Big Ben Department Stores, Inc.

National Labor Relations Board - Board Decisions

Oct 13, 1966

160 N.L.R.B. 1925 (N.L.R.B. 1966)

BIG BEN DEPARTMENT STORES, INC. 1925
APPENDIX
NOTICE
To ALL MEMBERS OF TEAMSTERS, CHAUFFEURS, HELPERS AND TAXICAB DRIVERS,
LOCAL UNION No. 327, AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA AND TO
EMPLOYEES OF GREER STOP NUT CO, A DIVISION OF KAYNAR MFG. CO., INC.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT restrain or coerce employees of Greer Stop Nut Co., a
division of Kaynar Mfg. Co., Inc., or of any other employer within the
geographic jurisdiction of our local union, in the exercise of employees' rights
guaranteed in Section 7 of the Act (including the right to refrain from joining
or assisting our union) by mass picketing, forcefully preventing supervisors,
employees, and other persons from entering the employer' s premises , threaten-
ing to inflict bodily harm upon and damage to the property of supervisors
and employees, throwing sticks, rocks, gravel, glass, steel bolts, or other
objects at the Company's supervisors and employees, placing nails, glass, and
other objects in the roadway at or near the picket line at the Company's
premises, damaging automobiles, tires, and other property of the Company's
supervisors and employees, hitting company supervisors with stones, or threat-
ening the Company's employees and members of their families with bodily
harm.
WE WILL NOT in any other manner interfere with, restrain , or coerce
employees in the exercise of the rights guaranteed by Section 7 of the National
Labor Relations Act.
TEAMSTERS, CHAUFFEURS, HELPERS AND TAXICAB DRIVERS, LOCAL
UNION No 327, AFFILIATED WITH INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 746
Federal Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone
534-3161.
Big Ben Department Stores , Inc. and Local 888, Retail Clerks
International Association , AFL-CIO and Unishops, Inc.; Mor-
ton's Shoe Stores , Inc.; Poughkeepsie Distributors, Inc.; West-
ern Belle Millinery, Inc.; M & S Jewelry Co.; Daniel Belmonte
d/b/a Bell Vending Co., Party in Interest.
Big Ben Department Stores, Inc.; Morton 's Shoe Stores, Inc. and
Local 888, Retail Clerks International Association , AFL-CIO.
Cases 3-CA-0743 and 0753. October 13,1966
DECISION AND ORDER
Ou May 9, 1966, Trial Examiner Sidney Sherman issued his Deci-
sion in the above-entitled consolidated proceeding , finding that the
Respondent , Big Ben Department Stores, Inc., had engaged in and
160 NLRB No. 149.
1926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was engaging in certain unfair labor, practices and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision. The Trial
Examiner also found that the Respondent, Morton's Shoe Stores,
Inc., had not engaged in any unfair labor practices and recommended
that the complaint against Morton's be dismissed.' Thereafter, the
General Counsel filed exceptions to the Trial Examiner's Decision,
the Charging Party filed a memorandum in support thereof, and the
Respondent, Big Ben, filed exceptions to the Decision and a brief in
support thereof.,
Pursuant toithe provisions of Section 3(b) of the National Labor
Relations Act,,as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, memorandum, and brief, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the following
modifications.
We agree with the Trial Examiner that the Respondent refused to
bargain with the Union in violation of Section 8(a) (5) and (1) of
the Act.
The Trial Examiner concluded that the appropriate unit was com-
posed of 49 employees, of whom 28 signed valid authorization cards
for the Union before the crucial demand of August 10, 1965. In so
concluding, the Trial Examiner did not consider the cards of DeMar-
tine and Hornick on the grounds they were not employed on August 10.
However, it appears that they were - so employed and that they
were counted for the purpose of computing the size of the appropri-
ate unit. Moreover, while we agree with the Trial Examiner that
Bauni should be excluded from the unit,' the Trial Examiner inad-
vertently excluded him twice in computing the size of the appropri-
ate unit. Thus, the above figures arrived at by the Trial Examiner
are corrected to reflect that there were 50 employees in the appropri-
ate unit, of whom 30 signed valid authorization cards as of August 10,
before the request for recognition.2
' We believe that adoption of the Trial Examiner 's finding and recommended remedy
against the Respondent , Big Ben, respecting Papastrat will fully effectuate the policies of
the Act in the circumstances of this case.
2Exceptions were filed by Respondent to the Trial Examiner ' s excluding from the unit,
as supervisors , Bernard, Krut , Schurter , Piccoll, and Roe , and the General Coun=el has
excepted to the Trial Examiner ' s exclusion of Lasher . Even had we not adopted the super-
visory findings of the Trial Examiner, the unit inclusion of those involved would not have
affected' the Union 's majority status Nor can the unit placement of Lasher , a card signer,
affect the Union's representative status , so we need not determine whether she belongs in
the unit.
BIG BEN DEPARTMENT STORES, INC. 1927
As detailed by the Trial Examiner, Respondent withheld that
recognition which the Union requested on August 10, and at the same
time, engaged in the unfair labor practices which were plainly calcu-
lated to discourage adherence to the Union and to preclude the hold-
ing of any free election. Clearly, its refusal to recognize the Union
cannot be attributed to a good-faith doubt of the Union's majority
status. Therefore, we fold that Respondent violated Section 8(a) (5)
and (1) of the Act.3
[The Board adopted the Trial Examiner's Recommended Order
with the following modification : Add the following at the end of
paragraph 2 (b), in the Trial Examiner's Recommended Order :
["and notify him, if he is presently serving in the Armed Forces of
the United States, of his right to full reinstatement upon application,
in accordance with the Selective Service Act and the Universal Mili-
tary Training and Service Act, as amended, after discharge from the
Armed Forces."]
3Joy Sill; 31-ills, Inc ., 85 NLRB 1263 , enfd. 185 F . 2d 732 (C.A.D.C ), cert. denied 341
U.S. 914.
TRIAL EXAMINER 'S DECISION
The original charge in Case 3-CA-2743 was served on Respondent Big Ben
on September 3, 1965,1 and the original charge in Case 3 -CA-2753 was served
on Big Ben and Morton's Shoe on September 16. The consolidated complaint
issued on October 27 , and the case was heard before Trial Examiner Sidney
Sherman on various dates between January 6 and 27, 1966 The issues litigated
related to alleged violations of Section 8(a)(1), (3 ), and (5 ) of the Act. After
the hearing, briefs were filed by all parties.
Upon the entire record ,2 and my observation of the witnesses , I adopt the
following findings and conclusions.
1. THE BUSINESS OF RESPONDENTS
Big Ben Department Stores, Inc., herein variously called Respondent , or Big Ben
is a corporation under the law of the State of New York and operates a retail store
at Poughkeepsie , New York. It annually sells at retail goods valued in excess of
$500,000 , and receives from out-of-State points goods valued in excess of $ 50,000.
The operations of Big Ben, considered alone, suffice to render it an employer
engaged in commerce under the Act.
Morton's Shoe Stores, Inc., named as a respondent in Case 3-CA-2753 , is a cor-
poration , with a principal office at New Bedford , Massachusetts , and it operates a
leased department in Big Ben's Poughkeepsie store. Each of the corporations and
individuals listed in the caption , above as a "Party in Interest" likewise operates a
leased department in that store . It is admitted , and found , that Big Ben and each
operator of a leased department are the joint employers of the employee of such
operator , and that all such operators , together with Big Ben, constitute a single
employer under the Act.
It is also admitted , and found, that Big Ben and the operators of the leased
departments collectively constitute an employer engaged in commerce under the Act.
1 All dates refer to 1965 , unless otherwise indicated.
2 For corrections of the record and the disposition of certain objections to evidence as
to which ruling was reserved at the hearing as well as rulings on the admissibility of
General Counsel ' s Exhibit 27 and Respondent 's pioposed Exhibit 6, see my Orders of
April 11 and May 5, 1966. During the hearing , Respondent and General Counsel requested
a continuance to permit them to call witnesses who weie not then available . I denied
these requests without prejudice to renewal thereof In the parties ' briefs. They were not
renewed.
1928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It follows that, by virtue of the integration of its leased department at Poughkeepsie
with the operations of Big Ben , Morton 's Shoe Stores, Inc., is an employer engaged
in commerce under the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 888 , Retail Clerks International Association , AFL-CIO, herein called the
Union , is a labor organization within the meaning of the Act.
M. THE UNFAIR LABOR PRACTICES
The pleadings raised the following issues:
1. Whether Respondent's admitted refusal in August to recognize the Union as
the representative of its employees violated Section 8(a)(5) and (1) of the Act.
2. Whether Respondent and Morton's Shoe Store, Inc., violated the Act by the
discharge of Papastrat on July 22?
3. Whether Respondent during August unlawfully interrogated employees about
their union activities?
4. Whether the granting to employees early in September of an increase in pre-
mium pay for holidays worked was illegal?
5. Whether in October and December Respondent circulated among its employees
an antiunion petition?
A. Sequence of events
On July 20 , the Union began its efforts to organize the approximately 70 employ-
ees in Respondent's store, including the leased departments. On July 22, Papastrat,
an employee of Respondent Morton's Shoe Stores, Inc., which operated one of the
leased departments, was discharged by Jordan, Respondent's personnel director,
because of his alleged improper solicitation of another employee to sign a card
for the Union. The next day Cooperstein, an officer of Respondent, admonished
Handburg, a union agent, not to interfere with the employees in the performance of
'their work, but imposed no other limitation on the Union's solicitation of employ-
-ees, and the Union did in fact engage in extensive solicitation of the employees on
and off the selling floor and during worktime, as well as nonworktime. On August 10,
Respondent met with the Union, which submitted about 40 signed cards and re-
quested recognition. There is conflicting testimony as to Respondent's immediate
reaction to this request, but it is agreed that Cooperstein asked Union Agent Britton
to call him on August 14, and that Respondent thereafter decided not to recognize
the Union. On September 6, Labor Day, pursuant to a newly adopted policy to
increase premium pay for holidays worked, Respondent paid double time for work
performed on that day. In mid-August, Bernard, an alleged supervisor, with Presi-
dent Zwetchkenbaum's acquiesence, and assistance, interviewed employees in
Respondent's offices, and obtained from them, signed statements regarding their
contacts with union agents and the circumstances under which they signed union
cards. In October an alleged supervisor, Roe, during worktime, circulated among the
-employees for their signature a petition repudiating the Union , and in December a
like petition was circulated by Roe and another alleged supervisor , Julie Piccoli.
B. Discussion
1. The discharge of Papastrat
On July 20 the Union began to organize Respondent's employees. The next day
Papastrat was hired to work for Morton's Shoe Stores , Inc., and on July 22 , during
the lunch period , he approached Lasher near the timeclock and solicited her to sign
:a union card. She refused and promptly reported the, incident to Jordan, who pro-
ceeded to discharge Papastrat. Respondent contends that the -discharge was proper
-because motivated by Papastrat's "misconduct" on that occasion.3
Jordan testified that Lasher appeared to be disturbed when she made her report to
-him, claiming that Papastrat had "maneuvered" her into a corner and tried to
-force" her to join the Union, and appealing to Jordan to get Papastrat "off her
3 However, there is no evidence or contention that Papastrat violated any rule against
-solicitation
BIG BEN DEPARTMENT STORES, INC. 1929
back." 4 Lasher testified that Papastrat accousted her as she was approaching the
timeclock to punch in from lunch, and stood between her and the timeclock, but
that she could have walked around him. While she confirmed Jordan's testimony
that she was visibly agitated when she told him of the incident, all that she related
to him, acording to her testimony, was that someone 5 had stopped her in the hall
and "explained the Union" to her, and, despite her rebuff, had persisted in his
solicitation, insisting that she sign a union card, and that she had refused to do so,
and left him. Papastrat's version was that he approached Lasher near the timeclock,
that he spoke to her for only a minute, that she disclaimed any interest in the
Union, explaining that she was quitting her job in a few weeks,6 that he appealed to
her to join the Union in order to help the other employees, and that she persisted
in her refusal, and walked away from him.
Insofar as Jordan's testimony implies that Lasher reported to him that she had
been involuntarily detained by Papastrat or that he had used any means other than
persuasion to induce her to sign a union card, such testimony is not corroborated
by Lasher, and, on the basis of demeanor, as well as other considerations 7 I credit
Lasher's version insofar as it conflicts with Jordan's. Nor do I find any evidence
that Papastrat did in fact resort to any improper tactics. All that Lasher's testimony
shows is that Papastrat persisted in his solicitation despite her initial rebuff and that
she became disturbed over the incident, presumably because of her youth and inex-
perience in matters of this sort. Whatever other considerations may have influenced
Jordan,8 it is clear that his discharge of Papastrat was precipitated by the solicitation
of Lasher, and I find no evidence in the record that such solicitation was attended
by any misconduct such as would deprive it of the protection of the Act. Accord-
ingly, as Papastrat's discharge was due at least in part to his involvement in pro-
tected concerted activity, Respondent, by such discharge, violated Section 8(a)(3)
and (1) of the Act .9
However, as there is no evidence that his "co-employer," Morton's Shoe, was in
any way responsible for his discharge, I will recommend dismissal of the complaint
as to it.
2. The increase in holiday pay
As already related, on August 10, the Union presented to Respondent about 40•
authorization cards by employees and requested recognition, a request which
Respondent ultimately rejected. The following Labor Day-September 6-the
employees were paid double time for work done on that day.i° The General Coun-
sel contends that this was a deviation from Respondent's past practice of paying
only time and one-half for work on holidays, and that the purpose thereof was to-
deter the employees from adhering to the Union. Respondent, on the other hand,
contends that the increase in holiday pay was solely for economic reasons and
reflected a decision made before the advent of the Union.
* Jordan also testified that another similar incident involving Papastrat was reportedt
to him later the same day by two other employees, but lie was uncertain whether this
happened before or after Papastrat's discharge, and finally admitted that this incident
played no part in his decision to discharge Papastrat.
5 While she did not recall having identified this individual as Papastrat, there is no-
dispute that he was the one involved.
9 Lasher was in fact expecting to enter college that fall.
7 While Lasher eventually did sign a union card (on August 5), she manifested hostility
to the Union at the hearing, asserting that she no longer wanted it to represent her. Ac-
cordingly, there is no warrant for regarding her as predisposed in favor of the Union.
Jordan's testimony on the other hand, here and elsewhere, reflected, in the main, a partisan,
interest in absolving Respondent of any wrongdoing.
8 Jordan asserted that, before discharging Papastrat, he had observed solicitation in the-
store by other employees but had not interfered, and that he had treated Papastrat dif-
ferently because he was a new man, who had not demonstrated any potential value as,
an employee. However, the Act does not permit any discrimination in this regard as be-
tween new and old employees.
P Even if it be assumed that Jordan in good faith, albeit erroneously, believed that
Papastrat had exerted improper pressure upon Lasher, that circumstance would not aid:
Respondent. See Heck's, Inc., 156 NLRB 760, footnote 6; N.L R B. v. Burnup and Simms,-
Inc., 379 U.S. 21.
iU They were also paid double time on the next holiday that the store was open-
January 1, 1966.
1930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While Jordan testified that about August 12,11 Zwetchkenbaum instructed him to
pay double time for work on Labor Day, instead of time and one-half, as had been
done in the past, Zwetchkenbaum insisted that the actual decision had been reached
some time before. However, he had great difficulty even in approximating the date
of such decision. At first, he gave that date as the "early summer" of 1965, but, when
confronted with a pretrial affidavit in which he acknowledged that such decision was
made 3 or 4 weeks before Labor Day,12 he professed to see no discrepancy between
such prior testimony and the affidavit.13 He next surmised that the decision may have
been made the previous May, but, when again referred to his affidavit, he reverted to
the date therein given. However, when pressed to state whether he made the decision
before or after August 10, he answered only that he could not recall the "exact date."
Respondent's secretary-treasurer, Cooperstein, next testified that it was about
May 30 that he first discussed with Zwetchkenbaum the matter of increasing holi-
day pay, and in the course of such discussion it was decided to grant an increase,
the amount thereof to be later determined by Zwetchkenbaum. The latter was
then recalled to the stand and corroborated Cooperstein's foregoing testimony as
to the events leading up to his decision to pay double time, but, when asked again
to state when he finally arrived at that decision, he answered (1) that he didn't
know exactly when, and (2) that he made the decision in May or June. However,
he acknowledged that the decision was to apply to all holidays worked, and, in
adopting the "May or June" date, he was forced to overcome Jordan's admission,
which I credit, that double time was not paid for July 4, the next holiday worked.
After professing to be unable to recall whether double time was or was not paid on
July 4, Zwetchkenbaum insisted that, in any event, his major concern was Labor Day,
because of the difficulty of obtaining adequate staff to handle the unusually large
volume of business on that date.14 However, Jordan testified that the volume of busi-
ness on Labor Day was not greater than the average for other holidays.
Thus , Respondent 's position on this issue resolves itself into the two -fold con-
tention (1) that the decision to increase holiday pay was reached before the
advent of the Union (which occurred on July 20), and (2) that effectuation of the
decision was delayed until Labor Day, because the problem of manning the store
adequately was more acute on that holiday than on other holidays, due to the
exceptional volume of Labor Day business. As to (1), Zwetchkenbaum's extreme
vacillation as to the date of his decision renders his testimony on this point value-
less, insofar as it conflicts with the admission in his pretrial affidavit that such
decision was reached 3 or 4 weeks before September 6; and the accuracy of the
affidavit in this respect is confirmed by Jordan's testimony that he was notified
of the increase several days after Zwetchkenbaum returned (on August 10) from
his vacation. Moreover , as to ( 2), the contention is refuted by Jordan 's avowal
that the volume of business on Labor Day was not unusual for a holiday. I find
therefore that the decision was made shortly after the Union's August 10 request
for recognition, and that the timing of the increase was not due to any special
problems peculiar to the Labor Day holiday. Absent any other credible explana-
tion , and, in view of the timing of the increase in relation to the Union's bar-
gaining demand , I find that the decision to grant the increase was prompted solely
by the employees' adherence to the Union and in the hope of allaying some of
the discontent which led to such adherence 15 It follows that by the foregoing increase
in holiday pay Respondent violated Section 8(a)(1) of the Act.
11 Jordan gave the date as "about the second day after" Zwetchkenbaum returned from
his vacation and the month as "July." However, as such vacation ended on August 10,
it is clear that Jordan's reference to July was inadvertent.
13 As Labor Day fell on September 6, the affidavit in effect fixes the date of the decision
as between August 9 and 16
13He mistakenly asserted at this point that his prior testimony had been that the
decision was made "sometime during the summer," which he promptly qualified by char-
acterizing such testimony , again mistakenly , as referring to the "middle of the summer."
14 Cooperstein testified to the same effect.
15 In this regard, I deem significant the testimony of employee Bourbeau (also referred
to in the record by her maiden name of Krohn) that in mid-August Zwetchkenbaum asked
her what she thought about the Union, and that she answered that she favored the Union
because of various benefits it would help the employees obtain, citing to him the fact that
in another employment she was paid double time for holidays worked. Although Zwetch-
kenbaum denied that there was any such conversation, I credit Bourbeau on the basis of
demeanor as well as Zwetclkenbaum's demonstrated unieliability as a witness
BIG BEN DEPARTMENT STORES, INC. 1931
3. Interrogation
The complaint alleges that on various dates in August, Bernard and Zwetchken-,
baum unlawfully interrogated employees and solicited from them complaints
against union agents.
It is undisputed that in mid-August Bernard summoned employees to one of
Respondent's offices and obtained from them signed statements concerning their
contracts with union agents, the circumstances under which they - signed union
cards, and their union sentiments. Sixteen such statements , dated August 16 and 17,
supplied to the General Counsel by Respondent pursuant to subpena , were placed
in evidence.is The principal theme of these statements is that the union organizers
exerted undue pressure on the employees to sign union cards, and that those who
did sign the cards did so because of such pressure.
Respondent contends that it was not responsible for Bernard 's activity and that,
in • any event, such statements were merely confirmatory of oral reports which had
previously been made voluntarily to Bernard, by the employees involved.
As to the issue of responsibility, it is found below, for such reasons there stated,
that Bernard was a supervisor. In any event, such responsibility is sufficiently
established by Zwetchkenbaum' s admission that he was aware of Bernard's activity
and acquiesced therein,17 as well as by Bernard's avowal that she obtained per-
mission from Zwetchkenbaum to take the employees' statements.
As to the voluntary character of the statements, it is clear from Bernard's own
testimony, as well as her pretrial affidavit (which she adopted at the hearing) that
most, if not all, the original oral complaints about union harassment were not
volunteered by the employees but were solicited by Bernard on the selling floor,
and it is also apparent from her testimony and affidavit that some of the employees
who were called into the office to make written statements had not had any prior
discussion with Bernard about their contracts with union agents or their union
sentiments and were then interrogated by Bernard about such matters. Accordingly,
I find no basis in the record for Respondent's contention that the written statements
merely reiterated information already previously volunteered by the employees.18
Uncontradicted employee testimony, which I credit, as to the circumstances
under which statements were furnished may be summarized as follows:
Franz, who signed a union card on July 21, testified for the General Counsel
that late in August she was called into one of Respondent's offices by Bernard,
who asked if she would furnish a written statement as to how she had been
approached by the Union and, who, after some derogatory comment regarding the
Union, expressed the hope that Franz would not "vote for" the Union; that Ber-
nard also asked the witness to indicate in her statement her allegiance to Respond-
ent; and that she thereupon gave Bernard a signed statement, in which she recited
that she had been approached by union agents, who "represented themselves very
well," and that the witness decided to join the Union, but that she had since
changed her mind and was "on the side of the company."
Paluzzi testified for the General Counsel that late in August, • after he had
signed a union card, he was summoned to Zwetchkenbauh's office by Bernard,
who asked him for his views about the Union; that he answered that he had
originally favored the Union, but, after discussing the matter with others, was
undecided; that Bernard told him that an election would be held soon and she
"The record indicates that an unspecified number of additional statements were fur-
nished by employees to Bernard (including those of Franz and Poluzzi, discussed below),
which were not placed in evidence
iv He admitted that some of the statements were taken by Bernaid in his office and in
his presence. In addition, the record shows that lie personally interrogated some of the
employees at the time they furnished statements
la Moreover, even if that were the case, it would not aid Respondent. The fact that an
employee has voluntarily disclosed to his employer his union activity or sentiments does
not, in itself, justify further probing by the employer into the matter. Murray Ohio Man-
ufacturing Co., 156 NLRB 840, footnote 18. Murray Ohio Manufacturing Company, 155
NLRB 239.
1932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hoped he would vote "the right way"; that a few days later, in response to her
request, he gave Bernard a signed statement to the effect that the union agents
had approached him on company time.
Parrella testified for the General Counsel that, after signing a union card (on
July 30), she was called into Zwetchkenbaum's office by Bernard, who asked her
if she had signed a card, 19 and , when the witness admitted that she had, inquired
why she had done so; that, after the witness attributed her action to the impor-
tunities of the union agents, she was asked if she wanted the Union; that, when
the witness answered that she did not, she was asked so to state in writing, which
she did; 20 that Zwetchenbaum was present during the foregoing interview; and
that soon thereafter she was again summoned to an office, where she signed a
statement about the Union prepared by Bernard, the content of which the witness
did not recall.
Kathleen Brown, a witness for Respondent, testified that soon after she signed
a union card (on August 7) she told Bernard, in the course of a discussion about
the Union initiated by Bernard, that she had signed the card; that Bernard asked
the witness if she had wanted to sign the card; that the witness denied that she
had, blaming the Union's persistence, and, when solicited by Bernard to sign a
statement to that effect, agreed to do so.21
Cobb, a witness for Respondent, who signed a card on July 21, testified that
she was thereafter summoned to an office occupied by Bernard and Zwetchken-
baum, who remarked that he understood she had signed a card; that she admitted
she had; that he then asked her to relate her experience with the union agents;
that she reduced her response to a written statement, which was among those
received in evidence,22 and which, attributes the signing of the card to harassment
by the Union, and, in effect, denies that the witness at any time desired to be
represented by the Union.
The statements of Barbara Williams, Lasher, and Greiner, all of whom signed
cards, also contain express or implied disavowals of any genuine desire for union
representation.
It is apparent from the foregoing, as well as from Bernard 's own testimony,
and I find, that early in August Bernard interrogated a number of employees
about their union sentiments, and, in mid-August, with Zwetchkenbaum's approval
and assistance, embarked upon a campaign of systematic interrogation of employ-
ees about their union sentiments, coupled with solicitation of the employees to
reduce to writing their reasons for signing union cards and their disavowal of any
genuine interest in the Union 23
I find further on the basis of the Bourbeau incident discussed above,24 and in
view of Cobb's aforerelated testimony, and the admission in his affidavit (General
Counsel's Exhibit 23), that Zwetchkenbaum personally interrogated employees
about their union sentiments, and solicited from them signed statements about their
dealings with the-Union and that Respondent thereby further violated Section
8(a)(1) of the Act.
4. The antiunion petitions
There is no dispute that Roe, during working time, openly circulated among the
employees for their signature two petitions repudiating the Union, the first one in
October, and the second in December, and that Julie Piccoli assisted her on the
latter occasion.
i As a witness for Respondent, Parrella testified that she had previously disclosed to
Bernard on the selling floor that she had signed a union card.
2OThis statement was among those placed in evidence (General Counsel's Exhibit
22(k)) and, as she testified, attributes her signing of the card to undue union pressure,
and in effect denies that she at any time desired representation by the Union.
21 See General Counsel's Exhibit 22(p). It bears the date of August 16.
22General Counsel's Exhibit 22(g). It bears the date of August 17.
23 Even if, contrary to the fact, such statements had been limited to a description of
improper pressure exerted by the Union upon the employees, that circumstance would not
have exonerated Respondent, unless Respondent's purpose was (a) to use the informa-
tion in defense of a pending charge or (b) to verify the Union's claim of majority status.
There is no evidence that Respondent had either of these objects in mind. Indeed, Bernard
admitted that she had no such purpose and she was not clear as to what her purpose was.
Moreover , as to (a) no charge was filed until after the foregoing conduct, and as to (b)
the limitations imposed by the Blue Flash case, 109 NLRB 951 are not shown to hate
been complied with.
24 See footnote 15, above.
BIG BEN DEPARTMENT STORES, INC . 1933
Respondent's 'defense 'is that it was not responsible for the conduct of Roe and
Piccoli. However, as it is found below, for reasons there stated, that Roe and Pic-
coli were supervisors,25 this defense is rejected, and it is found that by the circula-
tion of the petitions Respondent violated Section 8(a)(1) of the Act.
5. The 8(a)(5) issue
a. The appropriate unit
It is agreed that the following unit of Respondent's employees is appropriate for
purposes of collective bargaining:
All employees in its Poughkeepsie store, including employees in the leased depart-
ments, but excluding officers, store managers, guards, and supervisors as defined in
the Act.
b. The Union's majority status
As already related, the Union's initial request for recognition was made on Au-
gust 10. It thus becomes necessary to consider (a) how many eligible employees were
in the unit on that date and (b) how many of such employees signed union cards
before such request was made.
As to (a), there was submitted in evidence a payroll list for the week ending
August 14, which contained 55 names. In addition, it was established that two
employees (Parkinson and Cummings) were in Respondent's employ during that
week, although their names do not appear on that list, and that 12 others were
employed during that week by the leased departments. Moreover, if one adds the
name of Papastrat, whose status on August 10 was that of a discriminatorily dis-
charged employee, one obtains a grand total of 70 as the maximum size of the unit.
As to (b), the General Counsel placed in evidence 44 cards (including Papa-
strat's) purporting to have been signed on or before August 10.26 Of these 44, it is
necessary to eliminate 6 27 since there is no evidence that the signers were still in
Respondent's employ on August 10. Of the remaining 38 cards, 2 were signed on
August 10, and it becomes necessary to consider whether they were signed before or
after the meeting on that date at which the Union requested recognition. It is found
that both cards were signed before that meeting, and they will be counted 26
Thus, the Union submitted a total of 38 timely signed cards out of a maximum
complement of 70 as of August 10. However, Respondent would invalidate most,
if not all, of the cards on various grounds, whereas the General Counsel would
substract from the foregoing complement of 70 a number of nonsigners , who, he
contends, do not belong in the unit.
(1) The "assistance" issue
At the threshold, Respondent contends that all the cards should be found invalid
on the ground that they are "tainted" by the fact that they were obtained under cir-
2 Moreover, the fact that, as the record shows, they assisted Bernard and Zwetcbken-
baum in obtaining from employees the written statements, described above, many of which
contained disavowals of any bona fide desire for union representation, warrants finding
that they were held out by management as authorized to act for it in that area.
20 Six other cards, In evidence, were signed between August 11 and September 6.
r. DeMartine, Hornick, Hart, Nichols, Walker, and Helen Tuttle.
2,9 As to one of these cards (Martin's), I credit Union Agent Handburg's uncontradicted
testimony, which was, in effect, that it was signed several hours before the parties met.
As to the other card (Winifred Tuttle's), Union Agent Samman testified that he obtained
her signature about lunchtime, before the meeting, which, according to him, began at
2 p.m. This testimony is partially corroborated by Bernard, who testified that she saw
a union agent talking to Tuttle, with a card in his band, about 1 p.m., as Tuttle was
returning from lunch, and Handburg confirmed that the meeting did not begin until
2 p.m. He Insisted , also, that he and Samman solicited employees until that hour, and
that they did not solicit that day at any time after the meeting. While Cooperstein as-
serted that the meeting began at 12 : 30 p.m., such testimony is a odds not only with
the testimony of the union agents, but also with Bernard's above-noted testimony that
the solicitation of Tuttle occurred about 1 p.m. Samman attended the entire meeting and
in view of the nature and extent of the discussion at the meeting it seems highly unlikely
that It was completed within half an hour . I deem it improbable , therefore , that Samman
could have solicited Tuttle at 1 p.m., as Bernard testified, if the meeting started at 12 : 30
p.m. Accordingly, I credit Samman here , and find that he obtained Tuttle's signature
before the meeting began.
1934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cumstances calculated to convey the impression to the employees that management
approved of the solicitation by the Union. Respondent cites the fact that, pursuant
to the policy announced by Cooperstein on July 23, union agents were permitted to
solicit employees during worktime and at their work stations, that such solicitation
was intensive and persistent, that it frequently occurred in the presence of supervi-
sors, and that Respondent permitted such solicitation by union agents notwithstand-
ing that it barred other forms of solicitation by nonemployees. It is not disputed,
however, that Respondent's tolerance of such union solicitation, and its failure to
avail itself of its right under the Act to limit such solicitation to nonselling areas
during nonworktime was not due to any predisposition in favor of the Union but
simply to Respondent's ignorance of its legal rights 29
Respondent cites no pertinent authority for its contention that mere failure to
limit the Union's organizing efforts, under the circumstances of this case, requires
rejection of the Union's cards,30 and I am aware of none. While assistance to a
union of the sort rendered here may be a reason for invalidating its majority status
in a different context, as where an employer withholds from a union solicitation
privileges accorded to a competing union, or where an employers entire pattern of
conduct betrays a disposition to impose the assisted union on his employees, it is
quite a different matter to give like effect to such assistance, where, as is found to be
the case here, the employer has no disposition to recognize the union even after it
has obtained a card majority,31 and in fact restores to various coercive acts to under-
mine ;such majority. If Respondent's contention were to prevail, it would mean that
any employer, if he so desired, could nullify a union's organizational efforts simply
by offering no obstacle thereto. If the union's efforts were unsuccessful, that would
be the end of the matter. If they were successful, the employer could plead his own
permissiveness as a reason for not recognizing the Union.
I do not believe that it would effectuate the policies of the Act to permit such a
paradoxical result and to place in the hands of employers such a facile means of
defeating the organization of their employees. Acordingly, I find no merit in the
foregoing contention.
(2) Eligibility issues
At the outset, it is necessary to strike the card of Finkbeiner, who all parties agree
is ineligible, and to eliminate from the roster of nonsigners Gary Zwetchkenbaum,
who was' stipulated to be ineligible
(a) Temporary employees
Respondent contests the eligibility of a number of employees on the ground that
they are temporary or casual. Most of them were high school or college students.
One of these was Linda D. Lane,32 who signed a card on August 5. Acording to Jor-
dan's testimony, and his pretrial affidavit of September 30 (General Counsel's Ex-
hibit 9), which he adopted at the hearing, she was originally hired only for employ-
ment during the summer of 196533 . While there is evidence that after returning to
high school, she continued to work for Respondent on some Saturdays 34 and dur-
ing the Christmas season, there was no contradiction of Jordan 's foregoing testi-
mony, that she was initially hired only for summer employment. Accordingly, I
n while Cooperstein had engaged in the general piactice of law, he admittedly had no
familiarity with the provisions of the Act and made no effective effort to obtain competent
legal advice as to the Union 's organizational rights.
30 The case of Hampton Merchants Association , 151 NLRB 1307, cited by Respondent,
involved active assistance to a union by a representative of management in the form of
coercive statements to employees and the obtaining by him of 40 signed cards . There,
moreover , the employer promptly recognized the assisted union.
3z See discussion in the text , infra.
31 Not to be confused with Linda J. Lane, whose eligibility was stipulated.
13Aecording to Zwetchkenbaum's pretrial affidavit , she was hired on July 6.
"Jordan's September 30 affidavit stated that she worked "on Saturdays up to the
present," and would continue so to work so long as she desired. However, at the hearing
( on January 27, 1966 ) Jordan testified that she had in, fact worked only on half of the
Saturdays since the end of her summer employment.
BIG BEN DEPARTMENT STORES, INC. 1935
credit such testimony, and as there is no other evidence on the point, I find that
during the critical period Linda D. Lane's status was that of a temporary employee,
hired for the summer only, and that she was not then eligible.35
For like reasons, I find that Ahrens, Greiner, Detjen, and Richard Piccoli were
ineligible during the critical period.36
Lasher, who signed a card on August 5, admittedly worked not only during
the summers of 1964 and 1965, but also every Saturday between those summers37
However, Jordan testified, without contradiction, that when she resumed her
full-time employment in the summer of 1965, Lasher told him she intended to go
to college at the end of the summer,38 which would in effect, have precluded her
from working during the school term except for those few occasions when she
would come home because of a holiday recess. I do not deem her expectancy of
such sporadic employment during the school term sufficient basis for finding her
eligible.
As already noted, Winifred Tuttle signed a card on August 10. She was hired
by Jordan on August 9 for work on the day shift, and was discharged for cause on
August 20. The only testimony relating to Tuttle's tenure was offered by Bernard,
who reported discussing with Tuttle her plans regarding the future. According to
Bernard, Tuttle confided that she was a student at a local college, and that she
planned to work for Respondent during the summer and would try to work on the
night shift after she returned to school. Even assuming that this was Tuttle's under-
standing with Jordan when she was hired, I find that she was not hired for a def-
inite term, but that it was contemplated that she would be allowed to continue to
work on the night shift after returning to school. Absent any other evidence
regarding Winifred Tuttle, I find her eligible.39
As to Beck, who signed a card on July 21, he was employed on that date by one
of the leased departments. The then manager of the department, Pizzuto, testified
that Beck was a student, who was hired for the summer with the understanding
that he would work "occasionally" thereafter. From the context, it is inferable
that such occasional work would consist of some work on Saturdays during the
school term, beginning late in November.40 Beck did, in fact, according to Pizzuto,
work only until August 20.41 Pizzuto testified to like effect concerning Ann Bel-
monte, who signed a card on July 20, worked for Pizzuto on a regular part-time
basis until August 13, and was not employed by him thereafter. 42 In view of the
insubstantial nature of any expectancy of employment after the end of the school
vacation period, both Beck and Belmonte are deemed ineligible.
Martin was hired on August 10, by Black to work for him in one of the leased
departments. He worked until August 12, and did not return to work until about
35 Brown-Forman Distillers Corp., 118 NLRB 454, Belcher Towing Company, 122 NLRB
1019. In support of the eligibility of the student employees generally, the Union's brief
cites Horn & Hardart Company, 147 NLRB 654, 658. However, that case involved the
eligibility to vote in a Board election of a student who had regularly worked 1 day a week
during the preceding school term. There was no such established pattern of employment for
Linda D. Lane at the time that she signed a union card. The case of George Groh and
Sons, 141 NLRB 931, 938-939 (Redeker), cited in General Counsel's brief supports a
finding of ineligibility here, rather than the contrary.
33 Of these four, Greiner and Piccoll signed cards.
37 See General Counsel's Exhibit 9. Lasher's testimony was to the same effect.
as She had just finished high school.
39 Giordano Lumber Co Inc, 133 NLRB 205, 207. At the hearing Respondent contested
the eligibility of Parkinson on the ground that she was a temporary employee. However,
this contention appears to have been abandoned in Respondent's brief. In any case, there
is no evidence in the record that she was hired on any basis other than as a regular
employee.
+s There is no evidence that Beck did in fact work for Pizzuto after the summer.
A' According to Jordan, Beck was hired to work for only a few weeks, and in fact worked
only a few days. To the extent that it conflicts with Jordan's recollection, I deem Pizzuto's
more reliable , and credit him.
43 After August 13, she worked full time for her father, who operated one of the licensed
departments, and for whom she had worked part time while in Pizzuto's employ Her
work for her father was, according to his uncontradicted testimony, only for the duration
of the school vacation, and was uncompensated. As she is found ineligible on other
grounds, there is no need to consider the relevancy of these circumstances,
1936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 weeks later, when he explained that his car had broken down. He then worked
for a few days and quit. While Jordan testified that Black told him, when Martin
was hired, that he would be needed for only a few weeks, Black acknowledged at
the hearing that Martin was a "regular" employee. In view of such admission, I
find Martin eligible.
Bourbeau (Krohn) signed a card on August 5. Jordan testified that he hired her
in June or July, that she told him when she was hired that she desired "temporary
employment," but did not specify any definite period, that she quit after working
a few months, and that he would have retained her had she wished to stay. It is
clear from the foregoing that, notwithstanding her avowed preference for "tem-
porary" employment, she was not hired for any definite term but for as long as
she was willing to remain . Accordingly, I find her eligible 43
Cummings signed a card on July 30. Although his name is not on the payroll
for the week ending August 14, it appears from Jordan's September 30 affidavit
that Cummings worked for Respondent on August 5, 7, 12, and 14. According to
that affidavit he was paid on these dates by petty cash vouchers. It further appears
from a synthesis of such affidavit and Jordan's testimony that Cummings was
originally hired late in July for work on the day shift as a casual laborer, and
that a few days later, when he expressed interest in working for Respondent on a
regular basis on the night shift, Jordan promised him such work at the earliest
opportunity, and did in fact arrange with him about August 7 to employ him
nights on a regular basis beginning on August 21, and he did on that date become
a regular employee.44
Cummings testified that he first went to work for Respondent in July, on the
day-shift, that at that time he was on vacation from his daytime job with the city
of Poughkeepsie, that he was later assigned by Respondent to a regular job on the
night shift, so as to permit him to work for the city during the day, and that while
on the day shift he was free to work every day if he wished and did in fact work
nearly every day. There is no material conflict between the foregoing testimony
of Cummings and Jordan, except insofar as Cummings' testimony implies that he
became a regular employee when he was first hired, late in July, and that while on
the day shift he worked nearly every day. However, the fact that he started to work
for Respondent during his vacation from his regular job, and was paid from petty
cash until the week ending August 21, tends to confirm Jordan's testimony that
Cummings was originally hired on a day-to-day basis to meet an emergency situa-
tion and did not until some later date enter upon regular employment. Moreover,
I deem Jordan's recollection, particularly as recorded in his pretrial affidavit, more
reliable than Cummings' vague and sometimes obviously confused testimony as to
matters of chronology, and, I find, in accord with such affidavit, that between
August 5 and 14 Cummings worked only 4 days, that he did not become a regular
employee until the week ending August 21, when he was first assigned to night
work, and that he was a casual employee on July 30, when he signed a card for
the Union. I conclude that he was not eligible on that date, and did not become
eligible until the week ending August 21.
(b) The supervisory issue
All parties agree that Zwetchkenbaum, Cooperstein, Jordan, and the managers
of the leased departments are supervisors and ineligible. The General Counsel
challenges the eligibility of Roe, Julie Piccoli, Bernard, Marjorie Krut, Shurter,
Alexandre, and Hartnett, on the ground that they also are supervisors.45
Jordan admitted 46 that he has authorized certain employees, whom he termed
"lead girls" or "senior employees," to transfer employees from one work station
to another within the store, and he indentified as falling within this category
48 Lloyd A. Fry Roofing Go., 121 NLRB 1433, 1437-38. '
"Cummings , in fact, appears on Respondent' s payroll for the week ending August 21,
which shows that he worked 27 hours that week.
.s All of these individuals appear on the payroll for the week ending August 14. None
of them signed a union card
" The content of such admission , as set forth below, is based on a synthesis of Jordan's
testimony and his pretrial affidavits (General Counsel's Exhibits 2 and 9), which he adopted
at the hearing.
BIG BEN DEPARTMENT STORES, INC. 1937
Bernard, Shurter, Marjorie Krut,47 and Julie Piccoli; that James Hartnett was the
"receiving clerk" until the first week in August, when he was placed on sick leave;
that he was responsible for operations in the receiving room, which is normally
manned by three other employees; that he reported to Jordan when one of such
employees is available for assignment elsewhere, but could assign such employees,
himself, to other departments; that he is paid $100 a week,48 and does not punch a
timeclock; that during James Hartnett's illness, Roe has acted in his stead, and has
at the time been "manager" of the toy department; and that, as such, she may dis-
patch employees to other departments. Roe confirmed that early in August she
replaced James Hartnett in the receiving room.49
Julie Piccoli testified that she works at the service desk; that she calls girls from
other operations in the store to attend the cash registers at the checkout counters;
and that she prepares the lunch schedules for the girls at the registers 50 Moreover,
in his pretrial affidavit of September 23, Jordan acknowledged that he has in effect
authorized Piccoli to dispatch girls from the registers to other. areas of the store,
if in her judgment they were more urgently needed there, and his testimony was
to like effect.
However, Respondent contends that no significance should be attached to any
power that the "lead girls" or "senior employees" may have to move employees
about the store, because any employee may ask another employee who is not other-
wise occupied to leave her work station and assist the former employee, or an
employee may leave her work station on her own initiative if she sees a greater
need for her services elsewhere. According to Cooperstein, the successful operation
of the store depends on the flexibility of its work force and upon a constant flow
of personnel from less urgent to more urgent tasks. However, Jordan admitted that
such redistribution of personnel is mainly initiated by the "senior employees," and
that a refusal by an employee to cooperate in this regard with a "senior employee"
would be treated as a more serious breach of discipline than would a refusal
so to cooperate with a "junior employee." Moreover, while Jordan at one point
denied that any of his subordinates was expressly authorized to reassign other
employees, he elsewhere admitted as already noted, that some, at least, of the
senior employees were so authorized. I deem such admission controlling.
Accordingly, it is found that, while employees were generally expected to be
alert for opportunities to assist in other departments when their own work was
slack, primary responsibility for insuring that employees availed themselves of
such opportunities was vested in the senior employees or leadgirls, and, on Au-
gust 10, this category included Roe, Julie Piccoli, Bernard, Shurter, Marjorie Krut,
and James Hartnett. As the proper discharge of this responsibility required an
evaluation of the constantly changing needs of the various departments, it is
found that, in performing this function, the foregoing senior employees were
required to exercise independent judgment, such as would render them supervisors
within the meaning of the Act. Moreover, I deem it significant that, if one accepts
Respondent's contention that the only supervisors were Cooperstein, Zwetchken-
baum, and Jordan, it would follow that for Respondent's work force of about 55
employees (exclusive of the staff of the leased departments) there were only 3
supervisors, all of whom were admittedly absent from the selling floor for con-
siderable periods of time.51 This disproportion between the number of admitted
17 These three, unlike the nonsupervisory employees, are salaried and do not punch a
timeclock. Their salaries ranged from $75 to $90 a week, which was well above the level
of the nonsupervisory selling employees. See next footnote.
'B For a 40-hour week the "junior" employees on the selling floor received from $50
to $56, with the exception of Lillian Hartnett, who receiped $64 a week.
'0 She has continued as Hartnett's replacement to the present, except for an unspecified
period beginning about December 1, when one, Johnson, acted as receiving clerk. Poluzzi,
a stock clerk in the receiving room, testified that Roe dispatched him to other departments.
50 While she insisted that two nonsupervisory employees (Lasher and Parrella) also
called girls to the registers, as they were needed, and that Lasher a so prepares their
lunch schedules, it appears from Piccoli's testimony that to some extent, at least, Lasher
and Parrella performed the foregoing duties as an accommodation to Piccoli, as when she
goes out to lunch or is otherwise occupied.
51 Jordan was absent 3 mornings a week. Cooperstein came to the store only 2 to 4 days
a week out of 6, and both he and Zwetchkenbaum had duties which required them to be
away from the selling floor for substantial periods of ,time.
257-551-67-vol. 160-123
1938 DECISIONS OP' NATIONAL LABOR RELATIONS BOARD
supervisors and the size of the work force tends to confirm that the responsibility
vested in the senior employees was more than routine 52
As to Alexandre, Jordan acknowledged in his pretrial affidavit (General Coun-
sel's Exhibit 9) that Alexandre was being "trained" to replace the former man-
ager of the hardware department, who left in December 1964; that Alexandre is
responsible for the condition of the stock, and, gives directions to the employees,
in that department; that he buys merchandise under Cooperstein's supervision; and
that he does not punch a timeclock. 53 In addition, Roe testified, without contra-
diction, that Alexandre substitutes for Jordan in his absence. Since there are
3 days a week that Jordan does not come to work until 1 p.m., the import of
this testimony is that on those days Alexandre acts for Jordan between 9 a.m.
(when the store opens) and 1 p.m. Zwetchkenbaum confirmed this, and acknowl-
edged, moreover, that, when, as occasionally happens, he, Jordan, and Cooperstein
are all absent, Alexandre is in sole charge of the store. In view of the foregoing,
particularly his regular substitution for Jordan, Alexandre is found to be a
supervisor.54
Accordingly, it is found that Alexandre, Hartnett, Roe, Julie Piccoli, Bernard,
Shutter, and Marjorie Krut are not eligible.55
(c) Miscellaneous exclusions
Respondent contests the eligibility of Hornbeck on the ground that he is a guard.
I so find on the basis of Jordan's uncontradicted testimony that Hornbeck has the
responsibility, inter alia , to control pilfering of merchandise by employees.
The General Counsel disputes the eligibility of Baum, Zwetchkenbaum's nephew.
It is conceded that Baum was not treated as an ordinary employee, that he was
paid a fixed, weekly wage of $70, although he never worked a full week, and that
his work schedule was geared to his convenience. In view of his privileged status,
and his relationship to Respondent's president, I find him not eligible.56
To recapitulate at this point on the issue of the sufficiency of the Union's card
showing, it is found:
1. The maximum number in the unit on August 10 was 70.
2. Of these 70, the following were not eligible as of August 10: Cummings, Fink-
beiner, Bernard, Baum, Shurter, Marjorie Krut, Julie Piccoli, Roe, Hartnett, Alex-
andre, Baum, Gary Zwetchkenbaum, Linda D. Lane, Detjen, Ahrens, Lasher, Grei-
ner, Richard Piccoli, Hornbeck, Beck, and Ann Belmonte. Deducting the foregoing
21 ineligible from 70, leaves 49.
3. Of the foregoing 49, the record shows that 29 57 signed cards for the Union
before the August 10 meeting, at which the Union made its initial request for
recognition 58
(3) Alleged threats and misrepresentations
Of the foregoing 29 cards, Respondent attacks the validity of the cards of Cobb,
Parrella, Poluzzi, Barbara Williams, and Brown, among others, on the ground that
their signatures were obtained by misrepresentation or threats, or other undue
pressure.
53 In the case of Bernard, there was, moreover, uncontradicted evidence in the record
that requests for leave by employees under her direction must be cleared by her as well
as Jordan.
53 He is shown on the payroll for the week ending August 14, as receiving a weekly
salary of $80.
In any case, Alexandre would be excludable by reason of his duties as a buyer.
53 Jordan testified that Mack, who signed a card on July 23, was a leadgirl in the
domestics departments and as such enjoyed the same authority over other employees as
the other leadgirls However, Mack was hired late in March and on July 23 had been in
the store only 4 months, whereas the leadgirls generally had worked for Respondent sev-
eral years. She was paid at the rate of $1.38 an hour. Moreover, Mack testified that
Bernard directed her work to some extent and there is no evidence as to what other em-
ployees, if any, worked with Mack on or about July 23
m International Metal Products Company, 107 NLRB 65
67 The Union, as found above, presented 38 timely cards, of which 9 were signed by
persons who are included in the foregoing list of 21 ineligibles
58 Moreover , if one adds the card of Linda J. Lane, which was signed on August 11, at
a time when the Union was still seeking recognition, the Union would have a majority
of 30 out of 50 on that date.
BIG BEN DEPARTMENT STORES, INC. 1939
Cobb: Cobb was at first positive that before she signed her card she was solicited
twice daily over the period of a week, but, when confronted with the fact that
her card -was dated July 21 which was only the second day of the Union's
organization campaign, she became vague and uncertain about the frequency
of the Union's solicitations. In view of this, I credit Handburg's testimony that he
solicited her only on July 20 and 21, and that she signed her card on the latter
date. Cobb testified also to various arguably improper representations by the union
agents, all of which were denied by Handburg, whom I deem a more credible wit-
ness, and by McEvoy, who assisted Handburg in the July 21 solicitation of Cobb.
Moreover, she admitted that she signed the card, not because of any such represen-
tations, but only to escape the "harrassment" by the Union, which, it has just been
found, consisted merely of solicitation on two occasions. Accordingly, it is clear that
her signing of the union card was not influenced by any misrepresentations or by
any undue pressure, and I find her card to be valid.
Parrella: Parrella testified to numerous and vexatious solicitations by union
agents, and insisted that they represented to her that the card was only for the pur-
pose of determining how many employees wanted to know more about the Union,
and that there would be no union representation without a "vote." However, she
admitted that she signed a card (on July 30), notwithstanding her husband's admo-
nition to the contrary, and she did not specifically contradict the testimony of
McEvoy, which I credit, that she voluntarily sought him out and offered to sign the
card, adjuring him not to mention the matter to her husband. McEvoy also denied
the various representations ascribed to him by Parrella concerning the function of
the card. Moreover, at the hearing Parrella acknowledged the accuracy of certain
statements in her pretrial affidavit, to the effect that she was told by the union agent
that the Union needed the signed cards in order to enable it to "get in." In view of
all the foregoing circumstances, I do not credit her testimony insofar as it implies
that she was not aware of the significance of the union card and was told or believed
that by signing the card she was merely manifesting a desire to learn more about
the Union or that there would be no union representation without an election. Her
card is deemed valid.59
Poluzzi: He testified that before he signed a card, the union agent expounded to
him on the benefits of the Union but did not explain the significance of the card,
itself, and the witness merely glanced at the card without reading it. Absent any evi-
dence that the union agent induced Poluzzi to sign the card by misrepresentation or
coercion,su I find the card valid.
Barbara Williams: She testified that she signed a card after various representa-
tions were made to her by a union agent, including an assurance, in effect, that
the sole purpose of the card was to determine how many employees were interested
in finding out more about the Union, and that this was what influenced her to
sign the card. Samman identified herself as the union agent in question but denied
that he had made any of the representations imputed to him by Williams, includ-
ing the one particularized above. Since Williams' card would not affect the result,
in any event, I do not deem it necessary to resolve the foregoing conflict, but will
assume for purposes of this Decision that Williams' card is invalid.
Brown: Brown testified that, before signing a union card, she was told by
McEvoy that, if she did not sign a card, she would be discharged when the Union
succeeded in its organizing campaign, and that that was one of the reasons why
she signed the card. However, while her pretrial affidavit refers to this incident,
it is clear therefrom, as well as from her testimony that she did not sign the card
until several days after that incident, and, according to her affidavit, she did so only
after the union agent, who solicited her on that occasion, described the benefits
the Union hoped to obtain, including an early wage increase. McEvoy denied the
foregoing threat ascribed to him. I was not favorably impressed by Brown's
demeanor and do not credit her. Moreover, I would find that, even if such threat
was made, it was the Union's promise of benefits rather than the threat that
influenced her to sign the card. Accordingly, her card will be counted.
c0 Apart from other considerations, Parrella's professed naivete about the meaning of
the union card is difficult to reconcile with the fact that, although her husband, as al-
ready noted, opposed her signing of the card, he was, himself, a union shop steward at
a nearby plant. Under the circumstances, it seems highly improbable that her husband
would fail to explain to her what the card implied and his reasons for not wanting her
to sign it.
10 See footnote 61 below.
1 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It having been found that the cards of Poluzzi, Parrella, Brown , and Cobb are
valid , and that Barbara Williams card will be treated as invalid , the count for the
Union is 28 out of 49.61 It is accordingly concluded that, when the Union made
its initial recognition request , it represented a majority of the employees in the
appropriate unit.
c. The refusal to bargain
When the parties met on August 10, the Union 's principal spokesman , Britton,
was accompanied by Handburg and Samman. Respondent was represented by
Cooperstein and Zwetchkenbaum, who had just returned from a 3-week vacation,
and took relatively little part in the discussion.
The record shows that Britton presented to Cooperstein about 40 cards , including
all of those which have been found above to have been signed before the Au-
gust 10 meeting by eligible employees . And it is not disputed that he then stated
that the Union represented a majority of Respondent 's employees , including those
in the leased departments ; that Cooperstein looked the cards over ; that they were
handed to Zwetchkenbaum , who also looked them over; 62 that Cooperstein asked
some questions about the Union's position on various matters pertaining to terms
and conditions of employment , and that Britton rejoined that such items would
have to be negotiated ; that Britton sought to arrange a further meeting between
Respondent and the Union ; that it was agreed that Britton would call Cooperstein
the following Saturday (August 14) concerning a date for such a meeting; that
Britton called on Saturday but was unable to reach Cooperstein; that on August 15,
Britton sent a telegram to Respondent purporting to recite some of the events of
August 10, and asking Respondent to advise when and where it would meet to
negotiate a contract ; that there was no reply to this wire ; that on August 18,63
"Respondent 's also attacks the validity of the cards of Rosen , Gemignani , and Sackett
As to the first two, Respondent apparently relies on testimony by Brown that she repeated
to them McEvoy's alleged threat of discharge for those who did not sign cards As I have
not credited Brown's testimony that such a threat was in fact made by McEvoy, such
testimony affords no basis for invalidating the cards of Rosen and Gemignani (Brown
also identified Poluzzi as one of those to whom she repeated the alleged threat , but Poluzzi's
testimony makes no mention of this See discussion of his card above )
As to Sackett , 1 can find nothing in the record that would warrant invalidating her card
Respondent contends , additionally , that the cards signed after July 21 should not be
counted because of certain threats allegedly made on that date, and which , it is urged,
"tainted" all the cards obtained thereafter . (Of the 28 cards so far found valid , 14 were
signed after July 21 ) Here , Respondent cites testimony by DeLancey ( who did not sign
a card) that late in July, Union Agent Handburg threatened that she "would not have a
job if the Union came in," and that on the same occasion employee Parkinson threatened
DeLancey with physical harm, if she did not sign . However , Handburg gave a different
version of his remark , and DeLancey acknowledged the veracity of her pretrial affidavit,
in which she stated that Handburg explained that she would lose her job only in the
event that the Union succeeded in organizing the plant and DeLancey persisted in refus-
ing to join the Union. As this version accords with that in Handburg's pretrial affidavit,
I credit it . Whether such threat , conditioned on such a double contingency , would suffice
to invalidate even DeLancey ' s card, had she signed one, is a moot question In any event,
there does not appear to be any authority for rejecting all cards subsequently signed be-
cause of an isolated threat (While about 10 other employees were in the vicinity, there
is no evidence that they overheard the remark , or that it influenced them or any other
employees to sign cards.)
As to Parkinson's alleged threat, Parkinson, herself, was not available to testify, but
Iandburg denied that he heard it , and no reference thereto appears in DeLancey's pre-
trial affidavit , which contains a detailed account of the discussion about the Union on the
occasion of the alleged threat Accordingly, I do not credit DeLancey's testimony in that
regard (Jordan testified, in effect, that sometime between July 21 and August 10, he heard
some unidentified employees discussing a similar threat by Parkinson However , such hear-
say testimony is not competent to prove that such a threat was actually made , nor could it,
in any event, establish the Union's responsibility therefor, absent any credible evidence
that it was made in the presence of a union agent . Moreover, as already noted , absent any
evidence that particular employees were induced thereby to sign union cards , I am not sat-
isfied that such a threat would require rejection of the cards )
62 There was dispute only as to the degree of care with which Cooperstein and Zwetch-
kenbaum examined the cards.
° Britton gave this date. I deem his recollection more reliable than Cooperstein's, who
thought the call occurred a week or so later.
BIG BEN DEPARTMENT STORES, INC. 1941
Britton called Cooperstein, who stated he still had not reached a decision; that
on August 25, Britton wrote Cooperstein, reciting Britton's version of their prior
contacts, and concluding with a request for a meeting on August 30, or any
other mutually agreeable date; and that this letter was not answered. It is also
undisputed that on August 30, Respondent filed a petition for an election among
its employees, which was dismissed on December 17, because of the pendency of
the instant case.
The only matters in dispute concerning the August 10 meeting are the following:
(1) Whether, as the Union's witnesses testified, Cooperstein acknowledged, after
he and Zwetchkenbaum had inspected the cards, that he was satisfied that the
Union represented a majority of the employees, or whether, as Respondent claims,
he expressed doubt on this point, and asserted that he did not believe that a
majority of the employees wanted the Union.
(2) Whether Britton told Cooperstein that there was an alternative to recog-
nition-namely, an election.
(3) Whether, at the conclusion of the August 10 meeting, the only question
remaining to be resolved was the fixing of a date for beginning contract
negotiations.
As to (1), all three union agents who attended the August 10 meeting agreed
that both Cooperstein and Zwetchkenbaum inspected each card, and that, while
Cooperstein remarked that he did not recognize the names of some of the employ-
ees,64 he assured Britton, after the foregoing inspection, that it appeared that the
Union represented a majority of the employees.65
Cooperstein, on the other hand, insisted that he expressed doubt as to the accu-
racy of the Union's claim of majority status, and that, when he was referred by
Britton to the cards, Cooperstein observed that he did not know the names of most
of the employees, and had no means of verifying the signatures, and that he did
not believe that a majority of the employees wanted a union. This testimony
was substantially corroborated by Zwetchkenbaum. However, when asked whether
he conceded that the Union appeared to have cards from a majority of the
employees, Cooperstein answered only that he could not recall saying that, and
Zwetchkenbaum's testimony is silent on this point. Moreover, in explaining his
reasons for doubting the Union's majority status, Cooperstein cited several con-
siderations, none of which had to do with the number of cards or the authenticity
of the signatures thereon.
In resolving the foregoing conflict, I deem it significant not only that Cooper-
stein failed to deny unequivocally that he conceded on August 10 that the Union
seemed to have a card majority, but also that there is no evidence that he took
issue either in writing or orally with assertions in Britton's wire to him of August 15,
and letter of August 25, that no question had been raised at the August 10 meeting
concerning the Union's majority status.66
Accordingly, I credit the testimony of the Union's representatives that after
both he and Zwetchkenbaum had inspected the cards, and he had been assured
by Zwetchkenbaum that they were authentic, Cooperstein agreed that it appeared
that the Union had been designated by a majority of the employees, and did not
otherwise question the Union's majority status.
As to (2), all the witnesses were in accord that, after the foregoing discussion
of the cards, Cooperstein asked if there was any alternative to recognition. Accord-
ing to the union agents, Britton rejoined that there was none, since Cooperstein
had already seen the cards. Cooperstein and Zwetchkenbaum maintained that
Britton advised them that Respondent might have an election as an alternative
to recognition, but promised them a better contract if Respondent recognized the
Union without an election.
84 Cooperstein admittedly knew few of the employees by name.
05 According to Union Agent Handburg, Cooperstein passed the cards to Zwetchkenbaum,
who compared them with a list of names on his desk, and reported to Cooperstein, "They
are all our employees," whereupon the latter conceded that it seemed that the Union
represented a majority. Samman substantially corroborated Fandburg as to the verifica-
tion of the cards by Zwetchkenbaum and Cooperstein's foregoing concession.
86 It is conceded that there was no written reply to the Union's communications, and,
while Cooperstein admitted that he had a telephone conversation with Britton after the
August 15 wire, the substance of that conversation, according to both Cooperstein and
Britton, was merely that Cooperstein was not yet prepared to give Britton an "answer."
1942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the specificity and spontaneity of Cooperstein's testimony on this
point, I am inclined to credit him, and find that there was a discussion of an
election as an alternative to recognition and of the relative advantages of recog-
nition with or without an election. However, there was no evidence or contention
that either Respondent or the Union at the August 10 meeting proposed, or
expressed any desire to have, an election, and Respondent's decision to petition
for an election was admittedly made on a subsequent occasion, on the basis of
advice obtained by Cooperstein from the Board's Regional Office.67
As to (3), while all witnesses agreed that at the conclusion of the August 10
meeting it was understood that Britton would call Cooperstein on August 14, there
was sharp conflict as to what was to be the purpose of such call. Britton and Hand-
burg testified that it was understood that Britton would then ask Cooperstein to
set a date for beginning contract negotiations. However, according to Cooperstein
and Zwetchkenbaum, Britton was asked to call on August 14 for a decision as to
whether Cooperstein would resume discussing the issue of recognition. In any
event, it is clear, even from the testimony of the union agents, that Cooperstein
did not on August 10 expressly and unequivocally commit Respondent to bargain
with the Union. Moreover, Britton's letter of August 25 to Cooperstein, pressing
for a meeting, states that at the conclusion of the August 10 meeting the only ques-
tion to be resolved was whether Respondent "would agree to enter into negotia-
tions" for a contract. Britton thereby in effect admitted that the ultimate question
whether Respondent would bargain with the Union was not resolved at the
August 10 meeting.
In conclusion as to the August 10 meeting, it is found (a) that Cooperstein
acknowledged, on the basis of an inspection of the Union's cards, that the Union
appeared to have a card majority, (b) that he did not otherwise raise any ques-
tion as to the Union's majority status, (c) that while there was a discussion on
August 10 of a Board election as an alternative to recognition, neither Respondent
nor the Union at that time proposed that there be an election, and (d) that Respond-
ent did not on August 10 (or at any time thereafter) agree to open contract nego-
tiations with the Union.
It follows that the situation on August 10 was essentially that, after inspecting
the Union's cards, Respondent acknowledged that they appeared to substantiate
its claim of majority status, but nevertheless refused to commit itself to negotia-
tions with the Union. There will next be considered whether the foregoing facts,
without more, warrant finding a violation of Section 8(a)(5).
In John P. Serpa, Inc ,68 the Board stated that the General Counsel "has the
burden of proving not only that a majority of the employees in the appropriate
unit signed cards designating the Union as the bargaining representative but also
that the employer in bad faith declined to recognize and bargain with the union."
And, in that case the Board held that the employer's bad faith was not established
by showing merely that the union displayed its cards to him and that, although
not questioning the union's majority status, he refused to enter into negotiations.
There, however, the Board distinguished the case of Snow & Sons,69 where the
Board found a bad-faith refusal of recognition, on the ground that in that case,
after agreeing to a check of the cards against the payroll, the employer rejected
the result of the card check and sought a Board election. In a subsequent case,70
Snow & Sons, was cited with approval by the Board. In the Jem case it appeared
that, after checking the cards submitted by the union , the employer was satisfied
87 In its brief, Respondent would construe the foregoing reference by the Union to the
alternative of an election as in effect an offer to the Respondent of a choice between
recognition and an election, and as therefore vitiating the Union's request for recognition.
However, it is clear from the record that the Union's reference to an election was only
by way of explaining, in response to an inquiry by Respondent, that this was one method
of determining a union's majority status, and it is undisputed that neither the Union nor
Respondent proposed resort to such alternative, and that the Union did not at any time
abandon its demand that Respondent recognize it forthwith. In this respect the instant
case is distinguishable from those cited in Respondent's brief, holding that there was
no proper demand for recognition, where a union requested that an employer either rec-
ognize it or consent to an election, or in effect abandoned its request for recognition in
favor of a proposal for an election.
68 155 NLRB 99.
89134 NLRB 709, enfd. 308 F.2d 687 (C.A. 9).
70 3em Mfg., Inc., 156 NLRB 643
BIG BEN DEPARTMENT STORES, INC. 1943
that they established the union's majority status, and commenced bargaining. Sub-
sequently, the employer experienced a change of heart, asserting that it doubted
that a majority of the employees really wanted the union. The Board there held
that on the foregoing facts the General Counsel had established a prima facie
case of bad faith, and that the burden shifted to the employer to go forward
and show why the card check was erroneous or "why on other grounds Respond-
ent in good faith believed recognition was mistakenly granted to the Union," and
that it would not suffice for the employer to assert "that authorization cards are
unreliable as proof of employee desires."
While the Jem case stresses the fact that the employer there had actually recog-
nized the union and commenced bargaining, factors not present here,71 it may be
noted that neither of those factors was present in Snow & Sons. Yet, neither Jem
nor Serpa professed to overrule or modify Snow & Sons. On the contrary, as
already noted, Jem cited Snow & Sons with approval, and in Serpa the Board saw
no conflict between its holding there and the rule of Snow & Sons.
If, then, Snow & Sons is still good law, albeit limited to its special facts, it is
not apparent in what material respect the facts in the instant case are more favor-
able to Respondent. Here, as in Snow & Sons, the employer verified the Union's
cards and, although ascertaining that it appeared to have a card majority, refused
to bargain.72 In Snow & Sons the Board found on such facts that the employer
"had no reasonable doubt as to the Union's majority status."
I find therefore that on the facts just cited the General Counsel has made a
prima facie case that Respondent had no reasonable doubt of the Union's majority
status and that its refusal to bargain was in bad faith, and that, under the rule laid
down in Jem, the burden was thereby shifted to Respondent of adducing some
evidence that as to "why the [card] check was erroneous or why on other grounds
Respondent in good faith believed" that the Union was not the majority repre-
sentative.
Respondent has attempted to make such a showing here through certain testi-
mony by Cooperstein, the general import of which appears to be that before the
August 10 meeting he had received reports about the harassment of employees to
sign cards, and that, in view, of Respondent's past harmonious relations with its
employees, he believed that those who signed such cards did so because of such
harassment and not because they wanted union representation.
That Cooperstein did in fact receive such reports before August 10, was con-
firmed by Jordan and Bernard. However, Cooperstein admitted that he made no
mention of such reports at the August 10 meeting, and, when asked why he did
not, answered only that there was no reason for him to do so. It is difficult to
believe, that, if Cooperstein had any such reservations about the reliability of the
Union's card showing, he would have failed to disclose such reservations when
confronted with a demand for recognition on the basis of such showing, and
would merely acknowledge, as found above, that the card showing seemed to be
sufficient.
In any event, as already related, Respondent was not content merely to refrain
from bargaining with the Union, but shortly after August 10, resorted to action
calculated to dampen the employees' interest in the Union. Thus, several days
after the Union's recognition demand, Respondent admittedly engaged in extensive
interrogation of employees and at the same time procured from them signed state-
ments describing their contracts with union agents and, in some cases, disavowing
any desire for representation by the Union. Also, about the same time, Respondent
decided to increase the premium pay for work done on the next holiday-Labor
Day. It is well settled that where an employer, while withholding recognition from
a union, engages in unfair labor practices which, as here, are calculated to dis-
courage adherence to the union, and to preclude the holding of a free election,
71 Respondent here "recognized" the Union on August 10 only in the sense that it
acknowledged that it seemed to have a card majority and did not otherwise question the
Union's majority status, but not in the sense that it agreed to deal with the Union as the
employees' bargaining agent. (While Respondent did discuss with the Union on August 10
its position with regard to union security, seasonal employees, etc., such discussion appears
to have been only tentative and for the purpose of helping Respondent to determine whether
it would be expedient for it to enter into contract negotiations with the Union.)
72 Certainly, no distinction can be made between the case at bar and Snow & Sons on
the ground that the card check was made by a neutral third party, whereas here it was
made by Respondent itself . See Jem, supra page 3.
1944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such withholding of recognition may not be found to have been motivated by a
good-faith doubt of the union's majority status but rather by a desire to gain time
in which to undermine the union.73 Accordingly, it is found that, by refusing to
recognize the Union on and after August 10, Respondent violated Section 8(a)(5)
and (1) of the Act.74
In any case, even if it be assumed that there was no unlawful refusal to bargain,
it would still be necessary to find that, since by October the Union's majority status
was effectively dissipated,75 the appropriate remedy for Respondent's various ante-
cedent violations of Section 8 (a) (1) of the Act found above 76 would be to require
Respondent to bargain with the Union upon request.77
IV. THE REMEDY
It having been found that the Respondent violated Section 8(a)(1), (3), and
(5) of the Act, I shall recommend that the Respondent cease and desist therefrom,
and take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent refused to bargain in good faith with
the Union, which represented a majority of the employees in an appropriate unit.
Accordingly, I shall recommend that the Respondent be ordered to bargain, upon
request, in good faith with the Union as the exclusive representative of the employ-
ees in the appropriate unit.
Having also found that the Respondent on July 22 discriminatorily discharged
Papastrat , I shall recommend that Respondent be required to offer him reinstate-
ment to his former of substantially equivalent position without impairment of
seniority or other rights and privileges. I shall also recommend that Respondent
be required to make him whole for any loss of earnings suffered by reason of
the discrimination against him, by payment to him of a sum of money equal to
that which he normally would have earned as wages from July 22, to the date
of a valid offer of reinstatement, less his net earnings during such period. Backpay
shall be computed in accordance with the formula stated in F. W. Woolworth
Company, 90 NLRB 289; interest shall be added to backpay at the rate of 6 per-
cent per annum. Isis Plumbing & Heating Co., 138 NLRB 716.
In view of the Respondent's unfair labor practices, particularly the discriminatory
conduct found above, there exists a threat of future violations, which warrants a
broad cease-and-desist order.
CONCLUSIONS OF LAW
1. All employees in Respondent's Poughkeepsie store including employees in
the leased departments, but excluding officers, store managers, guards, and super-
visors as defined in the Act, constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of the Act.
2. At all times material the Union has been and still is the exclusive represent-
ative of all the employees in the aforesaid unit for the purposes of collective bar-
gaining, within the meaning of Section 9(a) of the Act.
3. By refusing since August 10, to bargain collectively in good faith with the
Union as the exclusive representative of its employees in an appropriate unit, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
4. By interrogation of employees about their union activities, by soliciting from
them repudiations of the Union, and by granting benefits to induce defections from
the Union, Respondent has interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act, and has engaged in
unfair labor practices within the meaning of Section 8(a)(1) of the Act.
5. Respondent, but not Morton's Shoe Stores, Inc., has violated Section 8(a)(3)
and (1) of the Act by the discharge of Peter Papastrat on July 22.
,'Joy Sill,. Mills, Inc, 85 NLRB 1263, affd as modified 185 F 2d 7:;2 (CADC
74 In view of the foregoing disposition of the matter , there is no need to determine to
what extent the circulation of the antiunion petitions in October and December reflected
on Respondent 's good faith in refusing to accord recognition to the Union on August 10
75 As already noted, the bulk of the Respondent 's employees signed a petition in Octo-
ber repudiating the Union.
76 Including the circulating of the October petition , the extensive interrogation, solicita-
tion of repudiations of the Union , and the increase in holiday pay.
77 Greystone Knitwear Corp, 136 NLRB 573 , 575-576, enfd . 311 F .2d 794 (C A. 2)
Engineers & Fabricators , Inc., 156 NLRB 919.
BIG BEN DEPARTMENT STORES, INC. 1945
RECOMMENDED ORDER
Upon the entire record in the case, and the foregoing findings of fact and con-
clusions of law, it is recommended that Respondent, Big Ben Department Stores,
Inc., Poughkeepsie, New York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith concerning rates of pay, wages, hours of
employment, or other conditions of employment with Local 888, Retail Clerks
International Association, AFL-CIO, as the exclusive representative of all employ-
ees in its Poughkeepsie store, including employees of leased departments, but ex-
cluding officers, store managers, guards, and supervisors as defined in the Act.
(b) Discouraging membership in Local 888, Retail Clerks International Associa-
tion, AFL-CIO, or in any other labor organization, by discriminating against
employees in regard to their hire or tenure of employment.
(c) Interrogating employees about their union activities, soliciting from employ-
ees disclaimers of any interest in representation by a union, and granting benefits
in order to discourage union activity.
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist the above-
named Union, or any other labor organization and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent that such right may
be affected by the provisos to Section 8(a)(3) of the Act.
2: Take the following affirmative action, which is deemed necessary to effectuate
the policies of the Act:
(a) Upon request, bargain collectively in good faith with Local 888, Retail Clerks
International Association, AFL-CIO, as the exclusive representative of all employ-
ees of the Respondent, in its Poughkeepsie store, including employees in leased
departments but excluding officers, store managers, guards, and supervisors as
defin -d in the Act, with respect to rates of pay, wages, hours of employment or
other conditions of employment, and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Offer Peter Papastrat immediate reinstatement to his former or substantially
equivalent position, without prejudice to his seniority or other rights and privileges.
(c) Make whole the said employee in the manner set forth in the section of this
Decision entitled "The Remedy," for any loss of pay he may have suffered by rea-
son of the Respondent's discrimination against him.
(d) Preserve and, upon request, make available to the Board or its agents, for
examination or copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay due under the terms of this Order.
(e) Post at its store in Poughkeepsie, New York, copies of the attached notice
marked "Appendix." 78 Copies of said notice, to be furnished by the Regional Direc-
tor for Region 3, after being duly signed by the Respondent's representative, shall be
posted by the Respondent immediately upon receipt thereof, and maintained by it
for a period of at least 60 consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director for Region 3, in writing, within 20 days from
the date of receipt of this Decision, what steps the Respondent has taken to com-
ply herewith 79
IT IS FURTHER RECOMMENDED that the complaint be dismissed as to Morton's
Shoe Stores, Inc.
78 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order,"
7e In the event that this Recommended Ordei is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
1946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act as amended, we hereby notify our employees that:
WE WILL bargain in good faith, upon request, with Local 888, Retail Clerks
International Association, AFL-CIO, as the exclusive representative of all
employees in the bargaining unit described below in respect to rates of pay,
wages, hours of employment, or other conditions of employment, and, if an
understanding is reached, embody it in a signed agreement, The bargaining
unit is:
All employees at our Poughkeepsie store, including employees of leased
departments but excluding officers, store managers, guards, and supervi-
sors as defined in the Act.
WE WILL NOT discourage membership in Local 888, Retail Clerks Interna-
tional Association, AFL-CIO, or in any other labor organization, by discrimi-
nating against employees in regard to their hire or tenure of employment or
any term or condition of employment.
WE WILL NOT interrogate our employees about their union activities, or so-
licit from them disclaimers of any interest in representation by a union, or grant
them benefits to diminish their interest in such representation.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join or
assist Local 888, Retail Clerks Inteinational Association, AFL-CIO, or any
other labor organization, to bargain collectively through representatives of
their own choosing and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection or to refrain from
any or all such activities by the provisos to Section 8(a)(3) of the Act.
WE WILL offer to Peter Papastrat reinstatement to his former or substantially
equivalent position, and WE WILL make him whole for any loss of pay suffered
by reason of the discrimination against him.
All our employees are free to become, remain , or refrain from becoming or
remaining , members of Local 888, Retail Clerks International Association, AFL-
CIO, or any other labor organization.
BIG BEN DEPARTMENT STORES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-Notify the above-named employee if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Fourth
Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York 14202, Tele-
phone 842-3112.
O