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Decisions of the National Labor Relations Board
Ralph's Toys, Hobbies, Cards & Gifts, Inc. d/b/a Crown Stationers and Susan Homestead and Cecile Kutulas and Maryann Stroud and United Food and Commercial Workers Union Local No. 367, AFL-CIO, CLC.
Cases 19-CA-14570 , 19-CA-14580 , 19-CA-14581 , and 19-RC-10481
20 September 1984
Decision, Order, and Certification of Results of Election
BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS
On 18 October 1983 Administrative Law Judge Jerrold H. Shapiro issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-exceptions and a brief in support.
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 decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order and his sustaining the challenges to the ballots of certain employees in Case 19-RC-10481 .1
We agree with the judge's finding that the Respondent violated Section 8(a)(1) of the Act when Store Manager Howell left a threatening letter in an open folder and employees read the letter.
The Board has long held that the test for interferetice, restraint, and coercion under Section 8(a)(1) of the Act is whether the conduct may reasonably be said to have a tendency to interfere with the free exercise of employee rights. The Board has also consistently held that the motive or effect of the coercion is immaterial to the finding of a violations The plain facts here are that Store Manager Howell left an unenclosed letter in a folder on top of the telephone counter, where it was discovered by an employee in the course of her duties while looking through the folder for a telephone number; the employee read the letter; she then showed it to other employees; and the letter contained a statement that can be characterized only as a threat to discharge the employee who initiated the Union's organizational campaign. That the letter was personal and not intended for the eyes of employees is irrelevant. So, too, is the failure of the employees to observe the privacy of Howell and her father. The letter, with its threat of discharge, had a tendency to coerce employees in the exercise of their Section 7 rights. We therefore affirm the judge's finding that the letter's threatening statement violated Section 8(a)(1) of the Act.[**1261] 3
The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Ralph's Toys, Hobbies, Cards & Gifts, Inc., d/b/a Crown Stationers, Tacoma, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the Order.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots have not been cast for United Food and Commercial Workers Union Local No. 367, AFL-CIO, CLC, and that it is not the exclusive representative of these bargaining unit employees.
MEMBER HUNTER, dissenting in part.
I do not agree with my colleagues that the Respondent violated Section 8(a)(1) by the threatening to discharge employees because of their union sympathies or activities. The alleged threat of discharge was contained in an unpublished, private, and personal letter written by the Respondent's store manager, Howell, to her father.
The offendiiig letter was discovered by an employee while rummaging through an official folder. This employee was not authorized to examine the folder. The private business nature of the letter itself readily revealed that the letter was of a personal and private nature.
My colleagues hurdle the unpublished nature of the threat by inferring that Howell should have realized that there was a strong possibility that someone would read her letter placed in a business [*165] folder. But this inference rests on an unauthorized intrusion into a business folder coupled with the invasion of the privacy of a personal letter. Indeed my colleagues ask us to accept that employee Kutulas "inadvertently discovered" the personal letter-which she not only proceeded to read but also to bring to the attention of other employees. I do not condone such activity. Nor should violation of the Act be predicated on such an invasion of privacy.1
In sum, I find that the unauthorized reading of Howell's personal letter to her father in the circumstances here does not constitute a publication or communication by Howell to employee Kutulas or any other employee. Accordingly I find that no unlawful threat has been made and I would dismiss this complaint.
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. This consolidated proceeding is based on unfair labor practice charges filed against Ralph's Toys, Hobbies, Cards & Gifts, Inc. d/b/a Crown Stationers (the Respondent), by Susan Homestead, Cecile Kutulas, and Maryann Stroud in Cases 19-CA-14570 , 19-CA-14580 , and 19-CA-14581 , respectively, and on a representation petition filed in Case 19-RC-10481 seeking a representation election among a unit of the Respondcnt's employees, by the United Food and Commercial Workers Union Local 367, AFL-CIO, CLC (the Union).
The charge in Case 19-CA-14570 was filed by Homestead on April 30, 1982, and the charges in Cases 19-CA-14580 and 19-CA-14581 were filed by Kutulas and Stroud on May 3, 1982. The General Counsel of the National Labor Relations Board (the Board), by the Regional Director for Region 19, issued a consolidated complaint in these cases on June 17, 1982, alleging that the Respondent violated Section 8(a)(3) and (1) of the National Labor Relations Act by discharging employees Homestead and Stroud on May 8, 1982, and employee Kutulas on May 9, 1982, and failing to reinstate them thereafter because of their union sympathies or activities and violated Section 8(a)(1) of the Act by threatening employees with economic consequences because the Union filed a representation petition and by leaving a letter for the employees to see which identified certain employees as union organizers. The Respondent filed a timely answer denying the commission of the alleged unfair labor practices.1
In the representation case, Case 19-RC-10481 , the Union filed a representation petition on April 14, 1982, seeking an election among a unit of the Respondent's employees. Pursuant to a Decision and Direction of Election issued by the Board's Regional Director for Region 19 on May 13, 1982, a secret-ballot election was held on June 9, 1982. The tally of ballots shows that, of the approximately six eligible voters, one cast a ballot for and one against the Union. There were four challenged ballots, sufficient to affect the results of the election, which were cast by Homestead, Kutulas, Stroud, and Dana Howell. On June 22, 1982, the Board's Regional Director issued a supplemental decision and direction of hearing in the representation case; the Regional Director sustained the challenge to Dana Howell's ballot and directed that the challenges to the ballots of Homestead, Kutulas and Stroud be consolidated for hearing with Cases 19-CA-14570 , 19-CA-14580 , and 19-CA-14581 . On June 22, 1982, the Regional Director also issued an order consolidating all of these matters for a hearing and decision before an administrative law judge.
On the entire record, from my observation of the demcanor of the witnesses, and having considered the posthearing briefs filed by the General Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
The Respondent, a corporation, owns and operates eight retail stores which sell Hallmark cards and related merchandise. The store involved in this proceeding is located on Gravelly Lake Drive in Tacoma, Washington (the Tacoma store).
The Respondent is owned by the White family: Dolores White, the Respondent's president, with her husband and son, own 87 percent of the Company's stock. Dolores White is responsible for the operation of the eight stores. The day-to-day operation of the stores is in the hands of the stores' managers who work under Dolores Whitc's supervision. The store manager of the Tacoma store is Judy Howell whose husband William is an officer of the corporation and owns 13 percent of the Respondent's stock.
On March 15, 1982,2 the Tacoma store opened for business. Its business hours were as follows: Monday through Friday, 9 am. to 9 p.m.; Saturday, 9 a.m. to 6 p.m.; and Sunday, 12 noon to 5 p.m. It employed six employees whose normal work schedules were as follows: Marlene Phillips-Monday through Friday, 9 a.m. to 5 p.m.; Maryann Stroud-Tuesday through Friday, 12 [*166] noon to 9 p.m. and Saturday, 9 a.m. to 6 p.m.; Cecile Kutulas-Monday and Wednesday, 5 to 9 p.m. and Sunday, 12 noon to 5 p.m.; Susan Homestead-Monday and Tuesday, 12 noon to 9 p.m. and Saturday, 12 noon to 5 p.m.; Susan Morse-Sunday, 12 noon to 5 p.m.; and Dana Howell-Saturday, 9 a.m. to 6 p.m. In addition, Store Manager Howell worked 6 days a week and her husband worked 4 or 5 days a week.
When the store opened, the Respondent's president, White, was reluctant to open prior to 10 a.m. and to operate during the evening hours and on Sunday, inasmuch as virtually all of the stores in the shopping area where the store was situated did not open until 10 a.m., closed by at least 6 p.m.3 and were not open Sundays. White agreed to "try" the 9 a.m. starting time, the weekday evening hours, and the Sunday hours because the Respondent's main supplier of merchandise, Hallmark, felt strongly that the store should be open during these hours. Consistent with White's decision to "try" and operate during these hours, it is undisputed that Store Manager Howell informed job applicants, including the alleged discriminatees, that the Respondent intended to "try" to operate from 9 a.m. to 9 p.m. weekdays and on Sunday afternoons, as had been suggested by Hallmark, but that the Respondent had no idea if these hours would "work out."
During the 3-week period following the March 15 store opening, the store, as President White feared, did an insignificant amount of business on Sundays and on Weekdays from 9 to 10 a.m. and from 6 to 9 p.m.;4 the hours during which the other stores in the area were not open. The result was that early in April President White decided to change the store's hours so that they coincided with the hours that the other stores in the shopping area were open, namely, 10 a.m. to 6 p.m. Monday through Saturday. White decided that this change in hours would not be instituted until after Easter Sunday (April 11) or Mother's Day (May 9), inasmuch as this period was a peak period for greeting card sales. Early in April White communicated her decision to the Howells. She told them that the Respondent would not be able to continue operating the store on Sundays or from 9 a.m. to 9 p.m. during the week and that White would meet with the Howells sometime during the week following Easter Sunday (April 11) to change the store's hours and to decide whether to effectuate the change in hours before or after Mother's Day. About April 12 or April 13 White arranged to meet with the Howells on Friday, April 16, for the purpose of discussing the store's new hours. Normally the employees' work schedules for the period of April 15 to the end of the month would have been posted by Store Manager Howell shortly before April 15. In view of the uncertainty created by President White's indication that the store's hours would be changed significantly, no such schedule was posted.5 On April 14 the Union filed a representation petition with the Board in Case 19-RC-10481 seeking an election in a unit of all regular full-time and regular part-time employees employed by the Respondent in the Tacoma store. On April 15 a copy of the petition was received by Store Manager Howell. The previous day President White received a letter from the Union seeking recognition as the collective-bargaining representative of the store's employees. The Board's Regional Director for Region 19 scheduled a hearing in the Union's representation case for April 30.
On the receipt of the Union's representation petition, President White consulted the Respondent's lawyer and,among other things, told the lawyer about the Company's plans to change the store's business hours. The lawyer advised White not to do anything which would affect the employees until the lawyer had an opportunity to consider the matter. Accordingly, White canceled her April 16 meeting with the Howells. Shortly thereafter the Respondent's attorney arranged to meet with White and Store Manager Howell on April 28, apparently in preparation for the April 30 representation hearing.
It is undisputed that the filing of the representation petition upset Store Manager Howell. She considered the employees' desire for union representation as an affront to her personally. Prior to April 16 Howell had been very demonstrative toward the employees and always talked with them and verbally explained things to them. On April 16, on receipt of the representation petition, Howell stopped speaking to the employees. Instead she gave them written instructions. On April 17, realizing that Howell was upset about the employees' union activities, employee Stroud wrote a card to Howell which was signed by Stroud and by employees Homestead, Phillips, and Kutulas which informed Howell that the employees thought she had treated them fairly and did not want Howell to consider their efforts to unionize as being directed towards her personally, but they felt that since they were working for a corporation they needed union representation. On April 17 Stroud placed this card with a gift for Howell on a table in the store's backroom and, on the same day, Howell read the card but left the gift unopened.
On the evening of April 25 Store Manager Howell wrote a letter to her father which in pertinent part reads as follows:
We are still alive . . . after working ourselves to death for two months we finally opened the store on March 15 . . . .
Everything was going along smoothly ... and then disaster struck. One of the girls I had hired
[*167] who is a real radical type . . . turned us into the union. I don't think that's exactly how to say it but what I mean is that all of a sudden we started getting letters from a union and registered letters from the NLRB, etc.
Since we had been overly nice to them we really could not figure all of this out and it was very upsetting. It got uglier and uglier and I got more and more upset. Lawyers, agencies that help employers etc.
Meanwhile all of them were acting as if this were just something that happened everyday-they even bought me a present because they knew how badly upset I was . . . . Needless to say I did not accept the gift.
Anyway, we still face a hearing of some sort and an election. There are 4 of them who have signed to go union & Dana [Howell] & my best friend Susan [Morse] who works for us on the other side. One of the 4 is a cute dumb type and they had her sign the form before she even asked what it was for-she might possibly, vote our way. Possibly, even if they vote to go union, we can tie it up in legal mumble jumble for 2 years & maybe by then we can get rid of this trouble maker. Meanwhile the pleasant atmosphere in the store is anything but pleasant. You can't say a thing to them because it can be used in court.
. . . .
I know we will get through this somehow and will regard it as just another learning experience but right now it hurts. I guess they are just mainly after more money. We started them at minimum wage . . . . Then after they had talked to the union but before we knew anything about it we gave the 2 fulltimers (1 of whom was Miss Rabblerouser) a raise. I think the second one felt rather badly about that especially since I had just loaned her $40 because her kids were starving. [Letter ends with personal family matters.]
The next day, April 26, Howell placed this letter in a folder marked "current employees" which contained several merchandise catalogues and the applications of all of the Respondent's current employees and took the folder to work. The letter was simply folded; it was not enclosed in an envelope. Howell took it to work to get a postage stamp so she could post it. However, in the hustle and bustle of work, Howell forgot about the letter and, at the end of Howell's workday when she went home, she inadvertently left the folder with the employees' applications, the merchandise catalogues, and the letter to her father, lying on the telephone counter where the employees work. That evening, employee Kutulas, who with employee Homestead, was working the evening shift wanted to telephone employee Morse about a matter connected with work and, in searching for Morse's phone number, opened the folder entitled "current employees" and discovered the letter. After reading the letter Kutulas showed it to employee Homestead and they xeroxed a copy before replacing it in the folder.
They showed the copy of the letter to the other employees.
On April 28, as scheduled, President White and Store Manager Howell met with the Respondent's attorney to discuss the representation petition which had been filed by the Union. During this meeting it was explained to the attorney that, prior to the filing of the petition, the Respondent had decided to change the store's hours which would necessitate the termination of some of the employees. Howell and White asked whether the Respondent could do this. The attorney advised them that in his opinion this was perfectly permissible inasmuch as the terminations were the result of a decision to change the store's hours which had been made prior to the employees' union activities. The attorney also stated that he needed to know the names of the employees who would be terminated because they would not be eligible to vote in the representation election. At this point there was a discussion about which employees would be selected for termination and it was decided that the store's new hours would go into effect May 10, the day after Mother's Day, and that at the time employees Stroud, Homestead and Kutulas would be terminated.
On April 29 President White wrote letters of termination addressed to employees Kutulas, Homestead, and Stroud stating that they were being terminated "due to reducing hours that the store will be open." Homestead and Stroud were informed they would be terminated as of Saturday, May 8, at the end of their workshift and Kutulas was informed she would be terminated on Sunday, May 9, at the end of her workshift. They, in fact, were terminated on those dates.
On April 30, at the end of the workday, as employee Stroud and Store Manager Howell were leaving the store, it is undisputed that as they were getting into their respective automobiles that Howell made the following statement to Stroud: "It's too bad you guys had to start all this shit; we had a good thing going."6
On May 2 Store Manager Howell gave Kutulas her letter of termination.7 Howell told Kutulas she was sorry but that "under the circumstances" she had to terminate Kutulas and the other two employees. Howell then volunteered the statement that the situation with the Union was disrupting her home life, that she was having troubles with her husband on account of the Union, that they had placed their hopes in the store and that she could not understand why the employees had started a union as a union was "bad." Howell apologized for calling Kutulas "dumb" in the April 25 letter to her father" and stated that she (Howell) should have known employee Stroud would cause "problems." The conversation ended with Howell and Kutulas talking about other things, such as Howell's past jobs and her father and mother and childhood experience, until Howell broke down and [*168] started to cry. Kutulas apologized for what had happened and stated that she wished it did not have to end the way it did.9
On May 3 employee Homestead, while at work, became upset about the thought of losing her job,10 and went to the backroom to recover her composure. Store Manager Howell observed that Homestead was upset so she asked what was wrong. It is undisputed that Homestead responded by stating that she was upset because she had to tell her father that she was being terminated. In dispute is Howell's response. Homestead testified Howell stated: "You could have been fired and you still can be," "you are the ones that started this," and told Homestead that Howell and her husband had placed their hopes and dreams in the store and that maybe they could get things back together. Homestead denied having "started" anything, whereupon Howell stated she felt sorry for Homestead because Homestead was so young that she did not understand what was going on and told Homestead not to worry as Homestead's father would understand and she would find another job. Howell's version of the conversation differs. She testified when Homestead told her she was upset because she had to tell her father that she was being terminated, Howell stated: "You could have been fired. You weren't firedyou were terminated," and explained to Homestead that while the word "terminated" sounded awful that it only meant that "there is no more job." Howell testified she then assured Homestead that Homestead's father would understand and not to worry about the matter. Howell did not specifically deny that she expressed the thought that "you are the ones that started this." I credit Homestead's version of this conversation rather than Howell's because the testimonial demeanor of Homestead when she testified about this conversation was good whereas Howell's was unfavorable.11
On Monday, May 10, the day after Mother's Day, the Respondent changed the business hours for the Tacoma store. Since that time it has been open Monday through Saturday from 10 a.m. to 6 p.m., and closed Sundays except for a short period of time during the Christmas season when the Respondent extended the store's weekday hours and opened Sundays for the Christmas rush.
The three alleged discriminatees, Homestead, Kutuland Stroud, were not replaced. The Respondent, when it instituted the new hours of business, operated the store with the remaining employees: Marlene Phillips, Susan Morse, and Dana Howell. They were assisted in their work by Store Manager Howell and her husband William Howell who, as I have found supra, have always regularly worked as salesclerks in the store. There is no evidence that following the discharge of the three alleged discriminatees that the remaining employees and Mr. and Mrs. Howell worked significantly more hours than they had worked prior to the discharges.
Phillips quit her employment with the Respondent in June and Morse quit in September. Phillips was not replaced, but, in September, the Respondent hired three regular part-time salesclerks and in February 1983 hired a full-time salesclerk. It is undisputed that neither Kutulas, Homestead, or Stroud was afforded an opportunity by the Respondent to fill any one of these job openings.
B. Discussion and Conclusionary Findings
1. Store Manager Howell's April 25 letter
The complaint alleges that the Respondent violated Section 8(a)(1) of the Act when Store Manager Howell during the last week of April "left a letter in [the Tacoma store] so that its employees would see said letter dated April 25 identifying certain employees as union organizers." In support of this allegation the record, as described in detail supra, establishes that, while searching for the telephone number of another employee whom she needed to speak to for business-related reasons, employee Kutulas, on April 26, inadvertently discovered a letter from Store Manager Howell to Howell's father dated April 25 which had been placed by Howell in a folder labeled "current employees" and left by Howell on the telephone counter in the employees' work area. The letter, which was read by Kutulas and the other employees, indicates that Howell was very upset with the employees for having sought union representation and was very upset about the Union's representation petition and, in this regard, the letter declared: "Possibly even if they [referring to the employees] vote to go union, we can tie it up in legal mumble jumble for 2 years & maybe by then we can get rid of this troublemaker [referring to the employee who Howell thought had initiated the Union's organizational activities]."
Howell's above-described declaration, "we can get rid of this troublemaker," when read in the context of the whole letter can only be characterized as a threat to discharge the employee who initiated the Union's organizational activities because of that employee's union activity and, as such, is coercive within the meaning of Section 8(a)(1) of the Act.
The Respondent contends that the letter does not violate Section 8(a)(1) because there was no attempt by Store Manager Howell to use the letter to coerce employees rather, the letter was a "personal, private letter" to Howell's father which was not intended for the eyes of the employees. The record reveals that Store Manager Howell should have realized that there was a strong likelihood that an employee would discover and read her letter. Thus Howell placed the letter, which was not in an envelope, in a folder labeled "current employees" which Howell left in full view of the employees on the telephone counter where the employees work. Under the circumstances, I am of the opinion that, regardless of her intention, Howell should have realized that there was a [*169] strong possibility one of the employees would discover and read the letter. I am also of the opinion that this situation is analogous to those cases where a violation of Section 8(a)(1) has been found based on the private conversation of supervisors overheard by employees in it working area. See Perko's, Inc., 236 NLRB 884 fn. 2 (1978), where the statements of two supervisors overheard by employees were found to have violated Section 8(a)(1) even though the supervisors did not intend that their statements be overheard by the employees. In finding a violation the Board noted "intent is not material to a finding of coercion within the meaning of Section 8(a)(1) of the Act, and thus, without regard to any 'calculated' endeavor on the part of the [supervisor], and notwithstanding his unawareness of [the employee's] nearby presence, these comments had a tendency to . . . coerce [the employee]." See also Owego Street Supermarkets, 159 NLRB 1735, 1736 (1966). Cf. Hertzka & Knowles v. NLRB, 503 F.2d 625, 268 (9th Cir. 1974). (In finding that a conversation between two supervisors not meant for the ears of the employees, which was overheard by the employees, violated the Act, the Court noted: "Nor does it matter that it was not intended that others should hear the comments, for it is not only the subjective intent of the speaker that is significant, but also the impact on the employees.")
Based on the foregoing, I find that the Respondent by virtue of Store Manager Howell's April 25 letter violated Section 8(a)(1) of the Act by threatening to discharge an employee because of the employee's union sympathies and activities.12
2. Store Manager Howell's April 30 statement to employee Stroud
The complaint alleges that the Respondent violated Section 8(a)(1) of the Act when Store Manager Howell 11 on or about April 30, threatened an employee with unfavorable consequences because the petition for election was filed covering the Respondent's employees." In support of this allegation the General Counsel, as I have found supra, presented the credible testimony of emplon,ee, Stroud that on April 30 at the end of the workdaN, as employee Stroud and Store Manager Howell were leaving the store that Howell stated: "It's too bad you guys had to start all this shit; we had a good thing going." I agree with the Respondent that this statement does not constitute impermissible interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. Rather, I am persuaded it merely indicates that Howell felt affronted by the employees' desire for union representation and does not impart a threatening meaning. Accordingly, I find that this statement does not violate the Act. I therefore shall recommend that this allegation be dismissed.
3. Store Manager Howell's May 3 statement to employee Homestead
The complaint alleges that the Respondent violated Section 8(a)(1) of the Act when Store Manager Howell "on or about May 2, threatened an employee with discharge because a petition for election was filed covering the Respondent's employees." In support of this allegation the General Counsel, as I have found supra, presented the credible testimony of employee Homestead that on May 3, when Homestead indicated that she was upset because she had to tell her father she was going to be terminated, Store Manager Howell told her, "Y'ou could have been fired and you still can be" and, in the same breath, accused Homestead of being one of the employees that "started this," an obvious reference to the employees' union activities. In this context, Howell's statement, "Y'ou could have been fired and you still can be," constituted a none too subtle threat that Respondent could still discharge Homestead because of her union sympathy and activity. I therefore find that by virtue of this statement Respondent violated Section 8(a)(1) of the Act.
4. The termination ofemployees Homestead, Kutulas, and Stroud
I am of the opinion that, as required by Wright Line, 251 NLRB 1083 (1980), the General Counsel has established a prima facie case that Respondent's termination of employees Homestead, Kutulas, and Stroud was motivated by its desire to avoid unionization. However, I further find that Respondent met its burden to rebut the General Counsel's prima facie case by showing that the employees' terminations were motivated by a legitimate business reason and that it would have terminated the employees even absent its employees' union activities.
The operative facts which comprise the General Counsel's prima facie case have been fully set forth above and may be briefly stated. Respondent employed six employees as salesclerks in its Tacoma store. On April 14 the Union filed a representation petition with the Board in Case 19-RC-10481 seeking to represent these employees. On April 15 the Respondent learned for the first time about the employees' union activities. On April 17, by virtue of a note the employees sent to her, Store Manager Howell discovered that employees-Stroud, Kutulas, Homestead, and Phillips-were union adherents. Howell was very upset about the employees' desire for union representation and very hostile toward the employees for seeking union representation. In addition, as evidenced by Howell's April 25 letter to her father, Howell believed that four of the stores six employees-Stroud, Kutulas, Homestead, and Phillips-were union adherents13 and that Stroud was responsible for initiating the Union's organizational activity. Howell's April 25 letter also establishes that Howell wanted to discharge Stroud because Stroud had initiated the Union's organizational campaign. And, on May 3, in violation of Section 8(a)(1) [*170] of the Act, Howell threatened employee Homestead with discharge because of her union sympathies and activities. Previously, on April 28, the Respondent decided to terminate employees Stroud, Homestead, and Kutulus, effective the end of the following workweek.
The aforesaid circumstances-the timing of the terminations coming hard on the heels of Respondent's discovery of the employees' union activity; Respondent's knowledge of the prounion sympathies of Stroud, Homestead, and Kutulas; the intense union animus exhibited by Respondent; the threat to discharge employees Stroud and Homestead because of their union activities; and the termination of all but one of the employees who supported the Union-make a prima facie showing sufficient to support the inference that the union sympathies and activities of employees Stroud, Homestead, and Kutulas were a movtivating factor in Respondent's decision to terminate them. However, for the reasons stated below, I further find that the Respondent rebutted the General Counsel's prima facie case by establishing valid business reasons for its conduct which would have resulted in the employees' termination even in the absence of the employees' union activities. Wright Liiie, supra. 251 NI,RB at 1067-1068.
As described in detail above, the stores in the shopping area where the Respondent's Tacoma store is located are not open for business on Sundays and are open on the other days of the week from 10 a.m. to 6 p.m. Nonetheless, when the Tacoma store opened for business @!' March 15, Ilresident White, at the insistence of the Haiimark Company, the Respondent's principal supplier, reluctantly agreed to try to stay open for business on Sunday afternoons from 12 noon to 5 p.m. and on weekdays from 9 a.m. to 10 a.m. and from 6 to 9 p.m., even though the other stores in the shopping area were closed during those hours. For the 3-week period following the store's March 15 opening, as White feared, the store did an insignificant amount of business during the hours in which the other stores in the area were closed. Therefore, early in April, before the Respondent learned about the employees' union activities, White decided that effective after Easter Sunday (April 11) or Mother's Day (May 9), which days generated substantial sales of Hallmark cards, that the business hours of the store Would be changed to coincide with the business hours of the other stores in the shopping area, namely, closed Sundays and opened during the other days of the week from 10 a.m. to 6 p.m.14 The result was that, whereas prior to May 10 the Tacoma store was open for business 74 hours a week, effective May 10, it was open only 48 hours a week, an hourly reduction of 35 percent.15 The store, under the new hours of operation, was staffed by Store Manager Howell, her husband William Howell, full-time employee Marlene Phillips, and part-time employees Dana Howell and Susan Morse. The Howells, Phillips, and Morse had been working as salesclerks prior to the change in the store's hours and there is no evidence that, because of the termination of Stroud, Homestead, and Kutulas that they thereafter worked significantly more hours each week. In fact, when Phillips quit her employment in June she was not replaced until September.16 Nor was it unreasonable for the Respondent to select Stroud, Homestead, and Kutulas for termination, instead of Phillips, Morse, or Dana Howell. Phillips was hired with the understanding that she would be the store manager in Howell's absence and would become store manager if Howell left to manage another store. Also, of all the employees, Phillips' work schedule, 9 a.m. to 5 p.m. Monday through Friday, was the least affected by the store's new business hours.17 Susan Morse was Store Manager Howell's best friend and was scheduled to do the store's imprinting for the Christmas season. Dana Howell was the boss' daughter.
To sum up, the record establishes that, prior to the Respondent's knowledge of the employees' union activities, it had decided to reduce the store's business hours by 35 percent and that the natural consequence of this was the Respondent needed fewer employees to operate the store. In this regard there is no evidence that, after the termination of the three alleged discriminatees, the number of hours worked by the remaining workers increased significantly. Nor is there evidence that the Respondent used the need for a layoff as a pretext to eliminate prounion employees. Rather the record shows the Respondent's selection of employees for termination was reasonable. It is for all of these reasons that I am persuaded that the Respondent would have terminated Homestead, Kutulas, and Stroud when it did, even in the absence of the employees' union activities. Having found that the Respondent met its Wright Line burden, I shall recommend the dismissal of the allegations in the complaint that the terminations of Stroud, Kutulas, and Homestead violated the Act.
[*171] 5. The failure to reinstate Stroud, Homestead, and Kutulas
As mentioned above, in September the Respondent hired three regular part-time salesclerks to replace the two salesclerks (one full timer and one part timer) who had quit. In February 1983 the Respondent also hired another full-time salesclerk, apparently to replace an employee who had quit or who intended to quit in the immediate future. The Respondent failed to give any one of the three alleged discriminatees an opportunity to fill these job vacancies. The complaint alleges that by engaging in this conduct the Respondent violated Section 8(a)(3) and (1) of the Act. I shall recommend, for the reasons set forth below, that this allegation be dismissed.
There is no evidence that the Respondent has a policy of placing terminated employees on a preferential hiring list nor is there any evidence that by not offering Stroud, Homestead, or Kutulas reinstatement to the job openings which arose after their termination that the Respondent treated them differently from other employees in similar circumstances. Indeed, inasmuch as Stroud, Homestead, and Kutulas had worked for the Respondent for such a short period of time, less than 3 months, and occupied jobs which required little if any skills, there is no reason why the Respondent would be expected to offer them, rather than other applicants, the vacant positions. Finally, Store Manager Howell's reasons for not considering the alleged discriminatees for the vacant positions were reasonable.18 It is for all of these reasons that I am persuaded that the General Counsel has not proven by a preponderance of the evidence that the Respondent's failure to reinstate Homestead, Stroud, and Kutulas to vacant job openings was motivated by the Respondent's union animus. I therefore shall recommend that this allegation of the complaint be dismissed.
II. THE REPRESENTATION CASE
Having found, supra, that the General Counsel has failed to prove that the terminations of employees Homestead, Kutulas, and Stroud violated Section 8(a)(3) and (1) of the Act, I shall recommend that the challenges to their ballots in Case 19-RC-10481 be sustained.
CONCLUSIONS OF LAW
1. The Respondent, Ralph's Toys, Hobbies, Cards & Gifts, Inc. d/b/a Crown Stationers, is an employeer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. By threatening to discharge employees because of their union sympathies and activities the Respondent violated Section 8(a)( 1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act.
4. The Respondent did not otherwise violate the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended19
The Respondent, Ralph's Toys, Hobbies, Cards & Gifts, Inc. d/b/a Crown Stationers, Tacoma, Washing-ton, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to discharge employees because of their union sympathies and activities.
(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the Act.
(a) Post at its Tacoma, Washington facility, copies of the attached notice marked "Appendix."20 Copies of the notice, on forms provided by the Regional Director for Region 19, 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 conspicuos 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.
(b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the Respondent violated the Act other than as found herein.
IT IS ALSO FURTHER ORDERED that in Case 19-RC-10481 the Regional Director for Region 19 sustain the challenges to the ballots of Susan Homestead, Cecile Kutulas, and Maryann Stroud.
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to discharge our employees because of their union sympathies or activities.
[*172] WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed them in Section 7 of the Act.
RALPH's TOYS, HOBBIES, CARDS & GIFTS, INC. D/B/A CROWN STATIONERS
1 The election in Case 19-RC-10481 was conducted to a Decision and Direction of Election issued on 13 May 1982. The tally of ballots was one for and one against the Petitioner; there were four challenged ballots. In a Supplemental Decision and Order the Regional Director for Region 19 sustained the challenge to one ballot and directed that the remaining challenges be consolidated with Cases 19-CA-14570 , et al., for resolution. Since these challenges are sustained by the judge,the final tally of ballots is one for and one against the Petitioner. In the absence of exceptions by the Union, we do not reach the impact of the Employer's conduct on the election.
3 Like the judge we find this situation analogous to an employee's overhearing a conversation between supervisors. Contrary to our dissenting colleague's suggestion, the employee in this case was in her work-place performing her normal work functions. The business folder was left on top of the telephone counter, and there is no evidence that employees had been told it was off limits. The employee looked in the folder to see if she could find the home telephone number of another employee so that she could ask her a business-related question. The letter containing the coercive remarks was lying in the folder unenclosed. In any event, the maker, or as here the author, of a coercive statement acts at his peril in making the statement.
1 My colleagues find an analogy to a private conversation overheard by employees in a work area. In those cases the employees were in their workplaces performing their normal work functions. While it is reasonable to assume that an employee might overhear a conversation between supervisors held openly in a work area it is not reasonable to assume that employees will invade the privacy of a personal letter not addressed to the reader.
1 In its answer the Respondent admits that it meets the Board's applicable discretionary jurisdictional standard and is an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act. Also, the Respondent stipulated that the Union is a labor organization within the meaning of Sec. 2(5) of the Act.
2 All dates herein, unless otherwise stated, refer to the year 1982.
3 The sole exceptions were a grocery store and a drug store located two blocks from the Respondent's store which were physically separated from the store by a main thoroughfare.
4 Based on the testimony of President White and Store Manager Howell who, when they gave this testimony, impressed me as credible witnesses. I also note that their testimony concerning the lack of business on Sundays and weekday evenings was not controverted by Homestead and Stroud, who worked weekday evenings, or by Kutulas who, in addition to working weekday evenings, worked Sundays. Also the lack of business on Sundays was demonstrated by the Respondent's business records.
5 The finding that Store Manager Howell failed to post the employees' work schedule for the latter part of April is based on the testimony of Store Manager Howell which was corroborated by the testimony of Kutulas and Stroud.
6 Howell admits she made this statement. She testified that "it [Referring to the statement] was just a mark of fustration."
7 The reason Kutulas did not receive the termination letter earlier was that this was the first day since April 28 that she was scheduled to work. The other employees had already received their termination letters.
8 Susan Morse, who was Howell's best friend, had told her that the employees found her letter to her father and had made a copy of it.
9 The above-described conversation between Store Manager Howell and Kutulas is based on Kutulas' testimony which was not denied by Howell.
10 The day before Homestead received her termination letter.
11 I agree with the Respondent that, under normal circumstances, "it would not be logical for Howell to threaten to fire Homestead for union activity after she had already been notified that she was being terminated because of a change in hours that the Store would be open." Here, however, Howell was so upset about the employees' union activities and felt so antagonistic toward them on account of their union activities that Homestead's testimony that Howell warned her that "you could have been fired and you still can be" is not inherently incredible. Indeed, considering the circumstances, it has the ring of the truth.
12 I recognize that the complaint, with respect to the April 25 letter, does not allege an impermissible threat to discharge, however, "it is well established that a violation not alleged in the complaint may nevertheless be found where, as here, the unlawful activity was related to and intertwined with the allegations in the complaint, and the matter was fully litigated before the Administrative Law Judge." Doral Hotel & Country Club, 240 NLRB 11 12 fn. 3 (1979).
13 The April 25 letter also establishes that Howell felt that the two remaining employees, her daughter Dana Howell and her friend Susan Morse, were not union adherents.
14 The finding that White, prior to the Respondet's knowledge of the employees' union activities, decided to change the store's hours of business to coincide with the other stores in the area is based on White's testimony which was corroborated in significant respect by Store Manager Howell's testimony. White's testimonial demeanor was impressive and her testimony was not inherently implausible or otherwise impugned by the whole record. Quite the opposite, there are several factors which reinforce the plausibility of White's testimony that the decision to reduce the store's hours predated the employee's union activities. These factors are as follows: White's initial reluctance to operate from 9 a..m. to 9 p.m. and on Sundays; the insignificant amount of business done by the store during the hours in which the other stores in the area were not open; Store Manager Howell's indication to job applicants that the Respondent's decision to operate during the hours suggested by Hallmark was only a tentative decision; and Howell's failure to post an employee work schedule for the last part of April.
15 Any delay in implementing White's early April decision to reduce the store's hours was caused by the filing of the Union's representation petition on April 14 because White desired to consult with her lawyer to be sure that the change in hours and the resultant termination of employees would not, under the circumstances, be impermissible.
16 During the period from June until September, it appears that Dana Howell, a part-time worker, worked full time until a replacement for Phillips was secured. Dana Howell then resumed her part-time employment.
17 I note that Stroud, Homestead, and Kutulas each worked a significant number of hours during periods of time that the store after May 9 was no longer open for business. Thus, 4 of Strouds 5 workdays included the discontinued night shift, as did two of Homestead's 3 workdays, and Kutulas worked solely during the evenings and on Sundays. Indeed, due to Kutulas' other employment commitments, it was not possible for the Respondent to fit Kutulas into the store's new schedule.
18 Store Manager Howell testified with sincerity that, during the time she was considering filling the vacant positions, she believed the three alleged discriminatees were not available for emplyment because Howell had been told that Homestead and Stroud were working for other employers and had observed that Kutulas was still employed by her former employers.
19 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in SEc. 102.48 of the Rules, be adopted by the Board and all objections to them shall be demed waived for all purposes.
20 If this Order is enforced by a Judgement 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 Judgement of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."