Big Ben Shoe Store

National Labor Relations Board - Board Decisions

Aug 14, 1968

172 N.L.R.B. 1523 (N.L.R.B. 1968)

BIG BEN SHOE STORE 1523
The Kostel Corporation , d/b/a Big Ben Shoe Store
and Retail Clerks International Association,
AFL-CIO, Local 1504 . Case 38-CA-375
August 14, 1968
DECISION AND ORDER
By MEMBERS BROWN, JENKINS, AND ZAGORIA
On February 29, 1968, Trial Examiner John F.
Funke issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that Respondent had not engaged in
other alleged unfair labor practices and recom-
mended dismissal of those allegations of the com-
plaint. Thereafter, the Charging Party and the
General Counsel filed exceptions to the Trial Ex-
aminer's Decision and briefs in support of their ex-
ceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified herein.
1. We do not agree with the Trial Examiner's
conclusion that Store Manager Kelley's statement
to Dirker regarding Dirker's fall schedule was not
within the ambit of the complaint and therefore did
not constitute a violation of Section 8(a)(1) of the
Act. Section 7(b) of the complaint clearly alleges a
threat to "constructively" discharge an employee
for engaging in union activities. Kelley's statement
to Dirker that his schedule was changed to force
him to quit because of his union activity clearly
falls within section 7(b) of the complaint and is a
violation of Section 8(a)(1) of the Act.' As to the
Trial Examiner's secondary conclusion that since
Kelley did not testify the incident was not fully
litigated, we note that Dirker's testimony is uncon-
tradicted on the record, and there is no allegation
that Kelley was not available to Respondent at the
time of the hearing. Kelley's failure to testify does
not in any way affect the weight of the General
Counsel's evidence.
2. We also disagree with the Trial Examiner's
conclusion that a one-store unit at Kankakee, Il-
linois, was inappropriate and that therefore
Respondent did not violate Section 8(a)(5) of the
Act when it refused to recognize and bargain with
the Union on August 3, 1967.
The record shows that the Kankakee store is 1
store in a chain of 17 retail self-service shoe stores;
13 of these stores are located in the Chicago
metropolitan area while the other 3 are in Spring-
field, Decatur, and Pekin, Illinois. The Kankakee
store is located about 50 miles from the Chicago
area and is from 50 to 100 miles away from the
other three stores located outside the Chicago
metropolitan area. In addition to its geographic
separation, the Kankakee store has its own store
manager in charge of the routine daily operations
including the initial hiring of stockboys, the making
out of work schedules, and approving any
requested or necessary schedule changes. In addi-
tion, there is no evidence of any employee in-
terchange between the Kankakee store and any of
the other stores within the chain including those
stores nearest Kankakee in the Chicago
metropolitan area. Thus, we have a situation where
the employees of the Kankakee store constitute a
separate cohesive group of employees having vir-
tually no contact, community of interest, or rela-
tionship with employees of any of Respondent's
other stores. We recognize the need for centralized
administration of Respondent's operation of its
chain, but this factor is primarily administrative,
and is not directly related to the Kankakee em-
ployees' interest in the appropriateness of their
store as a separate unit.
In Sav-On Drugs, Inc., 138 NLRB 1032, we
pointed out that strict reliance on internal organiza-
tional structures overemphasized those factors at
the expense of those factors most closely related to
the employees' relationships with each other such
as geographic separation and local managerial au-
tonomy in each of the outlets. In Haag Drug Com-
pany, Incorporated, 169 NLRB 877, we again re-
stated the principle that a single store in a retail
chain is presumptively an appropriate unit for bar-
gaining "absent a bargaining history in a more com-
prehensive unit or functional integration of a suffi-
' Employee Entwistle also testified without contradiction that Kelley told
him that Dirker 's schedule was changed to force him to quit This con-
stitutes a threat to Entwistle in violation of Section 8(a)( I )
172 NLRB No. 167
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent degree to obliterate separate identity "2 Fol-
lowing this principle and in view of the geographic
separation, the lack of any employee interchange
between the stores, the degree of local control over
the day-to-day conduct of employee activities, and
the absence of a bargaining history in a more com-
prehentilve unit, we conclude that a single-store unit
here is an appropriate unit for bargaining'
On August 1, 1967, the Union wrote Respondent
that it represented a majority of the employees at
the Kankakee store and requested bargaining.
Respondent concedes that it received this letter on
August 3, 1967, and that on August 4, 1967,
Moshinsky, Respondent's district supervisor, ad-
vised the Union that Mr. Kostel was out of town but
would contact the Union on or about August 24,
1967 Thereafter, neither Moshinsky nor Kostel
took any steps to communicate with the Union.
Although the Trial Examiner failed to make
findings as to eligibility and majority status, the
parties fully litigated the questions of employee
eligibility and which employees signed authoriza-
tion cards, both at the hearing and in their briefs to
the Trial Examiner. The Respondent's basic con-
tention is that on August 3, 1967, the Union did not
represent a majority of the Kankakee employees
even if the Kankakee store is an appropriate unit.
We do not agree.
The record shows that on August 1 and 3, there
were four employees actually working in the store.
These employees included Eskle Carter, Larry
Dirker, Charlotte Senesac, and Gary Entwistle. In
addition, Mark Guimond had started his vacation
on July 28, 1967, and was due to return to work on
or about August 10, 1967. Guimond signed his card
on July 19, 1967, while Larry Dirker signed his
card on July 27, 1967. Thus, on August 3, the
Union had cards signed by two of the employees4 at
the Kankakee store.
As to the composition of the unit, the record
shows that Eskle Carter is a 77-year-old social
security annuitant who had been working part time
at the Kankakee store since shortly after it opened
in the spring of 1967. Established Board policy has
traditionally excluded social security annuitants
from inclusion within a unit.5
Charlotte Senesac, the 17-year-old daughter of
Store Manager Kelley, started working on July 28,
1968 At the time she was hired she was told by
Moshinsky that it would be for a limited period of
time, around 6 or 7 months, "just a periodic thing.
Until they found some one else." Senesac also
testified that at the time she took the job she was
pregnant and intended to join her husband, who
was stationed in Guam, as soon as she could.
Although Senesac actually worked through
November, we conclude on the record before us
that she was working as a temporary part-time em-
ployee on August 3, and as such would not be in-
cluded in the unit.; As to Guimond, it was clearly
established that he was hired as a regular part-time
employee.
Thus, on August 3, 1967, there were three regu-
lar part-time employees employed in the Kankakee
store along with Carter and Senesac whom we have
found to be excluded from the unit. As the Union
possessed cards signed by Guimond and Dirker on
August 3, 1967, we find that the Union represented
a majority of the employees in the appropriate
unit,' and that Respondent's failure and refusal to
recognize and bargain with the Union thereafter,
coupled with its unlawful interrogations, threats,
and discrimination against employees who engaged
in union activities, clearly shows that the refusal to
recognize and bargain at that time was not because
of any doubts as to the Union's majority status, but
rather for the purpose of delay in order to dissipate
and undermine the Union's majority status. Such
conduct clearly violated Section 8(a)(5) of the
Act.' Accordingly, we shall issue an appropriate
bargaining order.
In view of our findings above, we do not adopt
the Trial Examiner's Conclusions of Law but in-
stead make the following Conclusions of Law con-
sistent with our decision herein.
Haag Drug, supra, 1034
As in Haag Drug, supra, we reject the Trial Examiner's rationale based
on the Court 's decision in N L R B v Purim Food Stores, Inc , 376 F 2d
497 (C A I ), cert denied 389 U S 959, denying enforcement of 160
NLRB 651
In view of the finding of an 8(a)(3) violation in regard to the discharge
of Mark Guimond, he continued as an employee during this period, and his
card is properly counted toward the Union 's majority
Taunton Supph Corp , 137 NLRB 221
" Recipe Foods, Inc , 145 NLRB 924
Even if Carter and Senesac were both to be included in the unit, we
would reach the same result as of August 23, 1967, when Entwistle signed
his authorization card thereby giving the Union authorizations from three
of the possible five employees in the unit . As the Union's demand clearly
was a continuing demand, Respondent 's refusal to bargain would still con-
stitute a violation of Section 8(a)(5) Member Zagora would not exclude
Carter from the unit , because, although a social security annuitant, he was
over 72 years of age and thus had no earnings limitation Distinguishing
Carter's situation from those cases wherein the annuitant works only until
he has earned a certain amount and then stops , Member Zagoria would
find that Carter had a close community interest with the other employees in
the day-to-day working conditions of the store Accordingly, Member
Zagoria would find that the Union did not represent a majority of the em-
ployees on August 3, 1967 However, he agrees with the majority that the
demand was a continuing demand, that on August 23, the Union did
represent a majority in the appropriate unit, and that Respondent 's refusal
to bargain thereafter violated Section 8(a)(5) of the Act
"Jo% Silk Mills, 85 NLRB 1263, enfd 185 F 2d 732, cert denied 341
U S 914
CONCLUSIONS OF LAW
BIG BEN SHOE STORE 15_25
action designed to effectuate the policies of the
Act.
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interrogating an empoloyee to ascertain
which employees had been asked to sign union
cards and whether they had signed cards and by
asking an employee if he had signed a card,
Respondent , since the interrogation occurred under
circumstances implying coercion and restraint, vio-
lated Section 8(a)(1) of the Act.
4. By terminating the employment of an em-
ployee because he had engaged in union activity
and for the purpose of discouraging union activity,
Respondent violated Section 8(a)(3) and (1) of the
Act.
5. By rescheduling the working hours of an em-
ployee so as to make it impossible for him to work
and attend school because he had engaged in union
activity and for the purpose of discouraging union
activity, Respondent constructively discharged said
employee in violation of Section 8(a)(3) and (1) of
the Act
6. All full-time and part-time employees working
at the Big Ben Store in Kankakee, Illinois, exclud-
ing the store manager , temporary employees, and
guards, and supervisors, as defined by the Act, con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act.
7. At all times on and after August 3, 1967, the
Union has been and still is the exclusive representa-
tive of all the employees within said appropriate
unit for purposes of collective bargaining in respect
to rates of pay, wages, hours of employment, or
other terms and conditions of employment within
the meaning of Section 9(a) of the Act.
8. By refusing on and after August 3, 1967, to
bargain with the Union as the exclusive representa-
tive of the employees in the above-described ap-
propriate unit, Respondent has engaged in and is
engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act.
9. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that Respondent has also engaged
in unfair labor practices in violation of Section
8(a)(5) of the Act, we shall order that it cease and
desist therefrom, and that it take certain affirmative
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that Respondent, The
Kostel Corporation, d/b/a Big Ben Shoe Store, Kan-
kakee, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as herein
modified:
1 Delete paragraph 1(d) of the Order and insert
the following as paragraphs 1(d) and 1(e).
"(d) Refusing to recognize and bargain collec-
tively in good faith with Retail Clerks International
Association, AFL-CIO, Local 1504, as the exclu-
sive representative of its employees in the following
appropriate unit with respect to rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment:
All full time and part-time employees working
at the Big Ben store in Kankakee, Illinois, ex-
cluding the store manager , temporary em-
ployees, and guards, and supervisors, as
defined in the Act.
"(e) In any other manner interfering with,
restraining , or coercing employees in the exercise
of the right of self-organization, to form labor or-
ganizations , to join or assist the above-named
Union or any other labor organization, to bargain
collectively through representatives of their own
choosing, and to engage in concerted activities for
the purpose of mutual aid or protection as guaran-
teed in Section 7 of the Act, or to refrain from any
and all such activities."
2. Insert the following as paragraph 2(e) of the
Order and renumber paragraphs 2(e) and 2(f) as
paragraphs 2(f) and 2(g), respectively
"(e) Bargain collectively, upon request, with
Retail Clerks International Association, AFL-CIO,
Local 1504, as the exclusive representative of the
employees in the appropriate unit described above,
with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of em-
ployment, and, if an understanding is reached, em-
body such understanding in a signed agreement."
3. Add the following after the sixth substantive
paragraph of the notice attached thereto.
WE WILL NOT refuse to bargain collectively
with Retail Clerks International Association,
AFL-CIO, Local 1504, as the exclusive
representative of the employees in the bargain-
ing unit described below.
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, upon request, bargain collectively
with the said Union as the exclusive represen-
tative of all our employees in the appropriate
unit with respect to wage increases and related
mantters, and, if an understanding is reached,
embody such understanding in a signed agree-
ment . The bargaining unit is:
All full time and part-time employees
working at the Big Ben Store in Kankakee,
Illinois , excluding the store manager, tem-
porary employees, and guards, and super-
visors, as defined by the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner: Upon a charge
filed September 12, 1967, by Retail Clerks Interna-
tional Association, AFL-CIO, Local 1504, herein
the Union, against the Kostel Corporation, d/b/a
Big Ben Shoe Store, herein Kostel or the Resppon-
dent, the General Counsel issued a complaint alleg-
ing Respondent violated Section 8(a)(1), (3), and
(5) of the Act
The answer of the Respondent denied the com-
mission of any unfair labor practices.
This proceeding, with all parties represented, was
heard before me at Kankakee, Illinois, on January
16, 1968. At the conclusion of the hearing the
parties were given leave to file briefs and briefs
were received from the parties.
Upon the entire record in this case and from my
observation of the witnesses while testifying, I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent maintains its principal office and
place of business at Chicago, Illinois , and operates
retail shoe stores in Chicago and at Pekin, Blue
Island, and Kankakee, Illinois, and Hammond, Indi-
ana. The store at Kankakee is the only store in-
volved in this proceeding. During a representa-
tive year Respondent sells merchandise valued in
excess of $500,000 to retail purchasers. During the
same period Respondent purchases materials
valued in excess of $50,000 from sources outside
the State of Illinois shipped directly to Respondent
from points outside the State of Illinois.
Unless otherwise noted all dates refer to 1967
The answer of Respondent admits that Moshinsky and Kelley were su-
pervisors within the meaning of the Act
' The card was dated July 27
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. Violations of Section 8(a)(1)
The complaint alleges three independent viola-
tions of Section 8(a)(1).
Paragraph 7(a) alleges that Herman Moshinsky,
district supervisor, on July 27, 1967,' coercively in-
terrogated an employee concerning his union ac-
tivity and threatened Respondent would construc-
tively discharge union supporters.
Paragraph 7(b) alleges that on or about August
18 Mildred Kelley, store manager, coerced em-
ployees by indicating Respondent would discharge
union supporters.
Paragraph 7(c) alleges that on or about August 3
Mildred Kelley gave the impression that Respon-
dent had union activities under surveillance and
knew the identity of union supporters.'
In support of the first allegation , General Counsel
offered the testimony of Larry Dirker, that, just be-
fore he signed his card,3 Moshinsky called him to
the back of the store and asked him if he knew the
names of the men who were asked to sign cards or
who had signed cards. Moshinsky asked him if he
had signed a card and Dirker said he had not.
Moshinsky denied that the ever asked Dirker who
had signed a union card. It was his testimony that
Dirker kept coming to him and volunteering the in-
formation to him and that he (Moshinsky)
"brushed him off." -
The issue rests solely on the credibility of Dirker
and Moshinsky for no other witnesses were called
to corroborate either. Based on their demeanor on
the witness stand I credit Dirker. Having so
credited his testimony, I find the interrogation vio-
lated Section 8(a)(1) of the Act under the Board's
most recent decisions. See Struksnes Construction
Corporation, 165 NLRB 1062; Fontana Bros., 169
NLRB 368. This was no casual conversation
between a lower echelon supervisor and one of his
working force. It occurred when the district
manager for all 17 stores called a stockboy to the
rear of the store to interrogate him. Neither can it
be viewed as an isolated incident in view of the size
of the working complement .' It is against this size
that its impact must be measured.
Because the complaint does not allege the viola-
tion in the comparable form in which it occurred, I
find Kelley's remark to Entwistle at the time of hir-
ing, and his testimony is not contradicted, that it
' G C Exhs 3-A through 3-H indicates the employees during the period
from July 15 through September 2 numbered from three to rive (The July
15 period , when the employees numbered seven, appears to have been an
exception )
BIG BEN SHOE STORE
would be up to him whether he signed or not but
that the owners of the store had threatened to close
the store if it went union, not embraced within
paragraph 7(b). I find the threat to close the store
not a violation of Section 8(a)(1) for this reason
alone.
Neither do I, moreover, find that Kelley's state-
ments to Dirker that Guimond was terminated
because he had engaged in union activity nor her
statement that the real reason his schedule had
been changed was to force him to quit and resulted
from his union activity within the allegations of the
complaint nor, since Kelley did not testify, were
these incidents fully litigated.
As to paragraph 7(c), I find no evidence that
Kelley gave any impression to any employee that
Respondent had union activities under surveillance.
Testimony of the General Counsel's own witness,
Larry Palmer, indicates that he told Kelley that he
had signed a card and that Dirker told her he was
thinking of signing one. Entwistle testified that after
he became employed Kelley told him he might be
asked to sign a card and that it was up to him
whether he signed or not. She added that she knew
one of the boys had signed. In view of the fact that
this information had been volunteered to Kelley it
can hardly be said that her statement to Entwistle
created the impression of surveillance even under
the generous construction now given Section
8(a)(1) of the Act.'
I recommend that paragraph 7(c) of the com-
plaint be dismissed.
B. Violations of Section 8{a)(3 )
Paragraph 7(d) of the complaint alleges that on
or about August 13 Respondent terminated Mark
Guimond.
Paragraph 7(e) alleges that Larry Dirker was
given a schedule of work hours which made it im-
possible to return to school, thereby effecting a
constructive discharge of Dirker.
Paragraph 11(b) alleges that by the acts com-
plained of above Respondent violated Section
8(a)(1) and (3) of the Act.
The Kankakee store opened in April 1967, so the
crucial period during which the alleged unfair labor
practices took place was within a few months after
the opening of the store. Germane to the 8(a)(3)
issue is the vacation policy of the store and its im-
plementation at Kankakee.
It was Respondent's policy to give 1 week's vaca-
tion after 1 year's employment. Accordingly none
S It must be acknowledged that a sophisticated supervisor who had in-
nocently acquired knowledge of the identity of union adherents might give
employees the impression that such knowledge had been acquired through
company surveillance, thereby coercing the employees . Kelley was not
such a supervisor , as the testimony reveals . Prior to the transfer of Blanche
Seedorf, former manager , on July 22, Kelley had been an employee work-
ing in the stockroom
1527
of the employees at the Kankakee store were enti-
tled to a vacation during 1967 . The first witness
called by the General Counsel , Eskle Carter,
testified that he was first employed in late April or
early May.6 His daughter , Blanche Seedorf, was at
that time the store manager . About 2 weeks before
August 9 Carter told both Kostel and Moshinsky
that he was going to take a vacation.' Carter took
his vacation , for which he received no pay, and
when he returned on or about August 21 he went
back to work for Respondent . He was working at
the Kankakee store at the time of hearing.
Larry Palmer was hired as a stockboy in May
and went to work June 7 . He took 2 weeks' vacation
in June , notifying Sylvia Jackson , replacement for
Blanche Seedorf who was hospitalized. No objec-
tion was made and he went back to work for
Respondent when he returned . Palmer left to take
other employment on July 25.
Mark Guimond testified that he was hired as a
stockboy at Kankakee by Blanche Seedorf on July
10. He asked Seedorf if he could go on his vacation
on July 14, to which she agreed ," but he did not ac-
tually start it until July 28 due to an injury to his
grandmother. Seedorf agreed to the postponement
but on July 22 Kelley had succeeded her so
Guimond asked Kelley on July 25 if it was agree-
able with her. Kelley told him if Seedorf had agreed
it was all right with her. When he returned on Au-
gust 10 he called the store to inquire about return-
ing to work . Dirker told him that Moshinsky had
been to the store on the preceding Monday and had
told Kelley not to put Guimond back. Guimond
went to the store that night and saw Kelley who
told him Moshinsky had told her not to take him
back, despite the approval of his vacation. He was
given no other reason for the failure to rehire him.
The findings must be made that Respondent,
although the store had not been open for 1 year,
permitted the employees to take unpaid vacations,
either with permission as in the case of Guimond
and Palmer or without permission as in the case of
Carter . The replacement of stockboys apparently
presented no problem other than placing a "Boy
wanted " sign in the window and neither experience
nor training was required.
Guimond signed a union authorization card on
July 19 . (G.C. Exh. 5-c.) The next day he was talk-
ing to Dirker in the store in the presence of
Seedorf. Unions were mentioned and Seedorf told
them the Teamsters had never helped her and ad-
vised them not to sign a card . On July 22, the day
she was leaving , Seedorf told Guimond and Dirker
Carter was 76 years old at the time he was employed and enjoying so-
cial security benefits He worked 12 to 20 hours per week, putting price
tags on shoes and working the cash register 4 hours a day.
' As to Moshinsky, Carter testified, "I didn't ask him if I could go, I told
him I was going I figured I was through working "
' Seedorf said she agreed "because a kid's got to go with his parents
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that she had left word with Kelley to tell Moshinsky
about the Union. Later he and Dirker were talking
to Kelley and they asked her if she had told
Moshinsky about the Union and she said she had.
(Guimond also testified that he had told Kelley, be-
fore she became store manager , that he had signed
a union card.)
Gary Entwistle was employed as a stockboy on
July 3 1. At the time he was employed he was told
by Kelley that one of the boys (Guimond) was on
vacation and he and Dirker were the only
stockboys working. Later Kelley told him that
Moshinsky had told her that Guimond had not been
working there long enough to have a vacation and
would not be returned to work.
Prior to the start of the school term, Entwistle
and Dirker arranged a schedule with Kelley
whereby they would work alternate nights during
the term and alternate Saturdays and Sundays. At a
time fixed as about 2 weeks before school started,
Entwistle had another conversation with Kelley in
which she told him Moshinsky had been in, asked
her if "he" had signed a card, and, when Kelley
told him "he" had, told her to keep Dirker working
mornings.' When Kelley told him school was about
to start Moshinsky told her he knew it. Dirker
worked for about 1 week after this conversation.
Larry Dirker testified that he heard Guimond tell
Seedorf that he wanted to go on a vacation with his
family in July and that he was given permission to
go. While Guimond was gone Kelley told him that
Guimond had been terminated because he had
taken his vacation too soon. When he told her she
knew the real reason, Kelley admitted it was due to
his union activity. When Guimond called in at the
end of his vacation Kelley told Dirker to tell
Guimond he had been terminated.
Dirker corroborated Guimond's testimony, in
substance, as to their two conversations with
Seedorf respecting unions before she left. Dirker
signed his card on July 27, and, at or about this
time in a conversation with Kelley regarding a letter
from the National Labor Relations Board, he told
her he had signed a union card.
Dirker corroborated Entwistle's testimony that
late in August he and Entwistle had a discussion
with Kelley as to the schedules they would work
after they returned to school, i.e., that they would
work alternate nights and Saturdays and Sundays
About 1 week before school was to start Kelley told
him Moshinsky had told her that he would have to
maintain his regular schedule. According to Dirker,
' The only inference that can be drawn from the context of the testimony
is that the "he' referred to Dirker
'"This Saturday is fixed by other testimony as the last day on w hich
Dirker would have worked for Respondent , for Dirker testified that during
the last week of his employme ; t, and after he knew his schedule would not
permit him to continue, he obtained employment at Bell 's Dirker also
testified that he told Kelley of this new employment
" Respondent attempted to establish, without success , that Dirker was
actually working at Bell's on the Saturday he called in sick
Kelley said it was Moshinsky's idea-to force him
to quit because of his union activity. Dirker told her
that he would wait until school started and then
quit. When school started he quit and got another
job through the union representative.
The record establishes that Moshinsky had
overall supervision of personnel as he did of other
problems at Kankakee and the testimony indicates
that it was Moshinsky who directed Kelley not to
reemploy Guimond after his vacation and who
directed that Dirker's hours should not be changed
when the school term started.
Moshinsky's testimony as to both Guimond and
Dirker was brief. He categorically denied that he
ever told Seedorf or Kelley to fire the boys for their
union activity. He stated there were rumors
respecting "all these kids, that they signed up one
or the other." As to Dirker, he testified that Dirker
"always volunteered information about others in
the place." On a Saturday when Moshinsky was in
the store he was told by Kelley that Dirker had
called in sick.10 He had Kelley call Dirker's home
and was told by her that he was not there. Moshin-
sky testified that he had learned that Dirker had ob-
tained another job at Bell's (presumably another
retail store) through the Union while still employed
at Respondent's store."
This is all of Moshinsky's testimony on the
8(a)(3) issue.
The issues, unlike most of those involving Sec-
tion 8(a)(3) of the Act, present no great difficulty.
Company knowledge of the union activity is clear
and not contradicted, although Moshinsky stated he
paid no attention to the "rumors."
As to Guimond we have the fact that he was
given permission to take his vacation but that, un-
like Carter and Palmer, he was not reinstated when
he returned.12 In view of his reasonable expectation
of return to employment, some explanation of the
failure to rehire him is in order. It is found in Dir-
ker's testimony, uncontradicted, that Kelley told
him the real reason was Guimond's union activity.13
No more is required. I find that Respondent vio-
lated Section 8(a)(3) of the Act by failing to con-
tinue the employment of Guimond after his return
from vacation.
Dirker's case is equally clear; after having ar-
ranged, together with Entwistle," for a schoolwork
schedule of part-time employment and having it ap-
proved by Kelley, he was abruptly told that Moshin-
sky had disapproved it. When he asked Kelley why,
he was told that Moshinsky had asked her if Dirker
" Palmer, it should be noted, took his vacation in June and did not sign a
union card or participate in union activity until July 20
" Kelley was present at the hearing room during the hearing ( under sub-
pena from the General Counsel) but was not called by either paprty
" Entwistle did not sign a union card until August 23 so there would be
no reason for the Respondent to suspect him of union activity prior to that
time and there is no evidence that it had any knowledge of his signing on
that date
BIG BEN SHOE STORE 1 529
had signed a card and when she said he had she was
told to keep him working mornings.
I find that by scheduling working hours which
made it impossible for Dirker to continue his
schooling because he had engaged in union activity,
Respondent violated Section 8(a)(3) and ( 1) of the
Act.
C. Violations of Section 8(a)(5)
Respondent contends that only a multistore unit
is appropriate herein. With respect to this issue the
parties entered into a stipulation (G.C. Exh. 2)
which, as to those paragraphs which are relevant,
reads:
2. Respondent operates seventeen separate
retail shoe outlets, thirteen of which are
located in the Chicago Metropolitan area with
individual stores located one each in Decatur,
Kankakee, Pekin and Springfield, Illinois. No
single store's sales exceed $500,000.00 an-
nually.
3. All purchasing is done through the main
Chicago office and deliveries to the separate
stores are made from Respondent's one
warehouse, contiguous with the main office in
Chicago, usually by common carrier. There are
small stockrooms for temporary storage at
each store but most of the goods for sale are
on display in the stores.
4. The employees at all stores are paid from a
single payroll made up in the Chicago office.
The paychecks are mailed to the individual
store managers for distribution to the em-
ployees.
5. There are approximately one hundred and
ten (110) employees of Respondent at any
given time, an average of about six per store
including a manager at each store.
6. All permanent books and records are kept
at the Chicago office. All prices are deter-
mined by Chicago and are generally uniform
throughout the retail chain.
7. Wages and salaries for all employees are set
by the Chicago office but vary from store to
store due to varying local labor market condi-
tions.
8. All merchandising programs and advertising
are developed by the Chicago office and sent
directly to news media by the Chicago office.
9. All expenditures of funds by local managers
must be approved by the Chicago offices.
10. No employees have been transferred from
any of the Chicago metropolitan area stores to
the four stores located in downstate Illinois
with one exception noted below However,
there has been some interchange of employees
among the Chicago metropolitan area stores.
13. There is no history of collective bargaining
for any of the employees of Respondent and
there has never been a National Labor Rela-
tions Board election at any of Respondent's
stores.
In addition to the stipulation, certan facts were
educed at the hearing which bear on the issue.
The Kankakee store is located 59 miles from
Chicago and the distance between the Kankakee
and Pekin stores is 119 miles 15 There is no record
of the distance between either Blue Island and
Chicago or Kankakee or between Hammond,
Indiana, anu Chicago and Kankakee.
District Manager Moshinsky visited each of the
stores periodically, the Kankakee store once or
twice a week. There was no intervening supervision
between Moshinsky and the manager of the Kan-
kakee store.
Management of the Kankakee store was vested in
the store manager who also acted as cashier at the
store. The store manager at Kankakee had supervi-
sion over three stockboys and a cashier. This was
the total number of employees at the store. Asked
to explain her duties as store manager, Seedorf
testified:
Cashiering, anything that happened to come
up. What I felt like. I felt this way, that
whether you are the manager or stockboy, if
there is something to be done, it's your place
to do it, it's not your place to sit around and
wait for somebody else to do it
Hiring was done at Kankakee by the store
manager who interviewed the applicant, took an
application from him, and sent it to Chicago for
clearance by Moshinsky. The hiring procedure, as
stated, consisted of placing a "Boy wanted" sign in
the window and interviewing the applicants.
Seedorf testified that on one occasion she
discharged a stockboy because he was not a good
worker. Seedorf purchased no merchandise nor did
she control or fix prices, the only two major
managerial functions exercised at the retail outlets.
These functions were vested in Moshinsky or in the
Chicago headquarters.
Respondent contends that the Board's decision in
Kostel Shoe Company, 124 NLRB 651, related to
another store in the chain, is res judicata on the
question of a single-store unit. A motion to dismiss
the complaint on that ground was made by Respon-
dent prior to the hearing (G.C. Exh 1-e) and de-
nied by Associate Chief Trial Examiner Charles W
Schneider on December 1. (G.C. Exh. 1-n.) A mo-
tion to reconsider (G.C Exh. 1-q) was referred to
the Trial Examiner at the hearing and denied on the
ground that the issue presented %kould be fulls
litigated and disposed of in the Trial Examiner's
Decision.
" The di%tance% were taken trom Rand-NI^I\all% % 'Standard Highway
Mileage Guide
354-126 O-LT - 73 - pt 2 - 25
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In defining the then guiding principle for unit
determination in retail chain stores, Charles W.
Schneider, then Trial Examiner, in the prior Kostel
case , cited Robert Hall Clothes, Inc., 118 NLRB
1096, as follows:
The Board has held, in cases involving chains
of retail stores, that, absent unusual circum-
stances, the appropriate bargaining unit should
embrace employees of all stores located within
an employer's administrative division or geo-
graphical area.
In denying Respondent's motion to dismiss in the
instant case the same Trial Examiner cited footnote
1 in The Great Atlantic & Pacific Tea Company, 140
NLRB 1011, in which the Board stated that Robert
Hall was impliedly overruled by Sav-On Drugs, Inc.,
138 NLRB 1032. In Save-On the petitioning labor
organization asked for review of the Robert Hall
policy and in reversing that policy the Board stated,
page 1033:
Reviewing our decision under that policy we
believe that too frequently it has operated to
impede the exercise by employees in retail
chain operations of their rights to self-or-
ganization guaranteed in Section 7 of the Act.
In our opinion that policy has over emphasized
the-administrative grouping of merchandising
outlets at the expense of such factors as the
geographic separation of the several outlets
and the local managerial autonomy of the
separate outlets; it has ignored completely as a
factor the extent to which the claiming or-
ganization had sought to organize the em-
ployees of the retail chain. We have decided to
modify this policy and to apply to retail chain
operations the same unit policy which we apply
to multiplant enterprises in general . Therefore,
whether a proposed unit which is confined to
one or two or more retail establishments mak-
ing up an employer's retail chain is appropirate
will be determined in the light of all the cir-
cumstances of the case.
In its motion for reconsideration and in its brief
to this Trial Examiner after hearing, Respondent
expressed reliance on the recent decision of the
First Circuit in N.L.R.B. v. Purity Food Stores, Inc.,
376 F.2d 497, cert. denied, 389 U.S. 959. The en-
tire history of Purity Food is interesting, providing
as it does some insight into the decision-making
processes of the Board and the conflict between its
processes and those of the Court.
In its first decision the Board found that a single-
store unit (the Peabody store) was appropriate for
the purposes of collective bargaining and issued its
usual bargaining order against Respondent. Purity
Food Stores, Inc., 150 NLRB 1523. The Board's
decision was based on its findings of fact, set forth,
pages 1526-1527, as follows:
Respondent operates seven stores in the
State of Massachusetts, four under the name
"Purity-Sav-More," two under the name "Sav-
More," and one under the name "Converse-
Sav-More." The Peabody store is approximate-
ly 10 miles from the nearest of the other stores
in the chain, and about 30 miles distant from
Respondent's main offices. The Peabody store
advertises in different area newspapers and cir-
culars which do not list the name and location
of all of the stores in the chain. Store hours
vary among the seven stores. The management
of each store determines the number of em-
ployees required to staff the store. Persons em-
ployed in the Peabody store are hired at that
store and must fill out an application for em-
ployment at the Peabody store. Almost all
of the part-time employees, who comprise
about 50 percent of the work force at the
Peabody store, come from the Peabody area.
The actual operations of the Peabody store
are under the direct control of the store
manager and the "store supervisor," the latter
dividing his time about equally between the
Peabody store and another store in the chain.
The store supervisor and the manager have
dividing his time about equally between the
employees; the assignment of work to em-
ployees; the approval of work schedules for
employees; the approval of time off; and settle-
ment of customer complaints. Vacation
schedules are based upon departmental
seniority within the store. The time records of
employees of the Peabody store are kept and
totaled at Peabody, and forwarded to the main
office for payroll purposes. There are four of-
fice employees at the Peabody store who per-
form clerical work for the Peabody store only.
Other than fresh meat and dairy products al-
most all other merchandise is ordered by the
individual store, including the Peabody store,
directly from independent warehouses and
vendors, with the quantity of merchandise or-
dered left in large degree to the discretion of
the individual store management.
While the record shows that employees are
transferred among the various stores on both a
permanent and temporary basis, the record
reveals that only 118 of these transfers over a
2-year period involved the Peabody store. The
record does not disclose how many of these
transfers involved supervisors. However, even
assuming , arguendo, that none of the transfers
involved supervisors, we do not believe that an
average of about 1 transfer a week in a unit of
over 100 employees is by any means deter-
minative.
Therefore, on the basis of the facts set forth
above, we find that a unit consisting of all full-
time and regular part-time employees em-
ployed at Respondent's Peabody store, exclud-
ing casuals , supervisors, and guards as defined
in the Act, constitutes an appropriate unit for
collective bargaining within the menaing of
Section 9(b) of the Act.
BIG BEN SHOE STORE 1531
Upon appeal from the Board's order its unit
findings were reviewed in N.L.R.B. v. Purity Food
Stores, Inc., 354 F.2d 926 (C.A. 1). (Not the deci-
sion relied upon by Respondent.) In remanding to
the Board, the court stated, page 930:
Whether because the Board relied upon an in-
adequate summary of the testimony, or for
some other reason, respondent's characteriza-
tion of its opinion, previously quoted, is unfor-
tunately justified.[16] As we have said, fn. 3, if
its summary was thought to be, as it was said to
be, "a statement of the relevant facts" it cer-
tainly was not. It was a singling out of those
particular facts which, in the Board's opinion,
justified treating the Peabody store as a single
unit, some of them were so expressed, or
limited as to give the wrong impression, see,
e.g., fns. 6, 7, 11, 16; some of them were at
least materially incomplete see, e.g., fns. 4, 9,
10, 12, 18; and some seem almost totally insig-
nificant see, e.g., fns., 13, 17. Furthermore to
isolate some facts and omit others, some of
them at least comparable, and some of much
seemingly greater importance than some men-
tioned, is, per se, a failure to view even the
recited facts in context.
This comment of the court is quoted for the pur-
pose of establishing the lengths to which the Board,
in the opinion of the court, had gone in finding a
single -store unit appropriate when sought by the
petitioning labor organization."
Upon remand the Board, predictably, affirmed its
original decision. See Purity Food Stores, Inc., 160
NLRB 651. It did so without rebutting or replying
to the charges of misstatement of fact directed at
the Board by the First Circuit. Predictably, the
court, on appeal, denied enforcement to the
Board's second order. See N.L.R.B. v. Purity Food
Stores, Inc., 376 F.2d 497 (C.A. 1). In view of the
directive of the Board that a Trial Examiner give no
deference to a decision by a court of appeals which
reverses the Board,18 I shall regard the Board's
decision in Purity Food as binding on the issue of
single-store units in retail chains.
But the Board's policy of giving significant but
not "controlling" weight 19 to the extent to which a
petitioning union has organized an employer's em-
ployees is not confined to retail stores. In Tallahas-
see Coca-Cola Bottling Co., Inc., 168 NLRB 1037,
the Board shifted its position regarding the place-
ment of route salesmen in production and main-
tenance units to accomodate the union's petition.
In Tallahassee as in Purity Food, the Board's first
decision (in Tallahassee it was unpublished) was
denied enforcement on the ground that the Board
was reversing its own policy with respect to route
salesmen without explication. See N.L.R.B. v. Tal-
lahassee Coca-Cola Bottling Co., 409 F.2d 201. That
policy had been to exclude route salesmen from
production and maintenance units and had been set
forth in Plaza Provision Company, 134 NLRB 910,
912, as follows:
We believe that where employees in question
are shown to be engaged in selling their em-
ployer's products and they drive vehicles and
make deliveries of such products as an incident
of such sales activity, they are essentially
salesmen and have interests more closely allied
to salesmen in general than to truckdrivers or
to production and maintenance or warehouse
employees.
Plaza was followed by E. H. Koester Baking Co.,
Inc., 136 NLRB 1006; Guzenhauser Bakery, Inc.,
137 NLRB 1613; and Coca-Cola of Baltimore, 156
NLRB 450, in each of which the union sought their
exclusion . In Marks Oxygen Co., 147 NLRB 228,
the union asked that the truckdrivers be included
and the Board agreed. There was, however, no
evidence in Marks that the truckdrivers engaged in
sales. Upon remand by the Fifth Circuit, the Board
affirmed its original position, Tallahassee, supra. In
reconciling the apparent conflict in its decisions on
the placement of route salesmen the Board frankly
stated, "In all those cases [Plaza, Gunzenhauser,
and Coca-Cola of Baltimore] as well as the instant
case the Board's approach has been to consider the
inclusion-exclusion problem in the light of the peti-
tion filed." In footnote 12 it further stated:
The fact that the Union, in petitioning for a
particular unit, may have been motivated by
the extent to which it had organized is im-
material so long as the Board in making its
determination of the appropriate unit does not
give controlling weight to that fact. [Citation
omitted. ]
More plainly, the Board is saying that all that is
needed to avoid the restriction of 9(c)(5) is a pious
disclaimer. The trend toward smaller units facilitat-
ing organization was followed in Metropolitan Life
Insurance Company, 156 NLRB 1408, issued after
remand by the U.S. Supreme Court20 for articula-
tion of its reasons for reversing its previous policy
of holding only administrative units appropriate in
the insurance industry." Single-office units are now
" Respondent 's characterization referred to stated that the Board's find-
ing "ignores substantial parts of the record and misstates and misconstrues
other parts 11
it The Board members , of course, in reaching decision must rely on their
staffs for the findings of fact upon which their conclusions are based If the
staff assistant , who alone has read the record, misrepresents the facts the
Board's decision will necessarily reflect the deception which has been prac-
ticed on it This decision unfortunately calls to mind the remark attributed
to Chief Justice Hughes that " An unscrupulous administrator might be
tempted to say 'Let me find the facts for the people of my country, and I
care little who lays down the general principles "'
is The Insurance Agents' International Union, 119 NLRB 768, 772
is Section 9(c)(5) of the Act reads
In determining whether a unit is appropriate for the purposes specified
in subsection (b) the extent to which the employees have organized
shall not be controlling
20 N L R B v Metropolitan Life Insurance Co , 380 U S 438
Si Quaker City Life Insurance Company, 138 NLRB 61, enfd 319 F.2d
690(C A 4)
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presumptively appropriate, or will be until that
issue is again faced by the Supreme Court With
respect to the impact of Section 9(c)(5), the Board
again took the position that the impact was negligi-
ble stating, page 1413:
As the Supreme Court pointed out in N.L.R.B.
v. Metropolitan Life Insurance Co , supra,
441-442, "both the language and legislative
history of § 9(c)(5) demonstrate that the
provision was not intended to prohibit the
Board from considering the extent of organiza-
tion as one factor, though not the controlling
factor, in its unit determination." Stated other-
wise, that provision was merely intended to
preclude the Board from basing its unit deter-
mination solely on the extent of organization in
the absence of other criteria of appropriateness.
It was not intended to prohibit the Board from
considering extent of organization as one fac-
tor in its determination, or to invalidate units
which qualified under other established tests
for appropriateness irrespective of extent of or-
ganization.
The rather narrow conflict indicated between the
Board and the courts on unit issues rests, it seems,
not on any desire by the courts to intrude on the
Board's wide area of discretion in making unit
determinations but rather on their requirement that
the Board, in reversing precedent, provide plausible
reasons. Reversal of precedent should not be aim-
less nor leave the impression that the purpose might
have been to favor a particular litigant on a particu-
lar issue. It may fairly be said that it is within the
province of the Board to encourage the organiza-
tion of employees22 and if its unit determinations
lend such encouragement and do no violence to the
Act the Board has not abused its discretion. All the
courts appear to have asked for is that they be
given the benefit of the Board's reasoning when its
policy is changed.
The sole question presented the Trial Examiner is
whether the facts herein warrant application of the
Board's single-store unit principle. To apply it the
Kankakee store extends that principle beyond past
application. The only managerial function exercised
at the store is the hiring and firing of stockboys.
(Only one stockboy appears to have been fired by
the store manager during the period reviewed.) But
the hiring process was confined to the simple notice
"Boy wanted" and the filling out of an application.
The nature of the work to be performed, keeping
the shelves stocked with shoes, required no skills,
little education, and no training. The delegation of
this fuction conferred no vast grant of either
authority or responsibility. All other operations,
which consist chiefly of merchandising and book-
keeping, are handled in Chicago. It offers little to
say that the store manager makes the bank
deposits. The plain and simple truth is that every
vital managerial function is performed at Chicago
Under these circumstances, I find that the degree of
autonomy vested in the Kankakee store is so
meagre as to approach nonexistence. For these
reasons I find that a Trial Examiner would not be
warranted in extending the Board's single-store unit
principle to Kankakee. The Board may find reasons
for so extending the doctrine but until it does it ap-
pears that a Trial Examiner might well live within
its limitations as he sees them.23
Since I find that a unit confined to the employees
at the Kankakee store is not appropriate for the
purposes of collective bargaining, I shall recom-
mend that paragraph 8 of the complaint be
dismissed.
IV. THE REMEDY
Having found the Respondent engaged in and is
engaging in certain unfair labor practices it will be
recommended that it cease and desist therefrom
and take certain affirmative action necessary to ef-
fectuate the policies of the Act.
Having found that Respondent refused to con-
tinue the employment of Mark Guimond after he
returned from his vacation, thereby terminating his
employment, in violation of Section 8(a)(3) and
(I) of the Act, I shall recommend that he be of-
fered full and immediate reinstatement to his
former or substantially equivalent position without
prejudice to his seniority or other rights and
privileges.
Having found that Respondent changed the
working schedule of Larry Dirker so as to effect a
constructive discharge in violation of Section
8(a)(3) and (1) of the Act it shall be recommended
that Respondent offer Larry Dirker a working
schedule substantially the same as that agreed
among him and Entwistle and Mildred Kelley and
that it offer him full and immediate reinstatement
to his former or substantially equivalent position
without prejudice to his seniority or other rights
and privileges.
It shall be further recommended that Respondent
make Mark Guimond and Larry Dirker whole for
any loss of pay they may have suffered by reason of
the discrimination praticed against them in ac-
cordance with the formula set forth in F. W. Wool-
worth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716.
Because the violations found herein and found in
Ben Kostel, supra, indicate Respondent might
reasonably be expected to thwart organizational ef-
forts at its other stores by the commission of similar
unfair labor practices, it will be recommended that
the notice attached to this Decision and marked
"Appendix" be posted at all Respondent's stores.
See Section I of the Act entitled "Findings and Policies -
When and if the Board adopts a unit policy based on "what the union
wants, the union gets" the work of Trial Examiners will be expedited
BIG BEN SHOE STORE 1533
Upon the basis of the foregoing findings and
conclusions and upon the entire record in this case,
I make the following:
CONCLUSIONS OF LAW
1 By interrogating an employee to ascertain
which employees had been asked to sign union
cards and whether they had signed cards and by
asking an employee if he had signed a card,
Respondent, since the interrogation occurred under
circumstances implying coercion and restraint, vio-
lated Section 8(a)( I) of the Act.
2. By terminating the employment of an em-
ployee because he had engaged in union activity
and for the purpose of discouraging union activity,
Respondent violated Section 8(a)(3) and (1) of the
Act.
3. By rescheduling the working hours of an em-
ployee so as to make it impossible for him to work
and attend school because he had engaged in union
activity and for the purpose of discouraging union
activity Respondent constructively discharged said
employee in violation of Section 8(a)(3) and (I) of
the Act.
4. The aforesaid unfair labor practices are unfair
labor pratices within the meaning of Section 2(6)
and (7) of the act.
5. Respondent did not refuse to bargain with the
Union in violation of Section 8(a)(5) and (I) of the
Act.
RECOMMENDED ORDER
It is recommended that The Kostel Corporation,
d/b/a Big Ben Shoe Store, its officers , agents, suc-
cessors, and assigns, shall:
1. Cease and desist from.
(a) Interrogating any employee concerning his
own or other employees ' union activity in a context
of coercion and restraint.
(b) Discriminating against any employee to
discourage membership in Retail Clerks Interna-
tional Association , AFL-CIO, Local 1504, or any
other labor organization by terminating his employ-
ment.
(c) Discriminating against any employee to
discourage membership in the above -named or any
other labor organization by rescheduling his work
hours so as to make it impossible for him to work
and attend school, thereby constructively discharg-
ing said employee.
(d) In any other manner interfering with,
restraining , or coercing employees in the exercise
of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessa-
ry to effectuate the policies of the Act:
(a) Offer full and immediate reinstatement to
Mark Guimond to his former or substantially
equivalent position without prejudice to his seniori-
ty or other rights and privileges and make him
whole for any loss of pay or other monetary loss he
may have suffered by reason of the discrimination
practiced against him in the manner set forth in
that portion of this Decision entitled "The
Remedy."
(b) Reschedule the working hours of Larry
Dirker in accordance with the schedule agreed on
among Dirker, Entwistle, and Kelley or such other
schedule as does not interfere with Dirker's oppor-
tunity to attend shcool. Offer Dirker full and im-
mediate reinstatment to his former or substantially
equivelent position in accordance with such a
schedule without prejudice to his seniority and
other rights and privileges and make him whole for
any loss of pay or other monetary loss he may have
suffered by reason of the discrimination practiced
against him in the manner set forth in that portion
of this Decision entitled "The Remedy."
(c) Notify the above-named employees if
presently serving in the Armed Forces of the
United States of their 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.
(d) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its Kankakee, Illinois, store and at all
its other stores, copies of the attached notice
marked "Appendix."24 Copies of said notice, on
forms provided by the Officer-in-Charge of Subre-
gion 38, after being duly signed by Respondent's
representative, shall be posted by the Respondent
immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter in
conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to insure that such notices are not altered, defaced,
or covered by any other material.
(f) Notify the Officer-in-Charge, Subregion 38,
in writing, within 20 days from the date of the
receipt of this Decision, what steps Respondent has
taken to comply herewith.25
14 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
2' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Officer-in-Charge for
Subregion 38, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER RECOMMENDED that all allegations
of the complaint not specifically found to be viola-
tions of the Act shall be dismissed.
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 Na-
tional Labor Relations Act, as amended , we hereby
notify our employees that:
WE WILL NOT ask any of our employees if
they knew of the names of employees who had
signed union cards or ask any employee if he
had signed a union card.
WE WILL NOT terminate the employment of
any employee because he signed a union card
or to discourage his membership in Retail
Clerks International Association , AFL-CIO,
Local 1504, or any other labor organization.
WE WILL NOT reschedule the working hours
of any employee so as to prevent him from
working and attending school because he
signed a union card or to discourage his mem-
bership in the above -named or any other labor
organization.
WE WILL reschedule the working hours of
Larry Dirker to permit him to work and to at-
tend school.
WE WILL offer Mark Guimond his job back
without loss of seniority or other rights and
privileges and pay him for any wages he may
have lost since we terminated his employment.
WE WILL offer Larry Dirker his job back
without any loss of seniority or other rights and
privileges and pay him for any wages he may
have lost because we rescheduled his working
hours so as to prevent him from working and
attending school.
All of our employees are free to become or
remain union members and to refrain from becom-
ing or remaining union members unless there is in
effect between our Kankakee store and a union a
collective -bargaining contract which contains a
lawful clause requiring our employees to become
and remain members of said Union.
THE KOSTEL
CORPORATION, d/b/a BIG
BEN SHOE STORE
(Employer)
Dated By
(Representative ) (Title)
Note : We will notify the above -named em-
ployees if presently serving in the Armed Forces of
the United States of their 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 consecu-
tive 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 , Citizens Building , 225 Main
Street, Peoria , Illinois 61602, Telephone 673-9287.