Office Depot

National Labor Relations Board - Board Decisions

Feb 16, 2000

330 N.L.R.B. 640 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 640
Office Depot and Denise M. DeLaura. Case 7–CA–
38847
February 16, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND
LIEBMAN
On June 13, 1997, Administrative Law Judge Steven
M. Charno issued the attached bench decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
1. The judge found, and we agree, that Section 10(b)
of the Act does not bar the complaint allegations that the
Respondent violated Section 8(a)(1) of the Act by threat-
ening employees that if they selected the Union, they
would earn less money, would not be able to communi-
cate with management in the same way, and would have
to pay union dues.
The Board stated in Nickles Bakery of Indiana, 296
NLRB 927 (1989), that in considering the sufficiency of
a charge to support an allegation in the complaint under
Section 10 (b), “the Board has generally required that the
complaint allegation be related to and arise out of the
same situation as the conduct alleged to be unlawful in
the underlying charge.” To determine whether the com-
plaint allegations are sufficiently related to the charge
allegations, the Board applies a “closely related” test
comprised of the following factors: (1) whether the alle-
gations involve the same legal theory; (2) whether the
allegations arise from the same factual circumstances or
sequence of events; and (3) whether a respondent would
raise similar defenses to the allegations.3
In Ross Stores, Inc., 329 NLRB 573 (1999), the Board
reaffirmed Nickles Bakery and other precedent consis-
tently holding that the requisite factual relationship under
the “closely related” test may be based on acts that arise
out of the same antiunion campaign.4 The Board thus
overruled Nippondenso Mfg. U.S.A., 299 NLRB 545
(1990), to the extent that it held that the factual relation-
ship could not be so based. 5
1The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the judge’s recommended Order in accordance
with our decision in Excel Container, Inc., 325 NLRB 17 (1997).
3 See also Redd-I, Inc., 290 NLRB 1115, 1118 (1988).
4 Although Ross Stores addressed the test for determining whether
otherwise time-barred allegations in an amended charge relate back to
allegations of an earlier timely filed charge, the same test applies to
determining the relatedness of complaint allegations to an unfair labor
practice charge. Ross Stores, 329 NLRB 573 fn. 6.
Under the “closely related” test as set forth in Nickles
Bakery and Ross Stores, we find that the threat allega-
tions in the complaint are closely related to the discharge
allegation in the charge. The charge alleged violations of
Section 8(a)(1) and (3). It stated:

On or about July 12, 1996, Denise DeLaura was dis-
charged by the above-named Employer because of her
union activities.
My discharge happened in the midst of an ongoing un-
ion organizing drive by the Teamsters Union. This or-
ganizing drive is still active now.

On September 23, 1996, the Regional Director for Region 7
approved the withdrawal of the charge allegation that Sec-
tion 8(a)(3) had been violated. He stated:

With my approval the 8(a)(3) aspect of this case has
been withdrawn. The balance of the charge remains in
full force and effect.

The relevant allegations in the complaint are set forth
in paragraphs 8 and 9 of the complaint. They read as
follows:

8. About mid-June, 1996, Respondent, at its
Plymouth, Michigan, facility, by its agent Kenneth J.
Zill, threatened employees that they would earn less
money, would have to pay union dues and would not
be able to take their problems to management if they
selected a union as their collective bargaining repre-
sentative.
9. (a) About July 12, 1996, Respondent at its
Plymouth, Michigan, facility, by its agent Kenneth
Zill, discharged the Charging Party, an employee;
(b) Respondent took the action set forth in sub-
paragraph (a) above because of her protected con-
certed activity of making common cause with em-
ployees engaged in a protected work stoppage at the
Detroit Newspaper Agency.

The Respondent argues that under the rationale of
Nippondenso, supra, 299 NLRB 545, and Lovejoy Indus-

5 In Nippondenso, the charge alleged the 8(a)(3) discharge of a union
organizing committee member. The resulting complaint included alle-
gations of no-solicitation and no-distribution rules directed against
union activity in violation of Sec. 8(a)(1), but the complaint did not
include an 8(a)(3) discharge allegation. The Board found that the Gen-
eral Counsel failed to establish a factual nexus between the allegations
in the charge and those set forth in the complaint. It rejected the argu-
ment that the requisite factual nexus could be based solely on the legal
theory that the acts at issue in the charge and complaint took place
“during and in order to quell, a union campaign.”
330 NLRB No. 99
OFFICE DEPOT 641
tries,6 the threat allegations of the complaint are not
closely related to the discharge allegation of the charge.
The Respondent contends that there is no factual rela-
tionship between the threat and discharge allegations
because they involve separate labor relations events at
different employers. Thus, the discharge allegation of
the charge concerns DeLaura’s making common cause
with the employees of Detroit News Agency who were
engaged in a protected work stoppage, whereas the threat
allegations of the complaint concern the Respondent’s
remarks to its employees during a union campaign at its
facility. The Respondent also argues that the discharge
and threat allegations do not involve the same legal the-
ory because the discharge allegation is based on disparate
treatment, whereas the threat allegations are based on
“simple interference” with Section 7 rights. Finally, the
Respondent contends that the defenses to the allegations
are different because the defense to the discharge allega-
tion is business justification, whereas the defense to the
threat allegations is that they did not occur.
Relying on an analysis that was rejected by the Board
in Ross Stores,7 the Respondent reads the charge too nar-
rowly. As stated above, the charge—even after the with-
drawal of the 8(a)(3) allegation—alleges that the De-
Laura discharge occurred in the midst of an ongoing un-
ion organizing drive that is still active. An investigation
of DeLaura’s discharge, therefore, would logically entail
an investigation of the Respondent’s conduct in response
to the organizing campaign.8 Such an investigation thus
would encompass the statements the Respondent made to
employees the prior month that if they selected the Un-
ion, they would earn less money, would not be able to
communicate with management in the same way, and
would have to pay union dues. Accordingly, by includ-
ing the threat allegations in the complaint the General
Counsel did not expand a charge upon his own initiative

6 309 NLRB 1085 (1992), enfd. in part and remanded 26 F.3d 162
(D.C. Cir. 1994), supplemental decision 317 NLRB 1353 (1995), enfd.
in part 93 F.3d 854 (D.C. Cir. 1996). In Lovejoy Industries, the charge
alleged, inter alia, that the employer unlawfully issued written warnings
to three employees. The complaint alleged, inter alia, that in violation
of Sec. 8(a)(1), the respondent told its employees that they would not
be permitted to wear tee-shirts with union insignia during working
hours, while it allowed employees to wear similar garments without
union insignia. The respondent argued that the complaint allegation
regarding the tee-shirts must be dismissed as untimely under Sec. 10(b)
because it was neither contained in the charge nor closely related to any
allegation in the charge. The Board majority found that the tee-shirt
allegation in the complaint was not closely related to the warning alle-
gations in the charge because, inter alia, the General Counsel did not
argue that the allegations were connected, either factually or legally, as
part of an overall plan to resist the union. Citing the fact that the tee-
shirt and warning allegations arose from the same antiunion campaign,
Member Devaney dissented and would have found no 10(b) bar.
7 As discussed above, the Board expressly overruled Nippondenso in
Ross Stores. To the extent that Lovejoy Industries, like Nippondenso,
departs from precedent holding that the requisite Nickles Bakery factual
relationship may be based solely on acts that arise out of the same
antiunion campaign, Lovejoy Industries has not survived Ross Stores.
8 See Ross Stores, supra.
to include allegations that have no reasonable nexus with
the charge that put the investigation into motion.9 Con-
sequently, we find that under the rationale of Nickles
Bakery and Ross Stores, the threat allegations of the
complaint are supported by the charge.
At the hearing in this proceeding, the Respondent simi-
larly argued that the discharge allegation of the com-
plaint was not supported by the charge.10 The Respon-
dent stressed that when the Charging Party withdrew her
8(a)(3) charge, she did not file a new or amended charge.
Thus, the only charge in this proceeding alleges DeLaura
was discharged for union activity at her place of em-
ployment. According to the Respondent, this allegation
bears no relationship to the discharge allegation in the
complaint involving common cause with the union activ-
ity of employees of a different employer. Thus, the Re-
spondent argued, under Nippondenso, supra, there is no
factual nexus between the discharge allegation of the
charge and that of the complaint.
Again, the Respondent reads the charge too narrowly.
When the Regional Director approved the withdrawal of
the 8(a)(3) aspect of the case, he stated: “The balance of
the charge remains in full force and effect.” The balance
of the charge is the allegation that DeLaura’s discharge,
which occurred during an organizing campaign at her
place of employment, violated Section 8(a)(1). The in-
vestigation of this charge would logically extend to an
investigation of the Respondent’s conduct toward any
form of DeLaura’s protected activity, whether in connec-
tion with protected activity at her place of employment
or with the protected activity of employees of a different
employer.11 Thus, as was the case with the inclusion of
the threat allegations in the complaint, the General Coun-
9 Id. at fn. 12.
10 The Respondent made this argument to the judge in its motion to
dismiss the complaint and its petition to revoke the General Counsel’s
subpoena duces tecum. The Respondent filed exceptions to the judge’s
denial of its motion to dismiss the complaint; however, it did not argue
in its supporting brief to the Board that the discharge allegation of the
complaint was not supported by the charge. Rather, the Respondent
limited its argument in its brief to the claim that the judge erred in
denying its motion to dismiss the threat allegations of the complaint.
The Respondent’s failure to urge specifically that the judge also erred
in denying its motion to dismiss the discharge allegation of the com-
plaint constitutes a waiver of the issue under Sec. 102.46 (b)(2) of the
Board’s Rules. In any event, as discussed in the text infra, we find that
the discharge allegation of the complaint is supported by the charge.
11 In addition, there is a reasonable connection between the com-
plaint’s allegation that the Respondent discharged DeLaura because of
her actions with regard to the union campaign at DNA and the Respon-
dent’s attitude toward the union campaign at its own facility. The
judge recognized this connection in his decision. (“Respondent’s need
to immediately discharge an individual who had made common cause
with employees engaged in a protected union strike becomes more
understandable in the context of the Union organizing campaign di-
rected against Respondent at the time and Respondent’s demonstrated
anti-union animus in the context of that campaign.”) For the purposes
of 10(b) analysis, this connection is certainly sufficient to establish that
the complaint allegation is “closely related” to the remaining allega-
tions of the charge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 642
sel’s inclusion of the discharge allegation in the com-
plaint does not constitute the expansion of a charge to
contain allegations that have no reasonable nexus with
the charge that put the investigation into motion. Ac-
cordingly, we find that under the “closely related” test of
Nickles Bakery and Ross Stores, the discharge allegation
of the complaint is supported by the charge.
2. We agree with the judge’s finding that the Respon-
dent violated Section 8(a)(1) by threatening employees
that they would earn less money if they selected the Un-
ion.12 However, for the reasons stated below, we dis-
agree with the judge’s finding that the Respondent vio-
lated Section 8(a)(1) by also telling employees that they
would not be able to communicate with management in
the same way and would have to pay union dues.
The Board has long held that there is no threat, either
explicit or implicit, in a statement that explains to em-
ployees that, when they select a union to represent them,
the relationship that existed between the employees and
the employer will not be as before. Section 9(a) contem-
plates a change in the manner in which employer and
employee deal with each other, and an employer’s refer-
ence to this change cannot be characterized as a retalia-
tory threat to deprive employees of their rights. Tri-Cast,
Inc., 274 NLRB 377 (1985).
According to the credited testimony, the Respondent
told employees that “we wouldn’t be able to communi-
cate with management in the same way that we are right
now because there would be a representative from the
union that would be the middle person.” This statement
is virtually identical to the employer statements found
permissible in Tri-Cast.13 Accordingly, we find that the
Respondent did not violate Section 8(a)(1) of the Act by
its remarks to employees concerning communication.
Similarly, we find nothing unlawful in the Respon-
dent’s statement that the employees would have to pay
Union dues if they selected the Union. It is an economic
reality that unions may collect dues from the employees
they represent.14 The Respondent’s statement about
dues simply conveys to employees this reality. It does
not convey any explicit or implicit threat of reprisal
against employees for exercising their statutory right to

12 See, e.g., Clements Wire & Mfg., 257 NLRB 206, 213 (1981) (su-
pervisor unlawfully threatened that employees would be making less
money, not more, if union came in). As in Clements Wire, the Respon-
dent’s statement here was not supported by any objective facts. See
NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969).
13 The employer’s statements in Tri-Cast were: “We have been able
to work on an informal and person-to-person basis. If the union comes
in this will change. We will have to run things by the book, with a
stranger, and will not be able to handle personal requests as we have
been doing.”
14 Cf. Automotive & Allied Industries Local 618 (Sears, Roebuck &
Co.), 324 NLRB 865, 866 fn. 12. (1997) (not unlawful for union to tell
employees that unless a sufficient number of employees sign financial-
core agreements, union could not afford to continue representing em-
ployees, because such statement by union conveys an economic reality
to employees).
select a union as their exclusive collective-bargaining
representative. Even if the Respondent’s statement could
be considered untruthful, in that not all employees in
union-represented units “have” to pay union dues, it is
still nothing more than a misrepresentation about unions’
ability to enforce payment of dues and not a threat of
adverse action by the Respondent. We, therefore, find
that the Respondent’s statement about Union dues does
not violate Section 8(a)(1) of the Act. New Process Co.,
290 NLRB 704, 707 (1988), enfd. mem. 872 F.2d 413
(3d Cir. 1989).
3. The judge found, and we agree for the following
reasons, that the Respondent discharged DeLaura in vio-
lation of Section 8(a)(1) because of her protected con-
certed activity of making common cause with the em-
ployees of another employer who were engaged in a pro-
tected work stoppage.
The essential facts are not in dispute. On July 8, 1996,
DeLaura was approached by a person indicating that he
was to pick up an order for one of the Respondent’s cus-
tomers, the Detroit Newspaper Agency (DNA). De-
Laura said to him in a normal tone of voice, “Oh, you
work for the scab newspaper.” (According to the stipu-
lated facts, DNA employees were engaged in a lawful
work stoppage at the time.) The DNA employee ex-
plained that he had worked for his employer for many
years and had a family to feed. There was no further
exchange between DeLaura and the DNA employee.
DNA subsequently complained to the Respondent about
the incident. On July 10, Kenneth Zill, the Respondent’s
top manager, went to the shipping and receiving office
where DeLaura worked and asked whether someone in
that office had called the DNA employee a scab 2 days
earlier. DeLaura admitted that she had told the DNA
employee that he worked for a scab newspaper. It is un-
disputed that the Respondent discharged DeLaura on
July 12 on the basis of her admission. It characterized
her remark as a “verbal assault.”
It is well settled that employees’ conduct on behalf of
the employees of another employer who are engaged in
protected concerted activity is itself protected concerted
activity. Boise Cascade Corp., 300 NLRB 80, 82 (1991).
Here, DeLaura’s use of the term “scab” was an expres-
sion of support for the striking DNA employees and
amounted to making common cause with the protected
concerted activity of the employees of another employer.
DeLaura’s conduct, therefore, was protected under the
rationale of Boise Cascade. Further, there is no showing
that DeLaura’s conduct was so flagrant or egregious as to
warrant loss of the Act’s protection.15 On the contrary,
she spoke in a normal tone of voice and made no further
comments when the DNA employee responded to her
remark.
15 See NLRB v. Cement Transport, 450 F.2d 1024, 1029–1030 (6th
Cir. 1974), cert. denied 419 U.S. 828 (1974).
OFFICE DEPOT 643
The Respondent concedes that it discharged DeLaura
for her use of the term “scab” to the DNA employee.
The Respondent, therefore, violated Section 8(a)(1) by
discharging DeLaura as a consequence of her protected
concerted activity of making common cause with the
striking DNA employees. Mast Advertising & Publish-
ing, 304 NLRB 819, 820 (1991) (respondent violated
Sec. 8(a)(1) by admittedly suspending employee because
of protected concerted activity, where employee’s con-
duct was not so flagrant or egregious to lose the Act’s
protection).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Office Depot, Inc., Plymouth, Michigan, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees that if they select a union
as their collective-bargaining representative, they will
earn less money.
(b) Discharging its employees because of their pro-
tected concerted activity of making common cause with
employees engaged in a protected work stoppage.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act
(a) Within 14 days from the date of this Order, offer
Denise DeLaura full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(b) Make Denise DeLaura whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against her, in the manner prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charge of Denise DeLaura and, within 3 days thereafter,
notify Denise DeLaura in writing that this has been done
and that the discharge will not be used against her in any
way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Plymouth, Michigan facility copies of the attached
notice marked “Appendix.”16 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since mid-June 1996.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT threaten employees that they will earn
less money if they select a labor organization as their
collective-bargaining representative.
WE WILL NOT discharge Denise DeLaura or any other
employee because of their protected concerted activities
of making common cause with employees engaged in a
protected work stoppage.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board's
Order, offer Denise DeLaura full reinstatement to her
former position of employment or, if that position no
longer exists, to a substantially equivalent position, with-

16 If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 644
out prejudice to her seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Denise DeLaura whole for any loss of
earnings and other benefits resulting from her discharge,
less any net interim earnings, plus interest.
WE WILL, within 14 days of the date of the Board’s Or-
der, remove from our files any reference to the unlawful
discharge of Denise DeLaura, and within 3 days thereaf-
ter, notify her in writing that this has been done and that
the discharge will not be used against her in any way.

OFFICE DEPOT, INC.

Amy Bachelder, Esq. and Blair Simmons, Esq., for the General
Counsel.
Mark Theodore, Esq. (Jackson, Lewis, Schnitzler & Krupman),
of San Francisco, California, for the Respondent.
DECISION AND CERTIFICATION
STEVEN M. CHARNO, Administrative Law Judge. This case
was tried before me in Detroit, Michigan, on May 6, 1997.
After oral argument, I issued a bench decision pursuant to Sec-
tion 102.35(a)(10) of the Board’s Rules and Regulations. Ap-
pendix A is the portion of the transcript containing my decision,
while Appendix B contains corrections to that transcript [omit-
ted from publication]. In accordance with Section 102.45 of
the Board’s Rules and Regulations, I certify the accuracy of the
amended transcript containing my decision.
[Recommended Order omitted from publication.]
APPENDIX A
BENCH DECISION
[Errors in the transcript have been noted and corrected.]
76
MS. SIMMONS: All right. If You’re asking me about De-
Laura’s comment saying she didn’t mean anything by it, it’s
clear that she was saying, I think as she testified, that she didn’t
mean to offend anyone, not that it was a joke.
JUDGE CHARNO: Do you have Southwestern Bell—
MR. THEODORE: Yes, and —
JUDGE CHARNO:—or is there any other case that you wanted
me to look at?
Thank you.
I will get back to you all as rapidly as I possibly can.
(A brief recess)
JUDGE CHARNO: On the record.
In response to a charge, timely file, a complaint was issued
on September 25, 1996, which, as amended, alleges that Office
Depot, Inc., the Respondent, violated Section 8(a)(1) of the
National Labor Relations Act, as amended, by threatening its
employees and by discharging the Charging Party, Denise De-
Laura.
Respondent’s answer denied the commission of any unfair
labor practice.
A hearing was held before me in Detroit, Michigan, on May
6, 1997. At the conclusion of the presentation of evidence the
parties presented oral argument.
Based on the evidence of record and the parties arguments, I
am rendering a bench decision.
Respondent is engaged in the retail sale and distribution
77
of office supplies, with a warehouse facility In Plymouth,
Michigan.
During calendar year 1995 Respondent, in the course of its
business, purchased and received goods valued in excess of
$50,000 from outside the state and derived gross revenues in
excess of $500,000.
It is admitted, and I find, that Respondent is an employer en-
gaged in commerce within the meaning of the Act.
All relevant events in this case took place during two ongo-
ing labor relations events.
The first was the stipulated strike of six unions against the
Detroit Free Press, the Detroit News and the Detroit Newspaper
Agency, which I shall hereafter refer to as DNA.
That strike began on July 13, 1995 and was ongoing as of
July 12, 1996.
The second event was a campaign by an unidentified union
to organize Respondent’s employees at the Plymouth facility,
which campaign was evidenced by union handbilling outside
the facility two to three days a week from mid-May 1996
through, at least, July 12, 1996.
This finding is based on the testimony of Mr. Piotruchowski,
whom I found to be a completely candid and reliable witness
with little demonstrated interest in being represented by a union
and no demonstrated interest in the outcome of this proceeding.
78
Mr. Piotruchowski’s account was wholly corroborated by the
testimony of the Charging Party.
Mr. Kenneth Zill, the top manager at Respondent’s Plymouth
facility, testified that his facility was only handbilled on a total
of two or three occasions.
I reject Mr. Zill’s self-serving testimony on this point be-
cause, first, I find Piotruchowski to be the more credible wit-
ness and second, because I find it unlikely that infrequent, iso-
lated instances of handbilling, testified to by Mr. Zill, would
have caused Respondent to organize the admitted series of Em-
ployee meetings, which it held to discuss the Union’s organiz-
ing campaign.
During June of 1996 Respondent held a mandatory employee
meeting which was attended by all 20 receiving department
employees on the first shift at the Plymouth facility. At that
meeting Mr. Zill stated that if the union got in the employees
would probably earn less money and would not be able to
communicate with management in the same way as they could
at that time.
This finding is based upon Mr. Piotruchowski’s uncontro-
verted testimony.
Mr. Zill, who listened carefully to questions posed to him
and answered those questions with similar care, did not directly
deny that having the union in would, “probably,”
79
result in lower wages, or that employees would no longer be
able to communicate with management, “in the same way.”
At the same meeting Mr. Zill told the employees that, if the
Union got in, the employees would have to pay union dues.
Piotruchowski so testified, while Mr. Zill denied the statement
attributed to him.
For the reasons outlined above, and based on the demeanor
of both witnesses while testifying, I credit Piotruchowski over
Zill on this issue.
OFFICE DEPOT 645
Accordingly I find that Respondent threatened its employees
as alleged in Paragraph 8 of the Complaint and conclude that
this conduct was an unfair labor practice in violation of Section
8(a)(1) of the Act.
Turning to the discharge allegation, it is uncontested that on
July 8, 1996, the Charging Party was approached by an indi-
vidual who indicated that he was at the Plymouth facility to
pick up an order for DNA, one of Respondent’s customers.
The Charging Party then remarked, in a normal volume of
voice, “Oh, you work for the scab newspaper.”
The DNA employee felt the need to explain that he had
worked for his employer for many years and had a family to
feed.
Subsequently DNA complained to Respondent about the in-
cident.
80
On July 10 Mr. Zill entered the shipping and receiving office
where the Charging Party was employed and inquired as to
whether someone in that office had called the DNA employee
scab two days earlier.
Charging Party immediately admitted that she had said that
the DNA employee worked for a scab newspaper.
What Charging Party said immediately thereafter is disputed.
She testified that she added to her admission that she didn’t
mean anything else. Mr. Zill testified that she said her admitted
statement had been a joke.
Mr. Zill’s account appears improbable given the fact that the
Charging Party’s father, with whom she resided, had been in-
volved in the newspaper strike for 12 months. And I accept
Charging Party’s testimony, and the General Counsel’s argu-
ment that she intended to state that she did not mean to person-
ally offend the DNA employee.
It is further undisputed that Respondent, relying on and
based on the Charging Party’s admission, discharged her on
July 12, 1996.
Respondent’s Performance Improvement Process, which
governs Respondent’s disciplinary process, provides that, “in
all but the most serious cases” the correction of a deficient em-
ployee’s conduct should begin with verbal counseling.
Mr. Zill contends that Charging Party’s behavior was suffi-
ciently serious to warrant immediate termination without
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prior warning or counseling on the grounds that her comment
constituted a, “verbal assault,” on the DNA employee.
The other two instances of verbal assaults testified to by Mr.
Zill both involve the delivery of, “abusive profanity in a
threatening tone,” which in no way corresponded to the situa-
tion involving the Charging Party.
There is no reason to believe that the seemingly dispropor-
tionate nature of Respondent’s reaction to the Charging Party’s
comment was caused by DNA’s complaint. That is, there is no
evidence that DNA would have been dissatisfied if the offender
had been given a warning rather than discharged.
This case appears to raise questions of first impression le-
gally. Two legal issues require resolution at this juncture.
The first is whether the use of the term “scab” can be pro-
tected activity. Based on Boise Cascade Corp., 300 NLRB 80,
82 (1990), I conclude that it can.
I note in passing that there is no evidence in this case which
establishes that prohibition of the term “scab” was required to
maintain discipline, safety or production at the Plymouth facil-
ity.
The second question is whether an exercise of protected ac-
tivity on behalf of the employees of another employer remains
protected. Again, based on Boise Cascade Corp., supra, I con-
clude that it does and that such an act may constitute a
82
making of common cause with the employees of another em-
ployer.
I find that Charging Party’s use of the term scab was in-
tended to express support for those employees on strike against
DNA, the Free Press and the News.
I further find that the reference to a, “scab newspaper,”
when made to a DNA employee, leaves no doubt as to the em-
ployees with whom the Charging Party was attempting to make
common cause.
Respondent’s need to immediately discharge an individual
who had made common cause with employees engaged in a
protected union strike becomes more understandable in the
context of the Union organizing campaign directed against
Respondent at that time and Respondent’s demonstrated anti-
union animus in the context of that campaign.
For the foregoing reasons I find that Respondent’s rationale
for the Charging Party’s discharge was pretextual and the disci-
pline itself was disparate and a direct result of the Charging
Party’s protected, concerted activity.
I therefore conclude that Ms. DeLaura’s termination was an
unfair labor practice in violation of Section 8(a)1 of the Act.
Time for appeal of this decision does not begin until I issue
the appropriate order, which will not occur until I receive and
revise the transcript.
Are there any other matters to raise before I close the record?