Berbiglia, Inc.

National Labor Relations Board - Board Decisions

Dec 29, 1977

233 N.L.R.B. 1476 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Berbiglia, Inc. and Retail Store Employees' Union,
Local 782, affiliated with Retail Clerks Internation-
al Association. Cases 17-CA-6945 and 17-CA-
7090
December 29, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On May 31, 1977, Administrative Law Judge
Josephine H. Klein issued the attached Decision in
this proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief and Respondent
filed exceptions and a supporting brief.
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 and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge, to modify her remedy so that interest is to be
computed in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977), 3 and to adopt her
recommended Order, as modified herein.
1. The Administrative Law Judge found that
Respondent had mailed a letter to employees in
October 1975 misrepresenting the Union's continued
desire to represent employees. In accordance with
this finding, we find that Respondent has violated
Section 8(a)(l) since October 1975, rather than
December 1975 as found by the Administrative Law
Judge.
2. The Administrative Law Judge found that
Respondent solicited employees to resign from the
Union, abandon the strike, and return to work on
April 16 and 29, but neglected to include these
I These findings and conclusions are based, in part, on credibility
determinations of the Administrative Law Judge, to which Respondent has
excepted, alleging that she was biased and prejudiced. After careful review
of the record, we conclude that the Administrative Law Judge's credibility
findings are not contrary to the clear preponderance of all the relevant
evidence. Accordingly, we find no basis for disturbing those findings, and
we reject the charge of bias and prejudice on the part of the Administrative
Law Judge. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd.
188 F.2d 362 (C.A. 3, 1951).
In par. 9 of sec. II,(D),(2),(a) of the Administrative Law Judge's Decision
a letter sent out by the Union on October 17, 1975, is misquoted. The first
sentence quoted from the letter should be: "The Union does want to
continue to represent the Berbiglia employees ... " rather than stating that
it "does not want to continue . ."
2 Respondent claimed, as one of its affirmative defenses to the alleged
refusal to bargain, that the Union's demand for the inclusion of a union-
security clause in the renewal contract was unlawful, inasmuch as the unit
employees had voted to rescind the prior union-security authorization. The
Administrative Law Judge rejected this defense and Respondent's reliance
233 NLRB No. 193
findings in her conclusions of law. We modify
Conclusion of Law 5 accordingly.
3. Although in making her findings the Adminis-
trative Law Judge specifically noted that, unlike Case
17-CA-6945, the complaint in Case 17-CA-7090 did
not allege the 8(a)(1) conduct also violated Section
8(a)(5), she inadvertently concluded that the 8(a)(l)
conduct in both complaints violated Section 8(a)(5)
as well. We modify Conclusion of Law 6 accordingly.
AMENDED CONCLUSIONS OF LAW
Delete Conclusions of Law 5 and 6 from the
Administrative Law Judge's Decision and substitute
the following:
"5. Since October 1975 Respondent has violated
Section 8(a)(l) of the Act by unlawfully misrepre-
senting the Union's position, promising employees
improved benefits and increased earnings if they
repudiate the Union, instigating, encouraging, and
filing a petition to have the Union decertified,
interrogating employees about their union sympa-
thies and activities, threatening employees with
discharge for engaging in a strike, soliciting employ-
ees to resign from the Union, abandon the strike and
return to work, and threatening pickets with assault
by automobile.
"6. Since Respondent's misrepresentation of the
union letter, its promises of improved benefits and
increased earnings, and its involvement in the decer-
tification petition were designed to undermine the
Union's representative status, in order to avoid
Respondent's obligation to bargain with the Union,
they were violative of Section 8(a)(5) of the Act."
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-
on the proviso to Sec. 9(e) of the Act on the grounds that the language of
this section, identical to that in Sec. 9(c), merely prevents two elections
within a year. While we agree that Respondent's affirmative defense lacks
merit, we base our conclusion on grounds other than those stated by the
Administrative Law Judge. Among the Union's original bargaining de-
mands was included a union-security provision. Inasmuch as the unit
employees had voted to deauthorize the Union in an election pursuant to
Sec. 9(e)(1) of the Act within 12 months of the expiration of the term of the
preexisting contract, it is clear that the proviso language of Sec. 8(aX3) of
the Act would prohibit Respondent from entering into such a union-security
clause effective within the 12-month period succeeding the deauthorization
election. However, we do not find that such a demand by the Union
constitutes an affirmative defense to Respondent's refusal to bargain in
good faith. It suffices to note that Respondent was not bound by this
demand, and it could have either rejected the demand altogether or have
insisted that the union-security provision not be effective within the
proscribed 12-month period.
I See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
1476
BERBIGLIA, INC.
dent, Berbiglia, Inc., Kansas City, Missouri, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
modified herein:
1. Insert the following as paragraph l(e) and
reletter subsequent paragraphs accordingly:
"(e) Soliciting employees to resign from the Union
and to abandon the strike and return to work."
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
WE WILL NOT promise you better earnings,
fringe benefits, or other terms or conditions of
employment for the purpose of encouraging or
persuading you to seek a representation election
conducted by the National Labor Relations
Board or to take any other action whereby the
Retail Store Employees Union, Local 782, affili-
ated with Retail Clerks International Association,
might be decertified or repudiated as your collec-
tive-bargaining representative.
WE WILL NOT initiate, encourage, or assist
action seeking a representation election, conduct-
ed by the National Labor Relations Board,
whereby the above-named Union might be repu-
diated or decertified as your collective-bargaining
representative, in order to avoid our obligation to
recognize and bargain with that Union.
WE WILL NOT question you concerning your
union sympathies and activities or concerning the
union activities and sympathies of any other
employees.
WE WILL NOT solicit any employees to refrain
from participating in or supporting a lawful strike
called by the above-named Union or otherwise to
repudiate the Union, in order to avoid our
obligation to recognize and bargain with the
Union.
WE WILL NOT threaten you with discharge,
bodily injury, or any other detriment because you
participate in a lawful strike or other protected
concerted activity.
WE WILL NOT solicit yOU to resign from the
Union and to abandon the strike and return to
work.
WE WILL NOT engage in the above-mentioned
actions or other actions in an attempt to under-
mine support for the above-named Union as your
collective-bargaining representative.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you with respect to your
exercise of rights which Section 7 of the National
Labor Relations Act guarantees.
WE WILL, upon request, recognize and bargain
with the above-named Union, in good faith and
in a genuine attempt to reach agreement, with
respect to wages, hours, and other terms and
conditions of employment of the employees in the
following bargaining unit:
All full-time and regular part-time sales
clerks, porters, cashiers, and utility men
employed at the retail stores of Berbiglia,
Inc., in the Kansas City, Missouri, area, but
excluding office clerical employees, casual
employees, professional employees, guards
and supervisors as defined in the Act,
and, if an understanding is reached, WE WILL
embody such understanding in a written signed
contract.
WE WILL offer reinstatement to their positions
as head salesmen to Joseph E. Cassidy, Richard
D. Batten, James T. Griffin, Lirio Petigna, John
B. Smith, Joseph Cisetti, M. Turville, Robert S.
Gregg, and Donald E. Ozburn, and WE WILL
make said employees whole, with interest, for any
loss of earnings they suffered as a result of our
failure to reinstate them as head salesmen on July
12, 1976.
Our employees are free to exercise any or all of
these rights, including the right to join or assist Retail
Store Employees' Union, Local 782, affiliated with
Retail Clerks International Association, or any other
union. Our employees are also free to refrain from
any or all such activities, except to the extent that
union membership may be required by a collective-
bargaining agreement as a condition of continued
employment, as permitted by the proviso to Section
8(a)(3) of the Act.
BERBIGLIA, INC.
DECISION
JOSEPHINE H. KLEIN, Administrative Law Judge: Pursu-
ant to a charge filed on January 30, 1976 (amended on
February 23) by Retail Store Employees Union, Local 782,
affiliated with Retail Clerks International Association (the
Union), a complaint was issued against Berbiglia, Inc.
1477
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Respondent), on March 17 (Case 17-CA-6945), alleging
violations of Section 8(a)(l) and (5) of the Act.l On April
20, a settlement agreement was approved by the Regional
Director in that case. However, a second charge was filed
on April 21 and thereafter amended on June 30 (Case 17-
CA-7090). Pursuant to the second charge, on June 30 a
new complaint was issued, again alleging violations of
Section 8(a)(l) and (5). The settlement agreement in the
first case was set aside and both complaints were noticed
for consolidated hearing. At the hearing the complaint in
Case 17-CA-7090 was amended to add an allegation of
violation of Section 8(a)(3).
Pursuant to due notice, a consolidated hearing was held
before me in Kansas City, Kansas, on August 23 through
27 and November 29 through December 3, 1976. All
parties were represented by counsel and afforded full
opportunity to present oral and written evidence and to
examine and cross-examine witnesses. The parties waived
oral argument at the conclusion of the testimony. Briefs
were filed on behalf of the General Counsel, the Charging
Party, and Respondent on January 21, 1977.
Upon the entire record,2 together with careful observa-
tion of the witnesses and consideration of the briefs, I make
the following:
FINDINGS OF FACT
I. PRELIMINARY FINDINGS
Respondent, a Missouri corporation, is engaged in the
retail sale of liquor and related products in a group of retail
stores in the metropolitan area of Kansas City, Missouri. In
the course and conduct of its business, Respondent
annually purchases goods and supplies valued in excess of
$50,000 directly from sources located outside Missouri.
Respondent's annual gross volume of business equals or
exceeds $500,000. Respondent is, and was at all times
material herein, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
The Union is now, and was at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Chronology
For some 47 years Michael Berbiglia has been engaged
in the retail liquor business in the Kansas City, Missouri,
metropolitan area. In 1946 Respondent corporation was
organized, with Berbiglia as president and apparently the
sole beneficial owner and chief officer. Charles W. Saun-
ders, Sr., has been with the Company for around 30 years,
the last 20 years as the vice president and general manager.
The chain consists of approximately 20 stores.
I National Labor Relations Act, as amended. 29 U.S.C., § 151, et seq,
2 As corrected by an order issued simultaneously herewith. That order
grants the Union's unopposed motion to correct the transcript. In addition.
other corrections are made where necessary for clanty. In some instances
the transcript is garbled, but corrections could not be made because it is not
clear precisely what was said. Additionally, since the spelling of names is not
always consistent in the record, one spelling of each name has been adopted
in this Decision.
In 1969 the stock of Respondent corporation was
transferred to Forum Cafeterias, a corporation in which
Berbiglia was the largest, but not a majority, stockholder.
Upon this change of stock ownership, Saunders remained
on with Respondent but representatives of Forum's man-
agement also assumed active roles. Among the Forum
personnel so acting was John N. Hartquist, Jr., who
became a vice president, secretary, and comptroller of
Respondent.
In 1972 the Union filed a petition to represent the stores'
employees.3 On January 8, 1973, after a hearing on the
petition and an election, the Union was certified as the
exclusive representative of Respondent's employees in a
unit defined as: "All full-time and regular part-time sales
clerks, porters, and utility men...." Before certification,
so far as here relevant, the stores had been manned
essentially by clerks and "managers." 4 At the time of the
representation proceeding it was agreed that the "head
clerks" were to be included in the bargaining unit. For
example, the record in that proceeding shows an initial
agreement by counsel for the Union and the Company that
"the term 'All retail sales clerks' ... includes head clerks,
first clerks . . . those people all come within" the term
"sales clerks." There is no dispute that the words "sales-
man" and "clerk" are interchangeable.
A collective-bargaining agreement was executed, effec-
tive from April 6, 1973, through April 1, 1976, covering "all
full-time and regular part-time sales clerks." The agree-
ment set forth wage rates for "Head Salesmen," "Sales-
men," "Stockmen" and "Part-time Students." It further
provided that: "No employee shall suffer a reduction in
pay because of the signing of this agreement nor shall any
employee be reclassified to defeat the purposes of this
agreement." In addition, by a separate understanding,
dated May 9, 1973, red circle rates were listed for 8 head
salesmen, II salesmen, and 2 stockmen. Each red-circle
rate was computed on the basis of the employee's earnings
during 1972. Salesmen's earnings consisted of their wages,
paid on an hourly basis, and commissions allowed on items
specified by Respondent's central management. For the
head salesmen, prior earnings had included their salaries
plus the override commissions they had received, being 10
percent of the salesmen's commissions.
The agreement provided that, subject to defined excep-
tions, all work and services connected with the handling or
selling of merchandise were to be performed by members
of the bargaining unit. The only exception relevant to this
proceeding permitted "Working managers in stores em-
ploying four (4) or more full-time salesmen including the
working manager." Such working managers were not
included in the bargaining unit. The provision is popularly
referred to as the "clerks' work clause."
The collective-bargaining agreement contained a union-
security provision. On March 3, 1975, a deauthorization
petition was filed (Case 17-UD-51). In an election held
:3 Warehouse employees are apparently represented by a Teamsters
union. Office personnel are unrepresented.
4 In the present hearing the parties appeared agreed that before the
collective-bargaining agreement the top ranking person in each store was
generally called a "manager."
1478
BERBIGLIA, INC.
thereon on May 5, 1975, the employees voted to eliminate
the union-security provision. The Regional Director over-
ruled the Union's objections to the conduct of the election
and the Union did not seek review. Accordingly, the results
of the election were certified.
In December 1975, pursuant to a 90-day termination
provision, the Union notified Respondent of its desire to
bargain concerning changes in the contract. John K.
Bestor, Esq., who had recently been retained as counsel for
Respondent, was unable to meet for negotiations at that
time. Harry Hess, then the Union's president and chief
executive officer, did not press a demand for immediate
negotiations.
At the same time Berbiglia was in the process of
negotiating a repurchase of Respondent's stock from
Forum. Apparently as part of the process of spinning
Respondent corporation off from Forum, Hartquist sev-
ered his connection with Respondent around November
1975. Berbiglia remained Respondent's president and
Saunders resumed virtually exclusive overall management.
Berbiglia's acquisition of all the stock was consummated as
of March 31, 1976. He continued as sole stockholder and
chairman of the board of directors, while his 24-year-old
stepson, Jack Bondon, was made president. Saunders
continued as vice president and active general manager.
On January 22, 1976, a decertification petition was filed
and a notice of hearing thereon was issued on February 28
(17-RD-603). On January 30 the Union filed its first
charge (Case 17-CA-6945), alleging violations of Section
8(a)(l) and refusal to bargain in violation of Section
8(a)(5). On several occasions in February and March the
Union requested contract negotiations, but Respondent
declined to meet because of the pendency of the decertifi-
cation petition which Respondent's counsel maintained
presented a possible question concerning representation.
On March 17 a complaint was issued on the Union's
charge and the decertification petition was dismissed.
The first formal contract negotiating session was held on
March 29. Additional bargaining sessions on April 5 and
15 failed to achieve a contract and the Union struck as of
April 16.
On April 20 a settlement of the complaint was approved,
under which Respondent committed itself, inter alia, to
bargain with the Union and not to encourage or assist
employees in seeking decertification. The next day, April
21, the Union filed its charge in Case 17-CA-7090
(amended June 30), again alleging Respondent's interfer-
ence with employees' protected rights, refusal to bargain,
and attempts to undermine the Union as bargaining
representative. On June 30 a complaint was issued in Case
17-CA-7090; the settlement was set aside; and a revised
complaint was issued in Case 17-CA-6945. The two cases
were noticed for consolidated hearing.
The strike ended on July 12 and those strikers who
desired to return to work did so. Upon their return, those
strikers who had been head salesmen became clerks.
Respondent asserts that when the strike began, after
expiration of the contract, "head salesmen" were replaced
by "working managers."
I There was one allegation of unlawful interrogation early in January.
before the first charge. It should properly have been included in the first
complaint and covered by the settlement in that case.
Additional contract negotiating sessions have been held,
under the auspices of the Federal Mediation Service, but
no agreement had been reached on a contract as of the
conclusion of the present hearing. In the negotiations the
Union has been represented by a committee of union
agents and two former head salesmen who were also union
stewards.
B. The Issues
The first complaint alleged that Respondent had violated
Section 8(aXI) and (5) by a letter sent to employees in
October 1975, by encouraging and sponsoring a decertifi-
cation in the first half of January 1976, and by promising
increased benefits and income in the first half of January
1976. The second complaint alleged that in March and
April 19765 Respondent had engaged in numerous acts of
interference and coercion violative of Section 8(a)(I) and
since the end of February 1976 had "maintained the
position that it does not intend to reach a collective-
bargaining agreement with the Union." The complaint also
alleged that the strike beginning on April 16, 1976, was an
unfair labor practice strike. By amendment to the second
complaint made at the hearing, it was alleged that Respon-
dent violated Section 8(a)(3) and (1) by not properly
reinstating the head salesmen at the conclusion of the
strike.
At the hearing, Respondent sought to establish that head
salesmen were supervisors within the statutory definition.
The ramifications of this contention were said to be that:
(a) with head salesmen eliminated from the bargaining
unit, the Union did not represent a majority; (b) the
inclusion of head salesmen rendered the bargaining unit
inappropriate; (c) Respondent may not be directed to
bargain with a union negotiating committee that includes
head salesmen; (d) alleged acts of coercion and interfer-
ence cannot be found violative of the Act insofar as they
were directed to head salesmen; and (e) as supervisors, the
head salesmen had no right to reinstatement.
C. The Supervisory Issue
While the alleged supervisory status of the head salesmen
may not actually be decisive of the critical issues here
presented, the question was fully litigated and the briefs of
all parties discuss it extensively. Accordingly, it will here be
considered.
It is unnecessary to decide whether the "burden of
proof' is on the General Counsel to establish that the head
salesmen were employees or on Respondent to establish
their supervisory status as an affirmative defense. Wherev-
er the burden lay, the parties' entire 4-year course of
conduct-from the representation proceeding, through the
collective-bargaining agreement and the negotiations for a
renewal contract, and the settlement of the first com-
plaint-constitutes a prima facie showing of employee
status. It was thus incumbent on Respondent to adduce
rebutting evidence.
By extensive cross-examination of the General Counsel's
witnesses and direct testimony of its own witnesses,
1479
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
principally General Manager Saunders, Respondent
sought to establish that head salesmen possessed, and to
some extent exercised, various types of supervisory authori-
ty. However, Respondent's evidence and extended argu-
ment contain inherent flaws. First, most of Respondent's
direct evidence consists of conclusionary generalizations,
frequently in answer to leading questions. In virtually no
instances were Respondent's witnesses able to provide any
supportive details. Second, and perhaps more important,
was Respondent's unwarranted assumption that the "head
salesmen" under the contract had the same status, authori-
ty, and functions as they had had as "store managers"
before the advent of the Union.
Respondent's witnesses maintained that the reclassifica-
tions from "manager" to "head clerk" status were merely
terminological, with no changes in duties, authority or
other attributes of status. In examining witnesses and in his
brief, Respondent's counsel operated on that assumption.
But undifferentiated evidence concerning "managers" and
"head salesmen" collectively is of little, if any, probative
value if in fact the two positions were not the same.
Whatever the status of the precontract "managers," the
evidence clearly establishes that significant changes were
made when they became head salesmen under the contract.
Before the contract, George Shortino was "supervisor" of
all the stores, serving largely as Saunders' assistant and
representative. Upon execution of the collective-bargaining
agreement, Richard D. Batten, a utilityman, 6 and Ernest
W. Snyder, a manager, were made "supervisors," joining
Shortino. Each of the three supervisors (Shortino, Batten,
and Snyder) was assigned responsibility over about six or
seven stores. Saunders testified that the number of supervi-
sors was increased to three because he "felt that [he]
needed to try to get a little bit more supervision in the
store[s] to know what was really going on in the stores."
The supervisors' duty was to see that Saunders' directives
were executed. That hierarchical situation lasted until
September 1974, when Snyder and Batten were demoted to
positions as "working managers" in four-man stores. As
permitted under the contract, they remained outside the
bargaining unit.
Head salesmen Lirio Petigna, Robert S. Gregg, John B.
Smith, and Joseph Cisetti testified that as head salesmen
they had less freedom and flexibility in the operation of
their stores than they had previously had as managers.
Clerk Michael A. Sinclair testified that head salesman and
union steward James T. Griffin had to clear more items
with the office than did Manager Snyder.
Head salesmen did not attend regular management
meetings, as they had when they were classified as
managers. Head salesmen were paid on an hourly basis
and received commissions on sales of promotional items
designated by management; managers were salaried and
received override commissions of 10 percent.7 Head sales-
men were docked pay for absences, whereas they had not
lost any salary for absences as managers. As head salesmen
they were strictly limited to working only 40 hours a week,
6 A "utilityman" was apparently something like a troubleshooter,
working at various stores when specific problems or needs arose.
I It appears that upon execution of the collective-bargaining agreement
salesmen's commissions were eliminated, hourly wage rates being computed
where as precontract managers they had frequently worked
longer hours.
In testifying for the General Counsel, Batten gave a clue
to the motivation for the changes in authority and status
when "managers" became "head salesmen." Whenever a
four-man store for some reason ceased to have four full-
time salesmen, it no longer was entitled under the contract
to have a "working manager." At the Union's insistence,
when that occurred the "working manager" had to be
reclassified as a head salesman. However, in general, the
sole effect of such reclassification was that Respondent
made payments on behalf of such person into the pension
and health and welfare funds required by the contract. The
person involved continued to be covered by the Company's
pension and health and welfare plans for nonunit person-
nel; he continued to be paid on a salary basis, without loss
of pay for absence, plus override commissions; and he
continued to attend managers' meetings.
On March 1, 1976, as required by the collective-bargain-
ing agreement, the stores converted from a 6-day to a 5-day
workweek, with the stores continuing to operate 6 days a
week. To accommodate this change, Respondent assigned
clerks from four-man stores to cover clerks' days off in
other stores. As a result, Batten's store ceased to qualify as
a four-man store and he was reclassified as a head
salesman. However, at first there was no change in the
nature of his job and Saunders said he hoped the nominal
reclassification would be for only a short time. Batten
testified that as "manager" he had "all the responsibility of
the manager"-he "just ran the whole boat." But head
salesmen had no such power. In the early part of March,
after his reclassification, Batten retained "managers" au-
thority and attended the regular managers' meetings.
Around the middle of March he began to shift his
sympathies and told David Van Trump, a manager and
admitted supervisor, that he (Batten) was considering
joining the Union. Thereafter his authority and indepen-
dence were gradually decreased. Batten testified that he
retained his former authority as long as he was still
believed to be nonunion.
It is not alleged that any difference between managers
and salesmen or differentiation among persons classified as
head salesmen was violative of the Act. The parties agreed
that, whatever the preunion situation, unit members,
represented by the Union, should not exercise any argu-
ably supervisory functions. However, the fact remains that
the precontract position of manager was not the same as
that of head salesman under the contract. The precontract
position was apparently more akin to that of "working
manager" in four-man stores under the contract.
It further appears that the nominal classification of a
person is not entirely decisive of his position, as seen in the
case of Batten, Ernest Snyder, Howard Layton, and David
Woolmer, who, although nominally reclassified as head
salesmen when their stores lost their eligibility for "working
managers," retained the perquisites of managers. Similarly,
Charles Vaccaro, Berbiglia's brother-in-law, was classified
by reference to total earnings in the preceding year. At some point dunng
the contract term commissions were reinstituted, apparently on a small
scale.
1480
BERBIGLIA, INC.
as a head salesman under the contract, but he appears to
have enjoyed the perquisites of managerial status, as, for
example, attending managers' meetings. Respondent's an-
swer to the complaint in Case 17-CA-7090 admits that
Vaccaro was a "working manager" and supervisor and/or
agent of Respondent.
Because of the difference in the two positions, it is
necessary to consider the evidence concerning head sales-
men as such. Respondent's evidence and arguments con-
cerning "managers and head salesmen" as a single group
are not very helpful.
In its brief, Respondent says: "Both the working manag-
ers and the head salesmen participated in the hiring process
by interviewing and evaluating applicants for permanent
employment before hiring." Saunders testified: "I think all
but just maybe three or four people in the organization I
have hired personally." He also said he was on a first-name
basis with all the employees and remained in close contact
with them throughout their employment. Despite this, he
was able to cite only one instance in which a "head
salesman" might have interviewed a prospective employee.
That instance involved Snyder, who had been a supervisor
and then a store manager while the collective-bargaining
agreement was in effect. In accommodating to initiation of
the 5-day week in March 1976, Synder's title was apparent-
ly changed to "head salesman." Saunders and Snyder
testified that there never had been a change in Snyder's
position as a manager. Thus, even if Snyder did interview
an applicant when he was nominally classified as a head
salesman (which is not clearly established), that fact would
not tend to establish that head salesmen as a class played
any significant role in the hiring process. Saunders also
referred to interviews conducted by Ozburn and Petigna,
but it was then established that they were both managers
rather than head salesmen at the time of the interviews.
Batten testified that as manager he had interviewed
numerous applicants but none had been referred to him for
interview when he was a head salesman. Griffin also
testified that as manager he had evaluated prospective
part-time employees but "it has not been done since we
have been under a union contract at all." Head salesmen
Gregg, Smith and Cisetti also testified that as head
salesmen they had never interviewed any applicants.
Respondent also contends that "head salesmen and
working managers" had and exercised authority to hire
part-time employees. The only support for this view, other
than a conclusionary statement by Saunders, is that head
salesman Gregg hired one part-time cashier. This he did on
the specific instruction of Berbiglia, who, on visiting the
store, apparently found it inadequately staffed.
Similarly, the record fails to establish that head salesmen
exercised any substantial discretion in laying off or reduc-
ing the hours of part-time employees. It appears that in
some stores part-time work was normally reduced in the
slow period following the year-end holiday rush. However,
Gregg testified that such reductions were made on direct
instructions by Supervisor Shortino. Griffin testified that
s Saunders testified that head clerk Ozburn had issued a written
disciplinary report in January 1976. However, no credence can be given this
testimony in view of Saunder's inability to recall the employee involved and
his failure to produce the report.
Saunders authorized part-time help and set their hours.
There was little scope for independent judgment because
part-time help basically is needed only on weekends.
Cisetti testified that at one time he called the office about
having a part-time employee report earlier than he was
then reporting, but Cisetti's request was denied because the
part-time clerk assigned to him had another full-time job.
Respondent contends that "working managers and head
salesmen" had the supervisory authority to discipline
employees. However, the record totally fails to substantiate
Saunder's conclusionary testimony to that effect. For
example, in its brief Respondent says: "two of the
Respondent's relatively few written reports, both against
Employee John Kremer, were signed not only by Supervi-
sor George Shortino, but also by the then head salesman of
Store No. 81, W. Murphy." The two disciplinary reports
cited by Respondent appear to be duplicative, bearing the
same date and recording the same complaints. Both are
signed by Shortino as "Supervisor." One of them also bears
Murphy's signature on the line provided for the employee's
signature. It is thus clear that Murphy played no superviso-
ry role in that discipline. One disciplinary report in the
record was made by Batten, when he was a supervisor,
against head salesman Petigna, who signed as "employee."
Another report was made out by Supervisor (or manager)
Snyder against head salesman Whitney. Respondent pro-
duced no disciplinary reports executed by head salesmen.
Saunders testified that he had picked at random the ones
introduced into evidence, merely to show the form of
report used. Since Respondent was attempting to demon-
strate that head salesmen had supervisory duties, one
would assume that Saunders would have produced disci-
plinary reports made out by them, if there were any such.8
It is significant that the printed form clearly calls for
execution by a "Supervisor," which was Respondent's
designation of the echelon above head clerk and manager.
Head Salesman Gregg testified he had never seen a
disciplinary report form and never knew he had authority
to write any. One report, written and signed by Supervisor
Snyder, records that a clerk was laid off for 3 months for
reporting to work late and drunk. Although "Store Mgr." 9
Harry Jonscher certified the accuracy of the facts recited in
Snyder's report, it is clear that the discipline was directed
and handled by Snyder, as supervisor.
Snyder testified that at one time a store manager believed
a clerk was stealing from the Company. Disciplinary action
was then taken by Supervisor Snyder and Saunders, at the
office, apparently without any consultation with or partici-
pation by the head clerk or store manager.
Head Salesman John B. Smith once orally reprimanded
the clerk in his store for being an hour late in opening the
store. Smith then told the clerk that he could make up the
hour at a later time, when inventory was to be taken.
According to Smith's undisputed testimony, when Saun-
ders learned of the incident he required Smith to sign a
disciplinary report to the effect that he would be fired if he
ever took such liberty again.
9 At the time, Jonscher was classified as a head salesman, but he signed
the certification as "Store Mgr." According to Saunders, Jonscher proved
unsatisfactory as a "manager" and was demoted to clerk's status.
1481
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On occasion head salesmen may have "orally reprimand-
ed" other clerks in their stores. However, the evidence
clearly shows that such conduct was dictated by the natural
desire of fellow employees to avoid collective criticism or
discipline. For example, once clerk Kremer, without
specific authority, gave a part-time clerk 4 hours extra
work. Upon learning of this, Saunders complained to head
salesman Gregg, who thereupon told Kremer not to take
such action again because, if he did, "both of [them ] would
be in hot water."
There was some evidence that on occasion head sales-
men reported to the office on improper conduct or poor
performance by clerks. Such activity tends to underscore
the absence of any real supervisory authority in the head
clerks; they did not deal with the problems themselves but
referred them to the office. Head salesmen Smith and
Cisetti testified that either a head salesman or his clerk
would report to the office if he felt the other one was not
doing his fair share of the work or was not performing
adequately.
Nor is there any evidence, apart from conclusionary
testimony by Saunders, to support Respondent's conten-
tion that "Head salesmen had the authority to approve
short periods of time off." There apparently was some
variation in the practice concerning reporting anticipated
tardiness or absences. In some instances the employee
telephoned the store, in some he called the office, and in
some he notified both. The office provided any needed
replacement. The head clerk had no authority to work
overtime to cover another employee's absence. Head
salesman Smith testified that if his clerk telephoned that
she would be late, all Smith could do was "tell her to dock
her time." There is no evidence that head clerks could
"excuse" any absence, or, on the other hand, take any
disciplinary action for unexcused absence.
Respondent contends that supervisory status is demon-
strated by the fact that "head salesmen and working
managers also had the responsibility for evaluating the
work of employees under them." The record does establish
that in 1974, during the first year of the collective-bargain-
ing agreement, at least some head salesmen filed evaluation
forms concerning the clerks in their stores. However, the
requirement was thereafter abandoned because, in Saun-
ders' words, "no one wanted to fill out a report against
someone else." Thus, Respondent acceded to the head
salesmen's disinclination to perform a possibly supervisory
function?.
Respondent argues that "Head salesmen and working
managers also had the authority to recommend transfers of
employees." It was Saunders' position that no interstore
transfers of employees were made without the approval of
the head salesmen in both the transferor and transferee
stores. However, there is no evidence that any transfer was
ever made at the request or on the recommendation of a
head salesman. According to Saunders, clerk John Kremer
frequently requested a transfer and head clerk Gregg
testified that he sought to have Kremer transferred out of
10 Batten testified that Saunders continued to ask him about the
employees in his store after he was reclassified as a head salesman in March
1976. But Batten was not being consulted as an evaluating supervisor. He
testified: "even as a head salesman, [Saunders] still figured me to be
his store. Saunders testified that he "couldn't get any
manager or head clerk to take [Kremer]." However, the
only specific refusal cited was by Webster, who at the time
was a manager in a four-man store. Kremer was not
actually transferred until some time after the expiration of
the union contract, when there were no head salesmen.
Head salesman Cisetti testified that he once requested that
either he or the clerk in his store be transferred because the
two men could not work well together. Cisetti's request was
denied. Both Gregg's and Cisetti's requests apparently
stemmed from personality problems unrelated to any
supervisor-employee relationship. In any event, both re-
quests were rejected. It thus cannot be said that they tend
to establish head salesmen's authority to effectively recom-
mend transfers.
Respondent contends that head salesmen performed the
"supervisory" function of scheduling the work of other
employees in their stores. However, the operating hours of
each store were determined by the office and the office also
directed that employees, including head clerks, were to
alternate between day and night shifts on a weekly basis.
Thus, at least as to full-time employees, there was virtually
no need or occasion for "scheduling." The number of hours
to be worked by part-time employees, if any, was generally
established by the office. Even in those instances in which
the office did not specify the precise times the part-time
employees were to work, their scheduling required the
exercise of little, if any, judgment. Part-time help obviously
was used during peak hours, which are readily known by
any experienced person. Respondent cites certain testimo-
ny by Batten apparently to establish that head salesmen
had authority to schedule employees. However, Batten's
testimony negates such authority. On cross-examination he
testified:
Q. ... [A]s a manager it was your responsibility to
schedule the men as to what hours they were to work
within the opening time and closing time, isn't that
correct?
A. Yes, sir.
Q. As a head salesman didn't you do the same
thing?
A. No.
Q. Who told you to change?
A. Chuck Saunders, Sir.
Batten proceeded to explain that after the 5-day workweek
was instituted Saunders continually took employees out of
Batten's store to work in other stores even though Batten
said that he could not spare them.
Although Saunders testified that "head clerks and man-
agers" have authority to order overtime work if he is not
available, and have done so, he provided no specific
examples. He acknowledged that Respondent frowns on
overtime. All the head salesmen questioned on the subject
denied that they had ever ordered overtime. On the
contrary, Gregg testified that as a head salesman he had
been rigidly restricted to 40 hours per week, although
nonunion, he was still asking about them. He wanted to see if they were
coming over to our side. He asked if they were good or bad and I would tell
him good."
1482
BERBIGLIA, INC.
previously, as a manager, he had frequently worked up to
50 or 60 hours a week. Cisetti testified that while he was
head salesman he requested permission to work extra hours
to handle the heavy business on Christmas Eve but his
request was denied.
Respondent also argues that an additional indicium of
the head salesmen's supervisory status was a requirement
that they initial or certify timesheets and commission
records for the clerks working in their stores. There is some
conflict as to the extent to which this alleged requirement
existed. The evidence as a whole shows that the general
practice was that each clerk and head salesman recorded
his own time and commissions and the head salesman then
performed the routine operation of adding the amounts to
check for glaring errors before the figures were transmitted
to the office either telephonically or in writing. It appears
that this ministerial act was frequently done by the clerk
rather than the head salesman. As the head salesmen
testified, there was no way they could attest the accuracy of
the timesheets of personnel working on other shifts. Batten
testified that as store manager he had been required to spot
check the accuracy of the timesheets of clerks in the store.
"The purpose of going over and checking it is because they
did not trust the men, especially since they were union."
After he was demoted to head salesman, Batten continued
to make the routine checks of timesheets for glaring
arithmetic and similar errors, but he was never asked to
make a spot check of the truthfulness of the reports.'I
Respondent also states that "head salesmen were respon-
sible for training new employees." This contention is
contradicted by Saunders' own testimony that "two-man
operations were always filled from a four-man store
because you can't put a brand new man in a two-man
operation. All your training for two-man stores must come
from large stores." Under the contract, four-man stores all
had working managers. The evidence as a whole clearly
establishes that head salesmen "trained" new employees
only to the extent that experienced, senior employees
normally guide and educate neophytes.
Whatever may have been the situation with respect to the
preunion managers, the head clerks under the union
contract were closely supervised by Saunders and the
supervisors. Cisetti testified that, as supervisor, Batten
visited Cisetti's store virtually every day-he "took the
power, he was the boss." Saunders testified that after
Hartquist's departure around November 1975, Saunders
visited "every store a minimum of every other week. There
are some stores I will see two or three times a week, it is
according to what I feel the store needs. I am in personal
contact with every store every day [by ] telephone."
Respondent contends that the "head salesman directed
the men at the store and told them what to do." However,
since the work was largely repetitive and routine, virtually
no direction was necessary for experienced employees. The
work of inexperienced and part-time help was directed by
either the head salesman or a clerk, depending on which of
them was on duty. The general pattern of operation is
reflected in head salesman Smith's testimony that on
occasion he would give his clerk instructions as to routine
II Such factual checking would require overtime work, which was not
permitted.
matters and would "relay an order from the office." As to
matters such as special displays, "basically the office runs
the show. They were the ones that really gave the orders on
it and [Smith carried them out." Smith had little occasion
to give directions to the clerk because "the work was
basically routine."
The evidence as a whole leaves no doubt that head
salesmen as a class did not have or exercise any significant
authority with respect to personnel matters. At most they
gave routine instructions, with no area for the exercise of
independent judgment or discretion.
Although Respondent does not expressly so state, it
apparently contends that the head salesmen (and manag-
ers) were managerial employees. Respondent emphasizes
the fact that the head salesmen were responsible for
maintaining the inventory in their stores. The credible
testimony of General Counsel's witnesses establishes that
the maintenance of inventory is largely a routine matter,
with the merchandise to be obtained determined by
examination of the existing stock, the sales, and periodic
inventories. Variations are largely seasonal and can be
readily determined by any experienced salesman. Beer and
miscellaneous nonalcoholic items are purchased directly
from the suppliers by either a head salesman or a clerk,
depending on who is working the day shift. Hard liquor
and wines are ordered from Respondent's warehouse and
all orders are subject to review and revision by the office. It
appears that clerks participate with the head salesmen in
making out orders. Batten testified that after the managers
became head salesmen they no longer had their earlier
freedom to order special items for individual customers.
There is no evidence that the head salesmen had any
control over or influence on pricing or the brands to be
offered for sale. And Cisetti credibly testified that after he
became a head salesman he had little if any control over
the manner of displaying merchandise, which was dictated
from the office. So far as appears, the head salesmen had
no control over advertising. While it may be that before the
advent of the Union, managers had had some input in such
matters at managers' meetings, head salesmen as a class
did not attend managers' meetings.
In cross-examining the General Counsel's witnesses,
Respondent's counsel unsuccessfully sought to establish
that head clerks contract for services such as repairs, trash
removal, and window washing. The evidence establishes
that Respondent maintained a list of companies to be
called if repairs were needed and any repair involving
substantial expense had to be specifically approved by the
office in advance. Additionally, none of the head salesmen
questioned on the matter had personally made any ar-
rangements for trash collection. One of the head salesmen
referred to the office a man seeking the work, but the office
rejected the bid. None of the head salesmen questioned had
contracted for window washing services. Indeed, the
evidence indicates that in most stores the head salesmen
and clerks washed the windows themselves.
Relying on conclusory testimony by Saunders, Respon-
dent says: "The head salesmen and working managers are
expected to operate their stores within the budget figures
1483
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
set by the front office, but the allocation of expenditures
between such items as labor and merchandise is deter-
mined by the head salesman or working manager." How-
ever, this generalized conclusion is belied by the specific
evidence establishing that head salesmen could not per-
form or direct overtime, and could not and did not hire,
discharge, or lay off any employees on their own initiative.
And, despite Respondent's contention to the contrary, it
appears that head salesmen had no significant indepen-
dence in determining seasonal reductions in hours worked
by part-time employees.
The record as a whole requires the inference that, with
the advent of the Union, Respondent was anxious to assure
that no union sympathizer was in any supervisory or
managerial position. This goal was achieved by the defini-
tion of the bargaining unit and the terms of the collective-
bargaining agreement, which provided for nonsupervisory
head salesmen in most stores, with "working managers"
only in the larger ones.12 Respondent confirmed this fact
during negotiations for a renewal contract, when it persis-
tently denied the absence of supervisory control under the
expired contract and sought restoration of such control by
elimination of the clerks' work clause.
The parties have all thoroughly briefed the supervisory
issue, with copious citation of authorities. Because the
evidence as a whole so overwhelmingly establishes that the
head salesmen as a class did not have or exercise any
substantial supervisory authority, it would unnecessarily
extend the present decision to include any extensive
discussion of case authority. The relevant overall guiding
principle was recently summed up by Judge Aldrich of the
Court of Appeals for the First Circuit as follows (Stop &
Shop Companies, Inc. v. N.L.R.B., 548 F.2d 17, 19 (C.A. 1,
1977):
The mere fact that an employee may give some
instructions to others . . . or that he may command
their respect . . . does not indicate that he must
identify with the interests of the employer rather than
the employees. .... It is precisely for this reason that
the question of the effectiveness of the alleged supervi-
sor's authority must normally be a question of fact. To
put the issue in homely terms, do the other employees
feel, assuming the alleged supervisor is one who
reasonably respects his duties, "Here comes that so-
and-so, get to work," or is he, basically, but one of the
gang who merely gives routine instructions?
A recent decision of the Board (Eastern Boiler and
Electronics, Inc., 228 NLRB 568 (1977)) involves many of
the precise considerations relevant to the present superviso-
ry issue. In holding that an employee was not a supervisor,
the Board noted that: (I) The allegedly subordinate
employees "generally know what their specific jobs are
without needing to be told." The alleged supervisor relays
instructions from higher authority and directs employees
"based on work assignments which have been previously
determined by" higher authority: (2) In making assign-
ments on his own initiative, the alleged supervisor's
12 With the exception of Vaccaro, those persons classified as head
salesmen from the beginning of the contract appear to have been prounion.
"responsibilities to assign and direct amount to nothing
more than routine direction." (3) In two instances in which
he purportedly disciplined employees, the ultimate effec-
tive decisions were made by higher authority and the
alleged supervisor merely verified the facts on which the
discipline was based. (4) Although he approved corrections
of timesheets, in his absence the next senior employee
performed that function. (5) His approval of employees'
taking time off for illness or personal matters "was merely
pro forma and did not entail the exercise of independent
judgment." (6) The fact that, unlike other employees, he
did not punch a timeclock was "attributable to [his]
position as a trusted employee with over 15 years of
service." (7) His responsibility for maintaining order
among the employees "is not demonstrative of supervisory
authority" in "the absence of evidence that [his] exhorta-
tions [of employees] have led to any instances of disciplin-
ary action." See also, e.g., Raytee Company, 228 NLRB 646,
647 (1977). The head salesmen, members of the bargaining
unit, obviously were not "substantially involved in [their]
employer's labor policies" and thus were not "aligned"
with management. And they were not engaged in "formu-
lating, determining and effectuating [their] employer's
policies" and did not have "discretion, independent of
[their] employer's established policy in the performance of
[their] duties." Illinois State Journal-Register, Inc. v.
N.L.R.B., 412 F.2d 37, 41 (C.A. 7, 1969). Accordingly, they
were not managerial employees excluded from the protec-
tion of the Act. See Iowa Southern Utilities Co., 207 NLRB
341, 345-346 (1973), and authorities there cited.
D. The Specific Unfair Labor Practices
1. Credibility
In considering the evidence concerning individual al-
leged unfair labor practices, numerous specific credibility
resolutions will be made. However, since most of the
allegations concern statements made to employees by
Saunders, Berbiglia, and Snyder, it is deemed advisable to
appraise the credibility of these persons on an overall basis.
Saunders, Respondent's major witness, was unreliable.
His unreliability is perhaps best reflected in the evidence
concerning the classification history of head salesmen.
Over the General Counsel's objection, a written summary
was admitted on Saunders' representation that he had
prepared it from a personal review of Respondent's
records. Subsequent examination revealed numerous errors
in the document. The next day Saunders presented a
corrected and somewhat amplified version of the exhibit.
He said that the night before he had worked long hours
preparing the corrected summary from records, which he
had taken home. When the revised exhibit was introduced
Saunders specifically testified to the fact that it showed
Howard (Bud) Layton and David Woolmer to have been
classified as store managers until March 1, 1976. Respon-
dent's evidence had disclosed that Layton and Woolmer
had circulated a decertification petition around December
1975 and January 1976. Thus, when Respondent rested,
after the "corrected" classification history was received, the
Though called a head salesman, Vaccaro in fact enjoyed the status of a
manager.
1484
BERBIGLIA, INC.
General Counsel was allowed to amend the complaint by
adding allegations that Layton was a supervisor and that
Respondent violated the Act by his circulation of the
decertification petition. The next day Saunders took the
stand for the third time and testified that actually Woolmer
and Layton had been reclassified from manager to head
salesman status around October 15, 1975. In explaining his
previous "error," Saunders said that he inserted the March
1, 1976, date based on his faulty memory. He testified that
after the complaint was amended he examined the Compa-
ny's records of payments to the contractual pension and
health and welfare funds, which disclosed that Woolmer
and Layton had been placed under them on October 15,
1975. Saunders thus originally represented inaccurately
that the exhibit had been compiled from records and then
revealed that his memory was faulty. The three versions of
the classification summary and Saunders' testimony con-
cerning their preparation, together with the conclusionary
nature of most of his testimony on crucial issues, as well as
his demeanor, created the inescapable impression that he
was more interested in supporting Respondent's positions
than in carefully illuminating the facts.
As set forth below, in at least one instance Berbiglia's
testimony was essentially inconsistent with his pretrial
affidavit. In another respect his testimony was inconsistent
with that of other witnesses for Respondent. While dis-
claiming any concern about "details," he purported to
recall the precise words used on some specific occasions.
His testimony concerning his role in the handling of
grievances was confused. Both Saunders and Jack Bondon,
Respondent's president and Berbiglia's stepson, were quot-
ed as having indicated that Berbiglia was prone to making
statements without full consideration. That was the impres-
sion he gave while testifying, when he frequently gave
unresponsive answers to questions.' 3
Manager Snyder almost singlemindedly directed his
testimony to supporting his professed view that there was
no substantive difference between head salesmen and
managers and that both positions were supervisory. He
propounded this view even when it was not responsive to
the questions put to him.
On the basis of their demeanor, as well as the substance
of their testimony, I find Saunders, Berbiglia, and Snyder
to be unreliable.
On the other hand, the employee witnesses for the
General Counsel impressed me as conscientious and
forthright. They appeared to state facts to the best of their
ability with no attempt to exaggerate or equivocate. Their
memories were reasonably good and they did not try to
manufacture what they could not recall. Despite searching
and extended cross-examination, Respondent's counsel
was unable to adduce any significant discrepancies or
inconsistencies in their testimony. In its brief Respondent
notes that two of the General Counsel's witnesses had been
discharged by Respondent under unpleasant circum-
stances. But nothing in their testimony suggests that their
discharges led them to falsify or fabricate. Although one of
them, John B. Smith, had executed a pretrial affidavit
before his discharge, no inconsistency between the affidavit
13 That Berbiglia was less than a fully persuasive witness is suggested by
the fact that on redirect examination Respondent's counsel established that
and his testimony was shown. Of the 19 employee witnesses
presented the General Counsel, 15 are still in Respondent's
employ, which lends some support to their credibility.
Georgia Rug Mill, 131 NLRB 1304, 1305, fn. 2 (1961).
Additionally, because the witnesses had been sequestered,
on Respondent's motion, none of the General Counsel's
witnesses heard prior testimony. The same was not entirely
true as to Respondent's witnesses, since Respondent's
counsel from time to time changed the person who served
as the adviser exempted from the sequestration order.
For the foregoing reasons, I have credited the testimony
of the General Counsel's employee witnesses whenever it is
inconsistent with that of Respondent's witnesses.
2. Section 8(a)(1) and (5)
a. The facts
As stated above, two complaints have been issued
against Respondent. The first was settled. However, when
the second complaint was issued, the settlement agreement
was set aside and the first complaint was reissued.
Although violations can be found on the first complaint
only if the settlement agreement was properly set aside,
evidence of events preceding the first complaint, even
events antedating the 10(b) cutoff date, is admissible and
relevant as background evidence casting light on subse-
quent conduct alleged as violative of the Act. Sieves Sash &
Door Company, 164 NLRB 468, 476 (1967), enfd. in
pertinent part 401 F.2d 676, 678 (C.A. 5, 1968); Local 613
of the International Brotherhood of Electrical Workers,
AFL-CIO (M.H.E. Contracting, Inc.), 227 NLRB 1954
(1977); D. W. Hearn Machine Works, 185 NLRB 736, 737
(1970). Accordingly, the facts will here be considered in
essentially chronological order.
The 3-year collective-bargaining agreement, executed in
April 1973, contained union-security and checkoff provi-
sions. Timothy Barton, who was employed by Respondent
from July 1970 until the beginning of the strike in April
1976, testified that in February 1975, when he was a head
clerk, he was asked by Hartquist, then Respondent's vice
president and treasurer, to circulate a deauthorization
petition among the employees. Barton agreed upon being
assured of compensation in the form of payment for an
article to be written for a wine journal. Hartquist said he
would pave the way for Barton by informing some of the
employees that Barton would be around to see them.
Clerk Norma F. Calton testified that in March 1975, at
Hartquist's request, she signed a deauthorization petition,
which he handed to her. Thereafter, around the end of
March 1975, when she successfully sought to borrow
money from Respondent, Hartquist reminded her of the
upcoming election and said that Respondent "would
appreciate [her] help on it."
In thereafter soliciting signatures, Barton falsely told
employees that he was acting on his own motion. He did so
upon instructions of Hartquist, who said that he, as an
officer of Respondent, "was not supposed to have anything
to do with it" and nobody should know that he was
involved. Barton testified that Hartquist provided an
Berbiglia is 72 years old, a fact without apparent relevance except as an
attempt to explain away testimonial inadequacy.
1485
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
annotated list of employees, indicating which should be
approached first. According to Barton, Hartquist thereafter
checked as to the progress of the solicitation, urged speed,
and asked Barton the identity of the individuals who had
or had not signed. Barton eventually filed the petition. He
later received around $60 in payment for an article in a
wine magazine.
Clerks Robert Stauffer and John LaBuda both testified
that during April 1975 Hartquist requested their votes for
deauthorization. LaBuda also testified that in April 1975 he
was asked by Saunders if Respondent "could count on"
LaBuda's vote in the deauthorization election. Larry P.
Witcliffe, who was employed by Respondent from March
1971 until June 1976, testified that on May 5, 1975, the day
before the deauthorization election (and 4 days after
Witcliffe had been promoted from clerk to head clerk),
Hartquist said to him: "Go down and vote it out."
Hartquist also said that deauthorization was "the initial
step of two steps, to get rid of the union."
The petition was successful and the union-security clause
was eliminated from the contract. The Union's objections
to the election were overruled. The objections, however,
did not allege Respondent's sponsorship of the petition. At
the hearing in the present case union counsel stated that
the facts set forth above were not known at that time.
Barton testified that he had not been interviewed by
representatives of either the Board or the Union in
connection with the Union's objections to the deauthoriza-
tion election and that he first revealed the facts when he
gave an affidavit to the General Counsel in connection
with the present case. This testimony is reasonable and
credible because when Barton circulated the petition he
favored the Company's position.
Late in the summer of 1975 Witcliffe asked Hartquist
about the second step in the process. Hartquist replied
"that there was a waiting period between the deauthoriza-
tion and filing a petition with the government for the final
step of removing the union."
Most significant in determining credibility of the evi-
dence concerning the deauthorization petition is Hart-
quist's unexplained failure to testify, despite a 3-month
adjournment of the hearing after the General Counsel's
evidence was presented.14 Although Hartquist is no longer
associated with Respondent, he apparently is still associ-
ated with Forum, in which Michael Berbiglia is financially
interested. The employee testimony concerning Hartquist's
initiation and active sponsorship of the deauthorization
petition stands uncontradicted.
On October 17, 1975, the Union sent out direct bills for
union dues.' 5 The covering letters said, inter alia:
The Union does not want to continue to represent the
Berbiglia employees and negotiate a successor agree-
ment when the current agreement expires on April I,
1976.... With your continued membership by the
14 At the hearing I initially ruled that evidence concerning Respondent's
involvement in the deauthorization petition was inadmissible because of the
Regional Director's overruling of the Union's objections to the election.
However. I soon reversed that ruling. It is established that a determination
of objections to a representation election is not binding in subsequent unfair
labor practice proceedings. Viking of Minneapolis, Division of the Teley
Corporation, 171 NLRB 1155, fn. I (1968). A fortiori the decision on a
payment of your monthly dues, the Union can better
fulfill its obligation to you.
Thereafter, later in October 1975, Michael Berbiglia sent to
all employees a letter purporting to answer "a number of
questions about paying dues to the union and whether the
failure to pay dues will jeopardize your job or affect your
fringe benefits in any way." He there speculated that
employee questions might have been generated by the
Union's letter. Berbiglia's letter concluded:
In the letter of October 17 to certain of the Berbiglia
employees, the union states that it does not want to
continue to represent the Berbiglia employees and that
it does not want to negotiate a successor agreement
when the current agreement expires next April. If this is
true, then why is the union so anxious for you to pay
dues?
Union President Harry Hess testified that on October 27,
1975, after learning of Berbiglia's letter, he and union
secretary-treasurer Jack Wood met with Hartquist and
Saunders to request that Respondent send to each employ-
ee a retraction of its letter. According to Hess, Hartquist
said that he was without authority to issue a retraction but
he would talk about it to Berbiglia, from whom any
retraction would have to emanate. Two or three times
thereafter Hess asked Hartquist about the requested retrac-
tion but Hartquist replied that,he and "Mr. Berbilgia did
not see any necessity in sending out a retraction." None
was ever forthcoming. The Union's and Respondent's
letters, duly authenticated, are in evidence. As previously
noted, Hartquist did not testify. Saunders and Berbiglia did
testify but neither was examined concerning Respondent's
letter and refusal to issue a retraction. Respondent does not
refer to the matter in its brief.
Donald E. Ozburn, a head clerk and union steward,
testified concerning a conversation he had with Berbiglia
on or about November 4 or 5, 1975. Berbiglia started the
conversation by criticizing Ozburn for having participated
in a grievance concerning the discharge of an employee
whom Berbiglia considered undesirable. Berbiglia com-
plained of the numerous grievances filed by the Union,
which he maintained cost Respondent considerable money.
According to Ozburn, toward the end of the conversation
Berbiglia said: "One of these days, I will get rid of the god
damned union and get this company turned around and
back down to business again." When Ozburn said he did
not think so, Berbiglia replied that, based on the deauthori-
zation election, he was sure "that the majority of the people
did not want the Union."
LaBuda testified that in December 1975 he was asked by
employee D. Spencer to sign a decertification petition.
LaBuda refused. A few hours later store manager David
Trump, an admitted supervisor and agent of Respondent,
told LaBuda that he (Van Trump) had just spoken to
deauthorization petition would not be controlling in a later unrelated unfair
labor practice proceeding.
5S Harry Hess, president and chief executive officer of the Union,
testified that the letter was sent to "each" employee. However, since it
covered a bill for union dues, it appears likely that it was not sent to
nonmembers or to employees then on dues checkoff Respondent referred to
the Union's letter as having been sent "to certain of our employees."
1486
BERBIGLIA. INC.
Saunders, who asked "what was wrong with LaBuda, how
come he did not sign the petition." LaBuda expressed
consternation that his refusal to sign the petition had
become known to Saunders so quickly. Later in December
LaBuda was again approached by Van Trump, who said
that he had been asked by Berbiglia "to talk to each one of
[the employees] to get the boys to rally behind the
company." Since Van Trump did not testify, LaBuda's
testimony stands uncontradicted.
Clerk Patrick Straley testified that on December 24,
1975, Berbiglia said that he wanted to get the stores back
from Forum. Berbiglia also said, "You can stake your life
on it, there will not be a union next year" and added that
the employees "would make more money without a union."
LaBuda testified that early in January 1976 Saunders
asked if he "could count on [LaBuda's] vote in the
upcoming election." LaBuda answered in the affirmative.
According to LaBuda, Saunders then said that "once we
get rid of the union, they are going to raise the commissions
to where we will really be making some money."
Clerk Robert Stauffer testified that on January 7, 1976,
Manager Ernest W. Snyder reported that at a managers'
meeting Berbiglia had said "that if we got rid of the union
. . .we would be making more money than we were at the
time." Snyder testified that he told clerks Stauffer and
Sinclair that increases in commissions on some house-
brand items had been announced at the managers' meet-
ing. Snyder testified that he expressed his "personal"
opinion strongly in favor of the preunion pay setup, which
emphasized commissions. He testified further that he
stated his own view that if the Union was voted out the
Company could return to the commission system and
everybody would benefit. In his opinion, elimination of
commissions in favor of straight wages under the contract
had "made clerks out of good salesmen," i.e., the salesmen
were no longer aggressively promoting merchandise. He
also emphasized that he personally had earned considera-
bly more in the past than he was making under the existing
pay system.
Stauffer also testified that about a week later Saunders
informed Stauffer that a decertification petition was being
circulated and Saunders would like Stauffer to sign it.
Stauffer conceded that Saunders probably did not use the
word "decertification," but what he did say "just boils
down to getting rid of the union" and they "would all be
one happy family after the union." According to Stauffer,
Saunders also said that they would all be better off and,
specifically, that they would have "a better insurance
policy than what [they] had with the union." Saunders
offered to show Stauffer the company-proposed insurance
policy but Stauffer declined the offer.
In a similar vein, clerk Joseph L. Walsh testified that
around January 12, 1976, Saunders talked to him privately
"about the union contracts and why the company could
not afford to have another union contract.... And he
went on to say that without the union contract, we would
have no loss of pay, a better pension plan, better insurance
plan, and better commissions." Walsh had already heard
about the decertification petition and Saunders told him to
get in touch with D. Spencer or Woolmer if he wanted to
sign it. At that time, according to Saunders. Woolmer was
a head salesman, having been reclassified from manager's
status on October 15, 1975. However, like Layton, Snyder,
and Webster, Woolmer remained a manager in fact despite
the Company's payments on his behalf to the contractual
pension and health and welfare trust funds. In answer to
leading questions on cross-examination, Walsh conceded
that he knew that the "better commissions and a better
pension plan" that Saunders spoke about were "proposed
to the union" in negotiations. However, the conversation
between Walsh and Saunders took place almost 3 months
before the first contract negotiating session. Thus Walsh's
"admission" must have referred to a time after his
conversation with Saunders.
Clerk Larry Richardson testified that early in January
Berbiglia told him and clerk Straley that Berbiglia "was
attempting to buy the Berbiglia chain back from Forum
. . .and once they did this and got rid of the union [they]
would all be one happy family again." According to
Richardson, Saunders followed up about a week later,
asking if Richardson had any questions concerning Berbig-
lia's intentions. Saunders added that under Berbiglia's
proposition, if the Union was decertified commissions
would be increased while hourly wage rates would not be
decreased and the "retirement program with Berbiglia
would certainly be far superior to that offered by the union,
and . . . the Health and Welfare would eventually be at
least on par with what the Union had to offer and perhaps
better." After assuring Richardson that union supporters
would not be discharged, Saunders told Richardson that if
he wanted to sign a decertification petition "the manager of
the store, Charlie Vaccaro" could direct him to the persons
who were circulating it. On cross-examination of Richard-
son, Respondent's counsel unsuccessfully attempted to
establish that Saunders was talking to Richardson about
proposals that Respondent had made to the Union. As in
the case of Walsh, Richardson's conversation with Saun-
ders predated the beginning of negotiations.
Richardson further testified that on several occasions in
December 1975 and early January 1976, Vaccaro had said
that "commissions were going up provided we were absent
one union" and Respondent "couldn't very well pay
increased salaries according to a labor contract and then
pay increased commissions also." Vaccaro also said that
"Berbiglia had better Health and Welfare, commissions
were going up, et cetera."
Clerk David York testified that in mid-January 1976
Berbiglia visited his store and asked York how Layton was
doing on getting a petition signed. York said he did not
know. When Layton arrived shortly thereafter Berbiglia
asked him. Layton said he was doing well but had a few
more stores to visit to get signatures. Berbiglia told Layton
to get as many signatures as possible. York testified that he
had already signed the petition at Layton's request and
representation that if the employees signed it they "were
supposed to get higher commissions and medical insurance
to cover the employees."
Layton did not testify. Berbiglia testified that he first
learned of the decertification petition when he asked York
where Layton was and York said Layton was out circulat-
ing a petition "to get rid of the goddamn union." Upon
Layton's return to the store, Berbiglia asked about the
1487
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petition and Layton replied that he and Woolmer were
circulating it. Berbiglia denied that he asked Layton how
many employees had signed the petition and that he had
ever told any employees they would receive higher commis-
sions and medical insurance if they signed it.
The decertification petition, filed on January 22, 1976,
was signed by Woolmer. Like Layton, Woolmer at some
time was nominally reclassified from manager to head
salesman. He continued to be paid on a salary basis, to be
covered by the nonunit pension and health and welfare
plans and to attend managers' meetings. Woolmer did not
testify.
Batten testified that in January, when he was a store
manager, Saunders told him that without the Union the
number of full-time employees could be reduced and part-
time work increased, with resultant improved earnings for
the remaining full-time personnel. Saunders indicated that
several unsatisfactory clerks would be dismissed when the
Union was out "and the sooner we get rid of the union, the
sooner we could get back to running the company the way
it should be."
Saunders in effect denied most of the testimony of the
employees concerning his conduct during the prepetition
period. He testified that in December 1975 and January
1976, after Hartquist's association with Respondent ended,
Saunders visited the stores frequently in an attempt to
restore his close personal relationship with the employees
and to rebuild sales. He testified that the employees he
spoke to asked numerous questions, which he answered
frankly and discussed fully. In one such conversation, in
answer to a question by Walsh, Saunders said that he "had
heard that D. Spencer and Dave Woolmer were circulating
the petition." Similarly, Saunders denied that he asked
Stauffer to sign the petition; he maintained, on the
contrary, that Stauffer raised the subject and Saunders said
that Stauffer would have to make the choice for himself.
Saunders acknowledged that in conversations with the
clerks he often spoke of the importance to the business of
commissions as an incentive to the sale of house brands,
which are most profitable and enhance consumer aware-
ness of Respondent's identity. However, Saunders denied
that he said that commissions would automatically be
increased if the Union were voted out. Similarly, he
testified that in his conversations with employees there was
frequent discussion of benefits, such as pensions and health
and welfare. He testified that, in answer to questions, he
told salesmen that Respondent had good health and
welfare and pension plans "for those people who were not
under the bargaining unit."
John Kremer testified that on February 9, 1976, Berbig-
lia, in an agitated manner, mentioned a "lawsuit trying to
stop [the decertification] petition." Berbiglia offered up to
20-to-I odds that the Union would lose a decertification
election by 80 percent. Berbiglia obviously was referring to
the charge in Case 17-CA-6945, filed on January 30, 1976,
which would result in dismissal of the decertification
petition if a complaint was issued.
Batten testified concerning a managers' meeting around
the end of February. In the course of a discussion of the
Union and how "to swing the men over," Batten asked if
the Union had submitted a contract proposal. At that point
Saunders said that Respondent could not survive financial-
ly with the Union and "there just isn't going to be" a
contract. Berbiglia interjected that he had never intended
and did not then intend to sign a union contract. Batten
testified that Saunders said "that it was up to us managers
to convince the union men to swing them over to our side
and break up the union." Berbiglia said that when the
Union was gone some people would be dismissed and other
changes would be made. Berbiglia too spoke of the need
for the managers to "swing the men over" to the Compa-
ny's side. Batten replied that they could not convert the
men because the Company had nothing to offer, while the
head salesmen were "every day showing them what the
union has to offer." Berbiglia rejoined by saying the head
salesmen "have no more rights, authority, or responsibility
than the men themselves that work underneath them" and
the men could be convinced to reject the Union if the
managers kept working at it.
Batten further testified that in March 1976, when he was
demoted to head salesman status, as part of the change
from a 6-day to a 5-day workweek, Saunders informed him
that the change was only one of form "and, hopefully it
wouldn't last long." Saunders said that, although nominally
a head salesman, Batten would not be like other head
salesmen but would retain the responsibilities of a manag-
er. Saunders said that, while Respondent would have to
make payments for Batten into the pension and health and
welfare funds under the contract, Batten should not join
the Union.
Batten then testified that around the middle of March
Berbiglia asked how many employees had attended a
recent union meeting. Critical of Batten's ignorance of the
activities of the men under him, Berbiglia suggested that
Batten ask clerk Walsh. When Batten did so, Walsh replied
that he had not attended the meeting. Batten did not report
back to Berbiglia. Thereafter, late in March, Saunders
asked Batten to find out who had attended another union
meeting, since Saunders understood that only union mem-
bers in good standing were permitted to attend. Batten said
he would inquire of one of the clerks but he apparently did
not do so and did not report back to Saunders.
Toward the end of March, Batten, then classified as a
head salesman, talked with Van Trump, a manager, about
"the fact that [Batten] might be going union." Thereafter,
on April 5, Batten and Van Trump spent about 2 hours in a
restaurant, ostensibly to celebrate Batten's birthday. Batten
testified that Van Trump repeatedly directed the conversa-
tion to the Union and six or seven times asked if Batten
had joined and if he knew how many of the employees
were then prounion. Since Van Trump had previously
made known his opposition to the Union, Batten refused to
discuss the matter. Van Trump did not testify.
Former clerk Ed Pratt testified that around March 20,
1976, he spoke to Saunders about the possibility of a full-
time job. Saunders said that they were "having troubles
with the union" and there were no full-time vacancies at
that time. Saunders asked what Pratt thought about the
Union and Pratt replied that he had not as yet made up his
mind. About a week later, Pratt called Saunders again and
was given a full-time job. Saunders denied that the Union
was mentioned in his telephone conversation with Pratt.
1488
BERBIGLIA, INC.
Around March 27 Berbiglia spoke with clerks Pratt and
Richardson. According to Pratt, Berbiglia said "the sooner
that we both realized that all the union wants is our money
the better off we would all be." Richardson corroborated
this testimony, adding that Berbiglia's statement was made
when, in response to Berbiglia's question, Richardson said
he personally preferred a 6-day week because of his school
schedule. The Union, of course, favored a 5-day workweek,
which had been provided in the expired agreement.
On December 29, 1975, the Union had presented to
Respondent the Union's proposals for changes in the
contract. This proposal included, inter alia, substantial
wage increases and limitation on the use of part-time
employees. The Union did not press its demand for
bargaining immediately. The decertification petition was
filed on January 22, 1976, followed by the charge in Case
17-CA-6945 on January 30. Thereupon Respondent re-
fused repeated bargaining requests by the Union until
around March 15, after Respondent learned that a com-
plaint was to be issued and the decertification petition
dismissed. At that time John K. Bestor, Esq., Respondent's
counsel, and Union President Hess met informally and it
was agreed that for the time being the existing contract
would be extended.
At the first formal negotiating session, on March 29,
1976, the Union's contract proposal was discussed in some
detail but no agreements were reached. Respondent made
no specific proposals at that time but from the outset stated
that Respondent wanted more supervisory control over the
stores than it had under the existing contract. Respondent
maintained that the expired contract had unduly restricted
Respondent's freedom to operate the business as it saw fit.
From December 1975 through March 1976 numerous
employees repeatedly complained to union representatives
of what they considered Respondent's "harassment," its
sponsorship of the decertification and the lack of any
progress toward a new contract. Because a union meeting
was scheduled for April 4, the Union's bargaining repre-
sentatives requested the Company's contract proposal. The
Company then presented its first proposal late on Satur-
day, April 3. At this point it is sufficient to note that the
Company's proposal contained no provision on wages and
sought elimination of the clerks' work clause.
At the union meeting on April 4 many members again
expressed anger at the absence of a contract, the Compa-
ny's "harassment," and its sponsorship of the decertifica-
tion petition. Much of the members' annoyance was also
directed against the Union's representatives for their
failure to obtain a contract. The "harassment" referred to
appears to have consisted primarily of frequent transfers in
connection with the March I change to a 5-day workweek.
There was considerable membership sentiment for an
immediate strike. Union President Hess and Organizing
Director Robert J. Reeds persuaded the members at least
to postpone the strike until a further attempt had been
made to negotiate a contract. However, the membership
16 President Bondon testified that the Company's profits for the prior
year had been only around $7,500 on sales of about $7 million. It appears
likely that the estimated S7,500 "profits" were in addition to a return of 10
percent on invested capital, the amount of which was not disclosed. This
voted the committee authority to call a strike at any time,
in its discretion.
Further negotiating sessions were held on April 5 and 15.
While agreement was reached on some issues, no progress
was made on the major disputed items, including Respon-
dent's desire to eliminate the clerk's work clause, the
Union's request for a union-security clause and Respon-
dent's wish to replace the union health and welfare and
pension plans by Respondent's own plans. Additional
unresolved issues included seniority, Respondent's concern
being to increase its freedom to deal with personnel matters
as it desired. On April 15 Respondent offered a 20-cent-
per-hour wage increase for porters and, apparently, part-
time cashiers, or a total of about three or four persons.
Respondent maintained that no wage increase was war-
ranted or feasible for the approximately 60 sales employ-
ees.16
With employee complaints continuing, directed against
both the Union and the Company because of the lack of
progress toward a contract, a union meeting was scheduled
for early on the morning of Saturday, April 16. At that
meeting there was a virtually unanimous vote to strike
immediately.
Head salesman Lirio Petigna testified that on April 16, at
about 7:20 a.m., 10 minutes before his store's opening time,
Saunders arrived at the store. Petigna testified that Saun-
ders "asked me how the [Union] meeting went ... and he
said there was a strike." Petigna replied that he did not
know anything about the meeting because he had come to
open the store. Saunders thereupon said: "Well, surely if
you know anything later, you'll let me know" and Petigna
said "O.K." Saunders' testimony was:
I called him and I told him I heard a strike vote had
been taken and I knew Mr. Petigna was one of the
stewards and I was afraid maybe he had attended the
meeting and I wanted to be sure he would properly lock
the store and not leave it unattended.
Saunders also testified that he had already been told by
Jack Bondon that "a strike vote had been taken and the
stores would not open that day." In its brief, Respondents
says: "[S]ince Petinga's store was one of the earliest to
open up, Saunders went by to make certain that Petigna
assured him he would lock the store correctly." However,
Saunders testified that he "called" Petigna, who said "if a
strike vote was taken and they were going out and he
would go on strike, he would lock the store properly." If
Saunders already knew that a strike had begun and "the
stores would not open that day," it is difficult to under-
stand why he "called" Petigna. It appears most likely that
Saunders visited the store for assurance that it would be
safeguarded. It is reasonable to infer that Saunders would
seek information concerning the meeting at which the
strike was voted and concerning future developments.
Joseph E. Cassidy testified that while he was picketing on
April 16, the first day of the strike, Berbiglia said to him
and clerk Kenneth Barnes: "If you fellows would go over
conjecture is based on the fact that the prior contract had provided for the
institution of a 5-day workweek 'if after tax earnings for fiscal year ending
May 31, 1975, are equal to or exceed S12,500 in addition to a ten (10)
percent return on invested capital."
1489
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the warehouse and resign from the union, you can have
your job back." Former clerk Joe Cervello testified that on
the same day Berbiglia told him and clerk David Bradford
that "if [they] would withdraw from the union [they] could
have [their] jobs back." On cross-examination Cervello
acknowledged that in a pretrial affidavit he had said that
"Berbiglia told us we could have our jobs back if we would
withdraw or something like that. He mumbled the last few
words." Cervello testified that, whatever the exact words
used, he was positive Berbiglia was referring to resignation
from the Union because he "couldn't withdraw from
anything but the union in order to have [his] job back."
Berbiglia denied the foregoing testimony. In support of
his denial of Cassidy's testimony, Berbiglia volunteered the
statement: "I didn't know whether they could resign or
whether they couldn't." Berbiglia testified that he had
merely said that Cassidy was "permanent" and "could
drop the sign and come to work" if he wanted to. However,
on cross-examination Berbiglia acknowledged that in a
pretrial affidavit he had said that he told Cassidy and
Barnes that they should resign from the Union to avoid
being fined. In acknowledging that statement, Berbiglia
added: "But I don't know whether the union was going to
fine them or not." It may be noted that on May 1, 1975, in
a letter to all employees concerning the deauthorization
election, Berbiglia had said: "[I]f a majority vote YES, you
will have the right to quit paying dues and to cease being a
union member." In a letter to employees reviewing "Em-
ployee Rights During Strike," dated April 12, 1976, Jack
Bondon said, inter alia; "The union can only fine its
members, not non-members, and the courts have held that
a member of the union who resigns first before he crossed
the picket line, is protected from any fine by the union." In
view of these circumstances, the employees' version of the
conversations is inherently the more plausible and is
credited.17
Head salesmen and union steward Griffin testified that
on April 16, while picketing, he was approached by
Berbiglia, who commented that Griffin was apparently
getting more exercise on the picket line than he ever got in
working. Berbiglia added: "You will get plenty of it
because you will never set foot in this store again." Union
President Hess, who was present at the time, corroborated
Griffin's testimony. Hess reported the incident to Respon-
dent's counsel, who in turn spoke to Jack Bondon. Bondon
then addressed a letter to Griffin assuring him that heither
he nor any other striker would be discriminated against
and that their "rights to return to work or to be placed on a
preferential hiring list at the conclusion of the strike, as
well as [Respondent's] rights to hire replacements" would
be observed. In this letter Bondon stated that Berbiglia
denied having made the statement attributed to him. Clerk
Jack Nourse testified that when Bondon delivered the letter
to the store he said that Berbiglia denied having made the
offending statement. In testifying, Berbiglia denied having
made the alleged statement. When asked if he was told
later that day that Hess or Griffin was accusing him of
making the statement, he answered: "No. That day, it
17 Concerning Cassidy's testimony, Respondent argues: "It is hard to
understand what connection the Employer's warehouse would have with
resigning from the Union." Other evidence indicates that Respondent's
could not possibly have been." He then said he did not
think he talked to either Jack Bondon or Bestor about the
matter before he left for Europe the next day. At that point
Berbiglia volunteered to summarize in some detail state-
ments made by Hess in a television newscast that evening.
But both Bestor and Bondon testified that they had spoken
to Berbiglia that day about the matter. Here, as in other
matters, Berbiglia's memory is notably selective.
Clerk Kremer testified that on April 17 Jack Bondon
introduced Kremer to Bondon's brother, John, vice presi-
dent of Respondent. Jack identified Kremer as "a former
Berbiglia employee." When Kremer questioned the partic-
ular identification, Jack replied: "Well, you went out with
the rest of them so you are no longer an employee of ours."
Both Bondons denied Kremer's testimony. According to
them, Jack said that Kremer "used to work for us at the 40
Highway Store" and, when Kremer questioned the phrase
"used to work," Jack said: "Well, you're not working right
now since you're out on strike, that's all I mean." On the
same day Kremer was charged with trespassing on Respon-
dent's property (apparently at another location) and was
later convicted on that charge.
Larry Witcliffe testified that on April 24, 1976, during
the strike, he asked Manager Snyder when he thought
things would get back to normal. Snyder replied that
Berbiglia would make a token proposal to the Union but
would not sign a contract. According to Witcliffe, the
conversation was resumed on the way home from work in
Snyder's car. At that time Snyder said he did not know, but
somehow Berbiglia would get rid of the Union, as he had
gotten rid of Forum. Snyder denied Witcliffe's testimony,
maintaining that he did not ride home with Witcliffe at that
time.
Employee Straley testified that while he was picketing on
April 29 he was approached by Larry Haley, Respondent's
comptroller, who held out an insurance card and said:
"You might as well take it and fill it out and come back to
work because this is the only way you will get back to
work." Haley did not testify. Thus Straley's testimony is
uncontradicted. It is consistent with Respondent's long-
standing position that, as stated in its brief, its pension and
health and welfare "plans are better and cheaper than the
Union's plans."
Fred H. Etter, a longtime customer of Respondent,
testified that sometime around the third week in April he
telephoned Berbiglia and requested that Berbiglia settle the
strike and sign a contract with the Union. Etter said he had
been a strong union man for many years; he would never
cross a picket line and would not patronize Respondent
until a contract was executed. According to Etter, Berbiglia
said the employees had stolen some $40,000 from him, he
would not sign a union contract, and he would close half
the stores. Etter was undoubtedly incorrect as to the date of
the conversation, since Berbiglia was out of the country
from April 17 until about the middle or end of May.
Berbiglia remembered a telephone conversation with Etter
shortly after Berbiglia's return. Berbiglia testified that Etter
sounded intoxicated at the time. Berbiglia denied having
office and warehouse are at the same location. It would be reasonable for
the employees to conclude that at Respondent's office they would receive
assistance in resigning from the Union and resuming work.
1490
BERBIGLIA, INC.
said that he would not sign a union contract, that the men
had stolen $40,000 from him, or that he would close any of
the stores. Berbiglia testified that he disclaimed any role in
the contract negotiations but told Etter he wag sure
Bondon and Saunders would reach agreement with the
Union. He also told Etter that many customers were
crossing the picket line. In testifying, Etter left no doubt
that he strongly favors unionism as such, although he has
no connection with the Union here involved. It was also
apparent that during a long life he has liberally partaken of
Respondent's wares. However, it was equally apparent that
he is an honest and forthright man. He impressed me as
one who would not fabricate. Based on the demeanor of
the two men, I credit Etter and discredit Berbiglia.
On May 7 there were about seven or eight pickets at one
of the stores. Included in the group was Robbie Reeds,
apparently a paid picket and son of the Union's director of
organization. Jack Bondon drove up and onto the driveway
leading to the parking lot. Picketing employees Sinclair and
Kremer testified that as Bondon entered the driveway he
increased his speed. James Hillen, a union business agent
who was present, shouted a warning to Reeds, who lunged
onto the median strip in the driveway to avoid being hit by
Bondon's car. According to Kremer, Bondon avoided
hitting Reeds at the extreme edge of the driveway only by
precipitously jamming on his brakes. Reeds was shaken up
by the incident and verbally vented his rage at Bondon,
who proceeded onto the parking area. Bondon testified
that he had gone to the store after being informed that the
picketing was causing traffic problems. He said that at the
time he was moving onto the driveway very slowly, trying
to get out of the flow of heavy traffic on the road past the
store. He stopped to avoid hitting Reeds and then proceed-
ed to park. He then went into the store, where he called the
police to ask that they control the traffic problem. I credit
Kremer and Sinclair, eye witnesses to the occurrence.
Kremer testified that on May 10, while he was picketing
at one of the stores, a car driven by Comptroller Haley
arrived. It went up over the curb and onto the grass, where
Kremer was walking. The car came within 6 inches of
Kremer's hip. Kremer remonstrated and Haley, laughing,
backed his car off the grass and back over the curb. He
then parked near the store. Haley did not testify. I credit
Kremer's undisputed testimony.
Witcliffe testified that toward the end of May, while
working, he asked Berbiglia when the situation would
return to normal. Berbiglia replied: "As soon as we get rid
of the union, I've got a pension plan and health and welfare
plan superior to what they had and we will all go back to
being one happy family." Berbiglia denied having made the
statement attributed to him, adding the possibly revealing
comment that he "didn't even know Witcliffe belonged to
the union." I credit Witcliffe.
b. Conclusions
(I) Procedure
As stated above, it is essential that "post-settlement"
allegations be determined first, since the settlement agree-
ment can properly be set aside only if there have been
continuing or new unfair labor practices in the "post-
settlement" period. In the present case the terms "pre-
settlement" and "post-settlement" are not precisely accu-
rate. While a settlement agreement usually covers all the
respondent's misconduct up to the time the settlement is
approved, it is also true that the parties may agree to
exclude certain matters from the settlement. See Steves
Sash & Door Co., supra, 164 NLRB at 472-473. The present
record leaves no doubt that the settlement in Case 17-CA-
6945 was intended to cover only those matters alleged in
and antedating the charge. The original charge in Case 17-
CA-6945 was filed on January 30, 1976, amended on
February 23. The complaint issued thereon alleged viola-
tions in mid-October 1975 and in the first half of January
1976. The original charge in Case 17-CA-7090 was filed on
April 21, 1976, the very day after the settlement in Case 17-
CA-6945 was approved. The complaint in the second case
alleged violations beginning "in or around late February or
early March 1976." Respondent has never questioned or
objected to the inclusion in the second complaint of
allegations concerning events antedating approval of the
settlement. In its brief, Respondent deals with the issues on
the assumption that "pre-settlement" conduct is that
alleged in Case 17-CA-6945 and "post-settlement" con-
duct is that covered by the complaint in Case 17-CA-7090.
Respondent's assumption in this regard appears correct
and is accepted in this Decision. In any event, the unfair
labor practices alleged, and hereafter found, after April 21,
1976, are sufficient to sustain the Regional Director's
setting the settlement agreement aside.
Because the record as a whole, including the background
evidence (Wanda Petroleum, Division of Dow Chemical
Company, 217 NLRB 376, 382, 1975), shows an evolving
pattern in Respondent's conduct, specific findings will here
be made in chronological order, although analytically
violations may be found in Case 17-CA-6945 only if
violations are found in Case 17-CA-7090.
(2) Section 8(a)(I)
(a) Case 17-CA-6945
Respondent's false statement in a letter addressed to all
employees in October 1975 to the effect that the Union had
said that it did not want to continue representing the
employees and did not want to negotiate a new contract
manifestly had a tendency to interfere with the employees'
statutory rights. It would be a rare employee who would
lend his support to a union that had disavowed any desire
to represent the employees and any intention to negotiate a
contract. To be sure, the Union could have issued a denial
of Respondent's accusations. But the employer cannot
impose such burden on the Union. And a denial by the
Union could not reasonably be expected to remedy all the
damage. The Company's misrepresentation was so un-
equivocal that the Union's denial might be viewed by
employees as mere defensive salesmanship designed to
salvage as much revenue as possible, which Respondent's
letter suggested was the Union's only concern. Respon-
dent's unexplained refusal to take any corrective action
bespeaks a desire to unduly influence the employees by any
means, fair or foul. Respondent's conduct in this connec-
tion was clearly violative of Section 8(a)(1).
1491
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Next comes the credited evidence of LaBuda, Stauffer,
Walsh, and Richardson that in January 1976 Saunders held
out the prospect of improved benefits and increased
income if the employees got rid of the Union. Stauffer's
credited testimony establishes similar statements made in
January by Snyder. While Snyder claimed to be presenting
only his personal views, there is no question that he was
identified with Respondent's management and his state-
ments would naturally be understood as reflecting manage-
ment's intentions or predictions. Similarly, Richardson
credibly quoted Vaccaro as having spoken of increased
benefits and income to be granted by Respondent if they
got rid of the Union. Vaccaro was admitted to be a
supervisor and/or agent of Respondent and was clearly
identified with management in the view of the employees.
And employee York credibly attributed similar statements
to Layton in January 1976. As set forth above, whatever
Layton's nominal classification at the time, he was in fact a
supervisor and identified with management.
It is, of course, possible that Respondent's representa-
tives honestly believed that the Company's benefit plans
were better for the employees than were the Union's plans
and that the employees would realize higher earnings with
the Company's incentive pay system than with the Union's
hourly wage. But those were matters to be negotiated with
the Union. Respondent was not at liberty to promise such
boons as inducement to the employees to repudiate the
Union. Respondent improperly interfered with the employ-
ees' statutorily protected freedom of choice when it
promised benefits dependent upon the departure of the
Union.
Undisputed evidence establishes that early in 1975,
Respondent, through Vice President Hartquist, initiated a
deauthorization as the first step in a preconceived strategy
to eliminate the Union before a renewal contract had to be
negotiated. Hartquist's departure did not abort the plan.
Credited testimony by employees LaBuda, Stauffer, and
Walsh establishes that, as alleged, in January 1976 Saun-
ders actively encouraged and solicited the employees to
sign a decertification petition. Employee York's credited
testimony establishes that Berbiglia was guilty of similar
conduct.
Additionally, undisputed evidence establishes that the
decertification petition was actively circulated by Layton
and Woolmer and filed in Woolmer's name. Berbiglia's
testimony establishes that at least he knew of Layton's and
Woolmer's role in circulating the petition. Whatever their
nominal classification at the time in question, Layton and
Woolmer were in fact supervisors and so identified by the
employees. Particularly against the background of strong
union animus and numerous unfair labor practices, an
employer's initiation and encouragement of a decertifica-
tion petition violates Section 8(a)(1). Dayton Blueprint
Company, Inc., 193 NLRB 1100, 1107-08 (1971); The Royal
Himmel Distilling Company, 203 NLRB 370, 376-377
(1973); N.LR.B. v. Sky Wolf Sales, 470 F.2d 827 (C.A. 9,
1972).
Is Since the matter was fully litigated, it is not crucial that the complaint
alleged only unlawful interrogation, and not improper surveillance.
19 In its brief Respondent refers to Haley as a head salesman. However,
(b) Case 17-CA-7090
i. Interrogation
The credited evidence establishes that around March 20,
1976, Saunders asked employee Pratt how he felt about the
Union and on April 16 asked Petigna about the union
meeting held that morning and requested that Petigna keep
Saunders informed of anything he might learn in the
future. Against the background of Respondent's extensive
and aggressive campaign to get rid of the Union, such
questioning would naturally tend to interfere with, restrain,
and coerce the employees in the exercise of their statutory
rights.
The complaint alleges, and the evidence establishes, that
Saunders and Van Trump unlawfully questioned Batten in
March and on April 5, respectively. As noted above,
sometime in March Batten informed Van Trump that he
(Batten) was considering joining the Union. Beginning
sometime after March 1, Batten's authority and indepen-
dence in running his store were gradually reduced. Accord-
ing to his credited testimony, the restriction was not
imposed while he was still believed to be nonunion. It
appears that he was still considered as a supervisor when
Saunders questioned him about employee union activities
and asked him to question an employee. Van Trump's
questioning on April 5 was probably a followup on
Batten's previous indication that he might join the Union.
If Batten was in fact a nonsupervisory employee, the
questioning constituted unlawful interrogation and solicita-
tion of surveillance. If, on the other hand, he still had
supervisory status, the questions and statements amounted
to solicitation of surveillance. In either event, they were
violative of Section 8(aX)(1).' 8
Accordingly it is found, as alleged, that Respondent
engaged in unlawful interrogation in violation of Section
8(a)(1) in March and April 1976.
ii. Threats of discharge
Jack Bondon's description of Kremer as a "former"
employee on April 16, the first day of the strike, amounted
to a threat of termination for engaging in protected
activity, as alleged in the complaint. Similarly, Berbiglia's
statement on April 16 that Griffin would never set foot in a
Berbiglia store because he went on strike was violative of
the Act. That Jack Bondon retracted Berbiglia's threat and
gave Griffin written assurance that the employees' rights as
strikers would be honored tends to lessen the potentially
coercive nature of the statement. However, the incident
cannot be totally ignored because of the background of
Respondent's extensive antiunion campaign, Berbiglia's
continuing dominant position, and Bondon's similar threat
to Kremer.
Comptroller 19 Haley's statement to Straley that the only
way he could go back to work for Respondent was to sign
the Company's insurance card also amounted to a threat of
termination for adherence to the Union.
the complaint identified him as comptroller and that allegation was
admitted in Respondent's answer. Haley is not listed as a head salesman or
employee in any of the documentary evidence prepared by Respondent.
1492
BERBIGLIA, INC.
Accordingly it is found that, as alleged, Respondent
threatened employees with discharge for engaging in a
strike..
iii. Solicitation to abandon the strike
It is found that, as alleged, on April 16, 1976, Berbiglia
solicited employees Cassidy, Barnes, Cervello, and Brad-
ford to resign from the Union and abandon the strike. On
April 29, Comptroller Haley solicited Straley to abandon
the strike and return to work. Particularly in the context of
Respondent's numerous additional unfair labor practices,
such conduct was coercive and thus violative of Section
8(a)(1) of the Act. Ramona's Mexican Food Products, 203
NLRB 663, 682 (1973).
iv. Threatened or attempted assault
It is also found, as alleged, that Jack Bondon threatened
picketer Robbie Reeds with assault by automobile on May
7. In defense, Respondent argues, without evidentiary
support, that "the Union picketers were doing everything
they could to slow and hamper traffic coming into the
store." Respondent adds: "Most importantly, we do not
know what Bobby Reeds was up to, since he did not
testify." There was ample eyewitness testimony to the
occurrence. Respondent does not suggest what Reeds
might have been "up to" which would warrant his being
subjected to a narrow escape from being hit by an
automobile. Such threat, in the presence of striking
employees, was clearly coercive and thus violative of
Section 8(a)(1).
Similarly, Haley's conduct in almost hitting Kremer with
his automobile on May 10 was violative of the Act.
v. Defense
At several points Respondent argues that its conduct was
not violative of the Act because it does not affirmatively
appear that any employees were actually intimidated or
coerced. For example, Respondent says: "Griffin did not
take the threat [of termination for striking] seriously." This
contention has long had its deserved rest. As recently
repeated by the Court of Appeals for the Eighth Circuit
(Russell Stover Candies, Inc. v. N.L.R.B., 551 F.2d 204,
207-208 (C.A. 8. 1977)):
[T]he illegality of an employer's conduct under section
8(a)(1) does not depend upon evidence that the employ-
ees were infact coerced in the exercise of their section 7
rights.... Clearly an employer's conduct can be
disruptive of its employees' free exercise of their
organization rights even though the employees are not
in fact coerced.
[T]he test is whether the employer engaged in
conduct which reasonably tends to interfere with,
restrain, or coerce employees in the free exercise of
their rights under section 7.
Respondent's conduct in this case fully met the test of
illegality.
(3) Section 8(a)(5)
(a) Case 17-CA-6945
All the conduct alleged in Case 17-CA-6945 and
hereinabove found violative of Section 8(aXl) was engaged
in at a time when the Union was the representative of the
employees. It was all designed to undermine employee
support for the Union and thus relieve Respondent of any
obligation to continue to recognize the Union and negoti-
ate a renewal contract. Accordingly, unless any of Respon-
dent's affirmative defenses, which are discussed below, is
valid, the Section 8(a)(1) violations found in Case 17-CA-
6945 are also violative of Section 8(aX5), as alleged. Wahoo
Packing Company, 161 NLRB 174, 179 (1966); The Royal
Himmel Distilling Company, supra, 203 NLRB at 377:
Wabana, Inc., 146 NLRB 1162, 1185 (1964).
(b) Case 17-CA-7090
For the reason set forth above, the Section 8(a)(l)
violations found in Case 17-CA-7090 appear to be viola-
tive of Section 8(a)(5) as well. However, the complaint does
not so allege. Accordingly, no such specific findings are
here made.
The complaint in Case 17-CA-7090 does allege that
Respondent violated Section 8(a)(5) and (I) by "main-
tain[ing] the position that it does not intend to reach a
collective-bargaining agreement with the Union." Appar-
ently pursuant to this allegation, the parties extensively
litigated and argue in their briefs the question whether
Respondent was guilty of bad-faith or surface bargaining.
The credited testimony of Batten, Witcliffe, and Etter
establishes that, as alleged, Respondent, through Berbiglia,
Saunders, and Snyder, revealed that it had no intention of
reaching agreement with the Union on a renewal contract.
It is not entirely clear whether the Board considers such
statements, made away from the bargaining table, as
themselves violative of Section 8(a)(5). See, e.g., Safewav
Trails, Inc., 216 NLRB 951 (1975). However, in remanding
Safeway Trails to the Board, the Court of Appeals for the
District of Columbia expressly held that (United Transpor-
tation Union, Local No. 1699 v. N.L.R.B., 546 F.2d 1038,
1041 (1976)):
If [Respondent's] away-from-the-bargaining-table ac-
tivities with respect to its employees were directed
toward undermining the bargaining representative of
those employees, bad faith and a Section 8(aX5)
violation have been established even though overt
evidence of that bad faith does not appear at the
bargaining table itself. If the authority of the employ-
ees' bargaining representatives at the bargaining table
has been subverted, as far as the interests of the
employees are concerned it matters little where and
when the subversion took place.
It makes little practical difference whether statements of
Respondent's intention not to reach agreement are consid-
ered violations in themselves or merely evidence of bad
faith in the negotiations. A finding of bad-faith bargaining
may be made on the basis of such expression of Respon-
dent's thinking even if it maintained the appearance of
1493
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good-faith bargaining at the table. Cf. Albert L. Oldfield,
Oldfield Tire Sales, 221 NLRB 1275, 1277 (1975); Valley
Oil Co., Inc., 210 NLRB 370 (1974); Romo Paper Products
Corp., 208 NLRB 644, fn. 3 (1974). Accordingly, on the
basis of statements credibly attributed to Berbiglia, Saun-
ders, and Snyder, when taken in conjunction with Respon-
dent's numerous additional unlawful attempts to under-
mine the Union, it is found that Respondent did engage in
bad-faith bargaining in contravention of Section 8(a)(5).
It thus becomes unnecessary to review in detail the
actual course of the negotiations except to the extent that
such review may be necessary to a determination of
Respondent's affirmative defenses.
(c) Affirmative defenses
i. Lack of majority in an appropriate unit
Respondent asserts that it cannot be found to have
violated Section 8(a)(5) because the Union does not
represent a majority of the unit employees. Respondent's
argument is two-fold: (I) since head salesmen were
supervisors they must be excluded from the unit and
without them there never was a majority; and (2) there is
evidence which, if admitted, would show defections from
the Union, establishing a loss of majority or supporting a
reasonable, good-faith doubt of majority.
At the hearing I ruled that evidence concerning the
Union's majority was inadmissible and, as a corollary of
this ruling, I revoked subpenas to the extent that they
sought access to the Union's records for the purpose of
showing the absence of a majority. The major basis of my
ruling was the settlement agreement of April 20, 1976, in
which Respondent committed itself to bargain with the
Union. The Board has recently reasserted the rule "that an
employer may not defend against a refusal-to-bargain
allegation on the basis that the original recognition,
occurring more than 6 months before charges had been
filed in the proceeding raising the issue, was unlawful."
Morse Shoe, Inc., 227 NLRB 391, 394 (1976). Cf. Glaziers
and Glassworkers, Local Union 767 (Sierra Glass Service,
Inc.), 228 NLRB 35 (1977). Having recognized the Union
as representative of a bargaining unit including head
salesmen for several years, Respondent "cannot now attack
the Union's majority status among its employees or the
appropriateness of the unit." Morse Shoe, Inc., supra.
In any event, the subpenas were properly revoked to the
extent that they sought union records as relevant to
majority status since "union business records are wholly
irrelevant to the issue raised by Respondent's defense," i.e.,
majority status. Silver Spur Casino, 228 NLRB 1147, fn. I
(1977). Cf. e.g., Orion Corporation, 210 NLRB 633 (1974),
enfd. 515 F.2d 81 (C.A. 7, 1975).
Additionally, it has previously been found that head
salesmen as a class were not supervisors. Accordingly, the
Union's representative status cannot be attacked on the
ground that head salesmen were included in the unit and
may have constituted a substantial part of the Union's
majority. And, since, as hitherto found, Respondent en-
gaged in numerous unfair labor practices designed to
undermine the Union, including unlawful sponsorship of
the decertification petition, Respondent may not assert a
loss of union majority status based on recent defections.
N.L.R.B. v. Sky Wolf Sales, supra, 470 F.2d at 830;
Warehouse Market Inc., 216 NLRB 216 (1975).
Further, since Respondent did not advance the inappro-
priateness of the unit or the absence of a union majority as
a justification for refusal to bargain until the present
hearing, it may not do so now. Roman Catholic Diocese of
Brooklyn, et al., 222 NLRB 1052 (1976), enfd. in pertinent
part sub nonm Nazareth Regional High School v. N.L.R.B.,
549 F.2d 873, 880 (C.A. 2); Harding Glass Industries, Inc.,
216 NLRB 331 (1975). Nor does inclusion of supervisors in
the bargaining unit preclude lawful bargaining (Mon River
Towing, Inc. v. N.L.R.B., 421 F.2d I (C.A. 3, 1969), or
prevent a bargaining order in circumstances like the
present (Harding Glass Industries, supra).
ii. Composition of the Union's committee
Respondent also argues that it cannot be required to
bargain with the Union's bargaining committee because it
included Ozburn and Griffin, who, as head salesmen, were
supervisors. It is undoubtedly true that, if Ozburn and
Griffin were supervisors, on a proper charge and complaint
Respondent could be found in violation of Section 8(a)(2)
for bargaining with them as employee representatives. Mon
River Towing, Inc., supra, 421 F.2d 7. However, it does not
follow that Respondent may now avoid its bargaining
obligation by establishing its own violation of Section
8(a)(2). In any event, it has been found that head salesmen
Ozburn and Griffin were not supervisors. Accordingly,
Respondent's belated defense must be rejected.
iii. Unlawful demand by the Union
In its brief Respondent maintains that the Union's
demand for a union-security provision in the renewal
contract was unlawful because of the employees' previous
election to rescind the prior union-security authorization.
Respondent states its contention as follows:
[T]he Employer's accession to the Union's demands
in April 1976 would have forced the employees to
become Union members in contradiction to their
Board-sanctioned rejection of that authority and in
plain violation of the Act.... Respondent submits
that since it could not lawfully enter into the collective-
bargaining agreement insisted upon by the Union, it
cannot be guilty of an 8(a)(5) violation.
To support its contention that the Union's demand for a
union-security clause was unlawful, Respondent relies on
the proviso to Section 9(e) of the Act. But that proviso
merely prevents two elections within a year. See Conren,
Inc., d/b/a Great Scot Super Market, etc., 156 NLRB 592,
599 (1966), enfd. 368 F.2d 173 (C.A. 7), cert. denied 386
U.S. 974 (1967), in which an employer was held in violation
of Section 8(aX5) for refusing to recognize and bargain
with a union that had lost an election 9 months earlier but
had thereafter established its majority status by authoriza-
tion cards. The court of appeals there noted that in
enacting Section 9(cX3) of the Act Congress "concerned
itself only with limiting the frequency of Board directed
and conducted elections." Since the controlling language in
1494
BERBIGLIA, INC.
the proviso to Section 9(e) is the same as that in Section
9(c),20 Conren is controlling here.
Accordingly, without considering the facts that Respon-
dent had initiated the deauthorization petition and that
contract negotiations continued after the first anniversary
of the deauthorization election, it is clear that the Union's
request for a union-security clause in the renewal contract
was not unlawful.
For the foregoing reasons, I find and conclude that none
of Respondent's affirmative defenses of the Section 8(aX5)
allegations is valid. Since it has been found that Respon-
dent violated Section 8(a)(1) and (5) of the Act after
approval of the settlement agreement in Case 17-CA-6945,
the settlement was properly set aside. Accordingly, it is
found that Respondent violated Section 8(a)(1) and (5) in
the respects found above under both complaints.
3. Section 8(a)(3)
a. The amendment to the complaint
The complaint in Case 17-CA-7090 alleges that the
strike commencing on April 16, 1976, was an unfair labor
practice strike. At the beginning of the hearing, counsel for
the General Counsel indicated that one implication of that
allegation might be a claim that the striking head salesmen
had not been properly reinstated. Toward the end of the
hearing, after Respondent's evidence had been presented,
the General Counsel moved to amend the complaint to add
an allegation that Respondent had violated Section 8(a)(3)
by reinstating former head salesmen only as clerks, with
substantially reduced wages. I was initially inclined to deny
the motion to amend on the representation by Respon-
dent's counsel that the parties had agreed that reinstate-
ment was not to be an issue in this proceeding. However, I
also felt that I should be in a position to decide all issues
fairly presented by the evidence received without objection.
The parties had litigated the allegation that the strike was
an unfair labor practice strike. And Respondent freely
acknowledged that the striking head salesmen had been
reinstated only as clerks. On this state of the record, it
appeared that Respondent could not suffer any prejudice
by the amendment, since the issue was one of law based on
the record already made.21 Accordingly, I granted the
General Counsel's motion to amend the complaint.
b. Revocation of subpenas
At the hearing, I revoked the major part of subpoenas
duces tecum by which Respondent sought to obtain a wide-
ranging examination of the Union's records, including
communications between the Union and its members and
with other organizations. In its brief Respondent renews its
objection to the revocation of the subpenas, saying:
20 Sec. 9(cX3): "No election shall be directed in any bargaining unit or
any subdivision within which, in the preceding twelve-month period, a valid
election shall have been held. ...
Sec. 9(eX2): "No election shall be conducted pursuant to this subsec-
tion in any bargaining unit or any subdivision within which, in the
preceding twelve-month period, a valid election shall have been held."
21 Respondent requested an opportunity to recall Bestor as a witness to
establish that the parties had reached a bargaining impasse on Respondent's
proposal for elimination of the clerks' work clause in a renewal contract.
"Several rejected provisions of the subpoena ... requested
information relating to or tending to show the reasons for
the strike, as discussed in meetings between the Union and
members of the bargaining unit, or in correspondence or
meetings with members of other labor organizations or in
correspondence or meetings with any other persons or
associations or organizations.... By quashing those
portions of the subpoena, the ALJ has prevented Respon-
dent's further inquiry as to the existence and contents of
other such notes and documents, and thereby prejudiced
adequate presentation of its defense."
Despite some misgivings as to the propriety of an offer of
proof based on Respondent's conjecture as to what the
Union's records might conceivably disclose, I received a
detailed offer of proof from Respondent. That offer related
almost exclusively to the Union's majority status. Respon-
dent made no offer of proof as to the nature of the strike.
Not having seen the Union's records, Respondent obvi-
ously was in no position to indicate what they might show.
Thus Respondent was clearly engaged in the proverbial
fishing expedition.
The basic reason for revocation of the subpenas so far as
here relevant was my view that requiring the Union to open
its files to Respondent would be inconsistent with and
subversive of the very essence of collective bargaining and
the quasi-fiduciary relationship between a union and its
members. If collective bargaining is to work, the parties
must be able to formulate their positions and devise their
strategies without fear of exposure. This necessity is so self-
evident as apparently never to have been questioned. The
policy was recently adhered to by the Court of Appeals for
the Ninth Circuit in Harvey's Wagon Wheel, Inc. v.
N.L.R.B., 93 LRRM 3068, 3070, 78 LC ¶ 11, 268 (1976), an
action under the Freedom of Information Act. The court
there said:
Statements of union representatives and agents of the
employee, for example, should normally be protected
from disclosure as a matter of law. Otherwise, the
danger of their withholding relevant information for
fear of exposing crucial material regarding pending
union negotiations would be manifest.2
The subpenas in the present case clearly called for
"exposing crucial material regarding pending union negoti-
ations."
The General Counsel has the burden of proving his
allegation that the present strike was an unfair labor
practice. The witnesses through whom he sought to meet
that burden were available for Respondent's cross-exami-
nation, which was skillfully conducted. The Union's offi-
cial notes of the membership meetings of April 4 and 16,
when strike action votes were taken, were produced and
made available to Respondent. James J. Hillen, business
Respondent's request was denied when counsel for the General Counsel
disavowed any contention that the reinstatement involved violation of Sec.
8(aX5).
22 The same policy in part underlies the long accepted privilege of
conciliators not to testify concerning contract negotiations. See Tomlinson of
High Point. Inc., 74 NLRB 681, 685 (1947): "IT he parties to conciliation
conferences must feel free to talk without any fear that the conciliator may
subsequently make disclosures as a witness in some other proceeding. .."
1495
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agent and the Union's official note-taker, testified and was
available for cross-examination.
If the Union and the General Counsel's evidence
establishes that Respondent's unfair labor practices were a
factor in the strike decision, it is immaterial that the
employees were also economically motivated. At least in
the absence of any indication of reasonable ground for
Respondent to believe that the Union's files contain
reasonably specific, substantial, probative evidence estab-
lishing that Respondent's unfair labor practices played no
causative role in the employees' decision to strike, the
statutory purpose of fostering collective bargaining re-
quires revocation of the dragnet subpenas in this case. I
therefore reaffirm my revocation of major portions of the
subpoenas duces tecum issued on behalf of Respondent.
c. The nature of the strike
The evidence establishes that during the first months of
1976 the employees became increasingly restive. Beginning
around March, several employees complained of "harass-
ment" by Respondent. The "harassment" appears to have
consisted mainly of frequent transfers occasioned by the
shift to a 5-day workweek. Such "harassment" has not been
shown to violate the Act. Additionally, the employees were
irritated by the fact that, although the Union had requested
bargaining and presented its contract proposal to Respon-
dent late in December 1975, no negotiations were held
through January 22, 1976, when the decertification petition
was filed and Respondent thereupon refused to bargain
because of the pendency of that petition. The employees'
annoyance at the delay appears to have been directed
against both the Union and Respondent. But, as previously
noted, the Union did not press for immediate negotiations
after sending its termination notice and does not now
contend that the absence of bargaining during January was
violative of the Act. Additionally, although the Union
complains of Respondent's delays in providing information
requested, it does not contend or allege that Respondent
violated Section 8(a)(5) by procrastination in supplying
information.
But the circulation and filing of the decertification
petition in January were a major source of annoyance to
the employees, as reflected in the original charge in Case
17-CA-6945, filed on February 23. The employees were
particularly disgruntled because Respondent made no
contract proposal until April 3, 1976, the day before a
scheduled union meeting, at which it appeared likely that a
strike vote would be taken. Despite a pending complaint
and a serious strike threat, Respondent's belated contract
proposal contained no wage raise. At the union meeting on
April 4 union representatives had difficulty restraining the
employees from voting an immediate strike. Persuaded by
the officers' advice that at least one more attempt be made
to get a contract, the employees settled for authorizing the
negotiating committee to call a strike at any time.
There can be no question that one of the employees'
basic concerns was to obtain a satisfactory contract. To
that extent, of course, the eventual strike was economic in
nature. But there is equally no doubt that the employees
believed that the failure to make progress toward a
satisfactory contract a as due primarily to the Company's
unfair labor practices, designed to undermine the Union
and avoid any meaningful bargaining. The general mood
and thinking of the employees at the April 4 meeting was
described in some detail by John B. Smith. On cross-
examination he testified:
Q. Now, at the April 4 meeting you said the
employees wanted to go on strike right then?
A. Right, when I came in a lot of them, not
everyone, was saying this, but there was quite a few of
them talking about it.
Q. They wanted to go on strike because they didn't
have a contract, is that correct?
A. No, I think a lot of it was because of this
election deal coming up and a lot of the employees
talked about whether the company would come around
and I think coerced them . ... [LaBuda] said this guy
Spencer came around three times trying to get him to
sign the petition. .... This guy bugged him quite a bit,
kind of let on the impression that if he didn't sign the
thing and it did get voted out, he might not be very
favorable in the company.... [James Barcelli] said
this stuff has gone on and on and on and finally boiled
down to the end and there is only one way, he said, to
stop it is going on strike . . . he said this company has
been awfully unfair about this whole deal.... They
wouldn't, waited until the very end to talk about the
contract or anything, . . . He said that is all the
company seems to worry about is voting this thing out,
getting rid of the union. They are not worrying about
the business or anything like that. .... Most of them
were just pretty well peeved off. Here I go back to a
general assumption, peeved off about how this whole
deal had been going on, dragging on, dragging on, this
petition coming on, these guys coming around and
talking to them about it, you know, getting them to sign
it. Some of the guys said I don't want to sign it and they
came back again.
In concluding his cross-examination of Smith, Respon-
dent's counsel attempted to establish that the employees
voted to strike on April 16 solely to obtain a contract. The
examination was:
Q. I am trying to find out why you went on strike
and I understand you to be telling me, is it not correct,
that you went on strike on April 16 because you didn't
have a contract?
A. I went on strike because I was pretty teed off
about the whole deal. I think that is why most of them
did it, mainly over the activities of the company and all
that stuff.
Employees concluded, apparently before the union rep-
resentatives did, that Respondent was determined to end
all relationship with the Union. The record as a whole
overwhelmingly establishes that, while the employees ap-
parently felt that the union representatives should have
been more aggressive and skilled in their negotiations, the
major problem was frustration because of the Company's
determination to get rid of the Union and to avoid good-
faith bargaining. On the totality of the evidence, I have no
1496
BERBIGLIA, INC.
doubt Respondent's long course of unfair labor practices
was the major reason for the strike.
The Union's picket signs and other strike publicity were
directed toward economic matters and did not expressly
refer to alleged unfair labor practices by Respondent. This
fact does not in itself negative the unfair labor practices as
a substantial causative factor. Union Officers Hess and
Reeds credibly explained that the strike publicity was
designed to win as much public consumer support as
possible. Past experience had taught them that bread-and-
butter economic issues have maximum appeal to the
public. The nature of the publicity, therefore, reflected a
tactical decision and was not designed to be a complete
explanation. It should be added that the selective choice of
issues to be presented to the public was not dishonest,
since, as previously pointed out, the Union and the
employees were vitally interested in obtaining a favorable
contract and they believed Respondent's economic propos-
als were undesirable and unfair. They were protesting
Respondent's unfair labor practices which prevented nego-
tiation of a contract.
Accordingly, on all the evidence, I find and conclude
that the strike which commenced on April 16, 1976, was an
unfair labor practice from its inception.
d. The reinstatement of the head salesmen
The strike, which began on April 16, 1976, some 2 weeks
after the collective-bargaining agreement expired, ended on
July 12. All strikers who wanted to return to work were
reinstated, with the result that there were 14 more persons
working in the stores than there were before the strike,
although there was one less store. The striking head
salesmen, however, were reinstated only as clerks, with a
considerable reduction in pay. It is this reclassification of
the head salesmen that the General Counsel contends was
violative of Section 8(aX3).
Since it has been found that the head salesmen were not
supervisors and the strike was an unfair labor practice, they
were entitled to reinstatement to their former positions
even if such reinstatement necessitated the discharge of
permanent replacements.
Respondent, however, contends that there were no head
salesmen's positions available when the strikers requested
reinstatement. Respondent asserts that at the inception of
the strike, the contract having expired, it installed manag-
ers in all the stores and thus had no need for head
salesmen.2 3
Even if it be assumed that the postcontract "managers"
are supervisory employees, their appointment in lieu of
head salesmen may have constituted unilateral action
violative of Section 8(aX5). Cf. Brotherhood of Locomotive
Firemen and Enginemen, 168 NLRB 677 (1967), enfd. in
pertinent part 149 F.2d 314 (C.A.D.C., 1968); Creative
Engineering, Inc., 228 NLRB 582 (1977); Dixie Ohio
Express Company, 167 NLRB 573, 574 (1967). It was
23 Respondent's evidence on this score is somewhat confused. Jack
Bondon testified that 18 stores had managers and the nineteenth was
managed by Supervisor George Shortino. Bondon then testified that 10 of
the present managers had been managers before the strike, one was hired
from outside, and "two head clerks that ... did not go on strike . . . we
basically changed their name to store manager." But that leaves five stores
unaccounted for.
probably this consideration which led Respondent's coun-
sel at the hearing to contend that in the negotiations the
parties had reached an impasse on "[o]ur option to have a
head salesman if we wanted one. . we'd have the right to
decide who our managers were going to be, and ... if we
had a manager we may not have had a head salesman."2 4
The impasse issue was not pursued because counsel for the
General Counsel immediately said, "there is no allegation
in the complaint that the reinstatement of the head . . .
salesmen, by which they were reduced to the position of
clerks following the strike, is in any way violative of
Section 8(a)(5)." With this express disavowal of any 8(aX5)
claim in connection with the reinstatement, the question
becomes whether the abolition of head salesmen's positions
was discriminatorily motivated and designed to discourage
union membership. Cf. Production Molded Plastics, Inc. and
Detroit Plastic Molding Co., 227 NLRB 776, 777 (1977).
Respondent's final argument is: "Since the [manager]
position involved was a supervisory position, neither the
General Counsel nor the Charging Party can designate
which individuals or group of individuals the Employer
must appoint as its supervisors." But the legal principle so
stated is applicable only if the managers' positions were
supervisory in fact and in law. While an employer may
lawfully restrict supervisory positions to nonunion person-
nel, he may not use sham promotions to pseudo-superviso-
ry positions to discourage union membership. See Steves
Sash & Door Co., supra, 164 NLRB at 478, and cases there
cited.
Respondent asserts that the managers' positions are
"supervisory." However, as detailed above, throughout the
present hearing and in its posttrial brief Respondent has
maintained that the head salesmen's positions were super-
visory and that, at least until the beginning of the strike,
there was no difference between the two types of positions.
As previously observed, the evidence does establish that
there were substantial differences between precontract
managers and head salesmen under the contract. But there
is no evidence of similar differences between head sales-
men and the "managers" named when the strike began.
Indeed, the evidence establishes that some of the "manag-
ers" appointed during the strike were inexperienced. Jack
Bondon testified that as to "two head clerks that . . . did
not go on strike. .. we basically changed their name to
store manager."
Since unfair labor practice strikers are presumptively
entitled to reinstatement to their prestrike positions, it was
incumbent upon Respondent to establish valid reasons for
their not having been afforded such reinstatement. As said
in N.LR.B. v. Fleetwood Trailer Co., 389 U.S. 375, 378
(1967):
. . . [U]nless the employer who refuses to reinstate
strikers can show that his action was due to "legitimate
and substantial business justifications," he is guilty of
24 If the positions of managers were the same as those of head salesmen.
Respondent could not insist to impasse on excluding them from the
bargaining unit. National Fresh Fruit & Vegetable Conmpany and Quality
Banana Co., Inc., 227 NLRB 2014. 2016-17 (1977). Cf. Romo Paper Products
Corp., 220 NLRB 519, 524-525 (1975).
1497
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an unfair labor practice. .... The burden of proving
justification is on the employer ...
To meet its burden under the facts of this case Respon-
dent would have to establish, as a minimum, that it had
"legitimate and substantial business justification" for abol-
ishing or failing to fill the positions of head salesmen and,
in addition, that it did in fact install supervisory "manag-
ers" in all the stores. Respondent made no such showing.
During the contract negotiations Respondent maintained
that it was not requesting abolition of the head salesman
classification but rather was only seeking freedom to have
"working managers" in those stores where Respondent
deemed it advisable. Thus its present claim that immediate-
ly upon the inception of the strike it appointed "working
managers" in all the stores at least raises suspicion as to its
motivation. Respondent's conduct suggests that the ap-
pointment of "managers" during the strike may have been
only a change in title. As said in Sieves Sash & Door, supra,
401 F.2d at 680:
[I]t can reasonably be inferred that the company was
not out to make them supervisors but rather was trying
to lure them away from the union with a promise of a
slight pay increase. The strategy, in short, was to dilute
the strength of the union under the guise of filling
"supervisory" posts. This inference . . . supplies the
needed element of an unlawful intent to discourage
union activity.
The fact is that the striking head salesmen have been
reduced in rank and pay, while nonstriking employees have
not been demoted and several clerks have been promoted.
To counteract the ready inference of discrimination from
the undisputed facts, Respondent refers to "the Employer's
offer to consider these men as supervisors." At one
bargaining session Bestor understood Union Representa-
tive Reeds as suggesting that the striking head salesmen
should be offered jobs as managers. At that point Saunders
asked Reeds to provide a list of striking head salesmen who
would like to be considered for managers' positions. At the
next bargaining session Reeds said that none of the former
head salesmen wanted such positions. Although Respon-
dent does not mention it in his brief, Saunders testified that
he later offered managers' positions to five of the head
salesmen who had struck but they all refused, saying
"[t]hey would take the position of head clerk but not as
store manager." These facts would not negative an inten-
tion on the part of Respondent to discourage union
membership. Every striking salesman removed from the
bargaining unit by promotion to a "supervisory" position
would bring Respondent closer to its desired elimination of
the Union. Respondent apparently persists in its refusal to
give these employees their former status as head salesmen
and has failed to establish business justification for its
conduct.
Accordingly, on the present record, I find and conclude
that Respondent violated Section 8(a)(3) and (1) by
reinstating the striking head salesmen as clerks rather than
as head salesmen.
CONCLUSIONS OF LAW
I. The Respondent, Berbiglia, Inc., is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Retail Store Employees Union, Local 782, affiliated
with Retail Clerks International Association, is a labor
organization within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time sales clerks,
porters, cashiers, and utility men employed at the retail
stores of Berbiglia, Inc., in the Kansas City, Missouri, area,
but excluding office clerical employees, casual employees,
professional employees, guards, and supervisors as defined
in the Act constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of the Act.
Said appropriate bargaining unit includes head salesmen.
4. Since January 8, 1973, the above-named labor
organization has been, and now is, the certified and
exclusive representative of all employees in the aforesaid
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. Since December 1975 Respondent has violated Sec-
tion 8(a)(l) of the Act by unlawfully misrepresenting the
Union's position, promising employees improved benefits
and increased earnings if they repudiate the Union,
interrogating employees about their union sympathies and
activities, threatening employees with discharge for engag-
ing in a strike, threatening pickets with assault by automo-
bile, and instigating, encouraging, and filing a petition to
have the Union decertified.
6. Since the unfair labor practices found above were
designed to undermine the Union's representative status, in
order to avoid Respondent's obligation to bargain with the
Union, they were violative of Section 8(aX5) of the Act.
7. Since Respondent committed unfair labor practices
in violation of a settlement entered into in Case 17-CA-
6945, that settlement agreement was properly set aside by
the Regional Director.
8. The strike commencing on April 16, 1976, was an
unfair labor practice strike from its inception.
9. Since July 12, 1976, Respondent has violated Section
8(a)(3) and (1) of the Act by failing and refusing to offer
head salesmen who engaged in a strike reinstatement to
their former positions.
10. Since on or about March 1, 1976, Respondent has
failed and refused to bargain in good faith with the Union,
in violation of Section 8(a)(5) and (I) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the Act.
Because Respondent's course of unlawful conduct has
extended over a long period of time and includes violation
of Respondent's commitments in a settlement agreement, I
shall recommend issuance of a broad cease-and-desist
order.
Since it has been found that Respondent violated Section
8(a)(3) of the Act by discriminatorily failing to offer
striking head salesmen reinstatement to their former
1498
BERBIGLIA, INC.
positions it will be recommended that Respondent be
required to offer such reinstatement and make the employ-
ees whole for any loss of earnings they suffered by reason
of such discrimination. Batten is included among the head
salesmen to be offered full reinstatement since he had been
stripped of his authority as "manager" and was a head
salesman before the strike commenced on April 16.
Backpay is to be computed in accordance with F. W.
Woolworth Company, 90 NLRB 289, with 6 percent per
annum interest, in accordance with Isis Plumbing &
Heating Co., 138 NLRB 716.
The Union requests that Respondent be ordered to
"reimburse the NLRB and the union for their expenses
incurred in the investigation, preparation, and conduct of
these cases including reimbursement for reasonable coun-
sel fees, salaries for business agents involved, witness fees,
transcript and record costs, travel expenses and per diem
and other reasonable costs and expenses." The Union says
such order "is needed to protect the employees and deter
the Respondent from engaging in further massive and
extended unfair labor practices."
That Respondent has engaged in an aggressive and
sophisticated campaign to undermine the Union for over 2
years, continuing its unlawful course of conduct in viola-
tion of a settlement agreement it voluntarily entered into,
tends to support the Union's view. Originally, Respondent
denied the commission of the unfair labor practices
alleged. It cannot be said that Respondent acted unreason-
ably or frivolously in requiring that the General Counsel
prove the allegations of the complaints. However, Respon-
dent then substantially expanded the issues and extended
the hearing by belatedly presenting a proliferation of
defenses which were fundamentally inconsistent with its
entire course of conduct over a 4-year period and its basic
contentions that it was in fact bargaining in good faith and
sincerely felt the need to regain its lost supervisory control
of its stores. Respondent made no apparent attempt to
expedite final resolution of the matter. For example, it
rejected repeated suggestions that during an extended
recess in the hearing it attempt to appeal to the Board from
the revocation of subpenas issued on its behalf. Such
appeal would save the considerable time, effort, and
expense which would be involved in a remand and further
hearing and decision if the Board were ultimately to
reverse my ruling. In general, Respondent's conduct of the
litigation appears possibly to have been dictated largely by
a desire indefinitely to postpone, and eventually avoid, its
statutory obligations. However, neither the General Coun-
sel nor the Union objected to Respondent's being permit-
ted to litigate its newly asserted affirmative defenses.
Additionally, it should be noted that the General Counsel
himself belatedly injected the reinstatement issue into the
case toward the end of the hearing.
It is well established that "the public interest in allowing
a charging party to recover costs of litigation does not
override, except in extraordinary circumstances, the princi-
ple that litigation expenses are normally not recoverable."
Orion Corporation, 210 NLRB 633, 634 (1974) enfd. 515
25 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,
conclusions, and recommended Order herein shall, as provided in Sec.
F.2d 81 (C.A. 7, 1975). While the matter is not entirely free
from doubt, I conclude that the present case does not
present sufficiently extraordinary circumstances to warrant
departure from the general rule denying recovery of
litigation and similar expenses. Crystal Springs Shirt Corp.,
229 NLRB 4 (1977). 1 am somewhat influenced by the
General Counsel's failure to join in the request.
While I shall not recommend that Respondent be
required to reimburse the General Counsel and the Union
in this proceeding, it is perhaps appropriate to note
Respondent's potential exposure to such expenses should it
engage in further litigation with the objective of postponing
its statutory obligation. John Singer, Inc., 197 NLRB 88, 89
(1972).
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 25
The Respondent, Berbiglia, Inc., Kansas City, Missouri,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Promising better earnings or benefits, or other
improvements in terms or conditions of employment, for
the purpose of encouraging or persuading employees to
repudiate Retail Store Employees Union, Local 782,
affiliated with Retail Clerks International Association, as
their collective-bargaining representatives.
(b) Instigating, encouraging, or assisting employees to
seek a representation election whereby the aforesaid Union
might be decertified or repudiated as their collective-
bargaining representative.
(c) Interrogating employees concerning their union sym-
pathies and activities, or the sympathies and activities of
other employees.
(d) Threatening employees with discharge for engaging
in a strike or other protected concerted activity.
(e) Threatening strikers with assault by automobile.
(f) Misrepresenting positions taken and statements made
by the Union, for the purpose of discouraging membership
therein.
(g) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of
employment with the above-named Union as the exclusive
bargaining representative of its employees in the following
appropriate unit:
All full-time and regular part-time sales clerks, porters,
cashiers, and utility men employed at the retail stores of
Berbiglia, Inc., in the Kansas City, Missouri, area, but
excluding office clerical employees, casual employees,
professional employees, guards, and supervisors as
defined in the Act.
(h) Discriminating against and refusing to reinstate
unfair labor practice strikers to their former positions after
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.
1499
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
termination of the strike and after unconditional requests
for reinstatement.
(i) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer the following employees reinstatement to their
former jobs, with all former rights and privileges, displac-
ing, if necessary, any replacements: Joseph E. Cassidy,
Richard D. Batten, James T. Griffin, Lirio Petigna, John B.
Smith, Joseph Cisetti, M. Turville, Robert S. Gregg, and
Donald E. Ozburn.
(b) Pay to the aforenamed employees any wages or
earnings they may have lost from July 12, 1976, to the date
or dates of offers of reinstatement to their former jobs, in
the manner set forth in "The Remedy" section of the
Decision.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records and
reports, and all other records necessary and useful in
analyzing the amount of backpay due under the terms of
this Order.
2e 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 Pursuant to a
(d) Upon request, recognize and bargain in good faith
with the above-named Union as the exclusive representa-
tive of all employees in the aforesaid appropriate bargain-
ing unit, and, if an understanding is reached, embody such
understanding in a written, signed agreement.
(e) Post at its office and at each of its stores in the
Kansas City, Missouri area, copies of the attached notice
marked "Appendix." 26 Copies of said notice, on forms
provided by the Regional Director of Region 17, after
being signed by an authorized representative of Respon-
dent, shall be posted by 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.
(f) Notify the Regional Director for Region 17, in
writing, within 20 days of this Order, what steps Respon-
dent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found in this Decision.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
* U. S. Government Printing Office: 1979--281-649
1500