Peoples Outfitting Co., 432 (1970)

Peoples Outfitting Company and Retail Clerks International Association, AFL-CIO, Local Union 876.

Case 7-CA-7588

June 30, 1970 DECISION AND ORDER

BY CHAIRMAN MILLER AND MEMBERS MCCULLOCH

AND BROWN

On April 28, 1970, Trial Examiner William W.

Kapell issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision.

Thereafter, Respondent filed exceptions to the Decision and a supporting brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a threemember panel.

The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.

ORDER

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 Respondent, Peoples Outfitting Company, Detroit, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.

CHAIRMAN MILLER, dissenting in part:

I would dismiss the 8(a)(3) allegation and limit the findings of 8(a)(1) violations to the instances of interrogation.

The only direct evidence of improper motivation with respect to the discharge which I can find in this record is the testimony of the one employee (admittedly a union supporter) to the effect that a managerial employee stated that 'he would have to find a way to get rid of [the dischargee] because she was causing too much trouble.' Two other persons were present at the time of the conversation in which this remark was alleged to have been made.

One was one of the General Counsel's witnesses, employee Moore, who testified concerning the conversation in general but failed to corroborate that any such statement was made in the course of it.

The other person present was the managerial employee himself, Tell, who testified, 'I can't recollect making a statement in that particular being. If I made any mention to Miss Perry in regards to the work, it had to be after discussing the problems that we encountered in M cycle and the number of accounts that had to be sued and the amount of work that was applied to those accounts, which was Miss Perry's responsibility.' The Respondent claims that the discharge had no relationship to union activity and was one of many terminations made because Respondent was in severe financial strains. It is undisputed that a substantial number of other employees were terminated, and it is also undisputed in the record that terminations were not effected on any seniority basis nor had the Employer ever had a policy of terminating on a seniority basis. Nor is there any allegation that other union supporters were selected for termination because of their union activities, and the record affirmatively shows that a number of other union supporters were retained in the employ of the Company in the course of the general reduction in force.

On the record considered as a whole, I am not persuaded that the General Counsel has met his burden of proof in establishing that the discharge of Perry violated Section 8(a)(3) and (1), nor am I persuaded that the evidence will support a finding that the Employer threatened reprisals for engaging in union activities.

Furthermore, the finding of an 8(a)(1) violation based on an alleged offer of benefit to the discharged employee to induce her to drop her charges also rests on highly insecure evidentiary grounds. The alleged offer came about in a telephone call initiated by the discharged employee herself and in a context in which the employee volunteered that she had filed the instant charge because the Employer was 'fighting me on compensation.' The Employer's response that he would 'stop fighting' on compensation if she dropped the charge more nearly indicates a desire to amicably arrange a settlement of what the Employer seemed to regard as her real complaint, rather than any improper interference with employees' rights, particularly since the employee had volunteered that her motivation for filing the charge was the attitude of the Employer with respect to her claim for unemployment compensation.

184 NLRB No. 47

TRIAL EXAMINER'S DECISION $50,000 were transported and delivered to its STATEMENT OF THE CASE

WILLIAM W. KAPELL, Trial Examiner: This matter, a proceeding under Section 10(b) of the National Labor Relations Act, as amended, herein called the Act, was heard in Detroit, Michigan, on February 24, 1970, with all parties participating pursuant to due notice upon a complaint' issued by the General Counsel on December 31, 1969.2 The complaint as amended at the hearing, in substance, alleges that Peoples Outfitting Company, hereafter referred to as Respondent or Company, in violation of Section 8(a)(1) and (3) of the Act interfered with, restrained, and coerced its employees by coercive interrogation, threats of discharge for engaging in union activities, promise of a benefit for withdrawing a charge, and by discriminatorily discharging employee Jacqueline Perry. Respondent in its answer admitted the discharge of Perry but claims it was due solely to economic reasons connected with its receivership in a bankruptcy proceeding, and denied engaging in any violations.

All parties were represented and were afforded an opportunity to adduce evidence, to examine and cross-examine witnesses, and to file briefs. A brief was received from the General Counsel and has been carefully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following:

FINDINGS OF FACT

1. COMMERCE Respondent, at all times material herein a corporation duly organized under the laws of the State of Michigan, has maintained its principal office and place of business at 4600 Merritt Street in the city of Detroit, Michigan, where it maintains, inter alia, an office and store for the retail sale and distribution of furniture, appliances, and related products.

During the year 1969, Respondent, in the course and conduct of its business operations, derived a gross revenue in excess of $500,000 from the retail sale and distribution of its products, and during the same period purchased and caused to be transported and delivered to its Merritt Street store and surburban branches in and around Detroit,

Michigan, furniture, appliances, and other goods and materials valued in excess of $100,000 of which goods and materials valued in excess of I Based upon a charge filed on October 21, 1969, by Retail Clerks International Association , AFL-CIO, Local Union 876, hereafter referred to as the Union 2 All dates hereafter refer to the year 1969 unless otherwise noted ' The Union held two meetings , one on the night of September 23, and the other on September 30 Prior to each meeting, the Union distributed handbills in front of Respondent 's premises containing notices of the Union 's meetings ' Perry testified that on a few occasions she had been picked up at the end of the day's work in front of her office by Business Agent Novicoff and stores in and around Detroit, Michigan , directly from points located outside the State of Michigan.

Respondent admits , and I find, at all times material herein it has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

11. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, at all times material herein , that the Union has been a labor organization within the meaning of Section 2(5) of the Act.

3. THE ALLEGED VIOLATIONS A. The Alleged Interrogation and Threat Alice Perez, a former employee of Respondent, testified that Supervisor Richard Tell summoned her to his office the morning following a union meeting3 held the preceding night and questioned her as to whether she and who else attended the union meeting, to which she replied that she had not attended and did not know who did. She testified further that on the day following the second union meeting, both she and employee Julia Moore were summoned by Tell to his office where they were questioned about the preceding union meeting and how many attended. Both employees replied that they had not attended the meeting and were unaware as to who did. According to Perez,

   Tell also stated that he had heard that employee Jacqueline Perry had attended the union meeting, and that she had been seen riding in...