premises in Maxwell's area, but
found no bottled whiskey. In the absence of such evidence, Maxwell
was merely told it was the company policy to dismiss employees who
were disorderly. Maxwell continued his off-the-job drinking and,
while some female employees occasionally registered complaints, there
was no intimation during the first 4 years of his employment that he
was risking discharge for this reason until the advent of the Union in
1963.
As indicated above, Respondent has strenuously and unlawfully
sought Maxwell's assistance in establishing that Harlan and Bolton
were engaged in union solicitation on company time. Despite Respond-
ent's threats that he could lose his job and the circumstance of his
advanced years, of which he was only too well aware, Maxwell refused
to cooperate. Indeed, he persisted at the hearing in "telling all" with
the result that Respondent was found to have unlawfully interrogated,
coerced, and disciplined its employees. A man with grey hair and the
smell of whiskey might well be regarded by his employer as an avail-
able instrument in an antiunion campaign. When such an employee
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not only refuses to be so used, but actively supports the union, he may
well incur the special wrath of an otherwise tolerant employer. In the
instant case we are persuaded that Maxwell paid the penalty for his
defiance and was discharged by Respondent because he was a union
adherent and gave testimony adverse to the Respondent in a Board
proceeding . Accordingly, we find that by this conduct Respondent
violated Section 8 ( a) (3), (1), and (4) of the Act.
THE REMEDY
Having found that Respondent has engaged in the commission of
unfair labor practices , we shall order that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies
of the Act.
As the two discharges were a result of Respondent 's discrimination,
we shall order that Respondent offer to Paul Harlan immediate and
full reinstatement to his former or substantially equivalent position,
without prejudice to his seniority and other rights and privileges. As
Allen Maxwell has already been rehired by Respondent , we shall order
Respondent to offer him full reinstatement to his former or substan-
tially equivalent position to the extent that his present position may
not be the equivalent of his former position , and restoration of his
seniority or other rights and privileges . We shall further order
that Respondent make both Paul Harlan and Allen Maxwell whole
for any loss of earnings suffered by reason of the discrimination
against them, by payment to them of that sum of money which nor-
mally they would have earned from the dates of the discharges to the
dates of the offer of actual reinstatement , less net earnings, if any, dur-
ing those periods. Backpay shall be computed with interest at the
rate of 6 percent per annum on a quarterly basis in the manner pre-
scribed by the Board in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716.
In view of the nature of the unfair labor practices found, we find
that there exists the danger of commission of further unfair labor
practices by the Respondent , and we shall accordingly order that
Respondent cease and desist from in any manner infringing upon the
rights guaranteed employees in Section 7 of the Act.
ADDITIONAL CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and the entire rec-
ord in this case, we hereby delete the Trial Examiner's Conclusions of
Law Nos. 3, 4, and 5, and adopt as a new Conclusion of Law No. 3 as
follows :
By discharging Paul Harlan and Allen Maxwell to discourage
membership in or activities in behalf of the Union and because
THE WM. H. BLOCK COMPANY 623
they have given testimony under the Act, the Respondent has
engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (3) and (4) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that
Respondent , The Wm. H. Block Company , Indianapolis , Indiana, its
officers, agents , successors , and assigns , shall:
1. Cease and desist from :
(a) Discouraging membership in Retail , Wholesale and Department
Store Union , AFL-CIO, or in any other labor organization , by dis-
charging or otherwise discriminating against employees in regard to
hire or tenure of employment or any term or condition of employment.
(b) Coercively interrogating employees , threatening employees
with loss of employment , or promising benefits, or in any other man-
ner interfering with, restraining , or coercing employees in the exer-
cise of their right to self-organization , to form labor organizations,
to join or assist the above -named Union or any other labor organiza-
tion, to bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection , or to refrain from
any or all such activities , except to the extent that such right may be
affected by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8(a) (3) of the
Act, as amended.
2. Take the following affirmative action which the Board finds is
necessary to effectuate the policies of the Act :
(a) Offer to Paul Harlan and Allen Maxwell , to the extent the Tat-
ter's present position may not be the equivalent of his position before
he was discharged , immediate and full reinstatement each to his for-
mer or substantially equivalent position and complete restoration of
seniority and other rights and privileges and make each whole for any
loss of earnings suffered by reason of discharge as provided by that
section of this Decision entitled "The Remedy."
(b) Notify Paul Harlan if he is serving in the Armed Forces of
the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Mili-
tary Training and Service Act of 1948, as amended , after discharge
from the Armed Forces.
(c) 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.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its Service Building in Indianapolis, Indiana, copies of
the attached notice marked "Appendix." S Copies of said notice, to be
furnished by the Regional Director for Region 25, shall, after being
duly signed by the Company's representative, 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.
(e) Notify the Regional Director for Region 25, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
8 In the event that this Order is enforced by a decree of a United States Court of Appeals,
the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be
substituted for the words "a Decision and Order" in the notice.
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, in order to discourage membership in or activity
in behalf of Retail, Wholesale and Department Store Union,
AFL-CIO, or in any other labor organization, discharge any
employee or otherwise discriminate against employees in regard to
hire or tenure of employment or any term or condition of
employment.
WE WILL NOT question our employees in coercive circumstances
regarding their interest in the above-named Union, or any other
labor organization, and WE WILL NOT offer any promises of benefit
or threats of loss of employment conditioned upon the rejection or
acceptance of any union.
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 or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities, except to
the .tent 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 amended.
WE WILL offer to Paul Harlan and Allen Maxwell, to the extent
the latter's present position may not be the equivalent of his posi-
THE WM. H. BLOCK COMPANY 625
tion before he was discharged, immediate and full reinstatement
to their former jobs and complete restoration of their seniority
or other rights and privileges and pay them the wages lost by
reason of disch 4rge.
All our employees are free to become or remain, or refrain from
becoming or remaining, members of the above-named Union,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8(a) (3) of the Act, as
amended.
THE WM. H. BLOCK COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
NoTE.-We will notify Paul Harlan if presently serving in the
Armed Forces of the United States of his right to full reinstatement
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indi-
ana, Telephone No. Melrose 3-8921, if they have any questions concern-
ing this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
In each of these proceedings, under Section 10(b) of the National Labor Relations
Act, as amended, the complaint 1 alleges that Respondent discharged an employee
because of his union activities and because he testified in a previous Board proceed-
ing. In addition, the complaint in Case No. 25-CA-1879 alleges that Respondent
interrogated its employees concerning their union activities and threatened them with
discharge for engaging therein. By these actions, Respondent is alleged to have vio-
lated Section 8(a)(3), (4), and (1) of the Act.
Respondent filed answers to each of the complaints, denying the commission of the
unfair labor practices alleged. The proceedings were consolidated for hearing and a
hearing upon the issues so raised was held before Trial Examiner Sidney D. Goldberg
at Indianapolis, Indiana, on April 16 and 17, 1964, at which all parties were repre-
sented and were afforded an opportunity to adduce evidence, cross-examine wit-
nesses, and argue upon the facts and law. Briefs thereafter filed by the General
Counsel and counsel for Respondent have been considered.
For the reasons set forth in detail below, I find that the evidence adduced by the
General Counsel is insufficient to support findings of unfair labor practices as alleged
and that, therefore, the complaints should be dismissed.
Based upon the entire record in this case, and from my observation of the wit-
nesses, I make the following:
'In Case No. 25-CA-1879, issued February 28, 1964, on a charge filed January 15,
1964, and in Case No. 25-CA-1902, issued March 12, 1964, on a charge filed
ebruary 12, 1964
796-027-66-vol. 153-41
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE EMPLOYER INVOLVED
Respondent operates retail department stores in Indianapolis and Bloomington,
Indiana. It admits that, during 1963, its sales were more than $500,000 and that it
imported goods valued at more than $50,000 . It also admits , and I find, that it is
an employer engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Charging Party, herein called the Union, is a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent 's considerable traffic with labor organizations appears only sketchily in
this record 2 Concededly , however, in the latter part of March 1963,3 an organizing
campaign was begun by the Union which extended into April and during that month
employees Paul Harlan and Larry Bolton were suspended for 1 week for "solicita-
tion ." Whether the suspensions were justified in the enforcement of a company rule
or constituted discrimination against these employees in violation of Section 8(a) (3)
and (1) of the Act is the subject of Case No. 25-CA-1738.
Paul Harlan and Allen Maxwell , the employees involved in these cases , were both
employed in Respondent 's service building in Indianapolis . Harlan was a lister, whose
duties consisted of counting and checking incoming merchandise against the orders
and putting the items on a conveyer line to be marked. Maxwell was a warehouse-
man, whose duty it was to move merchandise from place to place on the floor and
to and from the docks. Both were witnesses at the hearing in Case No. 25-CA-1738.
The interrogation and supervisors ' statements to which they testified in this case
were the same ones concerning which they testified in that case.
B The discharge of Paul Harlan
1. Facts
According to Paul Harlan's testimony, "3 or 4 days" 4 before he was discharged on
October 4, he had asked "six or seven" fellow employees whether they wished to
purchase from him some damaged cigarettes at $1 per carton and that, except for
one on the way to work, such requests were made while he was at work and were
addressed to fellow employees who were also at work. One such request was
addressed to Richard Harlan (no relative ) in his office . Richard Harlan, after asking
what brand was being offered, said they were not his brand and that he did not
want any.
On October 4, about 3.30 p.m., Richard Harlan came to Paul Harlan in the work
area and told him he was wanted "in the front office." When he reported there,
Assistant Receiving Manager Cunningham told him he was wanted in the personnel
office "downtown" and that the bus was waiting for him. At the downtown store
Personnel Manager Kimberlin handed him a slip for his pay and told him, in Paul
Harlan's words, that he was "being fired for solicitation of cigarette sales "
In addition to the foregoing testimony by Paul Harlan, there was corroborative
testimony by a fellow employee concerning the effort to sell the cigarettes and
testimony by Respondent 's officials , including Richard Harlan , explaining the devel-
opment of Respondent 's decision to discharge him.
3 Respondent ' s counsel stated that at least 8 or 10 representation petitions, covering
various units , had been filed within the previous year and that 2 of them had gone to
hearing. This situation may account for the extensive evidence concerning the status,
allegedly supervisory , of Richard T. Harlan , but a decision thereon does not appear to be
necessary in this case. In addition , complaints had been issued in Case. No. 25-CA-1738
(pending before the Board ) ; in Case No 25-CA-1831 on a charge, subsequently with-
drawn , by Paul Harlan ; and in Case No 25-CA-1786 on a charge , also subsequently
withdrawn , by a Teamsters local Specifically , at the request of the General Counsel, I
take official notice that the complaint in Case No . 25-CA-1738 involved the suspension
of employees Paul Harlan and Larry Bolton and that it is now before the Board on
exceptions to the Decision of Trial Examiner Somers.
3 All dates , unless otherwise specified , are in 1963.
' Substantial evidence indicates that the correct date of these Incidents Is Saturday,
September 28, but it is unnecessary to make a specific finding on this point.
THE WM. H. BLOCK COMPANY 627
2. Discussion and conclusions
As stated, the suspension of Paul Harlan in April was based upon his alleged
violation of a no-solicitation rule and is the subject of Case No. 25-CA-1738. The
adequacy of the so-called "rule" s appears also to be an issue in that cases What-
ever decision may be made concerning the rule, Harlan was present throughout the
hearing in that case and heard the testimony of a number of Respondent's officials to
the effect that there was a rule against soliciting in the service building on working
time. He also testified in this proceeding that he was aware, since March, that there
was a rule against solicitation and that it was to be strictly enforced.
The General Counsel, relying on past conduct by Respondent's officials designed
to show hostility to the Union, and to unionism generally, characterizes the solicita-
tion of cigarette sales as a pretext to cloak Respondent's true season for the discharge
of Paul Harlan and argues that the true reason was retaliation for his earlier union
activity and for his testimony at Board hearings.
Granting, for the sake of the General Counsel's argument, that the evidence shows
strong union animus on the part of Respondent and its officials, if Paul Harlan's
October discharge were unexplained or inadequately explained, such animus might
justify an inference that it was based upon his union activity in March and April or
upon his testimony. Such assumption of union animus, however, does not require
the further assumption that the explanation in the iecord for Harlan's discharge is
inadequate. On the contrary, Paul Harlan's testimony, in and of itself, leads to the
conclusion that he was discharged for cause.
There is ample evidence in this record, including testimony by Paul Harlan, that
Respondent was making an earnest and generally successful effort to root out the
betting pools and other solicitations that appear to have been rife previously in the
service building. Those that continued were clandestinely operated and Harlan con-
ceded that he was putting down his pool money in the cafeteria during nonworking
time.
The warnings concerning inadequate work performance given Paul Harlan by
General Receiving Manager Winninger are not alleged in the complaint as violations
of the Act and were not litigated as such. Although the first one was issued June 20
during the investigation of Case No. 25-CA-1738 and just before the complaint was
issued in that case, the second one on July 2, only 3 working days after the issuance
of the complaint, and the third on September 18, over a month after he testified, I
find no justification for drawing any inference from this timing. From Paul Harlan's
testimony concerning these incidents, and his demeanor while testifying, I am con-
vinced that the reprimands were justified. It is almost a truism to point out that past
union activity cannot immunize an employee from managerial control or properly
founded disciplinary action. Paul Harlan was but 1 of the 40 to 45 listers, markers,
and stockmen working together in the service building and Respondent was entitled to
take bona fide steps to enforce the discipline necessary to carry on the work. There
is no showing that the conduct upon which these reprimand-warnings was based was
merely a pretext and that they were, in fact, issued because of Harlan' s earlier
union activity.?
The evidence that another employee, Hylton, was reprimanded and warned but
not discharged for soliciting the sale of melons in the service building does not
establish that Paul Harlan's discharge for similar conduct was motivated by anti-
union discrimination. Respondent's officials might properly consider an employee's
5 This rule appears on page 20 of a 24-page printed booklet for employees entitled
"YOU-and The Wm H Block Coll Sharing space with a sketch of a young woman
holding a small receptable marked "GIVE," is the following*
SOLICITATIONS
No solicitations, subscriptions, sale of tickets or posting of placards may be made
in the store for any need or project without the knowledge and approval of the
Personnel Director
It is a store policy that associates refrain from soliciting contributions at any time
for a gift to those in supervisory or executive positions. Associates are requested
not to make any such contributions if approached.
Trial Exair'ner Somers, after setting forth the rule, follows with a two-page summary
of evidence concerning it and considerable discussion of Respondent's conduct based
upon it.
7 It is to be noted that the record shows no disciplinary action against Larry Bolton, who
was also suspended in April for the same reason as Harlan and who also testified in Board
proceedings.
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
performance record in meting out punishment for an offense and, in view of the
series of reprimand-warnings given to Harlan prior to his discharge, Hylton's record
prior to the melon incident may have been sufficiently better to justify limiting his
penalty to a warning.
Accordingly, I find that Respondent had a general rule against solicitation for any
purpose during working time and that Paul Harlan knowingly violated it by offering
to sell cigarettes to his fellow employees while both he and they were at work. It
follows, therefore, that Respondent's discharge of Paul Harlan was neither to dis-
courage his union membership or activities nor because he testified in Board pro-
ceedings but was for cause and that Respondent did not thereby violate Section
8(a)(3), (4), or (1) of the Act.8
C. The discharge of Allen Maxwell
1. Facts
Allen Maxwell had worked for Respondent since 1958. Some months after he
was first employed, Richard Harlan told him that a complaint had been made to the
effect that he drank and used bad language; that he, Harlan, had looked for bottles
in the bins where Maxwell worked and had found nothing. Maxwell testified that,
at the hearing of Case No. 25-CA-1738 in April, he had testified concerning the
betting, baseball, and other pools which had theretofore been conducted openly in
the service building. He also repeated the testimony he had given of his conversa-
tions with Service Manager Roller and Personnel Director Kimberlin concerning
union activities and solicitation in the service building and that, during the Union's
organizational campaign, he had signed a card.
In October-again according to Maxwell's testimony-Receiving Manager Win-
ninger met him among the storage bins and said that at different times "some people
... had mentioned that they had smelled alcohol" on his breath; that Winninger then
asked him whether his "night life" was interfering with his work, and he replied that
he did not know that anything was interfering with his work because he had not been
told about it. Winninger then said: "Now, you know Mr. Roller disapproves of
drinking on company time" and Maxwell answered: "Well, I don't do that, Mr.
Winninger. I do and I have on my lunch hour." In reply, Winninger said "If we
should detect or Mr. Roller should notice it, I'll just have to let you go." Maxwell
also testified that he understood this last statement to refer to the smell of alcohol
on his breath and to Roller's disapproval of it.
On Saturday, December 21, about 10 minutes before the 5 o'clock quitting time,
Maxwell noted that the shipping dock was cleared and the day's work completed.
With his coat over his arm, he stopped in the doorway of Winninger's office to tell
him about it because he felt Winninger would want to know and, as indicated by
the coat over his arm, because he expected to leave for the day.
Winninger acknowledged the report and Maxwell walked through the building
toward the lot where his car was parked. As he passed the building office, Manager
Roller stopped him and, as Maxwell testified, the following occurred:
Q. Then what happened?
A. Then Mr. Roller stopped me, asked me in his office, and he asked me if I
had been drinking. I said, "Yes, I drank a bottle of beer on my lunch hour."
He says, "It doesn't smell like beer, it doesn't smell like that was on your
lunch hour."
I said, "That's the only time I had a drink today."
Q. What else was said in that conversation'
A. Well, he said, "You know that I don't tolerate drinking," and he said,
"You have been warned," and he said, "I need you but I am going to have to
let you go.
Q. What did you say?
A. I had no comeback. I said, "Well, Mr. Roller, then I should see Mr.
Kimberlin next week?"
He said, "Yes."
Ia axwell repeated at this point that the only drink he had that day was the
bottle of beer on his lunch hour, between I and 2 p.m., and he testified that he
had never taken a drink in the Service Building or on his working time.]
Q. Did you eventually go to the personnel office?
A. Yes, Tuesday of the next week.
8 See Missoula Motel Assooiation, et al., 148 NLRB 1477.
THE WM. H. BLOCK COMPANY 629
Q. O.K. And who did you see there?
A. Mr. Kimberlin.
Q. What was said on that occasion'
A. Well, I did the biggest part of it. I walked in, I said, "Mr. Kimberlin, I
guess you know why I'm here."
And he said, "Yes."
I said, "I'm sorry it had to happen like this but," I said, "I've been informed
I'm to see you," and there was very little said except that he said, "You will
have two weeks' vacation pay coming and the week that you have worked."
He says, "I'll go with you, take care of it."
Q. Did he tell you why you were being let go?
A. Well, I told him I knew.
Q. He didn't mention?
A. He didn't tell me why.
Winninger testified that, although Maxwell stood in the doorway of his office for
only a moment, the odor of whiskey on his breath was so very strong that he was
convinced that Maxwell must have taken a drink within the past hour. Rather than
call Maxwell back, and to permit his supervisory official to participate in the matter,
Winninger telephoned Roller, whose office Maxwell would pass, told him that he
had detected "a strong odor of whiskey" on Maxwell's breath, and suggested that
Roller stop him and see if he could make the same finding. Roller's testimony agreed
with that of Winninger on this point and with Maxwell's set forth above.
After his discharge, Maxwell testified that he had great difficulty in obtaining a
job. He felt it necessary to tell prospective employers that he had lost his job with
Respondent "for drinking" since they would check with Respondent. Finally, in
desperation, he called Winninger who arranged an appointment for him with Edwin
Hinnefeld, manager of operations. At that interview, on April 6, 1964, Maxwell
assured Hinnefeld that he would not again be found on the premises with the odor
of alcoholic beveiages on his breath. Hinnefeld wrote out a short statement to that
effect. After Maxwell said it was a fair statement, Hinnefeld had it typed. Maxwell
then signed it with a subscription that he had read it and it was correct. Hinnefeld
then sent Maxwell to Roller with instructions to put him to work if there was a job
available where he would not be in contact with women employees and Maxwell
was returned to work in the furniture section of the service building.
Several of Maxwell's fellow employees, women and men-including Larry Bolton
and Paul Harlan-testified that they had smelled alcohol on his breath a number of
times. In addition, two fellow employees-Tremaine and Bolton-with whom Max-
well had gone to lunch at the Speedway Tavern, testified that they had seen Maxwell
add a shot of whiskey to his beer at lunch. One other employee, Gibb, testified
that Roller had said that there were people going to the tavern for their lunch, that
he wanted it stopped, and that something was going to happen. Gibb also testified
that, although Roller did not ask him to do so, he relayed this statement to Maxwell.
2. Discussion and conclusions
Except on the subordinate issue of whether Maxwell drank a "boilermaker," i.e.,
beer and whiskey, at lunch or restricted his intake to beer, the evidence concerning
Maxwell's discharge is not in dispute. Maxwell admitted that, in October, Win-
ninger had warned him about having the smell of liquor on his breath and that it
would lead to discharge. If, as he testified, he drank only beer at lunch,9 he was
on notice that this indulgence itself was creating the condition that could lead to
his discharge.
While the evidence shows that Maxwell was an otherwise satisfactory employee
and that his drinking did not affect his work, neither of these factors is determinative
of this case. The question which I must decide is whether the presence of the odor
of alcoholic beverages on Maxwell's breath was the true reason why Respondent
discharged him or whether this was merely a pretext and that Respondent's true
reason was Maxwell's union activity or his testimony in Board proceedings.
Maxwell's union activity was limited to signing an application card in March and
he was but one of the eight or nine rank-and-file employees who testified before Trial
Examiner Somers in August. There is no evidence in the record that either his
so-called "union activity" or his testimony at the hearing in Case No. 25-CA-1738
O While there is substantial evidence that Maxwell drank more than beer at lunch,
disposition of this part of the case does not require a finding on this point and it is un-
necessary to resolve the credibility issue.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contributed in any respect to his discharge. The odor of alcohol on his breath,
however, was a genuine and longstanding irritant in his relations with his immediate
supervisors and his fellow employees. There is ample evidence that Respondent's
action against Maxwell was taken entirely on the basis of the immediate manifesta-
tion of this problem and the prior occurrences with respect to it 10
Although Maxwell's expressions of opinion concerning the reason for his discharge
would not be conclusive,11 they do show that he realized that the odor of alcohol
on his breath was a disruptive element in his employment relationship with
Respondent.
It is to be noted that my findings with respect to the discharges of Paul Harlan
and Allen Maxwell are based almost completely on their own testimony: that it is
corroborated by that of fellow employees called by the General Counsel for that
purpose and that the testimony of Respondent's officials is in general agreement.
The General Counsel's case, therefore, appears to rest on the proposition that,
because Paul Harlan and Allen Maxwell were discharged after some union activity
and testimony by them in Board proceedings, they were necessarily discharged
because of such activity and testimony. Notwithstanding that pure logic rejects this
post hoc ergo propter hoc reasoning, if this record either showed union animus by
Respondent reasonably connected with these discharges or if the assigned reasons
therefor were shown to have been without foundation, the gap in the logical argu-
ment could be spanned by the inference of illegality that might be justifiably drawn.12
I am unable, however, to find relevant union animus of the quality necessary for that
purpose in this record and, on the testimony of the dischargees set forth above, I
find that there is a substantial basis for the reasons assigned by Respondent for the
discharges.
D. Violations of 8(a)(1)
Two groups of antiunion statements by Respondent's officials were presented in
these cases. The first group consists of the alleged interrogation and threats during
the union organizing campaign in March and April. Paul Harlan and Allen Maxwell
testified to them at some length, repeating and adopting the testimony they gave in
Case No. 25-CA-1738 before Trial Examiner Somers. Not only are these state-
ments issues in that case, but they occurred more than 6 months prior to the filing
of the charges in these cases. Accordingly, their consideration has been limited to
background evidence designed to show union animus on the part of Respondent.
The second group is set forth in the complaint in Case No. 25-CA-1879, issued
on a charge filed January 15, 1964, which alleges, in addition to the allegedly dis-
criminatory discharge of Allen Maxwell, the following activities claimed to con-
stitute violations of Section 8(a)(1) of the Act: (a) interrogation of employees
(i) by Kimberlin on July 2, 3, 6, 20, and 27 and August 3, 5, 6, and (ii) by Roller
on July 9 and 13 and August 1 and 10; (b) threats of reprisal (i) by Kimberlin on
July 6 and August 5, (ii) by Cecil McQuillen on July 30, and (iii) by Roller on
August 10. As appeals, several of these occurred more than 6 months prior to the
filing of the charge but, in view of the disposition I shall make of all of these allega-
tions, it is unnecessary to segregate those barred by Section 10(b).
All of the foregoing statements alleged as violations of Section 8(a)(1) are, so
far as this record shows, those which were made by Respondent's officials to employ-
ees in the delivery department during the organizing campaign by Teamsters Local
135 in July and August. Based upon these statements, Teamsters filed a charge and
a complaint thereon was issued September 4 13 against Respondent alleging violation
of Section 8(a)(1) of the Act. Prior to the hearing of that case, an agreement was
reached between the Teamsters and the Respondent whereby Respondent posted a
notice and the Teamsters requested permission to withdraw the charge. The Regional
Director, by order dated September 23, granted the request and dismissed the
complaint.
io See Weber Shoe Company, 146 NLRB 348.
11 N.L R.B. v. Wilbur II Ford, d/b/a Ford Brothers, 170 F 2d 735, 739 (C.A. 6), enfg.
73 NLRB 49; N.L.R.B. v. Arthur J. Wiltse, d/b/a The Ann Arbor Press, 188 F. 2d 917,
925-926 (C.A. 6).
12In view of the absence of direct testimony bearing upon antiunion motivation, con-
sideration may be given to Respondent's failure to discharge Bolton, the other employee
involved in Case No. 25-CA-1738, or any of the other employee witnesses in that case.
13 Case No. 25-CA-1786.
THE GABRIEL DIVISION OF THE MAREMONT CORP. 631
There is no evidence that Respondent engaged in similar conduct subsequent to
the settlement and certainly no evidence of subsequent similar conduct constituting
an unfair labor practice. In accordance with long-settled Board policy,
to honor settlement agreements when they have been reached with concurrence
or approval of an agent of the Board, unless the agreement has been breached
or unless the alleged unfair labor practices have been continued in such a way
that it seems necessary to the Board to go behind the agreement in order to
effectuate the policies of the Act.14
I consider myself precluded from consideration of these incidents as separate unfair
labor practices 15 and shall make neither findings nor recommendations concerning
them.
Having found that none of the conduct alleged in the complaints constitutes unfair
labor practices, I shall recommend that the complaints be dismissed.
On the basis of the foregoing findings of fact, and upon the entire record in this
case, I reach the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent's discharge of Paul Harlan was not an unfair labor practice within
the meaning of Section 8(a) (3) or (4) of the Act.
4. Respondent's discharge of Allen Maxwell was not an unfair labor practice
within the meaning of Section 8(a) (3) or (4) of the Act.
5. Respondent did not engage in unfair labor practices within the meaning of
Section 8(a) (1) as alleged in the complaint.
RECOMMENDED ORDER
It is recommended that each of the complaints herein be dismissed.
14 Wooster Brass Company, X80 NLRB 1633, 1634; see also Sigo Corporation, 146 NLRB
1484.
Ifi As noted above, In making findings on the allegations of unfair labor practices In the
discharge of Paul Harlan and Allen Maxwell, I have assumed Respondent 's general
union animus.
The Gabriel Division of the Maremont Corporation and Interna-
tional Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America , Teamsters Union Local No. 293 and
Joseph Razum
The Gabriel Division of the Maremont Corporation and Interna-
tional Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America, Teamsters Union Local No. 293 and
Anthony Felice. Cases Nos. 8-CA-3209, 8-CB-733, 8-CB-769,
8-CA-3314, and 8-CB-766. June 28, 1965
DECISION AND ORDER
On June 10, 1964, Trial Examiner Herbert Silberman issued his
Decision in the above-entitled proceeding, finding that the Respondent
Union had engaged in and was engaging in certain unfair labor prac-
153 NLRB No. 53.