WordsWorth

National Labor Relations Board - Board Decisions

Apr 30, 1992

307 N.L.R.B. 372 (N.L.R.B. 1992)

372
307 NLRB No. 54
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 Wright Line, 251 NLRB 1083 (1980).
3 The average clerk remains on the payroll only 6 to 8 months.
4 The Union represents the clerks at several bookstores around
Harvard Square.
Bandicoot Corporation d/b/a WordsWorth and
United Automobile, Aerospace & Agricultural
Implement Workers, AFL–CIO, District 65.
Case 1–CA–27619
April 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On August 2, 1991, Administrative Law Judge Wal-
ter H. Maloney issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings,1 findings, and con-
clusions as modified and to adopt the recommended
Order.
The judge found that the Respondent discharged
Christina Martinez because of her continued support of
the Union’s efforts to organize the Respondent’s
clerks. We agree with the judge’s conclusion that Mar-
tinez was discharged in violation of Section 8(a)(3)
and (1) of the Act because we find, for the following
reasons, that the General Counsel made a prima facie
showing that Martinez’ union activity was a motivating
factor in the Respondent’s decision to discharge her
and that the Respondent failed to show that it would
have discharged Martinez even in the absence of her
union activity.2
The essential facts according to the credited testi-
mony are as follows. In the summer of 1989, union or-
ganizers began to solicit membership outside the Re-
spondent’s store and the Union notified the Respond-
ent in writing that it was conducting an organizing
campaign. In August 1989, the Respondent distributed
a letter to all the employees which cautioned the em-
ployees against the Union’s claims and promises.
Christina Martinez worked as a clerk for the Re-
spondent since April 1988 and was one of the most
senior clerks at the store.3 Not long after the distribu-
tion of the Respondent’s August letter about the
Union, Martinez told General Manager Silva that she
thought the letter had a condescending tone and was
insulting.
A short time later, a group of employees who fa-
vored unionization drew up a statement of position,
which Martinez posted in the cloakroom. The docu-
ment stated that the motivation to unionize came from
the employees who currently had ‘‘no formal avenue’’
through which they could express their concerns about
matters affecting their daily work. The letter was
signed by about 20 employees. Martinez’ signature
was not on the document.
Around the same time, an antiunion committee of
the Respondent’s employees was formed. It posted a
letter dated August 29, 1989, on the door of the cloak-
room at the store which stated that the committee
would propose to management that an employee action
committee be formed as a means for employees to re-
ceive the benefits of their collective voice without the
penalties and inflexibility of a union contract.
On September 6, 1989, a large meeting took place
at a nearby church, sponsored by the members of the
antiunion group. Martinez attended and suggested that
a comparison be made of the wages and benefits at
WordsWorth with those at other Harvard Square book-
stores.4 The idea was adopted, and Martinez conducted
the study.
Late in September 1989, Martinez had a conversa-
tion with Hillel Stavis, the owner of the store, con-
cerning the Union. She stated that a number of prob-
lems had arisen because the store had grown from a
small family operated organization to a large operation.
She asserted that informal relationships had to be for-
malized and employees ought to be organized. Stavis
told her that he had been an organizer for the Union
years before when he was a clerk at another store, but
he came to realize that he was harming the store by
working for the Union. Martinez disagreed, arguing
that a formalization of the relationship between man-
agement and employees would benefit the store.
On November 9, 1989, the Respondent distributed a
four-page letter to the employees announcing revisions
to its basic wage and benefit package. On the same
day, Stavis held an employee meeting to discuss the
new wage and benefit program. During the meeting
Martinez again asserted the need for a formalized rela-
tionship between management and employees and for
employees to have representation. She suggested that
everyone read a book outlining Japanese management
styles to gain a better understanding of the problems
facing the store.
After the meeting, Stavis told Martinez that he want-
ed to speak with her but did not establish a time.
About 2 weeks later, Martinez asked to speak with
Stavis. When she met him in his office, she again told
373WORDSWORTH
5 All subsequent dates are in 1990 unless otherwise indicated.
6 Martinez had not received training on the retrieval of computer-
ized information and was supposed to refer customers to a trained
clerk.
Stavis that there should be a formal organization and
representation at forums at which employees could dis-
cuss their problems. Stavis replied, ‘‘[T]he Union is
finished.’’ He then complained to Martinez about er-
rors on the comparative table of wages and benefits
circulated to employees, referring to the table as ‘‘your
chart.’’
A day or two later Martinez brought up the same
subject with General Manager Silva in his office. Silva
told her ‘‘Your speech was ridiculous,’’ when referring
to her remarks at the November employee meeting. He
then said that all the managers complained about her
work. When Martinez said no manager had ever com-
plained to her, Silva said, ‘‘Well, probably they don’t
dare tell you.’’ Martinez then asked him to tell any
manager who saw her doing something wrong to tell
her about it on the spot.
About 6 weeks later, on January 6, 1990,5 Martinez
was working on the second floor of the store when
Stavis told her to stop reading a book and to wait on
customers instead. (The Respondent has a written rule
against reading while on duty.) Martinez replied that
she was not reading the book but merely looking at the
index as she was shelving it. She put the book away
and waited on customers. Stavis made an informal note
about this incident and put it in Martinez’ personnel
file.
On February 15, Martinez was reprimanded by As-
sistant Manager Parker for having exceeded the bounds
of proper information disclosure to a customer.6 On
February 22, Martinez was given a written warning re-
garding the incidents of reading on the job and infor-
mation disclosure.
On March 20, Martinez submitted a written reply to
the warning. She argued that her conduct was not ac-
curately described in the warning and stressed that it
was only after she criticized Stavis’ letter cautioning
against unionization that her work had been criticized.
Martinez also asserted that the Respondent’s method of
management was ‘‘losing ground as the modern world
of business moves from authoritarian hostility to
democratic participation.’’
Stavis testified that he was outraged by her written
reply and felt that he should have fired her on the spot
but decided instead to leave the question to assistant
managers, who meet periodically to evaluate employ-
ees as other matters concerning the operation of the
store.
Before the meeting with the assistant managers took
place, Stavis told Martinez to offer assistance to cus-
tomers. Martinez replied that clerks ought to be careful
in making specific recommendations to academics who
might take offense at receiving such information from
a clerk. Stavis did not specifically tell Martinez to ask
customers, ‘‘May I help’’ and Martinez did not refuse
to approach customers for that purpose. She had, in
fact, offered such help to customers throughout her
employment at the store.
In mid-April, eight assistant managers rated Mar-
tinez on a two-page ‘‘confidential employee evalua-
tion’’ form used by the Respondent for this purpose.
The judge found that there were recurring alterations
on the forms and concluded that they had been tam-
pered with. None of the assistant managers indicated
on the forms, or elsewhere, that Martinez should be
discharged. On the issue of courtesy and helpfulness to
customers, four rated her above average, three rated
her average, and one rated her below average.
In early April the Respondent issued an employee
handbook. Martinez asked Human Resources Director
Smith to have lunch with her and discuss Martinez’
objections to the handbook. At the lunch meeting,
Martinez complained to Smith about such matters in
the handbook as the substitution policy governing the
rights of employees to switch shifts and the failure to
include a grievance procedure. Martinez asserted that
the Respondent needed to conduct periodic employee
meetings to discuss complaints. She told Smith that
she was going to meet with other employees to discuss
these matters so that the employees could come up
with a proposal. She also told Smith that a union was
important because the employees otherwise would be
unable to bring their concerns to the attention of man-
agement.
Smith reported this conversation to General Manager
Silva. On April 26, some 2 weeks later, Martinez was
called into Silva’s office. In the presence of Stavis,
Silva told Martinez she was discharged because of her
work performance and her cash register sheets were
short. When Silva produced the wrong cash register
sheets, Stavis told Martinez that the cash sheets were
not a problem. Instead, the Company was dissatisfied
with her work. In lieu of 2 weeks’ notice, Martinez
was given a check for 2 weeks’ earnings and accrued
vacation pay. When she asked Stavis, ‘‘[I]s this the
way you treat your employees?’’ he replied, ‘‘You are
a special case.’’
We conclude, on the basis of these facts, that the
General Counsel established a prima facie showing
sufficient to support the inference that protected con-
duct was a motivating factor in the Respondent’s deci-
sion to discharge Martinez. First, the General Counsel
demonstrated that the Respondent knew of the Union’s
organizing efforts and of Martinez’ support for the
Union. It is undisputed that the Union informed the
Respondent in writing about its campaign and that the
Respondent subsequently distributed a letter to em-
ployees acknowledging its awareness of the Union’s
374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 In so finding, we disavow the judge’s reliance on the Respond-
ent’s increases of wages and benefits during the organizing cam-
paign as evidence of animus. These increases were not alleged to be
unfair labor practices and there is insufficient evidence regarding the
circumstances in which they occurred to support an inference that
they were evidence of antiunion sentiment.
We also find it unnecessary to rely on the Respondent’s statements
of opposition to the Union as evidence of animus.
efforts. It is also clear that the Respondent was aware
of Martinez’ support for the Union. Martinez told Gen-
eral Manager Silva that the Respondent’s letter to em-
ployees about the Union’s organizing effort was insult-
ing. She also expressly disagreed with Stavis, the
owner of the store, when Stavis in reference to his ex-
perience at another store, told her that he had come to
realize that working for a union harmed the store. Mar-
tinez argued, instead, that a formalization of the rela-
tionship between management and employees would
benefit the store. At an employee meeting called by
Stavis, Martinez insisted openly that the employees
needed representation. She also told Stavis at a subse-
quent private meeting that there should be a formal or-
ganization. Finally, Stavis showed his knowledge of
Martinez’ actions in support of the Union when he re-
ferred to the comparative table of wages and benefits
distributed to employees as ‘‘your chart.’’
In finding that the General Counsel established that
the Respondent had knowledge of Martinez’ union ac-
tivities, we reject the Respondent’s argument that it
was aware only that Martinez held a belief that infor-
mal relationships between management and the em-
ployees needed to be formalized and was unaware of
her interest in the Union. Stavis’ responses to Martinez
on two occasions make clear that he equated Martinez’
interest in a formalized relationship to interest in
unionization. Thus, when Martinez spoke of the need
for a formal relationship between management and em-
ployees in her September 1989 meeting with Stavis,
Stavis referred to his own experiences with a union
and his realization that working for the Union harmed
the store. Similarly, when Martinez again asserted the
need for a formal organization in her November 1989
meeting with him, he replied, ‘‘[T]he Union is fin-
ished.’’
We further find that the General Counsel adduced
evidence sufficient to support the inference of unlawful
motivation in the discharge of Martinez. The Respond-
ent repeatedly attempted to discourage Martinez from
supporting the Union. Stavis told her that his experi-
ence showed that working for the Union harmed the
store. At a later encounter when Martinez continued to
propose representation for employees, Stavis told her
the Union was ‘‘finished.’’
After the Respondent’s efforts to discourage Mar-
tinez’ union sympathies failed, Martinez began to re-
ceive criticisms of her work for the first time during
her tenure at the store. The timing of the Respondent’s
criticisms, reprimand, and discharge of Martinez gives
rise to the inference that the Respondent’s disciplinary
actions were triggered by Martinez’ continued support
for the Union. Thus, in late November 1989, when
Martinez again brought up the issue of representation,
Silva first ridiculed the remarks she had made in sup-
port of representation at an employee meeting and then
told Martinez that all the managers complained about
her work. The first complaint about Martinez’ work,
therefore, was made in the same conversation where
her views on representation were ridiculed. After
Silva’s initial complaint, a sequence of disciplinary ac-
tions toward Martinez occurred. On January 6, Stavis
warned Martinez about reading on the job. On Feb-
ruary 15, Assistant Manager Parker reprimanded Mar-
tinez for improper information disclosure to a cus-
tomer. On February 22, Martinez received written
warning about reading on the job and improper infor-
mation disclosure. On April 26, Silva told Martinez
that she was discharged because of her work perform-
ance. Martinez’ dismissal occurred only a few weeks
after Human Resources Director Smith reported to
Silva a conversation between Martinez and Smith.
Martinez had told Smith that she was going to meet
with other employees to discuss the lack of a grievance
procedure in the Respondent’s new employee hand-
book and the need for the Respondent to conduct peri-
odic employee meetings to discuss complaints, so that
the employees could come up with a proposal. She had
also told Smith that she felt that a union was important
because it would enable employees to bring their con-
cerns to the attention of management.
We find that this sequence of events suggests that
Martinez’ vocal and persistent support for union rep-
resentation provoked the Respondent’s first criticism of
her work. The timing of the Respondent’s decision to
discharge Martinez, coming shortly after Smith re-
ported Martinez’ intention to speak with other employ-
ees about a grievance procedure and periodic meetings
to discuss complaints, and Martinez’ belief in the im-
portance of unionization, further suggests that the Re-
spondent wished to prevent any renewal of employee
discussion of the need for representation at a time
when it had set forth a new program.
For all these reasons, we conclude that the General
Counsel established a prima facie showing that Mar-
tinez’ union activity was a motivating factor in the Re-
spondent’s decision to discharge her.7 We further con-
clude that the Respondent failed to meet its burden of
establishing that it would have discharged Martinez
even in the absence of her protected activity.
The Respondent asserts that it discharged Martinez
solely because of her poor job performance. It relies
particularly on the January 6 incident of reading on the
job and the late March incident when Martinez alleg-
375WORDSWORTH
8 The validiity of the evaluations is questionable because the judge
found that the dates had been altered and that other similar alter-
ations indicated that the forms had been tampered with. We note that
even in the face of tampering Martinez’ ratings concerning courtesy
and helpfulness do not show a perceived problem with her perform-
ance. Nor is there any recommendation on these forms, or elsewhere,
that her work performance was so poor as to warrant dismissal.
1 The principal docket entries in this case are as follows:
Charge filed by United Automobile, Aerospace & Agricultural Im-
plement Workers, AFL–CIO, District 65 (Union) against the Re-
spondent on September 12, 1990, and an amended charge filed on
October 31, 1990; complaint issued by the Regional Director for Re-
gion 1 against the Respondent on November 13, 1990; Respondent’s
answer filed on November 23, 1990; hearing held in Boston, Massa-
chusetts, on April 15 and 16, 1991; briefs filed with me by the Gen-
eral Counsel and the Respondent on or before July 1, 1991.
2 Respondent admits, and I find, that it is a corporation which
maintains an office and place of business in Cambridge, Massachu-
setts, where it is engaged in the retail sale of books, magazines, and
periodicals. During the calendar year ending December 31, 1989, it
derived gross revenues from this business in excess of $500,000, and
purchased and received at its Cambridge, Massachusetts place of
business directly from points and places located outside the Com-
monwealth of Massachusetts goods and materials valued in excess
of $50,000. Accordingly, the Respondent is an employer engaged in
commerce within the meaning of Sec. 2(2), (6), and (7) of the Act.
The Union is a labor organization within the meaning of Sec. 2(5)
of the Act.
3 The transcript is noted and corrected.
edly refused an order to approach customers and offer
help.
We note at the outset that the Respondent rarely dis-
charges employees. Stavis stated, ‘‘We have an incred-
ible record of not firing people.’’ We also note that the
breach of the rule against reading on the job is, ac-
cording to the Respondent’s admitted standard, a trivial
infraction which had been engaged in by many em-
ployees over the years and which normally had not led
to formal discipline. Accordingly, the Respondent’s re-
liance on Martinez’ infraction of the rule against read-
ing to discharge her is a departure from its past prac-
tice and does not provide persuasive support for the
Respondent’s defense. Instead, the use of a trivial in-
fraction to justify the uncommon action of discharging
an employee strongly suggests that the infraction was
not in fact relied on, but rather was seized on as a pre-
text for discharge.
The Respondent’s second ground for discharge is
not supported by the credited testimony. The Respond-
ent asserts that Martinez refused to comply with
Stavis’ order to offer customers help in selecting
books. However, according to the credited testimony,
when Stavis spoke to Martinez about approaching cus-
tomers, Martinez told him that store clerks should be
careful in recommending specific titles to academics
because they might take offense at receiving such in-
formation from a clerk. Stavis never ordered, and Mar-
tinez never refused an order simply to ask customers,
‘‘May I help?’’ Further, when Martinez was subse-
quently evaluated by eight managers, she was rated in
the category of courtesy and helpfulness as above aver-
age by four, average by three, and below average by
one. These evaluations undercut the Respondent’s con-
tention that Martinez was discharged for discourtesy or
refusal to help prospective buyers.8
The Respondent’s departure from past practice with
regard to the incident involving reading on the job and
the absence of credible evidence that Martinez refused
to be helpful to customers demonstrate the Respond-
ent’s failure to meet its burden of showing that it
would have discharged Martinez regardless of her
union activity. We, therefore, agree with the judge’s
finding that Martinez was discharged in violation of
Section 8(a)(3) and (1) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Bandicoot Corporation
d/b/a WordsWorth, Cambridge, Massachusetts, its offi-
cers, agents, successors, and assigns, shall take action
set forth in the Order.
Joseph F. Griffin, Esq., for the General Counsel.
Mark Portnoy, Labor Relations Consultant of Westbury, New
York, for the Respondent.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY, Administrative Law Judge. This
case came on for hearing before me at Boston, Massachu-
setts, on an unfair labor practice complaint, issued by the Re-
gional Director of the Board’s Region 1,1 which alleges that
Respondent Bandicoot Corporation d/b/a WordsWorth,2 vio-
lated Section 8(a)(1) and (3) of the Act. More particularly,
the complaint alleges that the Respondent discharged Cristina
Martinez because of her activities in support of the Union.
The Respondent denies the allegations and asserts that Miss
Martinez was discharged because she read books on the job
while she should have been working and because she refused
to greet customers, as instructed. On these considerations the
issues were joined.3
FINDINGS OF FACT
II. THE UNFAIR LABOR PRACTICES ALLEGED
For the past 15 years the Respondent has operated a book-
store near Harvard Square in Cambridge, Massachusetts. It is
1 of approximately 25 bookstores in this locality. The Re-
spondent stocks about 85,000 titles and was established to
serve the academic communities of Harvard and other nearby
universities as well as the public at large. It employs about
70 clerks and related classifications of employees. The presi-
dent and owner of the Respondent is Hillel Stavis, who exer-
cises active, hands-on supervision of the entire operation.
While several large bookstores on or near Harvard Square
are unionized, the Respondent is not. Its bargaining unit has
an unusual mix of employees. Most of the Respondent’s
book clerks are college graduates and many hold post-
376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
graduate degrees. The vast majority are in the 20–32 age
group and have come to work for the Respondent as their
first or second job following college. The Respondent has
consistently experienced an enormous turnover among its
employees. The average clerk remains on its payroll only 6
or 8 months before moving on to other employment.
Discriminatee Cristina Martinez did not entirely fit this
employment profile. Martinez started to work for the Re-
spondent in April 1988. She is now 54 years old and re-
mained with the Respondent until April 26, 1990, when she
was discharged. Martinez holds a PhD in sociology. Since
her discharge, she has become a visiting professor of soci-
ology at Brandeis University. At the time of her discharge
by the Respondent, she was earning $7.48 per hour as a
clerk. Among her duties were stacking books on shelves,
greeting customers and assisting them in finding books, and
operating the cash register. Unlike most of the bargaining
unit employees, Martinez worked for the Respondent for 2
years. As a result of this tenure, she was one of the most
senior clerks at the store.
The Charging Party represents the clerks at several book-
stores on and around Harvard Square. In the summer of
1989, it was contacted by one or more employees of the Re-
spondent for the purpose of undertaking an organizing drive
among the clerks at the Respondent’s store. Union organizers
contacted employees during breaktimes outside the store with
a view toward soliciting membership and notified the Re-
spondent in writing that it was in the process of conducting
an organizing campaign. In August 1989, the Respondent
distributed a letter, captioned ‘‘Dear Fellow Employee’’
which read as follows:
We are aware that District 65 is trying to organize
WordsWorth and to do so it must obtain signed mem-
bership cards from a number of you.
You have the right to sign or not to sign these cards.
If you sign a card, you are:
1. Accepting membership in District 65;
2. Allowing District 65 to represent you;
3. Agreeing to follow the rules, regulations, and by-
laws of District 65
4. Accepting the right to be fined or have an assess-
ment levied against you.
Organizers have been known to say anything to get
these cards signed. The Union may promise you any
thing, but only WordsWorth pays your wages and bene-
fits and, with your help, can maintain job security.
No one has the right to harass or intimidate you into
joining the Union and, if anyone has attempted to do
this, please bring it to the attention of a manager. The
Company can and will do everything possible to insure
that you are treated with respect.
WordsWorth is firmly convinced that unionization
would not be in your best interest. Therefore, we
strongly recommend that you do not sign the member-
ship card.
If a card has been shown to you, have you read it?
Do you know how much the dues and initiation fees are
of District 65? Do you know which rules and regula-
tions you would be obligated to follow?
District 65 initiation fees are approximately $6 per
week and, in many cases, dues are double that per
week. Its initiation fees are approximately $40 or more
per person. It’s no small wonder that the Union would
like you to join its organization, since it receives a lot
of money for its treasury.
We strongly believe that this Union is not in any-
one’s best interest. Unions can only ask employers to
make concessions—but the law clearly states that the
employer is under no duty to make any economic con-
cessions at all. Has the Union explained that to you?
If not, it is a proper question to ask.
Unions engage in a lot of salesmanship. Be careful.
Check behind the scenes and check for the warranties.
Find out what you will be receiving for your fees—
what is guaranteed. When you have the answers to
these questions we are confident that you will make an
informed decision. We respect your right to make a de-
cision based on all the facts supplied.
As always we would be pleased to answer any ques-
tions you may have. Please bring your questions to the
attention of a manager.
Thank you again for your support and cooperation.
Not long after the distribution of this letter, Martinez had
a conversation with Bruce Silva, the general manager of the
store, in which she told Silva that she was disturbed by the
condescending tone of the letter. She said that the letter was
insulting and asked Silva who wrote it. Silva replied only
that he did not write it.
Employees who favored unionization drew up a statement
of position which discriminatee Martinez posted on the door
to the employee cloakroom. The ‘‘Dear Coworkers’’ letter
was signed by about 20 employees after it was posted, al-
though Martinez was not 1 who did so. The letter read:
As you have probably heard, we are working to form
a union at WordsWorth. The union we hope to affiliate
with is District 65 of the United Auto Workers, which
already represents three bookstore unions in Harvard
Square: Reading International, Cambridge Booksmith,
and Harvard Book Stores.
Management issued a memo to employees on August
18, stating its position against a union. Although we
agree with management that each employee must make
her/his own informed decision, we do not believe that
management is fairly representing our efforts.
The motivation to unionize did not come from Dis-
trict 65; it started with employees. In talking with our
coworkers we found we share many common
dissatisfactions. New employees find it impossible to
live on our starting salaries. Those of us who have been
here longer feel too often unappreciated. None of us
feel comfortable in bargaining for changes, because
there is no clear method, no formal avenue, through
which we can direct our concerns.
We work hard for WordsWorth. We share in the re-
spect our customers show when they say we’re their fa-
vorite bookstore, but we do not feel we share in the
choices that are made about how the store is run,
choices which affect our lives as employees.
All decisions are unilateral and are passed down to
us. For example, there are no clear rules for raises or
promotions. There is no procedure for voicing problems
377WORDSWORTH
or grievances. As things are structured now, we are all
vulnerable to the whims of the owners and manage-
ment. We have no decision-making power, no legal
power, and no clear recourse in matters which affect
our daily lives. We feel this is wrong.
That is why we are forming a union of WordsWorth
employees. We believe a union will allow us to share
in the power, to have a voice in the decisions that are
made. We believe this is only right and fair, and that
WordsWorth as a whole will benefit. We hope you will
join us. So far, the organizing process had been excit-
ing, because we have seen a tremendous amount of
support among employees. We have information avail-
able for all eligible employees, and we hope that you
will come to any one of us with questions and con-
cerns. [Emphasis in the original.]
In addition to making written communications with the
Respondent’s employees, Union Representative Mark
Swadling conducted informal meetings with employees at
nearby cafes and cafeteria and attempted to contact others
through direct solicitation by union adherents in the work
force. Informal meetings continued into the spring of 1990,
but no representation petition was ever filed.
An antiunion committee made up of store employees
began to take shape. Like the union committee, it posted a
letter on the cloakroom door at the store and solicited signa-
tures of interested persons. About 25 signed the document,
which is dated August 29, 1989. It read, in part:
During the past few weeks we have questioned
whether a union is necessary and appropriate at Words-
Worth in order to respond to our needs and concerns.
It has been demonstrated that additional lines of
communication must be opened between employees and
management. How we achieve that goal is crucial to the
wellbeing of each and everyone at WordsWorth.
We are proposing the establishment of an Employee
Action Committee whose purpose would be in part to
provide a forum presenting grievances.
The Committee would be comprised of five to six
WordsWorth employees: from the retail floor, from the
office, and from the warehouse. . . . Each of these rep-
resentatives would be elected by their peers. The group
would meet once a month during store hours to discuss
any problem or any issue. From there, the Committee
would work directly with management to resolve prob-
lems.
We don’t disagree with the basic goals of unionism.
But the restricting nature of a contract between labor
and management seems completely inappropriate at a
place like WordsWorth. We are especially upset at the
prospect of being locked into a raise schedule that does
not provide for individual initiative and creativity. And
now we know that our present salary increases (cost of
living adjustment, scheduled reviews, significant bo-
nuses and an across the board raise every January) out-
perform the best contract the Union has ever negotiated
for a bookstore, it would be senseless to unionize.
The management here may not be perfect but they
do have a pretty good record of listening to and car-
rying out our suggestions. What’s really necessary is to
take our desires and complaints and channel them
through this Committee.
In this way we could receive all the benefits result-
ing from our collective voice without the penalties and
inflexibilities that go along with a union contract—and
without dues, initiation fees, and potential fines.
A large meeting took place on September 6 at a nearby
church under the sponsorship of the members of the
antiunion group. Some assistant managers attended, as did
some union adherents. During the course of this meeting,
Martinez suggested that a comparison be made of the wages
and benefits at WordsWorth with those at other Harvard
Square bookstores. This idea was adopted eventually but not
immediately.
Late in September, Stavis wrote a lengthy letter to em-
ployees outlining his feelings. Among other things he stated:
I’m not going to coerce or pressure anyone, or mis-
represent myself or the past policies of WordsWorth—
or, for that matter, the people attempting to bring a
union to the store. Nor will I talk to anyone in a conde-
scending or patronizing way by dragging out cliches
about ‘‘how good we’ve been to you’’ or ‘‘the union
has ulterior motives,’’ etc. etc. But some individuals
want to paint us in colors that match the portrait
they’ve drawn of the typical employer.
. . . .
First of all, WordsWorth isn’t like most companies—
or bookstores—that find themselves the target of a
labor organizing effort. WordsWorth is not the Pittston
Mining Company. . . . We’re not absentee owners.
. . . .
Unlike most companies who react to a union drive,
we have no intention of ‘‘cozying up’’ to you now that
a union is being discussed. What I will ask of you is
to judge us fairly.
If you’re new to the store, you may not realize that
we’ve always been involved with day-to-day issues in
the store since day one and have been responsive to
people’s needs and complaints all along. Since we
haven’t formalized the benefits we offer, which was a
failing on our part, doesn’t mean that we haven’t dis-
tributed those benefits fairly. Nor does it mean that we
don’t value your input.
He went on to outline existing benefits and advantages of
working for the Respondent, including a health plan, dental
coverage, bereavement pay, profit sharing, and school loans.
Late in September, Martinez had a personal conversation
with Stavis concerning the Union. It took place at her initi-
ation because she told him she wanted to share with him
some of her concerns. She began by saying that there were
a number of problems at the bookstore which had arisen be-
cause the store had grown from a small family organization
to a large operation so that informal relationships had to be
formalized and employees ought to be organized. She said
that she had heard that the Respondent was going to put out
an employee handbook, a statement to which Stavis reacted
angrily, saying it was a lie and spelling out ‘‘L-I-E’’ for em-
phasis. She went on to say that the relationship between
management and employees should be formalized. Stavis re-
plied that he had been good to employees but Martinez in-
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sisted that this was not the issue. Stavis told her that he had
been a union organizer years before when he was a clerk at
Booksmith, a competitor on Harvard Square, but he came to
realize that, by working for District 65, he was harming the
store. She disagreed, arguing that a formalization of the rela-
tionship between management and employees would benefit
the store.
Martinez visited several of the larger bookstores in the
Harvard Square area for the purpose of making a compara-
tive survey of wages and benefits. She prepared (although
she did not actually type) a two-page chart itemizing the Re-
spondent’s wages and benefits in contrast with those paid by
other stores, most of which were unionized. An employee
named Berry Madure drew up a letter, dated October 29, to
which an employee survey was attached. The survey posed
such questions as whether employees were satisfied with
starting wages, frequency of pay raises, work practices, the
existing company substitution system, fringe benefits, and
various other items. He asked that employees fill out the sur-
vey and return it. The wage and benefit chart prepared by
Martinez was attached to his letter and a copy of the entire
package was placed by Martinez in each employee’s mailbox
located in the employee cloakroom.
On November 9, the Respondent distributed a four-page
letter addressed to ‘‘Dear Folks,’’ which stated:
Of the many bookstores in Harvard Square (at last
count-25!) we are pleased that you chose WordsWorth.
Not all bookstores are alike. We think that you’ll soon
discover why WordsWorth stands apart from the rest.
Simply stated, the essential factor in our store’s success
is you. Bookstores are unlike any other retail oper-
ation—customers develop a very personal attachment to
a particular bookstore. In our case, there is no doubt
that the employees are the primary contributors to
WordsWorth appeal. With the incredibly diverse clien-
tele that walks through our doors, we need knowledge-
able and, above all, courteous people. And we’ve at-
tracted such people over the years by treating employ-
ees with respect and a wage and benefit package that’s
without equal in the retail book business.
Our goal is simple: If you’re committed to Words-
Worth, we’re committed to you. Unlike a typical retail
business, we encourage people to stay—that’s why
you’ll find so many long-term members on our staff.
Throughout our policies, you’ll discover benefits from
Profit Sharing to Red Sox and Boston Symphony tick-
ets—all intended to make your stay at WordsWorth as
pleasant and rewarding as possible. Our store may not
become your life’s career, but for many it’s become
their home, and for those of you who are here for a
short time, we hope that you find your stay a very posi-
tive experience .
As is our annual practice, we review our basic wage
and benefit package and make the appropriate upgrades.
We think that you’ll find this year’s revisions extremely
generous and exciting. They are in large part a response
to your needs and inputs.
Early in 1990, you will receive the new WordsWorth
Employee Handbook. It will detail all of the policies
that are summarized in the handouts today.
Each of you will receive a loose leaf binder with the
Handbook which will document all of your wages and
benefits as they accrue. Wendy Smith, our Wage and
Benefit Director, will meet with you to explain this new
policy in detail after the Holidays.
In addition to the sweeping changes summarized
today, we are planning to establish store forums. At
these meetings, you’ll be able to discuss and suggest
anything that concerns you.
WordsWorth values your work and contribution. We
sincerely believe that we can learn from each other.
Without that mutual respect, our store will become sim-
ply another mediocre bookstore. With your cooperation
and trust, we can continue to be one of the best inde-
pendent and personal bookshops.
Attached to this letter was the ‘‘New WordsWorth Wage
Progression’’ beginning January 1, 1990, which showed a
60-cent increase in the starting wage and specific pro-
grammed increases throughout the year at defined intervals,
with an end of the year wage slated at $7.45 depending on
the cost of living as determined by the Government’s CPI
index. There was also a summary of benefits, including paid
holidays (double time for certain holidays), sick days, 3 per-
sonal days (a new benefit), vacations, tuition assistance loans
on a first-come, first-served basis up to a total aggregate of
$1500, bereavement pay, severance pay, general loan fund,
profit sharing, baseball and symphony tickets, and health and
life insurance. All changes except the new starting rate were
scheduled to take effect beginning January 1, 1990. The new
hiring-in rate took effect immediately.
On November 9, 1989, Stavis held a meeting of all em-
ployees to discuss the new wage and benefit program. He
opened the meeting by referring to the Respondent as one of
the best bookstores in the country and thanked the assembled
employees for their contribution to this achievement. He said
that he wanted to go through a summary of the new hand-
book which was being prepared and started to discuss the
items contained in the summary of wages and benefits out-
lined above. At this point, Martinez asked to speak and was
allowed to do so. She spoke for several minutes.
Martinez had with her a book entitled ‘‘In the Age of the
Smart Machine’’ by Shoshana Zuboff and referred to it in
the course of her remarks. She said that she was pleased with
the improvements that had been announced but claimed that
they were due to the input of employees and were an indica-
tion of how important employee input really was. She in-
sisted that the bookstore was no longer a family-run concern
but was really a corporation so it needed to have its relation-
ship with employees formalized. I credit her testimony that
she said on this occasion that employees needed representa-
tion. She buttressed this statement by asserting that such
ideas were not merely her own but were contained in the
book she held up which outlined Japanese management
styles. She suggested that everyone would have a better un-
derstanding of the problem facing the bookstore if they
would read the book in question, asserting that what was
needed was a ‘‘democratic organization,’’ although she did
not use the word ‘‘ union.’’ She asked Stavis if he agreed
to holding employee meetings or forums and he nodded his
assent. When the meeting was over, Stavis told Martinez that
379WORDSWORTH
4 The fact that the incident bore an integral relationship to her dis-
charge does not mean that it had a causal relationship. There is a
dispute in the record as to whether or not the store was busy at this
point in time. It is a peripheral factual dispute which need not be
resolved.
5 Apparently the completion of information training has no direct
bearing on wage rates paid to clerks. There is no wage category of
‘‘info-trained’’ clerk, as distinguished from one who is not, and
there are ‘‘untrained’’ clerks like Martinez earning higher wages
than other clerks who had been ‘‘info-trained,’’ presumably because
of longevity.
he wanted to speak with her but some time elapsed before
a meeting took place.
About 2 weeks later, Martinez went to Stavis’ office and
asked to speak with him. She again mentioned to him the
need of employees to be organized and to have representa-
tion, telling Stavis that, ‘‘even if you are the best employer
in the world, there are 70 employees in the store and that
makes it impossible for you to address the needs of each of
them.’’ She said there should be a formal organization and
representation at forums at which employees could discuss
their problems. I credit her statement that Stavis replied,
‘‘The union is finished.’’ He then went on to discuss what
he characterized as ‘‘your chart.’’ The reference was to the
comparative table of wages and benefits which had been cir-
culated a few weeks earlier to employees and which pur-
ported to outline the Respondent’s wage and benefit package
with those of other Harvard Square bookstores. He com-
plained that there were several errors on ‘‘[her] chart.’’
Stavis maintains, and Martinez denies, that she told him on
this occasion that she was not for the Union. I discredit
Stavis and credit the denial.
A day or two later, Martinez spoke with Silva on the same
subjects in Silva’s office. Silva told her that ‘‘your speech
was ridiculous.’’ Martinez objected, saying that she did not
make a speech but was only making a statement concerning
what she thought was important. Silva’s reply was: ‘‘What
do you know about research?’’ He went on to say that all
the managers complained about her work. Again she ob-
jected, insisting that no manager had ever complained to her
about anything. Silva said, ‘‘Well, probably they don’t dare
tell you.’’ Martinez asked him to request any assistant man-
ager who saw her doing anything wrong to tell her about it
on the spot.
An incident occurred on Saturday, January 6, 1990, which
bore an integral relationship to the discharge of Martinez on
April 26.4 Martinez was working on the second floor of the
store near the music department. Stavis testified that he saw
her reading a book and told her to stop reading and go and
wait on customers. (The Respondent has had a longstanding
written rule that clerks are not permitted to read books while
on duty.) According to Martinez, she replied that she was not
reading the book but merely looking at the index as she was
shelving it. Stavis testified that he was incensed by her reply.
In any event, she put the book away and began to wait on
customers. Stavis made an informal written note and entered
it in her personnel file. It read:
Every employee knows the rules against reading on the
job. I did tell her to stop reading. Finally, on any Satur-
day afternoon, the busiest day (and time) of the week,
there were at least 20 customers on the second floor.
After working in the store for two years, she should
know that one of the most important parts of her job
is to actively help customers, not to retire to a corner
and read. [Emphasis in the original.]
There is a great deal of testimony in the record concerning
the question of the training of salesclerks and the giving of
information to customers concerning the availability and lo-
cation of books. The Respondent carries about 85,000 book
titles and has computerized the information concerning these
books. New clerks are given progressive training about the
retrieval of this information, including hands-on training on
computers and occasional instructional tours of duty at infor-
mation desks which are located on the first and second floors
of the stores. Because of the rapid turnover of personnel, this
training is necessarily a large and ongoing effort. Depending
on their knowledge and length of experience, clerks are des-
ignated as register trained, meaning that they are also capable
and qualified to operate cash registers at checkout counters,
or as information trained, meaning that they are capable and
qualified to provide customers with a full range of informa-
tion about requested books, including the availability of
books which are not on shelves or which appear from the
computer not to be in the store. The Respondent takes great
pains to avoid telling a prospective customer that a requested
book title is not available for fear that the customer will go
elsewhere to make the requested purchase.
Despite her 2 years’ experience in the store, Martinez was
not regarded by the Respondent’s management as being in-
formation trained, although it is clear that she had been wait-
ing on customers throughout this period of time and pro-
viding them certain information about requested purchases,
including information derived from computer terminals.
There is a considerable difference of opinion among the Re-
spondent’s witnesses as to just what is meant by the phrase
‘‘information trained’’ or retrained and what degree or kind
of information may be supplied to a customer by an ‘‘info-
trained’’ clerk as distinguished from one who is not. After
devoting considerable attention to this issue, the Respondent
asserted that Martinez, who was assertedly guilty of pro-
viding book availability information without having success-
fully completed information training, was not actually dis-
charged because of any infraction of the Respondent’s rules
in this regard.5
However, on or about February 15, Martinez was rep-
rimanded on the floor by Assistant Manager Patricia Parker
for having exceeded the bounds of proper information disclo-
sure to a customer. She reported the incident to Silva. Mar-
tinez was giving the following written reprimand dated Feb-
ruary 22, 1990:
On Saturday, January 6th, Hillel [Stavis] was com-
pelled to ask that you stop reading and return to work.
This was done only after it was determined that you
were giving the books more than the cursory inspection
needed for shelving. As one of WordsWorth’s long
term associates, you are aware that reading on the job
is against company policy. That this should occur on a
particularly busy Saturday with a store full of cus-
tomers, many of whom could have used some help, is
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unacceptable. Nor is it fair that your co-workers should
be hard at work while you take time out to read.
More recently, specifically last Thursday, Pat re-
iterated WordsWorth’s policy of referring customer
questions to the currently trained information person on
the second floor. Your response was to argue the point
on the floor in tones that were so vehement that Pat felt
it necessary to take you off the floor to continue the
conversation away from customers who were clearly
upset at the exchange.
Since we have discussed both these issues before,
both in your review and more recently in the conversa-
tion we had in November, I am forced to issue this
warning in writing and remind you that any further in-
fractions of this or other company policy may result in
dismissal.
She was told to respond to this reprimand but was not given
a specified period of time in which to do so.
An employee summary sheet placed in Martinez’ file con-
tains the following entries, apparently placed there by Silva:
1/6/90—2:50 pm. Hellel tells CM to stop reading
and get to work.
1/18/90—CM showed up for 8–5 shift rather than 9–
6 shift. She said she had checked with Kathy and Cion
which I later confirmed. However, she apparently told
them that I said she could make this switch if it was
okay with them. I actually told her that I would check
and let her know.
2/22/90—See attached warning. Christina’s imme-
diate response was to go downstairs and ask some other
people if they would get a store meeting up to discuss
how to help customers since she was getting contradic-
tory messages. The following day, CM came to me first
things [sic] and said that she wanted to set up an ap-
pointment ‘‘now’’ to get retrained on info. I explained
that we’d be going through an entire retraining process
with everyone, but that no one would start that until
they were fully trained on the floor and register. She
then said that she wanted more time on the register so
she could ‘‘be fairly evaluated.’’
3/8/90—Spoke to CM and said we need to set up a
time to discuss her response to her warning. She said
that she knew and was writing up her response.
General comments from one manager’s meeting;
‘‘seems very unhappy, but doesn’t want to leave,’’
‘‘reading a lot,’’ HK ‘‘often have to go and find the
books myself when she does a book check,’’ SK
3/15/90—Spoke with CM to again say that we need-
ed to set up a time to discuss her warning and reminded
her that she had told me she was writing out a re-
sponse. Now she said she was a bad typist—I said, that
didn’t matter—and she said that perhaps tomorrow
would be good.
On March 20, Martinez submitted a 2-1/2-page typewritten
reply to the employee warning report which she had received
on February 22. With regard to the January 6 incident, she
insisted that she was working when Stavis asked her what
she was doing and claimed that he had failed to respond to
her answer or to make any indication at the time that she
was violating company rules. Concerning the incident during
which Parker reprimanded her for improperly giving out in-
formation to customers, Martinez wrote that she was sur-
prised that she was not allowed to use the computer terminal
to obtain information for customers since she had been doing
so for over a year and had never previously been rep-
rimanded or cautioned in this regard. She also challenged an
assertion in the reprimand that she had spoken vehemently
to her supervisor in the presence of customers.
She repeated in her reply the fact that she had criticized
Stavis’ initial letter of August 18 warning employees against
District 65 and noted that the criticism leveled against her
work by Silva, when they had discussed this letter back in
August, was the first time that her work had ever been criti-
cized. She asked that the February 22 warning be removed
from her file, that she be given proper computer information
training, and that assistant managers be instructed to discuss
with her on the spot any deficiencies in her work that they
may have observed. Among her closing statements was the
sentence ‘‘The quality control method that you seem to be
introducing is increasingly losing ground as the modern
world of business moves from authoritarian hostility to
democratic participation.’’
Stavis testified that he was outraged by her written reply
and felt that he should have fired her on the spot but decided
instead to leave the question to assistant managers, who meet
periodically to evaluate employees as well as other matters
concerning the operation of the store. Stavis did speak with
Martinez personally before any meeting of assistant man-
agers had taken place. He testified that, during this conversa-
tion, he instructed her to approach customers and ask them
if they need help. According to Stavis, she replied that she
would not do so because customers might be academics who
would be offended if a store clerk were to suggest that they
purchase a particular book. I discredit his version of this con-
versation and credit Martinez’ testimony to the effect that she
told him that store clerks ought to be careful in recom-
mending specific titles to academics because they might take
offense at receiving such information from a clerk. I also
credit her testimony that Stavis never specifically told her to
approach customers and ask, ‘‘May I help?’’ that she never
told Stavis that she would not approach customers for this
purpose, and that she had consistently approached customers
to assist them throughout the entire period of her employ-
ment. This exchange ended when Stavis asked Martinez sar-
castically how she could tell from looking that a customer
was an academic and whether academics wore signs adver-
tising themselves as such.
In mid-April, Martinez’ second annual review was due.
Eight different assistant managers rated her on a two-page
‘‘confidential employee evaluation’’ form used by the Re-
spondent for this purpose. The form contained blocks in
which the rating official could check off categories ranging
from ‘‘unacceptable’’ to ‘‘excellent’’ as applied to a whole
host of employee characteristics. The form also contained
spaces for the assistant manager’s comments in narrative
form, for the employee’s reply comments, and for the assist-
ant manager’s recommendations and suggestions for im-
provement. According to the form, both the assistant man-
ager and the employee were supposed to sign and date the
completed review.
I note that the dates on each of the evaluation forms have
been altered from what appears to be 4/11 to 4/14. From
381WORDSWORTH
6 Wendy Smith is an admitted supervisor. In its brief, the Respond-
ent described her as a confidential office clerical employee although
she is elsewhere referred to as benefits manager or personnel man-
ager.
these similar and recurring alterations, I conclude that the
forms were tampered with. Martinez was not given any of
the forms for her inspection and review and her signature
does not appear on any of them. For that matter, most of the
forms do not bear the signatures of the rating official.
There is testimony in the record from Parker and from As-
sistant Manager Kathy O’Neill that an assistant manager’s
meeting was held in mid-April, at which time all the man-
agers present verbally recommended that Martinez be dis-
charged. However, none of these managers made any such
recommendation in writing and many, including Parker,
made written recommendations relating to Martinez which
were inconsistent with a discharge recommendation (e.g., that
she should be given additional training). I discredit the testi-
mony of Parker and O’Neill concerning recommendations
that Martinez be discharged.
Early in April, the Respondent issued an employee hand-
book. Martinez took exception to some of its provisions and
asked Wendy Smith, the human resources director, to have
lunch with her to discuss her objections.6 They ate at
Grindell’s. During this meeting, Martinez asked Smith to re-
move the February 22 warning from her personnel file.
Smith said that she could not do this and that Martinez
would have to make her request to Stavis or to Silva.
Martinez also brought up the matter of the new handbook.
She complained to Smith about the substitution policy set out
in the handbook governing the right of employees to switch
shifts with other employees when they needed a day off.
Smith defended the policy, saying she thought it was a lib-
eral one. Martinez also complained that the new handbook
failed to include a grievance procedure and that the store
needed to conduct periodic employee meetings to discuss
employee complaints. I credit Martinez’ testimony that she
told Smith that she was going to have a meeting with some
other employees to discuss these issues so that the employees
could come up with a proposal, and that she expressed the
opinion that the reason she thought that a union was impor-
tant was that otherwise employees would be unable to bring
their concerns to the attention of management. As an exam-
ple, she mentioned the letter which she had written in re-
sponse to the warning she had received. She showed it to
Smith, complained that she had not received any response,
and asked Smith when the Company was going to honor the
requests she had made in her letter.
Following this meeting, Smith reported this conversation
to Silva. A few days later, Martinez discussed her luncheon
conversation with some other employees but took the matter
no further.
On April 26, at the end of the workday, Silva called Mar-
tinez into the office. Both he and Stavis were present. Silva
told her that she was being discharged because of her work
performance and because her cash register ‘‘cash outs’’ were
short. Martinez asked to see any cash sheets indicating that
she had shorted the Company. Silva produced some sheets
but they turned out to pertain to another employee. Stavis
then spoke up to say that the cash sheets were not the prob-
lem. The problem was that the Company was dissatisfied
with her work. He informed her that, in lieu of the customary
2 weeks’ notice, the Company would simply give her a
check for 2 weeks’ earnings along with accrued vacation
pay. She asked for a written statement of dismissal and put
the question to Stavis, ‘‘Is this the way you treat your em-
ployees?’’ I credit her testimony that Stavis replied, ‘‘You
are a special case.’’
Respondent placed in Martinez’ personnel file a termi-
nation report which stated ‘‘Dismissal as a result of repeated
verbal warnings and a written warning regarding work per-
formance.’’ It was signed by Stavis on April 26. In response
to a claim for unemployment compensation, Smith verbally
informed the Massachussetts Department of Employment and
Training that Martinez was discharged for poor performance
regarding her work.
II. ANALYSIS AND CONCLUSIONS
There is little doubt that Stavis feared District 65, a union
to which he had formerly belonged, and harbored an active,
on-going animus toward it. As soon as he learned of the or-
ganizing effort, he told employees in writing that he strongly
recommended against signing cards, citing a number of rea-
sons. He disparaged the Union’s ability to deliver for em-
ployees, warned of possible deception on its part in failing
to disclose the amount of its dues and initiation fees, and
warned employees that union organizers would tell them
anything to get them to sign and to collect dues from them.
More importantly, the Company responded emphatically to
the specific shortcomings in the store which were the crux
of the Union’s campaign—lack of employee forums for the
adjustment of grievances, low hiring-in wages, and asserted
disparities between other wages ant fringes paid to store em-
ployees in comparison with those offered by unionized com-
petitors around Harvard Square. While increasing wages and
benefits during the course of an organizing campaign was not
charged in the complaint as a violation of the Act, such ac-
tions constitute clear evidence of animus and may be relied
on in evaluating the Respondent’s disposition toward the
union effort.
The Respondent was well aware of the existence of the or-
ganizing campaign. Not only did the Charging Party notify
Stavis in writing that it was organizing his store, it posted
a signed notice in a conspicuous place in the store on which
it voiced employee complaints and solicited support from
employees. Stavis acknowledged his awareness of the cam-
paign in the literature he circulated to counteract it.
Martinez was active on the Union’s behalf. She signed a
union card, attended many informal union meetings, did the
research which led to the publication of a comparative chart
of wages and benefits to which Stavis and others took excep-
tion, distributed the chart in employee mailboxes, and spoke
up loud and clear at an employee meeting chiding the Re-
spondent for its old fashioned ideas of management and call-
ing for representation of employees and a democratic organi-
zation in the store to serve as a funnel for employee griev-
ances. She also reiterated some of these ideas in a personal
conversation with Stavis months later, as well as in the writ-
ten response which she filed to the reprimand that was given
to her in February. As late as April 12, during her luncheon
meeting with the Respondent’s human resources manager,
she continued to take exception to store personnel practices.
382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 In its brief, the Respondent made a detailed and elaborate argu-
ment that Martinez was a loner and did not engage in concerted,
protected activities so her discharge could not be occasioned by such
activities. This theory was not alleged in the complaint nor relied on
by the General Counsel ant is not part of the findings here.
One of the key facets of the Respondent’s defense is that
it could not have discharged Martinez for union activities be-
cause it was not even aware of her union involvement or
sentiments. In support of this contention, the Respondent
pointed out that Martinez did not sign the union organizing
letter which was posted in the store, a fact which Martinez
acknowledged but attempted to explain by saying that she
had refrained from signing the letter she had helped to post
so that she could continue to act as a mediator between
union and antiunion factions in the store. While admitting
that Martinez may have used such words as ‘‘representation’’
and ‘‘organization’’ in the course of lecturing the Respondent
and its employees on the virtues of Japanese management
styles, the Respondent disavowed any suggestion that it in-
ferred from her lengthy and repeated statements that she
might actually harbor prounion sentiments because she never
used the words ‘‘union’’ or ‘‘District 65.’’ The contention is
frivolous and disingenuous. Martinez directly criticized the
Company’s first antiunion letter in a discussion with Silva
and was recognized by Stavis as the author of the compara-
tive chart of wages and benefits when he referred to it in a
communication as ‘‘your chart.’’ It is quite clear that the Re-
spondent was an antiunion employer who resisted the organi-
zation of its store and was well aware that the discriminatee
was an outspoken supporter of the effort it opposed.
Another defense advanced by the Respondent was that the
discharge which occurred on April 26 could not have been
prompted by union considerations because, by that time, the
union campaign was over and, to use Stavis’ expression to
Martinez, ‘‘the union [was] dead.’’ This is simply Stavis’
perception of what his employees were doing. The Respond-
ent may have had every reason to believe that, in view of
the rapid turnover of store personnel, the people who had
signed the union solicitation letter in August were no longer
around the following April. However, the one exception was
Martinez, whose tenure at the store was longer than that of
almost any clerk and who gave no hint of leaving. In mid-
April, she gave fresh evidence of her continued interest in
employee organizing activity, as well as her abiding dis-
satisfaction with store conditions, during the luncheon with
Smith. Within 2 weeks thereafter, she was gone. It was not
for some independent protected concerted activity of her own
that the General Counsel argues Martinez was discharged.
Rather, he argues that the discharge was prompted by the
threat of a revival or continuation of union activities—the
campaign of the previous autumn—a campaign the Respond-
ent felt was over because the Company had addressed the
causes of employee dissatisfaction with improvements in
wages and benefits and because most of those who had gen-
erated the union effort were no longer around. The argument
makes out a convincing prima facie case.
In the face of this evidence the Respondent insists that it
discharged Martinez for poor job performance. In particular
it relies on an incident on January 6, when she was caught
reading when she should have been waiting on customers,
and on a statement assertedly made to Stavis in late March
when she refused an order to approach customers and ask,
‘‘May I help?’’ These assertions must be weighed in light of
standard personnel practices of the store, taken together with
the justifications it relied on for the action it took. To use
Stavis’ expression, ‘‘We have an incredible record of not fir-
ing people.’’ The figures he recited were that, in 15 years,
the Respondent had fired only about 20 to 30 employees.
The first incident relied on was that of reading on the job
on January 6. By the Respondent’s admitted standard, this
was a trivial infraction. While it is a violation of company
rules, it is normally not a dischargeable offense. Stavis testi-
fied, ‘‘In 15 years, I’ve said that to a lot of people ‘stop
reading and go to work.’’ In every case, they have said,
‘‘I’m sorry. I’ll go back to work.’’’ In this instance, Stavis
became incensed, not because Martinez refused to stop read-
ing and go to work, but because she had denied that she had
been violating the company rule. Six weeks later she re-
ceived a written reprimand arising out of this incident and
3-1/2 months later it became an integral part of the an-
nounced reason why she was discharged.
The claim is preposterous. This element of the Respond-
ent’s defense presents to the Board a classic and familiar in-
stance in which a trivial infraction of rules, normally over-
looked or redressed informally and without rancor, is seized
on by an antiunion employer as an excuse for eliminating
from its work force a known union supporter who has given
fresh evidence of her unhappiness with job conditions and re-
newed evidence that she is going to do something about it.
The other leg of the Respondent’s defense—that Martinez
refused to greet prospective customers and to extend a will-
ingness to help them in their search for books—is factually
unfounded. Stavis distorted the cautionary warning from a
clerical employee with an advanced academic degree—one
who is now teaching on the faculty of a reknowned univer-
sity—that persons in the ranks of higher education might
take offense at having their familiarity with the literature of
their specialty supplemented by a salesclerk trying to push
particular books. This is a far cry from a stated unwillingness
to provide assistance to a customer. Stavis was angry at this
colloquy and, according to his testimony, was disposed to
fire Martinez—Dr. Martinez—on the spot, but thought better
of it and decided to refer the matter to the judgment of as-
sistant managers who were soon going to evaluate her job
performance.
In mid-April, he received evaluations from eight different
managers. She got a mixed review from different supervisors
on various items but none was willing to put it in writing
that she should be fired. On the precise question at issue—
courtesy and helpfulness to customers—four rated her above
average, three rated her as average, and only one, Parker,
rated her as below average. These opinions undercut the le-
gitimacy of any contention by the Respondent that Martinez
was in fact removed for discourtesy or refusal to interact
with prospective book buyers. Here again, the Respondent
was indulging in pretext to achieve the elimination from its
payroll of a dissident who did not follow the pattern of other
dissidents and quit after short-term employment to find a bet-
ter job. As such, the discharge of Cristina Martinez violated
the provisions of Section 8(a)(1) and (3) of the Act, I so find
and conclude.7
383WORDSWORTH
8 F. W. Woolworth Co., 90 NLRB 289 (1950).
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
10 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
CONCLUSIONS OF LAW
1. Bandicoot Corporation d/b/a WordsWorth is now and at
all times material has been an employer engaged in com-
merce with the meaning of Section 2(2), (6), and (7) of the
Act.
2. United Automobile, Aerospace & Agricultural Imple-
ment Workers, AFL–CIO, District 65 is a labor organization
within the meaning of Section 2(5) of the Act.
3. By discharging Cristina Martinez because of her mem-
bership in and activities on behalf of United Automobile,
Aerospace & Agricultural Implement Workers, AFL–CIO,
District 65, the Respondent violated Section 8(a)(1) and (3)
of the Act. The aforesaid unfair labor practice has a close,
intimate, and adverse effect on the free flow of commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I will recommend that it be required
to cease and desist therefrom ant to take certain affirmative
actions designed to effectuate the purposes and policies of
the Act. The recommended Order will require the Respond-
ent to offer full and immediate reinstatement to Cristina Mar-
tinez and to make her whole for any loss of earnings or ben-
efits which she may have sustained by reason of the dis-
crimination practiced against her in accordance with the
Woolworth formula,8 with interest at the rate prescribed in
the Tax Reform Act of 1986 for the overpayment and under-
payment of income taxes. New Horizons for the Retarded,
283 NLRB 1173 (1987). I will also recommend that the Re-
spondent be required to post the usual notice, advising its
employees of their rights ant of the results of this case.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, Bandicoot Corporation d/b/a Words-
Worth, Cambridge, Massachusetts, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in or activities on behalf of
United Automobile, Aerospace & Agricultural Implement
Workers, AFL–CIO, District 65, or any other labor organiza-
tion by discharging Cristina Martinez or otherwise discrimi-
nating against her in her hire or tenure.
(b) By any like or related means interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Cristina Martinez full and immediate reinstate-
ment to her former or substantially equivalent employment,
without prejudice to her seniority or to other rights pre-
viously enjoyed, and make her whole for any loss of pay or
benefits by reason of the discrimination found, in the matter
described above in the remedy section of this decision.
(b) Expunge from its personnel and pay records any dis-
ciplinary action taken against Cristina Martinez in violation
of the Act and notify her in writing that such actions will
not form the basis for future disciplinary actions.
(c) Preserve and, on 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.
(d) Post at the Respondent’s Cambridge, Massachusetts
store copies of the attached notice marked ‘‘Appendix.’’10
Copies of the notice, on forms provided by the Regional Di-
rector for Region 1, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discharge or otherwise discriminate against
employees because of their membership in or activities on
behalf of United Automobile, Aerospace & Agricultural Im-
plement Workers, AFL–CIO, District 65, or any other labor
organization.
WE WILL NOT by any like or related means interfere with,
restrain, or coerce employees in the exercise of rights guar-
anteed to them by the National Labor Relations Act.
WE WILL offer full and immediate reinstatement to
Cristina Martinez to her former or substantially equivalent
employment, and WE WILL make her whole for any loss of
pay or benefits which she may have suffered by reason of
the discrimination practiced against her with interest.
WE WILL expunge from our personnel and pay records any
disciplinary action taken against Cristina Martinez in viola-
tion of the Act and notify her in writing that such actions
will not form the basis for future disciplinary actions.
BANDICOOT CORPORATION D/B/A WORDSWORTH