John Wanamaker, 1266 (1972)

John Wanamaker, Philadelphia, Inc. and International Brotherhood of Painters and Allied Trades, AFLCIO, Local Union No. 1159. Case 4-CA-5711

November 1, 1972 DECISION AND ORDER

MEMBERS FANNING, KENNEDY, AND PENELLO ing, neither Gantt nor Guy is shown to have engaged in any union or concerted activity.

Upon such evidence, more fully detailed in the attached Decision, we find ourselves in agreement with the Trial Examiner that the General Counsel has failed to establish by a preponderance of the evidence that Gantt and Guy were discharged for a reason prohibited by Section 8(a)(3) or (4).

On March 8, 1972, Trial Examiner Eugene George Goslee issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed a 'brief contra exceptions.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Trial Examiner and to adopt his recommended Order.

Our dissenting colleague would find that Respondent violated Section 8(a)(1) of the Act because it impliedly promised improved conditions in the course of soliciting grievances. However, the testimony credited by the Trial Examiner shows that Personnel Administrator Reardon, in his conversation with employees about problems in their department, simply alluded to Respondent's past practice of resolving grievances through recourse to the personnel department, and invited the employees to continue to use this practice as an alternative to union representation.

No promise of benefit was expressed and we agree with the Trial Examiner that none may be implied in the circumstances.' As for Gantt and Guy who the dissent claims were unlawfully discharged, they left work on 2 days to attend a hearing without clocking out. Thus, for 2 days they absented themselves from work for personal reasons leaving their names on the timeclock with the apparent expectation of receiving pay for the time not worked. Upon discovering this, Respondent discharged Gantt and Guy.

This conduct of Gantt and Guy was in violation of company rules. Permission therefor had not been granted by any supervisor. Nor was their prolonged absence from work without clocking out sanctioned by any practice at the plant. In the penalty meted out, it does not appear that they were treated differently than any other employee guilty of the same misconduct. Aside from their attendance at the Board hearORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended order of the Trial Examiner and hereby orders that the complaint be, and it hereby is, dismissed in its entirety.

MEMBER FANNING, dissenting:

This is a case where two display department employees of a large metropolitan department store volunteered to testify at a Board representation hearing and were discharged, without warning or discussion, at the first opportunity after the hearing closed.

The Board hearing concerned a unit of the store's display department employees sought by the Charging Union. Shortly after the petition for this unit was filed and before the hearing was held, the Respondent-which had no past practice of soliciting employee complaints-solicited grievances from its display employees through its personnel director Reardon. At the same time the Respondent, through Reardon and by letter, emphasized its opposition to unionization.

In my view the discharges were clear discrimination to discourage union membership within the meaning of Section 8(a)(3), as well as discharges specifically for giving testimony under the Act within the meaning of Section 8(a)(4). Also, as I interpret this record, the solicitation of grievances during organizing was, in the circumstances, improper interference with employee rights guaranteed in Section 7, hence a violation of Section 8(a)(1). I cannot agree with my colleagues, Members Kennedy and Penello who affirm the Trial Examiner, that falsification of time records was the real reason for the discharges, rather than a transparent pretext the Respondent found convenient, or that Respondent's solicitation of grievances during this election campaign did not carry with it an implied promise of improved conditions. Member Kennedy has recently approved a Trial Examiner's Decision in Rotek, Incorporated,2 stating that the mere fact that the institution of more careful searching out of employee complaints coincided with their manifestation of interest in unionization 'went ' The cases relied on in the dissent are therefore factually distinguishable. 2 194 NLRB No. 73.

199 NLRB No. 163 far to indicate to the employees that what Respondent was doing was improperly motivated and was intended to induce the employees not to unionize.' Do my colleagues really think it necessary, as the Trial Examiner here did, that an employer explicate his reason for soliciting complaints during organizing before this Board will take account of that solicitation? The Board has set aside elections where such activity occurred, recently in Raytheon, 188 NLRB No. 42. In his separate opinion in that case Chairman Miller spoke of the strong inference of a promise to correct inequities where an employer suddenly embarks upon solicitation of grievances during an election campaign, 'impliedly urging on his employees that the combined program if inquiry and correction will make collective action unnecessary.'3

Concerning the discharges of Gantt and Guy, who are the alleged discriminatees, there is much discussion in the Trial Examiner's Decision concerning whether they actually had permission to attend the Board hearing on Thursday and Friday, September 9 and 10, 1971, but it cannot be seriously contended that they did not. On both days they cleared with their immediate 'superior' Klaus Schmidt-referred to by the Trial Examiner as a 'section, leader', -and obedient to Schmidt's suggestion made timely efforts to clear with display director Gazabat, who had then held his position for only four months and had had no meetings with his employees. On both days they left a note in Gazabat's office early in the work day, before leaving for the hearing. On the second day they actually encountered Gazabat at the elevator, mentioned that they had been requested to return to the hearing by the Hearing Officer, and were told by Gazabat, as the Trial Examiner found, 'It's your show.' If permission from the head of the department was actually needed, this remark implied it. As Gazabat admitted, he 'definitely' did not tell them not to go.

Gantt and Guy did not clock out on either day as they left for the hearing. The Trial Examiner found that employees were allowed by Schmidt and other section leaders to leave work for personal reasons without clocking out but declined to impute knowledge of this to the Respondent 4 On Friday the hear3 My colleagues distinguish the Rotek and Raytheon cases without discussion, apparently satisfied that the Trial Examiner's allusion to a past practice of employee recourse to the personnel department fits the exception specified in those cases. That exception, however, deals with a perceivable employer practice of soliciting employee complaints from time to time , not with an employee-initiated discussion such as occurred at Wanamaker's in 1970 and described by Reardon as what he meant when spoke of past practice . Absent evidence of past employer practice, an employer promise of benefit is implicit under Rotek and Raytheon. What Reardon did on behalf of management in pointedly seeking out four display department employees -including Gantt and Guy-and expressing chagrin at their consulting 'outsiders' to resolve their problems instead of coming to personnel, was timed to coincide with the onset of union organization and implied a promise to correct inequities so that unionization would be unnecessary . This is improper interference with rights guaranteed to employees in Sec 7 ing closed about 4:30 p.m., the two men returned to the store and duly clocked out at closing time. On Thursday they were admittedly still at the hearing at the time their cards show a clockout. They had no knowledge who made these clockouts. Reardon testified that he would be interested to know who did, but admitted that he did not discuss the matter with Gantt and Guy. Reardon himself adjusted the time on their cards so that they would be paid only for time actually worked on the 9th and 10th, and directed their discharge - an order carried out on Monday, September 13, by another member of the personnel department.

In its brief to the Trial Examiner the Respondent urged that the evidence showed that these two employees 'were discharged for having falsified time records and for no other reason.' This is essentially the conclusion the Trial Examiner reached, branding as specious the General Counsel's argument that Gantt and Guy would hardly attend a Board hearing attended by Reardon and Gazabat-the latter having attended on the first day-and expect to be paid for the time unless management was agreeable to doing so, and rejecting as without merit arguments that the summary discharges of these men were not required by the Respondent's personnel policies, though the record shows just that.' In my view, a fair interpretation of record facts not in dispute shows an inordinate interest by the Respondent in the time cards of Gantt and Guy,6 a policy of giving warnings for even serious offenses before discharge, and no previous example of a discharge for falsifying time records. Thus, an abrupt discharge of employees who have given testimony accomplished without discussion of the...