Alpers' Jobbing Co.

National Labor Relations Board - Board Decisions

Aug 16, 1977

231 N.L.R.B. 449 (N.L.R.B. 1977)

ALPERS' JOBBING COMPANY
Alpers' Jobbing Company, Inc. and Teamsters Local
Union No. 688. Case 14-CA-8933
August 16, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On June 30, 1976, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions,
a supporting brief, and a motion to correct the
record, and General Counsel filed a motion in
opposition to Respondent's motion.
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, brief,'
and motions 2 and has decided to affirm the rulings,
findings, 3 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified below.
The Administrative Law Judge found that Respon-
dent discharged Melvin Hagans "at least in part" in
order to discourage union activity and therefore that
the discharge was violative of Section 8(a)(3) of the
Act. We do not agree.
Hagans was hired as a stock clerk in May 1974,
and terminated on October 17, 1975. Shortly before
his hire, he was released from a hospital where he
had spent several months being treated for tubercu-
losis. At the time of hiring, Respondent was aware of
this history and had agreed that Hagans could absent
himself several times a month for the purpose of
returning to the clinic for checkups. However, his
absences during the period of his employment were
far in excess of the amount of time necessary for his
checkups. Thus, from May to December 1974,
Hagans was absent from 8 hours to 50 hours each
month and during 1975 his monthly absences ranged
from 14 hours to 66 hours. During September 1975,
the month immediately prior to his discharge, he was
absent 61 hours.
As the record. exceptions. and brief adequately present the issues and
the positions of the parties, Respondent's request for oral argument is
hereby denied.
2 In its motion to correct the record. Respondent alleges that the
transcript in this case is incomplete in that it fails to include Respondent's
statements and argument in support of its motion for sequestration of
witnesses and fails to include the rulings of the Administrative Law Judge in
connection therewith. We agree with counsel for the General Counsel that
Respondent had an opportunity to state its position and to summarize any
off-the-record discussions on sequestration of witnesses upon returning to
the record. Having failed to do so during the hearing, it would be
inappropriate for the Board to attempt to add to the record. Moreover, we
find that the Administrative Law Judge did not abuse his discretion in his
231 NLRB No. 57
The incident which gave rise to Hagans' discharge
occurred during the first part of October. On the
weekend of October 4 and 5, Hagans drove to
Kansas City with another employee in order to visit
his mother who was ill. While there he apparently
had car trouble, but failed to notify Respondent that
he would not be at work, until Tuesday, October 7,
when he telephoned Arnold Alper. Hagans and his
fellow employee did report for work the following
day, Wednesday, at 1:30 p.m. However, Alper was
upset with them, told them that "they looked like
they were tired and needed rest," and directed them
to take the remainder of the week off to rest up.
In concluding that Respondent discharged Hagans
"at least in part" because of Hagans' preeminence in
the union campaign to which Respondent was
unalterably opposed, the Administrative Law Judge
refused to credit Respondent's explanation that the
sole reason for Hagans' discharge was his excessive
absenteeism, relying on the following: (I) Hagans
was never seriously warned or threatened with
discipline prior to his termination; (2) even after
Hagans was cautioned about his absences by Arnold
Alper in July, Alper gave him certain responsibilities
in the warehouse during Alper's absence in August;
and (3) Respondent originally sought to ground
Hagans' termination upon economic reasons, i.e., the
work was "slowing up," but at the hearing Respon-
dent shifted the explanation to alleged excessive
absenteeism.
The Administrative Law Judge conceded that for a
period of time prior to Hagans' termination Respon-
dent considered that his absenteeism was excessive
and that excessive absenteeism may constitute good
and sufficient cause for an employee's discharge.
However, he inferred that this was not the sole
reason for Hagans' discharge, relying on the factors
set out above. We do not believe that the evidence
preponderates in favor of the conclusion drawn by
the Administrative Law Judge. We consider the
factors he relied on seriatim. (As a preliminary
matter, it should be noted that Hagans' discharge
occurred approximately 6 months after the election
which the Union won and 2 months after the Union's
certification. There was no prospect of a second
rulings on the sequestration of the witnesses. We therefore deny Respon-
dent's motion to correct the record.
3 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Drys Wall Products,
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings,
except as indicated hereinafter.
In the absence of exceptions, we adopt proforma the Administrative Law
Judge's finding that there is insubstantial evidence to establish a violation of
Sec. 8(a)(I) by Respondent's conduct in "denigrating" the Union.
449
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election within any reasonable period of time after
the discharge.)
I. Hagans was never seriously warned or threatened
with discipline prior to the termination. According to
the Administrative Law Judge's own finding, in early
July 1975 Arnold Alper confronted Hagans with a
written list showing his numerous absences from the
date of his employment to July and requested
Hagans to improve his attendance, "because we
needed the help, we didn't need people coming and
going as they pleased." Hagans promised to do
better. Because Hagans' attendance failed to improve
(during the month of September he was absent 61
hours), Arnold Alper again criticized him for his
absences during a meeting held a week or two before
the discharge.4 The foregoing evidence establishes
that Respondent was dissatisfied with Hagans'
attendance record and notified him of that dissatis-
faction prior to the discharge. When Hagans again
failed to report for work on October 6, Respondent
decided to discharge him. There is no statutory
requirement that an employer must threaten an
employee with discipline before discharging him for
persistent absenteeism. The situation might be
different if there was evidence of a practice on the
part of Respondent to threaten or warn before
discharging, but there is no such evidence in this
case. Moreover, the two meetings at which Respon-
dent criticized Hagans for his attendance could
hardly be considered as anything other than a
warning to him that he had to improve or face the
consequences. Respondent was not required to use
ritual words: "If you persist in absenting yourself,
you will be discharged."
2. Even after Hagans was cautioned by Arnold
Alper in July, the latter gave Hagans certain responsi-
bilities in the warehouse during Alper's absence in
August. In August 1975, when Arnold Alper went to
a trade show in Las Vegas, he asked Hagans to watch
over things more closely while Alper was gone,
because Hagans "was pretty good at remembering
where things were put and where things were and he
was a good worker." The Administrative Law Judge
"pondered" why this was done "if Hagans was as
untrustworthy and unaccountable as Respondent
sought to have us believe." But Respondent never
said that Hagans was untrustworthy or unaccounta-
ble. On the contrary, Alper testified that Hagans was
a good worker. The only complaint against him was
his bad attendance. This factor therefore is irrelevant
4 According to Alper, at this meeting he asked Hagans what the latter
would do if their positions were reversed and he had an employee with
Hagans' absentee record. Hagans replied, Alper testified, that he "would get
rid of him." Hagans admitted the meeting and Alper's question but denied
saying that he would fire the employee. According to Hagans, he answered,
to the determination of Respondent's motive in
discharging Hagans.
3. Respondent originally sought to ground the
termination upon economic reasons, i.e.. that the work
was "slowing up," but at the hearing shiftecd its reason
for the discharge. According to Hagans, Arnold Alper
started "telling a lot of people that the work was
slowing up and that he was going to have to get rid of
a few guys to cut down the work force. So, all week
he had been saying that on Friday he was going to
lay me off." Arnold Alper testified that he discharged
Hagans because of his poor attendance record and
not because of a work slowdown. The Administrative
Law Judge credited Hagans' testimony and on that
basis found that Respondent had shifted its reasons
for the discharge. However, even were we to accept
this credibility resolution-an issue which we need
not reach-in the circumstances here where obvious
and impelling lawful reasons existed justifying
Hagans' discharge at the time he was dismissed, we
find that his uncorroborated testimony that Alper
offered shifting reasons for the discharge does not
alone amount to substantial evidence that illegal
motivation played a part in his separations
True, when an employer with union animus
discharges a leading union proponent, there is, as the
dissent suggests, a strong suspicion that the discharge
was motivated by the employer's antipathy to the
employee's union organizational efforts. Neverthe-
less, an employee's union activity does not insulate
him from discharge for engaging in conduct for
which he would have been terminated even if he had
not been a union proponent. In Klate Holt Company,
161 NLRB 1606, 1612 (1966), the Board said:
The mere fact that an employer may desire to
terminate an employee because he engages in
unwelcome concerted activities does not, of itself,
establish the unlawfulness of a subsequent dis-
charge. If an employee provides an employer with
a sufficient cause for his dismissal by engaging in
conduct for which he would have been terminated
in any event, and the employer discharges him for
that reason, the circumstances that the employer
welcomed the opportunity to discharge does not
make it discriminatory and therefore unlawful.
Here, there can be no question but that Hagans'
attendance record was poor and getting worse, that
despite Respondent's complaints and warnings there
was no improvement, that his termination followed
immediately an unexcused 3 days' absence during
"I didn't know." The Administrative Law Judge did not discuss this
evidence or resolve the testimonial conflict.
s N.L.R.B. v. Ogle Protection Service, Inc., 375 F.2d 497, 506 (C.A. 6,
1967).
450
ALPERS' JOBBING COMPANY
the first part of which he did not even bother to
notify Respondent that he would not be in to work,
and that Respondent was "mad" about Hagans'
unexplained absence, as Hagans himself testified.
Consequently, Respondent not only had a just cause
but also what would usually be considered a moving
cause for discharging Hagans. That being so, the
suspicion based on Respondent's animosity is insuffi-
cient to support a finding that the discharge was,
despite its probable lawful basis, nonetheless caused
in whole or part by Hagans' union activities. 6
As we have rejected the bases upon which the
Administrative Law Judge inferred that Respondent
discharged Hagans partly for his union activity, we
also reject his conclusion that the discharge was
discriminatory. Accordingly, we shall dismiss the
complaint insofar as it alleges that Respondent
discharged Hagans in violation of Section 8(a)(3) and
(1) of the Act.
AMENDED CONCLUSIONS OF LAW
Delete the Administrative Law Judge's Conclusion
of Law 3 and renumber the subsequent conclusions
accordingly.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Alpers' Jobbing Company, Inc., St. Louis,
Missouri, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
I. Delete paragraph l(a) and reletter the subse-
quent paragraphs accordingly.
2. Delete paragraphs 2(a) and (b) and reletter the
subsequent paragraphs accordingly.
3. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER JENKINS, dissenting in part:
I am puzzled by the majority's reversal of the
Administrative Law Judge's finding that Hagans'
discharge was motivated in part by Respondent's
desire to discourage union activity and not solely by
his absentee record. There is no doubt that Hagans
was absent from work several times a month during
his 17-month employment with Respondent. It is also
clear that Respondent was aware of his medical
F In Member Walther's view, since Respondent established good cause
for the discharge, the burden shifted to the General Counsel to prove that
the alleged legitimate reason for the discharge was a pretext and that "but
for" Respondent's union animus Hagans would not have been discharged.
problem prior to the commencement of his employ-
ment and tolerated his absences. The majority states,
however, that during the period prior to his discharge
his absenteeism increased. They particularly note
that during September 1975, the month immediately
prior to his discharge, he was absent 61 hours.
However, Respondent's vice president, Arnold Al-
per, testified that at the time Hagans was discharged
his absentee records included the period only
through June 27, 1975.
Hagans testified that Alper told some of the
employees (including Hagans) that work was slowing
up and the work force would be cut. At the hearing,
Alper denied that Hagans was discharged for lack of
work, but did not deny that he informed employees
that work was slowing up. The majority purportedly
attaches no significance to the Administrative Law
Judge's credibility resolutions which led to his
conclusion that Respondent shifted its position as to
the reason for Hagans' discharge. However, the
majority proceeds to attack the essential credibility
findings it has ignored, by stating that Hagans'
testimony was uncorroborated. This feat of legerde-
main does not withstand scrutiny. The failure to
consider the material credited evidence, while plainly
convenient, is otherwise inexplicable.
The foregoing affirmative errors in the majority's
rationale are only minor compared to the glaring
omissions. The intensity of Respondent's union
animus has been set forth by the Administrative Law
Judge and his findings adopted by the majority, and
I join them. The majority finds that Respondent
violated the Act no less than 10 times by various acts
of interference, restraint, and coercion. As correctly
stated by the Administrative Law Judge, the point
was singularly brought home to Hagans. Thus, the
majority finds that Respondent was aware of
Hagans' prounion sympathies and violated the Act
by repeatedly suggesting to him that he take a layoff
and draw unemployment until he found a better job.
The majority also finds that Respondent's president,
Irvin Alper, told an employee that Hagans and
another employee would be "one of the first ones to
go because they were supposed to be instigators of
the union," and that the Union would not be of any
assistance to the employees because "there are ways
to fire a man and get around the Union." The
majority, inexplicably, makes no reference to the
above unfair labor practices.
The most pronounced error in the majority's
rationale is their attempt to completely ignore an
incident which clearly demonstrates that Hagans'
See Member Walther's dissent in East Bay Newspapers, Inc., d/b/a Contra
Times, 228 NLRB 692 (1977). In Member Walther's judgment, the General
Counsel has not met this burden.
451
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge was motivated by antiunion considera-
tions. According to Hagans' credited testimony,
shortly after the election, Irvin Alper asked him "why
I was going to try and bring a bunch of gangsters
down to run his business." Hagans responded that
the employees would benefit from having a union.
Alper then "called me a troublemaker and said he
would get even with me." It is difficult to conceive of
a more significant and incriminating statement.
Finally, at the hearing, Respondent introduced
another basis for discharging Hagans. The Alper
brothers testified that they intended to discharge
Hagans in the spring of 1975, but refrained from
doing so on the advice of counsel, until October
1975, when they decided it was "permissible to
terminate Hagans." It is apparent that Respondent
sought merely to obfuscate the basis for Hagans'
discharge by waiting for 6 months after the represen-
tation election.
Even were I to agree with my colleagues that
Hagans' attendance record was poor and justified his
discharge, I would nevertheless find that Respondent
violated the Act. It is true that an employee's union
activity does not insulate him from discharge for
engaging in conduct for which he would have been
terminated even if he had not been a union
proponent. However, that is not dispositive of the
issue, for it is well established that the mere existence
of valid grounds for such action is not a defense
unless the action was predicated solely on those
grounds. 7 In order to find that Hagans' absentee
record was the sole cause of his discharge, one would
have to disregard the overwhelming credited and
unrefuted testimony set forth above. I cannot join
my colleagues in doing so.
In view of all of the foregoing, I conclude, as did
the Administrative Law Judge, that the termination
of Hagans on October 17, 1975, was motivated, at
least in part, by a desire to discourage union activity
and thus violated Section 8(a)(3) of the Act.
7 Signal Delivery Service, Inc., 226 NLRB 843 (1976).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees by suggesting
that employees who support Teamsters Local
Union No. 688 take a voluntary layoff to seek
other employment.
WE WILL NOT coercively interrogate employees
concerning their union activities, or how they
voted in an NLRB-conducted election.
WE WILL NOT impliedly promise employees
benefits in order to persuade them to abandon or
cease supporting the above-named Union.
WE WILL NOT threaten employees that we could
unduly prolong and delay collective bargaining
by engaging in prolonged court proceedings.
WE WILL NOT threaten employees that we will
shut down our facilities in order to avoid
bargaining with the above-named Union.
WE WILL NOT create an impression of surveil-
lance of employees' union activities by: (I)
informing employees that we know how they
voted in an NLRB election, or (2) advising
employees that we are aware of their union
activities by listening on the intercom system.
WE WILL NOT advise employees that we can
manufacture or arrange a pretext to hide the real
reason for discriminating against an employee
who favors the Union.
WE WILL NOT threaten employees with dis-
charge for engaging in union activities.
WE WILL NOT threaten employees that other
employees would be discharged for engaging in
union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed them under Section 7 of the
National Labor Relations Act, as amended.
ALPERS' JOBBING
COMPANY, INC.
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge: This proceed-
ing, heard before me at St. Louis, Missouri, on March 9-11,
1976, with all parties present and represented by counsel,
involves a complaint issued' pursuant to Section 10(c) of
the National Labor Relations Act, as amended (herein the
Act), alleging that Alpers' Jobbing Company, Inc. (herein
the Company or Respondent), interfered with, restrained,
and coerced its employees in the exercise of rights
guaranteed under Section 7 of the Act, by engaging in
certain conduct described more fully herein, including the
discharge of two employees in order to discourage
membership in and activities on behalf of Teamsters Local
Union No. 688 (herein the Union), in violation of Section
8(aX3) of the Act. By its duly filed answer, Respondent
admitted the facts constituting thejurisdictional allegations
of the complaint, as well as the agency status of its two
January 20, 1976, based upon an original charge filed on December 2,
1975.
452
ALPERS' JOBBING COMPANY
primary officers, but denied the commission of any unfair
labor practices.
Within the time allowed following the close of the
hearing written briefs have been received from counsel for
Respondent and from counsel for the General Counsel,
which have been duly considered. Upon the pleadings,
stipulations and arguments of counsel, the evidence,
including my observation of the demeanor of the witness-
es,2 and the entire record in the case, I make the following:
FINDINGS AND CONCLUSIONS
I. THE ALLEGED UNFAIR LABOR PRACTICES 3
A. Background
At all times material, Respondent has been engaged, in
the city of St. Louis, in the wholesaling of shoes, rubber
goods, and related products. In the course of its business
operations, it maintains two principal warehouse facilities:
one located on Martin Luther King Drive in St. Louis, and
the other located on Hadley Street in that city.4
Respondent, although established as a corporation, is
solely owned, controlled, and operated by two brothers,
Irvin and Arnold Alper. The record shows that the Alper
brothers divided their responsibility of supervising the
aforesaid warehouses by Arnold being primarily responsi-
ble for the operation of the Hadley Warehouse, and Irving
being in charge of the warehouse on Martin Luther King
Drive.
At all times material, the employee complement of
Respondent at both warehouses was approximately 15
employees, most of whom worked as stock clerks. It should
be noted, for a more complete understanding of the issues
presented, that most of the employees are black and
occupy the lower rungs of the economic and literacy
ladders. At least prior to the union election in April 1975
(of which more anon ), the operations of Respondent could
be characterized as being quite loose and paternalistic.
That is to say, for example, that although there were
regular, scheduled hours of work for the employees, these
were not rigidly adhered to; there was no timeclock to be
punched nor regularly scheduled periods for coffeebreaks.
Also, the Alper brothers regularly loaned the employees
small amounts of money for personal needs, which loans
were collected from the weekly paychecks. In other words,
the Alper brothers assumed a sort of noblesse oblige attitude
towards the employees and their families for their well-
being, above and beyond the normal employer-employee
relationship which exists in most modern business enter-
2 In resolving credibility issues, I have in certain instances credited some
and discredited other testimony of the same witness. See, e.g.. N.LR.B. v.
LUniersal Camera Corporation, 179 F. 2d 749. 754 (C.A. 2. 1950); Southeast-
ern
M otor Truet Lines, 113 NLRB 1122 (1955). The testimony of all
witnesses has been considered, which includes their demeanor while
testifying. The absence of a statement of resolution of a conflict in specific
testimony, or of an analysis of such testimony, does not mean that such
resolution or analysis was not made. See, e.g.. Bishop and Malco, Inc.., d'/ba
Wa/Aer's. 159 NLRB 1159, 1161 (1966).
: There is no issue as to the Board's jurisdiction, or of the status of the
Union as a labor organization. As previously noted. the complaint alleges
sufficient facts, which are admitted by answer, upon which I may, and do
hereby. find that Respondent is an employer engaged in commerce within
the meaning of Sec. 2(6) and (7) of the Act. The complaint alleges, the
prises. Prior to the spring of 1975, 5 no labor organization
had represented the employees for purposes of collective
bargaining during the entire period of the corporation's
existence.
The record shows that, during the month of February,
the Union carried on an organizational campaign among
the employees which resulted in a petition being filed by
the Union for an election, such election being held by the
NLRB on April 4 (Case 14-RC-7875). The Union received
a majority of the valid votes case in such election, but the
employer (Respondent herein) filed objections to the
election, which objections were eventually overruled and
the Union was certified on August 4. However, bargaining
has not resulted, since Respondent chose to test the
certification by refusing to bargain upon the Union's
request. The Board's decision requiring Respondent to
bargain upon request (222 NLRB 817) is presently pending
before the United States Court of Appeals for the Eighth
Circuit upon Respondent's petition for review of the
Board's decision.
B. The Issues
The issues presented for decision in this proceeding
relate to certain acts and conduct assertedly engaged in by
the Alper brothers which allegedly interfered with, re-
strained, and coerced employees in the exercise of rights
guaranteed in Section 7 of the Act, and the discharge of
two employees (Melvin Hagans and Charles Norman) in
October, allegedly because of their union activities. Some
of the evidence offered by the General Counsel related to
asserted conduct by the Alper brothers around the time of
the election in April. This evidence was allowed in the
record only as "background" since it occurred beyond the
10(b) period; I therefore make no findings of violation
based upon such asserted conduct, but only consider it as
giving insight to conduct which assertedly occurred within
the 10(b) period.
C. The Events Shortly Before and After the NLRB
Election on April 4
It is apparent from the record that the Alper brothers
were disheartened and dismayed when they learned, in
March, that some of their employees had voluntarily
designated the Union to represent them for purposes of
collective bargaining.6 They became all the more disap-
pointed when, immediately following the election, the tally
of ballots indicated that the Union had apparently won. 7
Thus, shortly after the election, Irvin Alper asked employee
answer admits, and I find that at all times material the Union is a labor
organization within the meaning of Sec. 2(5) of the Act.
4 There is apparently a third warehouse owned by Respondent, but there
are no employees regularly stationed at that location and it is not germane
to the issues presented in this proceeding.
5 All dates hereinafter refer to the calendar year 1975, unless otherwise
indicated.
6 Respondent first became aware of this fact when the Teamsters
representative, Amos Green. called upon the Company and advised them of
it.
? The original tally showed six votes for the Union. three against. one
void, and three challenged ballots. Following an investigation. the Regional
Director issued his report on challenged ballots and recommendations.
recommending that the challenges be overruled and the ballots be opened
(Continued)
453
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Michael Williams how the latter had voted in the election.
Williams pleaded ignorant, stating that he did not know
how he voted. Then Alper asked Williams did the latter
owe him any money and if so when he intended to pay it.
Williams did owe some money, and agreed to repay it at a
rate of $20 per week. Alper said that there would be no
more borrowing of money: "You do me dirty, I do you
dirty." 8
After the election, Arnold Alper advised employee
Melvin Hagans that the employees were "stupid" for trying
to get a union, and that had the employees applied to him,
he probably would have given them all a raise.9
Several days after the election, Irvin Alper told employee
Harvey Simms that the latter had doublecrossed him
(Simms did not appear to vote at the election). Alper stated
that he was looking for Simms to vote for the Company.
Alper wondered out loud why the employees wanted the
Union anyway since it would not do them any good, and
"since most of them were going to be gone anyway." Alper
further characterized the union representatives as a "bunch
of crooks." 10
Shortly after the election, Irvin Alper asked employee
Nathaniel Saddler how the latter had voted in the election.
When Saddler replied that he did not know how he voted,
Irvin Alper became rather incensed, stating that Saddler
"knew damn well how he had voted," and he (Alper)
"knew damn well how all of [the employees] voted." Irvin
Alper also requested that Saddler repay the money that the
latter owed Alper."
Based upon the foregoing, I conclude that at all times
material Respondent had a deep-seated animus toward its
employees being represented for purposes of collective
bargaining by the Union.
D. Alleged Interference, Restraint, and Coercion
1. The complaint alleges that "beginning in August
1975 . .. Arnold Alper harassed an employee .. . because
of his activities on behalf of the Union by closely
supervising the employee, continually criticizing the em-
ployee's work and repeatedly suggesting that the employee
take a voluntary layoff to seek other employment." The
record discloses that the employee involved with respect to
this allegation is Melvin Hagans.12 Hagans, who was one of
the leaders in the union campaign, testified that "after the
election" Arnold Alper, who was his supervisor at the
Hadley Street warehouse, commenced harassing him by
and counted. No exceptions to the Regional Director's report having been
filed, the Board on May 5, adopted the Regional Director's recommenda-
tion, overruled the challenges, directed that the ballots be opened and
counted, and that a revised tally be served on the parties. The revised tally,
issued May 16, showed seven votes cast for the Union, five against, and one
void ballot. (See 222 NLRB 817.)
The foregoing findings are based upon the credited testimony of
Williams, who impressed me as an honest and candid witness.
9 The foregoing finding is based upon the credited testimony of Hagans,
who generally impressed me as a truthful witness with the exception of the
area of the number of absences which had accrued on his record during the
term of his employment with Respondent (as appears more fully, infra ).
Arnold Alper was not present in St. Louis during the latter part of
February and first part of March, having attended a trade conference in Las
Vegas. Nevada, during that time. He learned about the union activities of
his employees upon his return to St. Louis.
i' Credited testimony of Simms.
requiring him to perform certain work and then, after
Hagans had completed it, countermanding the directions
to require Hagans to do the same work in a different
manner. Hagans also claimed that after he had performed
certain work at Alper's direction (such as placing some
boxes in the warehouse under a leak in the roof and having
it rain on them) Alper would call him a "dummy" or
"knucklehead" for placing the cases there.
The record reflects that Respondent installed a timeclock
in the warehouse in July or August. Hagans testified that,
after the timeclock was installed, Arnold Alper would
closely scrutinize his timecard and would criticize him for
being late and would make a deduction for the few minutes
which he may have missed from work. Also, according to
Hagans' testimony, commencing in August, Arnold Alper
started asking Hagans to take a voluntary layoff and draw
unemployment until he was able to find a better job.
Hagans declined this invitation since "times were too
hard."
Arnold Alper denied that he singled out Melvin Hagans
for criticism at or about this time. He testified that Hagans
had not done anything "real bad" for which he (Alper) had
occasion to criticize him. Alper acknowledged that, during
that period of time, the Company had received many
complaints from customers because of shortages and that
he (Alper) commenced watching all the employees' work
more closely in order to correct this situation.
After a careful consideration of all the record evidence
bearing upon this allegation, I conclude that the General
Counsel has failed to sustain such allegation (except for the
voluntary layoff aspect) by a preponderance of the
evidence. In the first place, although the record is not
entirely clear, it appears from Hagans' testimony that most
of the alleged "harassment" (except for the timeclock and
voluntary layoff incidents) occurred within the month
shortly after the election, and therefore outside the 10(b)
period. Such being the case, I, of course, can make no
finding of violation on these incidents. Moreover, I believe
there is insufficient evidence to show that Arnold Alper
was singling out Hagans for criticism of either his work or
more strict adherence to scheduled worktime. Thus, I will
recommend that this allegation of the compaint be
dismissed except with respect to the evidence that,
commencing in August, Arnold Alper repeatedly suggested
to Hagans that the latter take a voluntary layoff to seek
other employment. Arnold Alper did not deny this
assertion, and I credit Hagans' testimony with respect
l" The foregoing findings are based upon the testimony of Saddler, which
I credit in these respects since it appears consistent with the conduct of the
Alper brothers described by other employees at or about this time.
Nathaniel Saddler was not generally impressive as a witness and I have not
credited all of his testimony where it is otherwise controverted or does not
appear consistent with that of other witnesses.
Respondent contends that it is highly implausible that the Alper brothers
would inquire of employees how the latter voted when they concede that
they were generally aware after the election how the employees voted based
upon the fact that some employees had advised the brothers prior to the
election that they would vote "no" in the election. However, I find nothing
necessarily inconsistent by these findings since the Alper brothers may very
well have wished to confirm their suppositions by inquiring of the employees
in the manner stated.
12 As above noted, Hagans is one of the alleged discriminatees in this
case, and was terminated by Respondent in October. This issue will be dealt
with more fully, infra.
454
ALPERS' JOBBING COMPANY
thereto. Nor did Respondent claim that there was a work
shortage during this period which would explain Alper's
request of Hagans. Indeed, Respondent contended
throughout the proceeding that Hagans was a good worker
when he was present. Under all circumstances, I find that
Respondent was, at all times since the election, aware of
Hagans' prounion sympathies, and would have been
pleased and relieved had Hagans voluntarily left the
employment of Respondent.13 Accordingly, I find that
Respondent violated Section 8(a)(1) of the Act by repeat-
edly suggesting to an employee that he take a layoff and
draw unemployment until he found a betterjob.
2. The complaint alleges that "sometime in August
1975 . . . Arnold Alper impliedly promised an employee
. . . benefits in an attempt to undermine support for the
Union." 14 In support of this allegation, employee Charles
Norman testified that, during the time period mentioned,
he had a conversation with Arnold Alper; that the latter
stated that he was upset about what the fellows had done
and that if they waited a little longer he had intended to
give them a raise when he returned from his trip (to Las
Vegas). Arnold Alper denied that he had ever "said
anything like that," but admitted that when he was in Las
Vegas he was "thinking about giving everybody a raise
[and] when I came back and (sic) I may have mentioned
that fact .. ."
I find and conclude that the conversation took place
substantially as Charles Norman testified and, in agree-
ment with the General Counsel, find that the reasonable
import of such statement by Alper was that if the
employees would abandon their support of the Union they
could, in confidence, look to the employer for an increase
in wages. Such implied promise of benefits in return for
employees' foregoing of Section 7 rights clearly violates
Section 8(a)(1) of the Act. 15
3. The complaint alleges that "sometime in August
1975 ... Arnold Alper stated to an employee. . . that he
[Alper] knew how all of the employees had voted in the
union election due to the fact that the Respondent had
deliberately made election arrangements calculated to
yield this information." In support of this allegation,
employee Nathaniel Saddler testified that Arnold Alper
told him in August that he knew how everyone voted in the
election because the election had been held in two different
buildings. Arnold Alper generally denied having such a
conversation with Saddler, and particularly averred that he
had "nothing to do with arranging the election."
As previously indicated, I was not particularly impressed
with the demeanor of Saddler as a witness; on the other
hand, both Alper brothers acknowledged rather freely in
their testimony that, by the close of the election, they had
ascertained (to their own satisfaction) the identity of the
employees who had voted for and those who had voted
": Arnold Alper acknowledged in his testimony that he was softhearted
towards the employees and did not wish to harm them in any way. which
included a disinclination to forcefully terminate them. He characterized
such an attitude as being "chicken."
,4 The foregoing is denominated in the complaint as par. 5(C): counsel
for the General Counsel in his brief asserted that par. 5(B) of the complaint
was withdrawn at the hearing.
i' See, e.q.. ,L.R.B. v. Exchange Parts Companr, 375 U.S. 405 (1964).
'6 321 F.2d 100, 104a fn. 7 (C.A. 5, 1963).
against the Union. Their conclusion, however, was based
not upon the fact that the election was held in two different
buildings but, rather, upon the fact that approximately six
employees had told them prior to the election that such
employees intended to vote against the Union. I am
convinced that in discussions with the employees on this
subject matter subsequent to the election, both Alper
brothers made this conclusion known.
The question remains whether or not the imparting of
such a supposition to the employee constitutes an "impres-
sion of surveillance of union activities" in violation of
Section 8(aXI) of the Act. I find that it does. The United
States Court of Appeals for the Fifth Circuit in Hendricks
Manufacturing Company, Inc. v. N.LR.B. 16 stated that "the
law reasons that when the employer either engages in
surveillance or takes steps leading his employees to think it
is going on, they are under the threat of economic coercion,
retaliation, etc." I find and conclude that telling its
employees that it knew how everyone voted in the election,
in the context of the union animus previously found to
have existed in the warehouses at this time, created the
impression of surveillance within the test enunciated by the
court. I therefore find that a violation of Section 8(a)(1) of
the Act has been sustained in this regard.
4. The complaint alleges that "sometime in August
1975 ... Arnold Alper made a statement to an employee
. . . to the effect that the Respondent would tie up the
Union's certification in the court until the employees could
be replaced."
In the conversation between Arnold Alper and employee
Nathaniel Saddler above referred to (wherein Arnold told
Saddler that he knew how everyone voted in the election),
Saddler testified that Arnold Alper told him that "this
thing might drag in court for 2 or 3 years. About that time
everybody would be gone and they might decide to close
the plant down. He was tired of all this aggravation."
Arnold Alper denied having any conversation with Saddler
about this time concerning the case "dragging out through
the courts," or that he told Saddler that the plant would
close and by that time everybody would be gone. However,
Irvin Alper admitted in his testimony that on at least one
occasion he told employee Harvey Simms that "if this thing
goes into court it will take a long time, it took Quick Shop 3
years." 17
Under all circumstances, I find that it is highly probable
that Arnold Alper made substantially similar statements to
Saddler that Irvin Alper admitted making to another
employee. Accordingly, I conclude and find that such
comments, made in the context of other unlawful acts and
conduct, constitute a violation of Section 8(aX)() of the
Act.' s
5. The complaint alleges that, sometime in August,
Irvin Alper told an employee that the union representatives
1 I take judicial notice of an NLRB proceeding in Quick Shop Markets,
Inc., et al., 168 NLRB 180 (1967). which involved a chain of retail food
outlets in and around the St. Louis area. This case was heard by me in
December 1966; the Board's decision was issued on November 9, 1967. and
the decision of the United States Court of Appeals for the Seventh Circuit
(affirming the decision of the Board). issued on October 9. 1969. 1 also note
two subsequent cases involving the same Company: 200 NLRB 830 (1972),
and 204 NLRB 1150(1973).
is See. e.g., Owens-Corning Fiberglass Corporation, 185 NLRB 75 (1970).
455
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were dishonest. Employee Kenneth Allen testified that one
day in September he came in late to work, and that Irvin
Alper told him that if he could not get there on time he
would have to find another job. Alper also told him on this
occasion "to see if the union people could help [him] with
that and that all they were going to do was take [his]
money. They ain't nothing but a bunch of crooks." Irvin
Alper recalled the incident but denied stating that the
union was nothing but "a bunch of crooks."
Counsel for the General Counsel, urging that I credit
Allen's testimony, notes that Arnold Alper testified that it
was "all over the news" about Teamsters officials being
convicted of crimes, and that this subject was discussed in
the plant. However, I deem it unnecessary to resolve this
particular credibility issue since, assuming the testimony of
Allen, on this occasion, to be true and correct, I find there
is insubstantial evidence to establish a violation of Section
8(a)(1). Thus the statement attributed to Irvin Alper was
not made in a context of other unlawful threats or coercive
statements and, in my view, in these circumstances,
constitutes merely the expressing of an opinion by the
employer respecting the character of some of the officials
of the Charging Union (or of its sister local) which is
protected by the provisions of Section 8(c) of the Act.19 In
the case relied upon by counsel for the General Counsel in
his brief 20 the Board specifically declined to pass upon the
legality of the employer's conduct in "denigrating" the
Union. Under all circumstances, I will therefore recom-
mend that this allegation of the complaint be dismissed.
6. The complaint alleges that "sometime in September
. . . Irvin Alper told an employee . . . that the Union
could not protect the employees." The foregoing allegation
refers to the evidence in the preceding paragraph in which
Irvin Alper reportedly told employee Kenneth Allen when
the latter came in late one morning, that the "Union
cannot help you in those kind of cases." 21
Contrary to the argument of counsel for the General
Counsel, I cannot agree that, in the context in which the
statement was here made, it was indicative that the Union
was "impotent in protecting employees from discharge
and, consequently, union representation is futile." Irvin
Alper testified that he had received a copy of a proposed
union contract in which it was clearly spelled out that an
employer could permissibly discipline employees for not
conducting themselves properly at work, i.e., by coming in
late or not showing up for work. Alper testified that he told
Kenneth Allen that the "union expects a man to give you a
day's work for a day's pay." Clearly the import of Alper's
statement was merely to point out to an employee that the
latter should not expect his collective-bargaining represen-
tative to protect him when he has engaged in wrongful
conduct. This is certainly to be contrasted with, and
distinguished from, a situation where the employer has
threatened that a union would be impotent to protect the
employee where the latter is deserving of such protection. I
shall therefore recommend that this allegation of the
complaint be dismissed.
19 "The expressing of any views, argument, or opinion, or the dissemina-
tion thereof, whether in written, printed, graphic or visual form, shall not
constitute or be evidence of an unfair labor practice under any of the
provisions of this Act, if such expression contains no threat of reprisal or
force or promise of benefit."
7. The complaint alleges that "sometime in September
. . .Irvin Alper told an employee. . . that he would shut
down the plant if he had to in order to get away from the
Union."
This allegation also stems from the aforesaid conversa-
tion between Irvin Alper and Kenneth Allen in September.
Following a leading question by counsel for the General
Counsel, Allen was asked did Irvin Alper mention anything
about his intentions concerning the business. Allen testified
that Alper stated that "he would rather close the business
down and let everybody go home." Alper testified that
"even before this union business," he had generally
threatened employees on occasion that if they did not
"behave themselves" he would have to close the business
and "all go looking for a job." Alper further testified that,
following the advent of the Union, he had received
instructions from his attorney that, generally, he was not to
threaten or coerce his employees because of their union
activities and therefore he "never mentioned anything
about the Union . . . in discussion with people and I
stayed away from it all the time."
This credibility resolution has been an exceedingly
difficult one in view of the General Counsel's leading
question. On the other hand, Irvin Alper's testimony was
not consistent in that he concededly discussed the Union
with several of his employees, advised them that he knew
how they had voted in the election, and made other
antiunion statements hereinabove referred to. Allen im-
pressed me as a candid and truthful witness, and I
therefore credit his testimony on this occasion. I conclude
and find that the threat uttered by Irvin Alper on this
occasion constituted a violation of Section 8(a)(1) of the
Act.
8. The complaint alleges that "sometime in September
. . . Irvin Alper interrogated an employee. . . concerning
how that employee and other employees had voted in the
election which the National Labor Relations Board
conducted." In the following paragraph, the complaint
alleges that, in the same conversation, Alper told an
employee that he "knew how that employee and other
employees voted in the election which the National Labor
Relations Board had conducted."
The foregoing allegations arose from a conversation
between Irvin Alper and employee Kenneth Allen in the
Martin Luther King warehouse. According to Allen's
testimony, the conversation initially involved employee
Nathaniel Saddler and the latter's propensity to lie; that
Alper stated "he didn't know why Nathaniel would want to
lie to him (Alper) about how he (Saddler) had voted. If he
had voted 'no,' then he should have said so, but he just said
- he told him a lie, that he had voted 'yes.' " Allen
responded that he did not know how Nathaniel voted but
he (Allen) had voted "yes." Allen went on to state that
Alper commented on this occasion that "he knew how
everyone had voted in the election."
Irvin Alper testified that the conversation arose in a little
different manner but that he did state the following with
20 Kellwood Corrmny, Ottenheimer Division, 178 N LRB 20 (1969).
21 1 agree with counsel for the General Counsel that it would be
consistent with Irvin Alper's testimony that the word 'can" be corrected to
read "cannot" at p. 460, I. 10 of the transcript.
456
ALPERS' JOBBING COMPANY
respect to his knowledge of how the employees had voted
in the election:
Q. Do you recall anything further in that conversa-
tion?
A. Yes, I told him, I said, "Kenny, six people voted
for the union, we had 15 people working at that time,
that means nine people were against it." I said, "If nine
people are against it I am going to do what I can to
satisfy these nine people." I said, "If we have to take it
to court we will take it to court," or words to that effect,
I don't know if I used the same words but that was the
essence of my conversation with him.
Q. Do you recall anything further in that conversa-
tion?
A. He told me that he voted for the union. I said,
"You have your right to vote anyway you want, I didn't
ask you, if you wanted to vote, yes, that is up to you." I
didn't ask but he told me, himself, that time, I do
remember.
Q. Do you recall whether you said anything in that
conversation, or any other conversation with Kenny,
about that time, to the effect that you knew how
everyone voted in the election?
A. I don't know about that time, but it wasn't hard
to figure out. There were 12 people that voted that day.
JUDGE COHN: You testified a few minutes ago, you
told Kenny that you knew six people voted for the
union. You just testified to that, that is what my notes
indicate?
THE WITNESS: Yes, well, I told them that, but he has
asked me if I told him, if I knew how well, it would be
the same thing, I did know how they voted at that time
because six had voted-
JUDGE COHN (interrupting): Is that what you told
Kenneth Allen?
THE WITNESS: Yes.
Contrary to the contention of counsel for the General
Counsel in his brief, I do not concur that, in the context of
the foregoing conversation, "it was reasonable for Kenneth
Allen to believe that he was expected to reveal how he
voted," or "it is reasonable to conclude that Irvin Alper
sought out Allen to resolve whether Saddler voted yes or
no." However, based upon Alper's admitted statements to
Allen that since only 6 out of 15 employees voted for the
Union (meaning 9 people were against it), Alper intended
to "satisfy these nine people . . . if we have to take it to
court." It will be recalled that this statement was made
after the Regional Director had issued his revised tally of
ballots showing seven votes were cast for the Union, five
against, and one void ballot. Such a statement by Alper
reveals a patent disregard of the Regional Director's
findings (to which no exceptions were filed), and a clear
threat to prolong the proceeding for the purpose of
delaying collective bargaining. For the reasons expressed
2 1 am aware that this finding does not comport with the theory of the
two allegations discussed. However, it was fully litigated without objection
from Respondent, and thereafter properly forms the basis for a finding of
above in paragraph 4, I conclude and find that such a
threat constituted an additional violation of Section 8(aX)(1)
of the Act.22
9. The complaint alleges that "sometime in October
1975 ... Arnold Alper told an employee that he intended
to find a reason to discharge the employee."
Employee Nathaniel Saddler testified that at the close of
the workday on October 24 (immediately after Arnold
Alper had discharged Charles Norman, as discussed more
fully, infra ), Saddler chauffeured Arnold Alper from one
of Respondent's facilities to another. At the commence-
ment of the trip, Alper told Saddler that he was "tired of
Charles Norman being drunk and . .. that was one of
them he got rid of. He said, 'I am seeking out after you
next.' " Arnold Alper was unable to recall whether he rode
over to the Martin Luther King address with Nick Saddler
that particular Friday - that he rode over with him once
or twice when Alper did not have transportation. In any
event, Alper denied the remarks attributed to him by
Saddler.
Here again, the credibility resolution has been an
extremely difficult one. Although, as previously pointed
out, Saddler was not a particularly impressive witness on
the stand, his testimony on this particular conversation was
direct and withstood vigorous cross-examination. I also
note that this statement was one which, unlike some of his
other testimony, was not at variance with his prehearing
affidavit. In addition, I have taken into account the fact
that the statement attributed to Alper took place almost
immediately after the discharge of Norman, and therefore
there is a strong probability that the incident was on
Arnold's mind and that he mentioned it, contrary to his
denial. Under all circumstances, I credit Saddler, and find
that the statement made by Alper on this occasion
constituted a threat of retribution for engaging in union
activities, in violation of Section 8(a)(1) of the Act.
10. The complaint alleges that, in December 1975, Irvin
Alper threatened an employee that employees would be
discharged because of their activities on behalf of the
Union, and that Respondent had installed listening devices
at the Hadley Street facility through which Respondent's
supervisors could constantly monitor the employees' union
activities.
The evidence cited in support of these allegations is
contained in a conversation between Irvin Alper and
Harvey Simms. Simms testified that, commencing after the
election and continuing during the summer and fall of
1975, he had many conversations with Irvin Alper in which
the latter advised the following: (I) That Saddler was
"always talking about the Union," and that he and Melvin
Hagans were going to be one of the first ones to go because
they were supposed to be the instigators of the Union; (2)
that the Union would not be of any assistance to the
employees because "there are ways to fire a man and get
around the Union"; and (3) speaking of the intercom at the
Hadley Street facility, Irvin Alper advised that he could
hear "everything on that box ... and he knew everything
that went on."
violation. Amenrican Boiler Manufacturers Association v. N.LR.B., 366 F.2d
823. 825 (C.A. 8. 1966); see also N.LR.B. v. J. C Penney Company, 384 F.2d
479 (C.A. 10, 1967).
457
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Irvin Alper admitted having many conversations with
Harvey Simms - that "he is a guy thlt does a lot of
talking, I just let him do the talking, he tells you
everything." However, Alper denied the statements attrib-
uted to him by Simms with reference to Melvin Hagans
since Alper claimed that he did not know "Mel Hagans
from the man in the moon," and therefore was unaware
that Melvin Hagans was organizing. I cannot credit this
denial because the Alper brothers admitted, as discussed
more fully, infra, that during the period surrounding the
election they had been discussing the possibility of
terminating Hagans but had declined to do so at that time
upon advice of their counsel. It is to be recalled that the
Alper brothers conceded that they were aware of the union
proclivities of their employees, so they must have known
that Hagans was an adherent of the Union even if the proof
does not show directly that they were aware that he was
one of the leaders. Accordingly, I cannot credit Irvin
Alpers' statement that he "did not know Mel Hagans from
the man in the moon."2 3
Based upon the foregoing, I find that Respondent
violated Section 8(a)(l) of the Act by: (1) threatening an
employee that other employees would be discharged for
their activities on behalf of the Union; (2) advising an
employee that Respondent could discriminate against
employees in retaliation for their union activities, with
impunity; and (3) in the context of an antiunion conversa-
tion, advising an employee that Respondent could over-
hear their conversations in the warehouse through the
medium of an intercommunication system.
E. The Alleged Discriminatory Discharges
i. The termination of Melvin Hagans
Hagans' employment with Respondent as a stock clerk in
the warehouse commenced in May 1974. He was terminat-
ed on October 17, 1975, assertedly for excessive absentee-
ism. The issue on this aspect of the case is whether this
reason, as proffered by Respondent at the hearing, was the
"real reason"24 for the termination or merely a pretext to
becloud Respondent's real motivation.
It should be noted at the outset that Hagans had been
confined in a tuberculosis hospital shortly prior to the
commencement of his employment with Respondent, and
Respondent was aware of this previous history at the time
of hiring. Hagans advised Respondent that it would be
necessary for him to be absent from work several times a
month for the purpose of returning to the clinic for
checkups. However, Respondent contends that Hagans
was absent from work more often than was anticipated for
this purpose, and that such absenteeism became so
excessive by the time of the election in April 1975 that, as
previously mentioned, the Alper brothers had had some
discussions with their attorney about the desirability of
terminating Hagans at that time, for that reason. However,
21 In addition to other factors previously mentioned bearing upon
credibility, I note that Simms was still an employee of Respondent at the
time of the hearing, but nevertheless testified adversely to Respondent
notwithstanding that fact. The Board has noted this factor as one which
tends to support his credibility as a witness. See Georgia Rug Mill, 131
NLRB 1304, 1305, fn. 2 (1961), enforced as modified 368 F.2d 89 (C.A. 5,
1962); Astrosystems, Inc., 203 NLRB 46 (1973); Federal Envelope Cornpany,
147 NLRB 1030. 1036 (1964).
Hagans testified that he was never disciplined or laid off
for failing to come to work prior to the time of the election,
and Respondent proffered no record to vary or contradict
this testimony. The record shows that it was not until
approximately the first of July 1975 that Arnold Alper
confronted Hagans with a list of the hours which he had
missed from work from the time of his employment until
such date. However, even on that occasion, it is not clear in
the record that Alper threatened discipline if Hagans did
not improve. Alper testified:
I wanted him to assure me that he would come in
more often and come regularly to work because we
needed the help, we didn't need people coming and
going as they pleased.
Q. When he was present, was he a good worker?
A. Yes, sir.
Moreover, a few weeks later in August, Alper requested
Hagans to assume some responsibilities in the warehouse
during Alper's absence at a trade show in Las Vegas.
Arnold Alper testified as follows with respect to this
incident:
JUDGE COHN: The question was when you had a
conversation with Hagans in connection with the trade
show.
THE WITNESS: I think I asked him to watch over
things more closely while I was gone because he was
pretty good at remembering where things were put and
where things were and he was a good worker so I asked
him to watch over it more closely.
JUDGE COHN: When was this?
THE WlTNESS: In August 1974.
JUDGE COHN: 1974 or 1975?
THE wrTNESS: I have gone for the last 12 or 13 years.
JUDGE COHN: When was the conversation with Mr.
Hagans that you just told us about?
THE WITNESS: The August show of 1975.
The incident which gave rise to Hagans' discharge
occurred during the first part of October. On the weekend
of October 4 and 5, Hagans, in the company of Charles
Norman, drove to Kansas City for the purpose of visiting
Hagans' mother, who was ill. Apparently while there, they
had car trouble, but failed to notify Respondent until
Tuesday, October 7, when Hagans telephoned Alper. They
returned to St. Louis the next afternoon at or about 1:30
p.m., and requested of Arnold Alper to go to work.
However, he was quite upset with them, and told them that
"they looked like they were tired and needed rest," and
directed them to take the remainder of the week off to rest.
24 See The Radio Officers' Union of the Commercial Telegraphers Union,
A.F.L [Bull Steamship Co.] v. N.LR.B., 347 U.S. 17 (1954); Local 357,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America Los Angeles-Seattle Motor Express] v. N.LR.B., 365
U.S. 667,675 (1961).
458
ALPERS' JOBBING COMPANY
Arnold Alper testified that it was at that point that he
reached the decision to terminate Hagans. 25 The following
Monday, October 13, Hagans and Norman returned to
work, and Arnold Alper had a conversation with Hagans in
which Alper gave him a week's notice, and, according to
Alper's testimony, told Hagans that he was being terminat-
ed for excessive absenteeism. However, Hagans testified
that, commencing on October 13, Arnold Alper began
telling some of the employees (including Hagans) that work
was "slowing up and he was going to have to get rid of a
few guys to cut down the work force. So, all week he had
been saying that on Friday he was going to lay me off." I
credit Hagans.
As respects Hagans' union activities, the record shows
that Hagans was one of the principal instigators of the
organizational campaign among the employees of the
Company. He solicited authorization cards from other
employees of the Company and, according to his testimo-
ny, obtained eight signed authorization cards. Although the
Alper brothers denied knowledge of Hagans' prominence
in the union campaign, they acknowledged, as previously
noted, that they were aware of who among the employees
had voted for the Union.
In May, Hagans had a son born to him, and missed a
day's work. Thereafter, he had a conversation with Irvin
Alper as follows:
A. That is when Irvin turned to me and he asked
me why did I do him the way I did. At the time, I didn't
know what he was talking about. So, he asked me why I
was going to try and bring a bunch of gangsters down
to run his business and that he had it over 30 years. So,
I told him that I didn't see where they were gangsters
and we would benefit from having a union. So, he said
he didn't need no troublemakers coming down there.
He told me he would get even with me.
Q. Could you repeat the last sentence?
A. He called me a troublemaker and said he would
get even with me.26
Analysis and Concluding Findings
It may be assumed for purposes of this discussion that,
for a period of time prior to Hagans' termination, the Alper
brothers considered his absenteeism to be "excessive." It
may further be taken as axiomatic that excessive absentee-
ism on the part of an employee may constitute good and
sufficient cause for his termination. However, the inquiry
does not end there since it is well established that:
The mere existence of valid grounds for a discharge
is no defense to a charge that the discharge was
unlawful, unless the discharge was predicated solely on
those grounds, and not by a desire to discourage union
2, He testified that "it was only maybe a week or so before that his
brother informed him that the attorney had authorized the Respondent that
it was now permissible to terminate Hagans."
·6 Credited testimony of Hagans.
27 Stated another way, the mere existence of a justifiable ground for
dismissal is no defense if it is a pretext and not the moving cause. N.LR.B.
v. Solo Cup Company, 237 F.2d 521, 525 (C.A. 8. 1956).
2A The sole documentary consultation in July only resulted in Arnold
Alper's urging Hagans to improve upon such absenteeism
activity. [N.LR.B. v. Symons Manufacturing Co., 328
F.2d 835 (CA. 7, 1964).]27
After a consideration of all of the record evidence, I am
convinced, and therefore find, that the termination of
Hagans by Respondent on October 17 was motivated, at
least in part, by his preeminence in the union campaign to
which Respondent was unalterably opposed. The quality
and intensity of the Alper brothers' union animus has been
set forth above, and need not be restated. It should be
noted, however, that the point was singularly brought
home to Hagans by Irvin Alper in May, coupled with the
threat of retaliation.
It was readily explained on the record by the Alper
brothers that they were in no position to implement their
intention to terminate Hagans earlier because of the advice
from the labor counsel that they should not engage in such
conduct during the currency of the union campaign. Such a
position certainly has a ring of plausibility attached to it.
However, I have extreme difficulty giving full credence to
the argument of Respondent that Hagans' absenteeism
constituted the sole reason for his termination in view of
the following: (I) he was never seriously warned or
threatened with discipline prior to the termination;28 (2)
even after he (Hagans) was cautioned by Arnold Alper in
July, the latter gave Hagans certain responsibilities in the
warehouse during Alper's absence in August. One ponders
why this was done if Hagans was as untrustworthy and
unaccountable as originally sought to ground the termina-
tion upon economic reasons, i.e., Respondent would have
us believe; and (3) it further appears that Respondent
originally sought to ground the termination upon economic
reasons, i.e., that the work was "slowing up." However, at
the hearing, Respondent receded from such position. Such
shifting of positions has been held to constitute evidence of
discriminatory intent.29
Upon the basis of all of the foregoing, I find and
conclude that the termination of Hagans on October 17
was motivated, at least in part, by a desire to discourage
union activity in violation of Section 8(aX3) of the Act. In a
recent case,30 the Board held, citing Broyhill Company, 210
NLRB 288 (1974):
It is well established that a discharge motivated in part
by an employee's exercise of Section 7 rights is a
violation of the Act even though another valid cause
may also be present.3 1
2. The alleged discriminatory discharge of Charles
Norman
This employee commenced working for the Company as
a stock clerk in the warehouse in 1971. He was terminated
by Arnold Alper on October 24, assertedly for inability to
work steadily as a result of alcoholism.
29 See George J. Roberts d Sons, Inc., 188 NLRB 454 (1971), enfd. (on
this issue) 451 F.2d 941 (C.A. 2, 1971).
3' Charles Edwin Laffey, d/b/a Consolidated Services, 223 NLRB 845
(1976).
31 See also N.LR.B. v. Hanes Hoisery Division, Hanes Corporation, 413
F.2d 457, 458 (C.A. 4, 1969).
459
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There appears to be no question that Norman was a
satisfactory employee of Respondent on those occasions
when he had not been imbibing. As Arnold Alper testified:
"Mr. Norman is very polite, he is friendly, he doesn't talk
bad to anybody, he will do anything I ask him to do, I have
nothing against him personally except when he has been
drinking." However, the record reflects that the number of
hours per week which Norman failed to work in the years
1974 and 1975 were rather substantial, and, in May 1974,
Arnold Alper fired Norman for this reason. Nevertheless,
the record reflects that he was rehired by Respondent in
June, and his employment was continuous from that time
until his discharge on October 24, 1975. However, his
"drinking problem" did not abate and he continued to miss
a substantial time from work on account of it.
Although the record is not entirely clear, it was
apparently in August or early September 1975 that Arnold
Alper suggested to Norman that:
if he wanted his job he had to go get dried out. I
suggested that he go to the same place that Melvin
Jones had gone to and he said he would go and he took
a week or more off, I don't remember the exact amount
of time, and he came back with a bottle of medicine of
some kind, I don't know what was in it. He said he went
to the hospital and they took care of him or they helped
him and he thanked me for sending him. After he came
back, I did put him back to work and I told him if it
happened again that was the end.
It will be recalled that Norman accompanied Hagans on
the latter's trip to Kansas City during the first weekend in
October. Like Hagans, Norman was not allowed by Arnold
Alper to work at Respondent's warehouse upon their
return, for the remainder of the week. However, unlike
Hagans, Arnold Alper did not seize upon this incident as a
basis to discharge Norman. However, on Friday of the
following week, October 24, the incident occurred which
resulted in Norman's discharge, as described by Arnold
Alper:
A. October 24th he did not show up to work and I
happened to have to go over to the Dr. Martin Luther
King address, 1419, and there he was. It is a window
sill, sort of a platform, a wooden platform, sound
asleep. I was doing something at the desk and looking
at some papers or something and suddenly I heard a
bang and I turned and looked and Mr. Norman was
laying on the floor either passed out or still sound
asleep.
Q. Then what happened?
A. Then he came that evening to collect his check,
which I gave to him and I told him I couldn't use him
any more because I had told him when I had sent him
to get dried out that was his last chance.
Q. And did you tell him why you couldn't use him
any more?
A. I am certain I told him it was because he was
drinking.32
12 Norman testified that he did not remember Friday, October 24: "It is
a complete blank."
33 Testimony of Norman and Saddler.
Norman reported for work the following Monday,
October 27, but his timecard had been removed from the
rack. He had a conversation with Arnold Alper which was
overheard by employee Nathaniel Saddler (who had driven
Norman to work). Arnold told Norman that he could not
"put up with this," that business was slow and that "he was
tired of him coming in drunk." 33
Analysis and Concluding Findings as to Charles
Norman
After a consideration of all of the evidence in the record
upon this issue, I find and conclude that the motivating
factor behind the discharge of Norman was his chronic
alcoholism which rendered him undependable and unsuit-
able for employment with Respondent. It is true, of course,
that the Alper brothers had condoned Norman's condition
for a substantial period prior to October 24. However,
there is no substantial evidence here that they had
condoned it only so long as the employee was not an active
union adherent. Indeed, the only evidence in that regard is
that Norman signed a card for Hagans, and the Alper
brothers apparently counted him as a prounion vote in the
election. There is no other evidence that Norman was
actively engaged in the union campaign.
Moreover, in contrast to the case of Hagans, Respondent
had severely disciplined Norman in the past for the same
conduct for which it finally terminated him. Furthermore,
it was only a month or so previously that Arnold Alper had
warned Norman that, if he did not improve, he would be
terminated.
Of course, the circumstances are rendered suspicious in
the context of Respondent's union animus and some of the
statements attributed to the Alper brothers to the effect
that they would get rid of the active union members.
However, membership in the Union does not render an
employee immune from discipline, and, as the Board held
in Klate Holt Company:
The mere fact that an employer may desire to terminate
an employee because he engages in unwelcome con-
certed activities does not, of itself, establish the
unlawfulness of a subsequent discharge. If an employee
provides an employer with a sufficient cause for his
dismissal by engaging in conduct for which he would
have been terminated in any event, and the employer
discharges him for that reason, the circumstance that
the employer welcomed the opportunity to discharge
does not make it discriminatory and therefore unlawful.
(Citation omitted.)3 4
I therefore find and conclude that the General Counsel
did not, by a preponderance of the evidence, prove that
Respondent terminated Charles Norman in order to
discourage union membership in violation of Section
8(aX3) and (1) of the Act, and I will recommend that the
complaint be dismissed in this respect.
34 161 NLRB 1606, 1612 (1966); see also Kennedy & Cohen of Georgia,
Inc., 218 NLRB 1175(1975).
460
ALPERS' JOBBING COMPANY
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section I, above,
occurring in connection with its interstate operations, have
a close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
i. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminating against an employee in order to
discourage union membership among its employees,
Respondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
4. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed in Section 7 of
the Act, Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I will recommend that it cease and
desist therefrom, and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent discriminated against
Melvin Hagans by terminating his employment in the
manner aforesaid, I will recommend that Respondent be
ordered to offer him immediate reinstatement to his former
position or, if that position no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered by
reason of the discrimination against him. Backpay shall be
computed in accordance with the formula prescribed by
the Board in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., Inc., 138 NLRB
716(1962).
In view of the nature of the unfair labor practices
committed, which include a discriminatory discharge
which "goes to the very heart of the Act," 3 5 I will
recommend that Respondent be ordered to cease and
desist from in any other manner infringing upon the rights
guaranteed employees in Section 7 of the Act.36
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
:: N. L. R. B. v. Entwistle Manufacturing Cornpan,, 120 F.2d 532, 536 (C.A.
4. 1941).
: N.L. R. B v. Express Publishing Company, 312 U.S. 426, 433 (1941).
:'7 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER3 7
The Respondent, Alpers' Jobbing Company, Inc., St.
Louis, Missouri, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee in regard to his hire or tenure of employment, or
any term or condition of employment, in order to
discourage membership in Teamsters Local Union No.
688, or any other labor organization.
(b) Suggesting that employees who support the Union
take a voluntary layoff to seek other employment.
(c) Coercively interrogating employees concerning their
union activities, including how they voted in an NLRB-
conducted election.
(d) Impliedly promising employees benefits in order to
persuade employees to cease supporting the Union.
(e) Threatening employees that it could unduly prolong
and delay collective bargaining by engaging in prolonged
court proceedings.
(f) Threatening employees that it would shut down its
facilities in order to avoid bargaining with the Union.
(g) Creating an impression of surveillance of employees'
union activities by informing employees that it knew how
employees voted in an NLRB-conducted election.
(h) Advising employees that it could manufacture or
arrange a pretext to becloud the real reason for discrimi-
nating against a prounion employee.
(i) Threatening employees with discharge because of
their union activities.
(j) Threatening employees with discharge of other
employees because of their union activities.
(k) Creating an impression of surveillance by advising
employees that Respondent was aware of their activities
through listening to an intercommunication system.
(1) In any other manner intefering with, restraining, or
coercing employees in the exercise of rights guaranteed
them under Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer Melvin Hagans immediate and full reinstate-
ment to his former position or, if that position no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of pay he may have suffered
as a result of the discrimination against him in the manner
provided in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
461
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its St. Louis, Missouri, facilities copies of the
attached notice marked "Appendix." 38 Copies of said
notice, on forms provided by the Regional Director for
Region 14, after being duly signed by its authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
:'" In the event the Board's 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
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the allegations of the
complaint be dismissed in all respects other than those
found to have been sustained in the above findings and
conclusions.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
462