Key Distributing Co.

National Labor Relations Board - Board Decisions

Apr 4, 1980

248 N.L.R.B. 979 (N.L.R.B. 1980)

KEY DISTRIBUTING CO. 979
Key Distributing Co. and Irene Good. Case
6-CA-12198
April 4, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On January 9, 1980, Administrative Law Judge
Arthur A. Herman issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in answer to Respondent's ex-
ceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
I 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
In par 4 of sec. II of his Decision, the Administrative Law Judge indi-
cates that Charging Party Good testified that Respondent's store man-
ager, Krasnow, told a group of employees that he would remember all of
their faces and would get even with them. However, the record estab-
lishes that another of General Counsel's witnesses, employee Felicia
King, and not Good, testified that that was what Krasnow said. Good's
testimony, consistent with King's, was that Krasnow told the employees
in the group with Good that he would remember them. Inasmuch as the
Administrative Law Judge, in the next to last paragraph of the "Discus-
sion and Conclusion" part of his Decision, credits General Counsel's wit-
nesses who testified that Krasnow said that he would remember the em-
ployees in the group, the Administrative Law Judge's inadvertent attribu-
tion of King's credited testimony to witness Good does not in any way
affect our decision herein.
Respondent contends that the Administrative Law Judge's interpreta-
tion of the evidence and his credibility findings showed bias and preju-
dice against Respondent. Upon careful examination of the Administrative
Law Judge's Decision and the entire record, we are satisfied that the
contentions of Respondent in this regard are without merit.
a Although the complaint alleges, the record establishes, and the Ad-
ministrative Law Judge correctly found that Respondent unlawfully laid
off Charging Party Good, in his formal "Conclusions of Law," as well as
in his proposed Remedy, recommended Order, and notice, the Adminis-
trative Law Judge inadvertently described Respondent's unlawful action
as a termination, rather than a layoff. Accordingly, we hereby modify the
Administrative Law Judge's Conclusion of Law 2 by subtituting the
words "laying off" for the word "terminating," and we correspondingly
modify the Administrative Law Judge's recommended Order and notice.
248 NLRB No. 122
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Key Distributing Company, Greensburg, Pennsyl-
vania, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following for paragraph l(a):
"(a) Laying off employees and failing and refus-
ing to reinstate employees for engaging in protect-
ed concerted activity."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the oppor-
tunity to present their evidence, it has been decided
that we violated the law and we have been ordered
to post this notice. We intend to carry out the
Order of the Board and abide by the following:
WE WILL NOT lay off employees or fail or
refuse to reinstate employees for engaging in
protected concerted activity.
WE WILL NOT threaten any of you with re-
prisals or layoff, or threaten to close our store
if you select a union to represent you, because
you engaged in concerted activities for your
mutual aid or protection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of the rights guaranteed in Section 7
of the Act.
WE WILL offer immediate and full reinstate-
ment to Irene Good to her former job or, if
that job no longer exists, to a substantially
equivalent position, without to her seniority or
other rights and privileges previously enjoyed,
and we will make her whole for her lost earn-
ings, with interest.
KEY DISTRIBUTING CO.
DECISION
STATEMENT OF THE CASE
ARTHUR A. HERMAN, Administrative Law Judge:
This case was heard at Pittsburgh, Pennsylvania, on Oc-
tober 16, 1979. The charge was filed by Irene Good on
March 26, 1979, and the complaint was issued on May
KEY DISTRIUTING CO.
980 DECISION OF NATIONAL LABOR RELATIONS BOARD
25, 1979.1 As amended, the complaint raises issues as to
whether the Company, Respondent, (a) unlawfully
threatened employees in various ways because they en-
gaged in protected concerted activities, and (b) discri-
minatorily laid off Irene Good because of her role as
spokesperson for the employees engaged in protected
concerted activity, all in violation of Section 8(a)(l) of
the National Labor Relations Act.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due consider-
ation of the briefs filed by the General Counsel and the
Company, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The company, a Pennsylvania corporation, is engaged
in the operation of two retail stores located in the Com-
monwealth of Pennsylvania. 2 During the past 12-month
period, the Company's gross income exceeded $500,000,
and its purchases of goods directly from sources outside
the State exceeded $50,000. The Company admits, and I
find, that it is am employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Company is owned and operated by the Krasnow
family, with James Krasnow managing the Greensburg
facility. It is a retail establishment which augments its
permanent staff with seasonal employees depending upon
the time of year. Generally, the bulk of the employees
are hired in September and October for the Christmas
season, and they are told at the time of hiring that their
employment may only be of a temporary duration. In
January, a portion of the staff is laid off, and then new
hires occur in the spring when there is a business pickup
in May and June. Again, a layoff occurs in July, and the
hiring process commences once more in September. At
its peak, in the middle of December, Respondent em-
ploys at its Greensburg facility a total of 35-40 employ-
ees on two shifts which overlap each other.
Irene Good had been employed by Respondent from
August 1972 to January 27, 1979. Except fbr a -day
layoff after the Christmas rush of 1972, Good had never
been laid off by Respondent during her entire tenure
with the Company. For at least the last 3 years of her
employment, Good performed multiple duties for Re-
spondent. She was the head cashier, trained other cash-
iers, prepared the payroll for the employees, handled ac-
counts payable, and she checked credits with banks. She
was the most senior employee when she was laid off on
January 27, 1979.3
At the hearing, the General Counsel, pursuant to a letter of intent
sent to Respondent's representative on October 5, 1979, moved to amend
par. 5 of the complaint to include additional allegations of threats to em-
ployees during the critical period. The motion was granted over Respon-
dent's objection as to the timeliness of the amendment.
2 Solely involved herein is Respondent's store located in Greensburg,
Pennsylvania. There is no history of collective bargaining for any of the
employees employed at this facility.
3 The only person with more seniority was Paul Galley, an admitted
supervisor within the meaning of Sec. 2(11) of the Act.
Christmas eve, 1978, fell on a Sunday, and Respon-
dent's catalogue had advertised that the Greensburg
store would be closed that day. However, a recent influx
of competitive stores in the area had effected Respon-
dent's volume of business 4 and management decided to
stay open on Christmas eve. This decision was communi-
cated by Paul Galley to the employees at the main
checkout counter during working hours on December
20, 1978. This announcement prompted a discussion
among the employees at the checkout counter, and all
expressed their desire not to work on December 24.
After closing time at the store that day, at the main
checkout counter, this discussion about not working on
Christmas eve continued among about 15-20 employees.
It was decided that the employees would confront James
Krasnow at once to tell him their feelings, and that Irene
Good would be their spokesperson because she had the
most seniority and Krasnow liked her. The group then
proceeded to the jewelry counter where Krasnow had
been working, and Good told Krasnow that the employ-
ees did not plan to work on December 24. It is at this
point that the versions as stated by Good and Krasnow
differ.
Good contends that Krasnow became angry. He asked
the employees if they agreed with her, and they said
they did. Krasnow then said he will remember all of
their faces and he will get even with them. He then told
them to leave the premises.
Krasnow testifies that when Good told Krasnow that
the employees did not plan to work on December 24,
"this hit me and I really didn't know what to say right
away, because I wasn't expecting it . . . I stood there in
amazement more or less I guess, and I continued to talk
and, what do you mean, you're not working Sunday. She
said we have plans . . . and other people shook their head
'yes.' I was not angry ... I was not made. I was stunned. I
said to everybody . . . doesn't anybody want to talk about
it . . . and the people shook their heads, they didn't have
anything to say, and I said in other words, you're telling
me you're closing me down Sunday, nobody wants to
talk about anything and that's all ... I said thank you and
goodnight, and that was it. No anger, no threats, no
pointing at people. I know the people who work for me.
I don't have to say I'll remember your faces and get
even.
The next day, December 21, Krasnow spoke to several
employees. Since many of them volunteered to work on
Christmas eve, the store was open that day, and Irene
Good was one of those on duty.
Early in January 1979, Good had occasion to be in
Krasnow's office. Good testifies that Krasnow told her
that he would never forgive her for being the spokesper-
son for the employees on December 20; that if she had
been his brother he would have fired him on the spot;
that when she said she believed in unions, he said there
would never be a union in his store, and he would lock
the doors first; and, that he would rather have her laid
off than working there any longer. Although Krasnow
admits that he had a conversation with Good, he denies
4 In fact, in January 1979, Respondent resorted to having an unprec-
edented 50-percent-off sale on toys to relieve its inventory situation.
KEY DISTRIBUTING CO. 981
having made the remarks attributed to him above, and
that all he did was admonish Good for not coming to
him in the first place with the Christmas eve problem.
Good also testified, and Krasnow denies, that about
that same time, Krasnow began calling her "ringleader"
and did so on several occasions.
Within a matter of days thereafter, Krasnow confront-
ed Good with a $90 cash shortage in her cash register
and asked her for an explanation. According to Kras-
now, "[Good] shrugged her shoulders and that was the
only answer I got, that was the only interest, that I un-
fortunately felt that she gave the matter ... " Whereupon,
Krasnow took Good off the register, a job to which she
never returned. Good testifies that when Krasnow told
her there was a shortage, he did not mention the amount,
and when she asked him the amount, he said "a lot." It
appears that no further conversation on the subject of
the cash shortage was ever held again between Krasnow
and Good.
At about the same time, Good was relieved of her
payroll duties, and Respondent's accountant assumed
those duties. In addition, Good was directed by Respon-
dent to teach a fellow employee, Felicia King, how to
do the accounts payable and receivable work and was re-
lieved of those duties. At this point, Good was given
odd jobs to do around the store. On January 27, 1979,
Paul Galley told Good that she was temporarily laid off
due to lack of work. Good has never been recalled.
Discussion and Conclusion
There can be no question, and it is readily admitted by
the parties, that the action engaged in by Good and the
other employees on December 20, 1978, was concerted
activity for their mutual aid and protection relating to
terms and conditions of employment, fully protected by
Section 7 of the National Labor Relations Act. Accord-
ingly, if the action taken by Respondent in laying off
Good on January 27, 1979, could be attributed to the
events occurring on December 20, 1978, then such action
would be violative of Section 8(a)(1) of the Act.
The record establishes quite convincingly that Irene
Good was an excellent employee to have around. Unlike
other employees who would come and go in a business
that did not require an employee's services all year
around because of its seasonal nature, Good performed
on a continuous basis to the complete satisfaction of Re-
spondent. Her versatility enabled her to take on a multi-
tiude of duties, and her ability to perform them well
earned for her extra raises so that she became one of the
higher paid employees. All of this occurred with the full
consent of Respondent, for it was within Respondent's
power to give Good additional duties and raises, just as
it was subsequently within Respondent's power to
remove her from those duties and lay her off for lack of
work when she had no duties to perform. There can be
no doubt but that Respondent was thoroughly pleased
with Good's performance during the 6-1/2 years that she
worked at the store. Otherwise, why would Respondent
burden her with so many duties and pay her commensu-
rately for each additional job that she undertook? The
answer is that Irene Good was surely one of the better
employees, if not the best employee, Respondent had.
The question then arises as to Repspondent's reason
for laying off Good. At the termination interview, Re-
spondent said "lack of work." That phrase is interpreted
by Respondent to mean that Good had no duties to per-
form and business conditions were so bad that the layoff
of a high priced employee was more feasible than that of
another employee. However, the fact that Good had no
duties to perform was due to the systematic method em-
ployed by Respondent to remove her from those duties.
One is reminded of the age old story of the person who
killed his parents and then threw himself upon the mercy
of the court, claiming he was an orphan. If Respondent
had not resorted to such tactics, Good would still be a
valued and productive employee. With regard to Re-
spondent's layoff of employees, no one can dispute the
existing economic conditions. However, it is inconceiv-
able that an employer would lay off its most experienced
and capable employee, when at the same time it retains
employees with less experience and knowledge. At a
time when business is bad and consolidation is a necessi-
ty, it stands to reason that a prudent employer would
select those employees who have the experience and the
know-how to run an efficient operation. By all the evi-
dence presented, Irene Good met those qualifications. I
must find, therefore, that Good's layoff was for neither
of these reasons.
In addition, Respondent contends that while cash
shortages do occur from time to time in its business, the
cash shortage uncovered in Good's case was much larger
than usual, and although it was not the shortage that
caused Respondent to lay off Good, it was her disinter-
ested attitude and her unwillingness to discuss the short-
age that rankled Respondent. Here again, I must credit
Good's version of the incident. As the head cashier, her
responsibility extended to all other cashiers inasmuch as
she had trained them for the job. Such responsibility to-
gether with 6-1/2 years of experience carries with it a
sense of duty and obligation. Therefore, it would be
unlike Good to refuse to discuss the alleged cash short-
age, as Respondent would have me believe. Rather, I
accept the fact that Good did ask Krasnow the amount
of the shortage and he responded by saying "a lot." I do
not accept the argument of Respondent that Good acted
in a cavalier or disinterested manner. It should be noted
that no evidence was introduced by Respondent to show
any further contact between it and Good in an attempt
to resolve the cash shortage.
Having found that all of Respondent's reasons for the
layoff of Good were pretextual, I conclude that the only
basis for the layoff was the protected concerted activity
engaged in by Good on December 20, 1978. A nexus did
exist between Good's activities on December 20, 1978,
and her layoff on January 27, 1979.
In light of my holding above, I further conclude that
Respondent engaged in the conduct attributed to it by
General Counsel when it threatened its employees on
December 20 with unspecified reprisals because they had
refused to work on Christmas eve. The evidence estab-
lishes that several of the employees who were present at
that confrontation were laid off in January 1979, and al-
though Krasnow denies having said that he would re-
KEY DISTRIBUTING Co.
982 DECISION OF NATIONAL LABOR RELATIONS BOARD
member the persons who were present, I credit General
Counsel's witnesses who testified that he said it.
In addition, Krasnow admits having spoken to Good
in his office in early January 1979, and admonishing her
for not coming to him in the first place. It is more con-
ceivable, and I find, that at the meeting Krasnow did
threaten Good with a layoff and did threaten to close the
Greensburg store if the employees attempted to bring a
union in to represent them. With regard to the latter,
Krasnow's testimony is so vague as to be unbelievable,
and as to the former, the fact is that Good was laid off.
Under the circumstances, I credit Good's version of that
conversation and find that Respondent violated Section
8(a)(1) of the Act by the threats contained therein.
CONCLUSIONS OF LAW
I. The Respondent, Key Distributing Co., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. By terminating Irene Good and refusing to recall
her because she acted as spokesperson for employees
who engaged in protected concerted activity, Respon-
dent engaged in, and is engaging in, unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
3. Respondent further violated Section 8(a)(1) of the
Act by:
(a) Threatening employees on December 20, 1978,
with unspecified reprisals for engaging in protected con-
certed activity; (b) threatening to close the Greensburg
facility if a union was selected to represent the employ-
ees; and (c) threatening to lay off employees for engag-
ing in protected concerted activity By these acts, Re-
spondent interfered with, restrained, and coerced its em-
ployees in the exercise of their rights guaranteed to them
by Section 7 of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
The Respondent having terminated Irene Good in vio-
lation of her Section 7 rights, I find it necessary to order
it to offer her full reinstatement to her former position
or, if that position no longer exists, to a substantially
equivalent position, with backpay computed as pre-
scribed in F. W Woolworth Company, 90 NLRB 289
(1950), plus interest as set forth in Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977).
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 5
The Respondent, Key Distributing Co., Greensburg,
Pennsylvania, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Terminating employees and failing and refusing to
reinstate employees for engaging in protected concerted
activity.
(b) Threatening employees with reprisals or layoffs or
closing a facility if a union was selected to represent the
employees, because the employees engaged in concerted
activities for their mutual aid or protection.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Irene Good immediate and full reinstatement
to her former job or, if that job no longer exists, to a
substantially equivalent position, and make her whole for
her lost earnings in the manner set forth in 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, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its place of business in Greensburg, Penn-
sylvania, copies of the attached notice marked "Appen-
dix." 6 Copies of said notice, on forms provided by the
Regional Director for Region 6, after being duly signed
by Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
I 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 find-
ings, 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.
6 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."