On petition for review and to set aside, and on cross-application for enforcement of an order of the National Labor Relations Board. Order modified.
Feinberg and Danaher,*fn* Circuit Judges, and Dooling,*fn** District Judge.
Petitioner Florsheim on September 18, 1975, terminated eleven part-time sales employees working in Florsheim's five retail shoe stores in the Pittsburgh area. Florsheim contended that the terminations put into effect a plan, formulated much earlier, to have only full-time employees in its Pittsburgh area stores. The terminations came three weeks after Retail Store Employees Union Local 1407 had requested Florsheim to recognize it as bargaining agent for all full-time and part-time sales and non-selling employees in Allegheny County, and to begin negotiations for an agreement. Local 1407 had on the same day filed a representation petition with the Regional Office of the National Labor Relations Board. Ten days before the termination of the eleven part-time employees Local 1407 had filed with the National Labor Relations Board an unfair labor practice charge against Florsheim alleging that Florsheim had on August 29, 1975, discharged a full-time employee because of his union membership and activities, and because of his activities in concert with other employees for collective bargaining purposes, and in order to discourage membership in Local 1407. On September 19, 1975, a further charge filed in the same case based the charge of unfair labor practice additionally on the terminations of September 18th, and on Florsheim's alleged refusal to bargain with Local 1407. Later amendments of the charge contended that one full-time employee was transferred for the same reasons and purposes. It appears that after the twelve terminations, and the bringing in of seven out-of-town full-time employees, members of Local 1407 did not constitute a majority of the Pittsburgh area employees.
After a formal hearing in March 1976, Senior Administrative Law Judge Joseph G. Nachman, on September 22, 1976, decided that Florsheim, by discharging twelve employees and transferring one because all had aided and supported the Union, had discriminated against each of them in hire, tenure and terms of employment, discouraging Union membership, and had, by doing so, engaged in unfair labor practices proscribed by Section 8(a)(3) and (1) of the National Labor Relations Act (29 U.S.C. § 158(a) (3) and (1)); he decided further that Local 1407 had been from August 28th onward the duly designated bargaining representative in an appropriate unit that included Florsheim's part-time selling and non-selling employees in the five Pittsburgh area retail stores and that Florsheim's refusal, on and after August 29th to recognize and bargain with Local 1407 was an unfair labor practice proscribed by Section 8(a)(5) and (1) of the Act (29 U.S.C. § 158(a)(5) and (1)). The recommended Order required Florsheim to cease from activities encouraging or discouraging membership in Local 1407, from refusing, on request, to recognize and bargain with the Local, and from otherwise interfering with its employees' rights of self-organization. The recommended Order affirmatively directed Florsheim to recognize and bargain with the Local on request, and to
"Offer immediate, full and unconditional reinstatement to [thirteen men named in the charge as discharged or transferred] to the job said employees, severally, held prior to the discrimination against them, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of earnings they may have severally suffered, in the manner set forth in the section hereof entitled 'The Remedy'."
The "Remedy" section of the Order referred to required Florsheim to pay each of the employees a sum equal to what he would have earned from the date of his termination or transfer to the date of the offer of reinstatement less any amount earned as wages in that period, with interest. On January 17, 1977, the Board affirmed the rulings, findings and conclusions of the Administrative Law Judge, supplementing his findings with a conclusory finding that certain facts found by Judge Nachman constituted an instance of coercive interrogation violative of Section 8(a)(1) of the Act. The Board adopted the Recommended Order and directed Florsheim to comply with it.
Florsheim challenges certain of the specific findings of unfair labor practice, but its principal challenge is directed to the finding that the terminations of the part-time employees violated Section 8(a)(3) and (1) of the Act, and to the order to offer the employees reinstatement to part-time positions notwithstanding the change in Florsheim's operations to eliminate part-time jobs. It is concluded that the Board's order must be affirmed so far as it determines that Florsheim engaged in the unfair labor practices detailed in the decision of the Administrative Law Judge; the findings are supported by substantial evidence, and the issues of credibility were explicitly resolved on readily supportable grounds. Universal Camera Corp. v. NLRB, 1951, 340 U.S. 474, 492-497, 95 L. Ed. 456, 71 S. Ct. 456. The remedy of reinstatement presents a more difficult question. It is concluded that the findings do not support so much of the Board's order as directs Florsheim to offer the former part-time employees unconditional reinstatement to their former positions and to make good their wage losses from the date of discharge to the date of the offer of reinstatement. That part of the order, paragraph 2(b), must be set aside and the case remanded to the Board for further proceedings consistent with this opinion.
1. Florsheim contended that, having observed that the expansion of sales in the Pittsburgh area was lagging that of the stores in the rest of the country, it attributed the lag to the number of part-time employees in the Pittsburgh stores, and decided in December 1974 or January 1975 to "go to full time people." The major problem with part-time people, Florsheims' principal witness said, was that part-time salesmen were weaker salesmen than full-time salesmen and yet were used in peak sales hours when the best help was needed. However, that problem, the witness said, had existed to his knowledge for about six years, and the record does not bear out the assertion that a definite corporate decision was reached before the request for union recognition was made.
The evidence includes nine payroll register pages proffered to show the existence of an early decision to eliminate part-time help. Each of the pages records the payroll data of one store for one week; the pages are for weeks ended on and between January 9, 1975, and April 3, 1975. They refute rather than support Florsheim's contention. Four of the pages are for the South Hills Village store; they show that on January 9th there were three part-time employees and that the Florsheim National General Manager directed the elimination of one part-time employee. That was done. On January 30th, when there were two part-time employees, he directed the elimination of one, but that was not done. On February 13th he directed the elimination of both part-time employees, and one was eliminated. On March 13th one part-time employee remained on the payroll and the directive was, simply to "reduce." Two pages record the payroll data for the Northway Center store where on January 30th there were three part-time employees. The elimination of one was directed. On February 13th, however, the number of part-time employees had apparently increased to four, and the elimination of two was directed. The Monroeville store on February 13th had two part-time employees and the directive was simply to "reduce" part-time. On February 13th the Smithfield Street store in Pittsburgh had two part-time employees, and the directive was to reduce part-time help. On April 3rd there were three part-time employees at the Fifth Avenue store in Pittsburgh; the directive was to reduce part-time "Hours." The most that can be argued from this evidence is that the stores were considered over-staffed, and that reductions of force should be in part-time personnel and part-time hours.
There was, indeed, testimony that the general manager, in consultation with his administrative assistant and the regional supervisor of stores, concluded that they would go to full time help in Pittsburgh, but the record is clear that the reviews of payroll data through March resulted only in instructions to "reduce the part-time help, and, in some instances . . . to eliminate the part-time help." It was suggested that the supposed program was not followed out because of the diversion of the general manager's attention to other work that took him out of his office for protracted periods, followed by his vacation, but there is in reality no clear evidence that an unambiguous corporate decision had been made. There was testimony that the Pittsburgh area manager understood that he was instructed "to work on making those changes . . . reducing part-time people, and having just full-time people," but that he resisted because the change would deny him the kind of operating flexibility that he felt that he required, and he did nothing to implement the proposed change. The general manager testified that he took personal charge of the matter when he returned from vacation on August 18th, but the area manager did not return from his vacation until August 25th. The testimony was that only the supervisor of stores communicated with the area manager in the two weeks following August 18th: the general manager did not do so before August 29th when, admittedly, Florsheim received Local 1407's request for recognition.
The testimony of the general manager comes down to the fact that as late as August 22nd his "decision" was still an equivocal disposition to reduce or eliminate part-time employment in Pittsburgh. Only after the general manager on September 8th and 9th met with the area manager in Pittsburgh and met also with each of the five store managers did he, his testimony indicates, make the decision to replace all the part-time employees in the Pittsburgh area stores. That, he testified, was the final step in a decision taken eight months earlier when he "started on the program to eliminate and reduce or phase . . . out" part-time employment. But the events demonstrate that there was no earlier decision. Florsheim's decision took the form of executive acts emanating from the Pittsburgh meetings of September 8th and 9th. On September 16th the Pittsburgh store managers went through the motions of asking the part-time employees whether they would work full-time. One man, a student, was willing to work full-time, but, then, Florsheim abruptly advised him that his available hours were not suited to the store hours of the store to which Florsheim professedly wished to transfer him. The Florsheim store managers terminated all the part-time employees on the evening of September 18th. Seven out-of-town employees were transferred into the Pittsburgh area stores to replace the part-time employees. The part-time employees were terminated without advance notice, and the seven out-of-town employees were transferred to Pittsburgh on short notice and at Florsheim's expense.
The effort to unionize the Pittsburgh area stores had been started in late March, 1975, when the Local 1407 organizer met with two full-time employees and one part-time employee who worked in the Monroeville store. All three signed membership applications which included a checkoff assignment and authorization. The Local 1407 organizer gave the three a number of membership applications, booklets entitled "It Pays to Belong," and a pamphlet on employee rights. The two full-time employees directly and through other employees in other of the five stores extended the organizational effort to all five stores, mainly during August 1975. By August 28th, when the last three employees signed applications for union membership, seventeen of the twenty-two employees had applied to join Local 1407. Of these twelve were part-time employees and five full-time employees; one of the latter withdrew his application later, but before September 18th. On that date there were nine full-time employees four of whom were members of Local 1407. Of these four one was discharged on August 28th-29th for allegedly unrelated reasons, and one was transferred against his objection.
The evidence sufficed to warrant the conclusion that the September 8th and 9th intervention of Florsheim's general manager and supervisor of stores and the followup September 16th to 18th intervention of the administrative assistant to the general manager could not credibly be considered implementation of a corporate policy delayed in its execution by the resistance of the area manager but was discriminatory conduct that violated Sections 8(a)(1) and (3) of the Act. The conclusion is confirmed in the evidence of the interrogation of the employees about their relation to the union and membership in it, the evidence of the inadequate explanation of the rejection of the one part-time employee who sought full-time employment, and the evidence of the otherwise inexplicably harsh transfer of one of the two full-time employees who had participated in the initial ...