Bookland, Inc.

National Labor Relations Board - Board Decisions

Oct 23, 1975

221 N.L.R.B. 35 (N.L.R.B. 1975)

BOOKLAND, INC.
Bookland, Inc. and Local 1459, Retail Clerks Interna-
tional Association, AFL-CIO. Case 1-CA-10085
October 23, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On March 27, 1975, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision and an answering brief opposing Respon-
dent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, except as modified herein, and to adopt his
recommended Order.
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)(1) of the Act by
coercively interrogating employees concerning union
matters and by promising and granting wage
increases and other economic benefits for the
purpose of undermining the union organization drive
of its employees. We further agree with the Adminis-
trative Law Judge's conclusion that issuance of a
bargaining order is appropriate in this case. In so
doing, however, we rely on the Board's recent
decision in Trading Port, Inc., 2 in which we conclud-
ed that when an employer refuses to recognize and
bargain with a union which represents a majority of
its employees in an appropriate bargaining unit,
while simultaneously engaging in misconduct which
undermines the union's majority status and prevents
the holding of a fair election, we will order the
employer to bargain as of the date it embarked on a
clear course of unlawful conduct. Here Respondent
commenced its course of unlawful conduct on
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F 2d 362 (C A 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 219 NLRB No. 76 (1975).
3 All dates hereinafter are in 1974 unless otherwise indicated
* Chairman Murphy and Member Penello do not decide whether or not
Respondent refused to bargain in violation of Sec . 8(a)(5) of the Act
inasmuch as the complaint contained no allegation to that effect and as
such a finding would not affect the remedy herein as all of Respondent's
221 NLRB No. 11
35
August 1, 1974,3 and the Union demanded recogni-
tion on August 7. However, inasmuch as the Union
did not attain majority status until August 11, we
shall order Respondent to bargain, upon request, as
of that date rather than the date of the demand?
Respondent contends that the authorization cards
signed by nine of its employees are invalid and
therefore may not be counted in determining whether
the Union had majority status. In support of this
contention, Respondent argues that the cards of
Chicopee store employees Clark, Plouffe, Gdula,
Barra, B. Whillette, W. Willette, Buchanon, and
Laramee are invalid because Store Manager Judy
Barrett permitted Union Representatives Rivkin and
Caracciola to solicit signatures in an area of the store
which could be entered only with the express
permission of the manager, thus indicating to
employees that she supported the Union' s organiza-
tional campaign. We find no merit to this argument.
It is well established that the mere granting of access
to the employer's premises to union representatives
does not constitute unlawful assistance.5
Respondent further contends that the cards of
employees Clark, Gdula, and Cadette may not be
relied upon to establish the Union's majority status
because they were signed in reliance on material
misrepresentations made by union representatives.
The record establishes that Cadette was told that
"the purpose of signing the card was to indicate who
was interested in having a union," and that Clark
was told at the time she signed that the card "meant
that we would let [the union representative] go and
talk to Mr. Zanger [Respondent's president] for us."
We find that neither of these statements by the union
representatives soliciting signatures constitutes a
misrepresentation as to the purpose of the cards
which, on their face, clearly specified that the Union
was authorized by the signer "to represent me for the
purposes of collective bargaining, respecting rates of
pay, wages, hours of employment or other conditions
of employment in accordance with applicable law."
Gdula, however, testified without contradiction that
the union representative who solicited her signature
told her that "the only thing the card was for was so
that the Union could keep in touch with us through
literature of what was going on in the union itself'
unfair labor practices are otherwise individually remedied by our adoption
of the Administrative Law Judge's recommended Order, cf. Baker Machine
& Gear, Inc., 220 NLRB No. 40 (1975). Member Fanning concurs in finding
that the Respondent had a lawful obligation to bargain on August 11, but
emphasizes that his finding is based upon his view that under N.LKB. v.
Gissel Packing Co., Inc, 395 U.S. 575 ( 1969), an employer violates Sec.
8(a)(5) of the Act when in circumstances such as those presented herein it
refuses to recognize and bargain with a union whose majority status is
established by cards, whether or not the unfair labor practices triggering the
finding that the employer was under an obligation to bargain occur before,
at the same time , or after the actual refusal to bargain.
5 Evans Super Markets, Inc., 171 NLRB 1528 (1968).
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that "I specifically, asked him if it meant that we
wanted a union here; and he said no. It doesn't mean
that at all." Gdula further testified that she did not
read the card before signing it. From the foregoing
we find that Gdula signed the card in reliance upon
the -union representative's misrepresentation as to the
card's purpose, and that, therefore, "Gdula's card is
invalid. Despite this fording, however, we observe
that the Union had obtained valid authorization
cards from 19 of the 35 unit employees by August 11.
Accordingly, our finding that Gdula's card is invalid
does not affect the, Union's majority status and our
issuance of a bargaining order herein.
Finally, - Respondent, contends in its brief to the
Board that a bargaining order is not warranted in
this case because the Union engaged in various acts
of misconduct and violence which were the basis of a
charge.against the Union filed by Respondent with
the Regional Office.6 Inasmuch as Respondent failed
to adduce any evidence of union misconduct'at the
hearing in the instant-case, although it had ample
opportunity to, do so, we conclude that Respondent's
mere allegations of misconduct on the part of the
Union do not. constitute grounds for withholding a
bargaining orer in this case.?
ORDER
Pursuant to Section 10(c) of the National Labor
Relations' Act as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of'-the Administrative Law Judge and
hereby orders that the Respondent, Bookland, Inc.,
Holyoke, Massachusetts, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.,
d This charge in Case l-CB 2830 was subsequently settled by the Union
and the Regional Office. Respondent's appeal to the General Counsel was
denied.
7 Coronet Casuals, Inc., 207 NLRB 304, 317 (1973).
DECISION
STATEMENT OF THE CASE
RALPH WINKLER, Administrative Law Judge: Upon
charges filed by Local 1459, Retail, Clerks International
Association, AFL-CIO, herein the Union, a complaint
issued by the General Counsel on November 19, 1974, and
an answer filed by Bookland, Inc., herein the Respondent,
a hearing was held in Holyoke , Massachusetts, on January
21-22, ^1975.-
Upon the entire record in the case , including my
observation of the demeanor of the witnesses and upon
consideration of briefs, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Massachusetts corporation engaged in
the retail sale of books and related products in Holyoke,
Chicopee, and Northhampton, Massachusetts. I find, as
the parties agree,, that Respondent meets the Board's
jurisdictional standards and that Respondent is engaged in
commerce within Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Local 1459, Retail Clerks International Association,
AFL-CIO, herein called the Union , is a labor organization
within Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated Section
8(a)(1) of -the Act by interrogating employees concerning
union activities and by promising and granting economic
benefits to discourage such activities, and that it also
violated Section 8(a)(1) and (3) by constructively discharg-
ing Jane Cody. Alleging that a majority of employees in a
three-store unit had designated the Union as their
bargaining representative on or about August 11, 1974, the
General Counsel also urges that a bargaining order 'be
directed on the basis of Steel-Fab, Inc., 212 NLRB 363
(1974). The parties agree in this latter connection that all
full-time and part-time employees at Respondent's three
stores constitute an appropriate bargaining unit and that
there were 35 employees in this multistore unit on August
11, 1974.
All events in the following recital occurred in 1974 unless
indicated otherwise.
A. Sequence of Events
On July 26 and 28, Union Representatives Robert
Rivkin and Paul Caracciola held organizational meetings
with Respondent's employees, and they visited Respon-
dent's three bookstores during the week of July 29. On
their visit to the Holyoke store on July 30, Rivkin and
Caracciola introduced themselves to Store Manager Terry
Murphy; they informed Murphy of the organizational
campaign, and inquired whether they could speak with, the
employees. Murphy said he would ascertain from the
employees what their union sentiments were and that he
would advise Rivkin and Caracciola accordingly. Rivkin
and Caracciola returned on August 1, and' Murphy
informed them that the employees were purportedly not
interested in the Union and that Rivkin and_ Caracciola
would not be allowed to talk to the employees on the store
premises. Rivkin and Caracciola were at the Chicopee
store on July 30 and informed Store Manager Judy Barrett
of the organizing campaign, whereupon Barrett permitted
them to talk to employees.
Rivkin and Caracciola went to the Northhampton store
on July 31, on which occasion they spoke to some of the
employees but did not see the store manager, Doris
Drozdal. They returned the following day, August 1, and
Mrs. Marilyn Zanger was present at the time. Mrs. Zanger
BOOKLAND , INC. 37
is the Respondent 's Treasurer and a corporate stockholder
and the wife of Respondent President Martin Zanger; she
was not employed by Respondent during the period
relevant in this case ; and she testified she was in the
Northhampton store on August 1 to select reading material
for her own use. According to Mrs. Zanger's testimony, she
exchanged a few words with Rivkin and Caracciola outside
the store that day, having nothing, in effect, to do with the
employees ' union activities and she testified she did not
know who the men were or that they were union
representatives . Mrs. Zanger also testified that she had
separate conversations that day with Northhampton
employees Henry Walz and Miss Rebecca Pontbriand.
While chatting with Pontbriand, according to Mrs.`Zanger,
Pontbriand mentioned having personal problems and that
she offered to discuss these problems with Pontbriand.
Mrs. Zanger testified that Pontbriand then said that she,
Pontbriand, wasn't being paid "properly" and had not
received an individual wage increase promised to her
several months earlier and that Mrs. Zanger replied she
would tell Mr . Zanger about the promised wage increase
and that she "guaranteed" Pontbriand that Mr. Zanger
"would take care of this promise ." The conversation with
Walz, according to Mrs. Zanger, occurred while she and
Walz were walking to a nearby establishment to purchase a
stool for the Northhampton bookstore. Mrs.' Zanger
testified that Walz began telling her " things that were
bothering him," particularly concerning a raise promised
him which he had not received, and that she "promised"
Walz to call the matter to her husband's attention and that
her husband "will definitely look into this and take carei of
this if there are problems ." According to Mrs. Zanger,' she
did not return to the Northhampton store the next day.
Both Mr. and Mrs . Zanger testified that Mrs. Zanger
informed Mr. Zanger later that day of the promises made
by her to Walz and Pontbriand and that she expected Mr.
Zanger to make good these promises.'(Mr. Zanger , stated
early in the hearing that he does not discuss "store
business" with his wife and Mrs. Zanger testified that she
never participates in those affairs.) -
Now to recount what I find to be the credible version of
the aforementioned events involving Mrs. Zanger 's activi-
ties in the Northhampton store on August 1 and 2. My
credibility resolutions on this and all other matters are
based both on my demeanor observations and the
testimony of all witnesses and upon consideration of the
entire sequence of events.
Rivkin and Caracciola credibly testified as follows, with
credible corroborating testimony by Walz concerning some
material circumstances : At the Northhampton 'store on
August 1 , Rivkin and Caracciola identified themselves as
union representatives to Mrs. Zanger and informed her of
the organizational activity among Respondent's employ-
ees. Mrs. Zanger suggested that any further discussion take
place on the -sidewalk outside the store because she didn't
"want the employees to hear." Rivkin then explained to
Mrs. Zanger that the employees wanted a union in order to
achieve such economic benefits as sick leave , insurance
coverage, better wages, and other items. Mrs: Zanger
replied that Respondent's door is "always open" to the
employees and they could always bring their complaints to
her or her husband and that the. latter would take care of
such matters.
When the union representatives departed, according to
Walz' credible testimony with credible circumstantial
corroboration by Miss Pontbriand and employee Richard
Winquist, Mrs. Zanger escorted Walz to the backroom of
the store and inquired what was going on and what the
employees' problems were. Walz replied that some employ-
ees were interested in the Union because of "low pay; no
holidays; no sick leave , no benefits; this sort of thing."
Mrs. Zanger said she would inform her husband of the
situation and that he "would do something about it." That
conversation concluded , and Mrs. Zanger next invited
Miss Pontbriand into the backroom, according to the
latter's credible testimony with credible corroboration of
circumstances by Walz and Winquist. Mrs. Zanger opened
the ensuing conversation with "this is your big chance to
tell me what your problems are," and Pontbriand men-'
tioned "low" wages and a failure to receive a wage
adjustment promised her 5 weeks before. The Union was
mentioned several times , and Mrs. Zanger inquired how
many employees "were for the Union." Mrs. Zanger
promised Pontbriand 5 weeks retroactive pay at 10 cents
an hour and said that her husband "would take care of his
employees." Mrs. Zanger then approached Winquist on the
sales floor and told him, according to the latter 's credible
testimony, that he "was not to talk to union people on
company time."
The next day (August 2), according to Pontbriand's
credible testimony, Mrs. Zanger told Pontbriand that she
had mentioned their previous day's conversation to her
husband and that Mr. Zanger was going to "come around
and talk to all of his employees." That same day at the
Northhampton store, Mrs. Zanger invited employee Jane
Cody to the backroom and, according to Cody's trustwor-
thy 'testimony, Mrs. Zanger questioned her about
"problems of the store." Cody replied that "there were low
wages and no benefits and basically the same thing that
everyone else had told her."
On August 1, meanwhile, Respondent posted a hand-
written notice to employees - in all three stores . This notice
stated that,"Effective August 1st all employees of this store
working on legal holidays will be paid at the rate of time
and one-half." Zanger 's explanation for this notice is that a
store manager had told him of difficulty in getting
employees to work on July 4 and that "we would soon face
this problem, on Labor Day again," and that he directed
posting of the notice on that date because of his plans to be
out of town during most of August.
On Augusts 2, Respondent posted the following notice in
each of its stores:
It has come to my attention that certain inequities have
occurred in our pay structure , primarily because of lack
of a formal program and lack of direct communication
between top management and our employees.
In order to correct this situation and any other problem
areas which may exist , I plan to visit each store in the
.next week in order to communicate directly with all of
my employees regarding their problems and to 'take
prompt affirmative action to correct them.
Martin Zanger
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Zanger testified that he posted this August 2 notice as a
result of Mrs . Zanger's report to him concerning her
previous day's conversation with Walz and Pontbriand.
- On August 2 through August 5, Zanger visited the three
stores and conducted separate discussions in the backroom
with all 35 employees. Each conversation lasted about 45
minutes, and Zanger testified that he questioned the
employees concerning their problems and grievances, and
told them, as his August 2 notice had stated, that he would
come up with a program of changed working conditions to
correct the 'situation. The interviews covered the complete
range of terms and conditions of employment, and among
the complaints raised by employees during these-interviews
were wage inequities, no paid holidays, no health insur-
ance, no seniority, and no sick -leave.. Zanger, testified that
the Union was not mentioned at these interviews, and,
many of the employees testified to 'such effect concerning
their own discussions with Zanger. However, Cody
credibly testified that she told Zanger during her interview
that the Union was Zanger's only'reason for holding these
interviews and that Zanger said that was not so and added,
"off the record, but all they want is your initiation fees";
and during his interview, according to Weltman's credible
testimony, Weltman told Zanger that the employees
weren't trying to "rip you off" and there wouldn't be a
need for a union if they got a "fair shake."
On August 6, Respondent posted in each store the
bulletin set forth in Appendix A attached hereto, acid it
also distributed copies of this bulletin with employees'
paychecks , a week later. This bulletin, according to
Zanger's testimony, was "a result of all those meetings
[between August 2 and` 5 ] and, the notes I made and the
conclusions I reached. I felt that the gripes and the needs
were urgent and that urgency had been expressed to me by
the employees that I should come up with something pretty
quick because people were really upset" Responder
concedes with reference to this August 6 bulletin that the
following items either are completely new or involve
improvements of existing conditions - wage policy, life
insurance, health insurance, wage reviews, sick leave, paid
vacations, -and holiday pay. Also immediately following
Zanger's meeting with employees, Respondent gave all
employees a wage increase, effective August 1 and 2, and
five employees received retroactive increases as well.
On August 7, Zanger rejected a request made that day by
the Union that he recognize the Union as bargaining
representative of Respondent's employees. ,
Claiming a complete lack of knowledge of the employ-
ees' organizational efforts until the Union requested
recognition on August 7, Zanger testified, as already
indicated, that his own aforedescribed activities stemmed
solely from Mrs: Zanger's report to him concerning her
conversations' with Walz and Pontbriand on August 1.
Store Managers Terry Murphy and Judy Barrett also
testified in this connection that they had not, informed
Zanger of the union representatives' visit to their respective
stores during the week of July 29, and Doris Drozdal,
manager of the third store, testified she did not hear of any
union activities until after, August 12. Zanger's explanation
for, the alacrity with which he purportedly acted on his
wife's report is set forth above in connection with his
August 6 memorandum to employees, and he further
testified that he runs several businesses and makes "a lot of
decisions" and makes them "quickly."
On August 8, employee Michael Weltman protested to
Mr. Zanger that many of the employees work fewer than
30 hours weekly and that many items in Respondent's
August 6 bulletin, (Exh. A) were therefore inapplicable to
them. Zanger replied, according to Weltman's credible
testimony, that the mentioned bulletin was merely "the
first in a series. This - is all I could put together in a few
days, but there would be more." Zanger went on to say
that he had other "ideas" but was "now prevented from
initiating or„implementing or discussing them because he's
now been served notice by the Union."
The foregoing preponderantly establishes, and in my
opinion no other finding is permissible on this record, that
the Zangers were aware by August 1 of the union
campaign and that Respondent took immediate action to
undermine the organizing drive. While there are lawful
means by which an employer may oppose organizing
activities of'its employees, it may not do so by granting or
promising to grant economic benefits and by interrogating
employees, concerning union matters in such unlawful
context. I accordingly find that Respondent violated
Section 8(a)(1) by Mrs. Zanger's interrogation of employ-
ees concerning union matters, by Mr. and Mrs. Zangers'
promises to redress employees' complaints and improve
their employment situation, and by Mr. Zanger then
granting wage increases to all employees and retroactive
wage payments to some` and announcing other new' or
improved employment benefits in his August 6 notice to
employees. N.LRB. v. Exchange"Parts Co., 375 U.S. 408,
408-409'(1964); N.L.R.B. v. Gissel Packing Co., Inc., 395
U.S. 575, 583 (1969); N.L.R.B. v. Eugene Yokel! and
Bernard Yokell, Co-partners, •d/b/a Crescent Art Linen Co.,
et al., 387 F.2d 751, 755 (C.A. 2,1967); Texaco, Inc. v.
N.L.R.B., 436 F.2d 520, 525 (C.A. 7, 1971); AceAikire
Freight Lines, Inc. v. N.L.R.B., 431 F.2d 280, 284 (C.A. 8,
1970); 'N.LRB: v. Deutsch Company, 445 F.2d 901, 904
(C.A. 9, 197 1);International Harvester Company, 179 NLRB
753 (1969).
B. Jane' Cody's "Discharge"
The General Counsel alleges that Respondent construc-
tively discharged Jane Cody on or about September 3.
Miss Cody testified that she had made the original contact
with the Union - although there is no reasonable basis for
inferring Respondent's knowledge of such fact - and it is
recalled that she was one of the employees with, whom Mrs.
Zanger had a conversation about store "problems" on
August 1 or 2, and that Miss Cody told Mr. Zanger, during
the latter's individual interviews with all employees that
weekend, that the Union was Zanger's only reason for
conducting the interviews. Cody signed a union card, as
did 24 other employees.
Cody was a part-time employee, originally working four
nights weekly for a total of 20 hours. Sometime before the
advent of the Union that summer, Cody informed her store
manager, Miss Drozdal, that she would be attending
college in the fall and she inquired whether she could
BOOKLAND, INC.,
reduce her workweek to 5 or 10 hours depending on her
schedule of classes ; Cody also mentioned that she would
probably want to, work only 5 hours a week on Friday
evenings . Drozdal said that she thought something could
be arranged but that they wait until. Cody's schedule of
classes was settled. The matter was thus left, with no
definite arrangements agreed upon, although Drozdal did
indicate there might, be a question about working only on
Friday evenings. Eventually, and several conversations
later, Drozdal told Cody (this occurred after the Union's
appearance) that Cody could not work fewer than 15 hours
weekly, and certainly not a 5-hour week on Friday
evenings . Drozdal testified, as she also explained to Cody,
that Friday is the busiest night of the week and that a store
employee working only on Friday evenings could not keep
abreast of the changing inventory of books and effectively
handle the trade. On or about September 3, Cody informed
Drozdal that she was quitting because of Drozdal's refusal
to meet her own.(Cody's) requested hours and time.
Miss Drozdal and Mr., Zanger both testified, in effect,
that Drozdal alone made the decision respecting Cody but
that Drozdal did check out the matter with Zanger before
giving Cody the final word. Their explanation, which I
accept, was that Drozdal had been rebuffed by her
corporate superiors in connection with another matter -
described in the record, but unnecessary to discuss here -
and that she wanted the security of Mr. Zanger's approval
in order to avoid another similarancident. While the record
shows that other-employees worked fewer than 15 hours
weekly, it is also noted that some of Respondent's
employees went out on a union-recognition strike some-
time in August and that the strike was still in progress at
the time Cody gave notice of her "quit." After the
complaint issued herein, Respondent, offered Cody re-
instatement "on one or two nights per week," and Cody
resumed employment-a week or so later, working 10 hours
weekly on Thursday and Saturday nights.
Upon the foregoing and the entire record herein, I find
that the record does not preponderantly establish that
Respondent brought about Cody's "quit" for ^ union or
other statutorily protected reasons, and I accordingly
conclude that-Respondent did not constructively discharge
her.
CONCLUSIONS OF LAW
1. Respondent is an employer within Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within Section
2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act
by coercively interrogating employees concerning union
matters and by promising and granting wage increases and
other economic benefits for the 'purpose of undermining
the union organization drive of its employees.
4. The aforesaid unfair labor practices affect commerce
within Section 2(6) and (7) of-the Act.
5. Respondent did not unlawfully discriminate against
Jane Cody.
TYE RSMEDY
39
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(aXl) of the Act, I
shall recommend that it cease and desist therefrom and
post appropriate notices in order to effectuate the policies
of the Act. For the following reasons, I also grant the
General Counsel's request for a Steel-Fab bargaining order
(212 NLRB 363 (1974)).
- I find, as the parties agree, that "all- full time and part
time employees of Respondent employed at its retail stores
located at 2217 Northhampton Street, Holyoke, Massachu-
setts; 1490 Memorial Drive, Chicopee, Massachusetts; and
in the King's Gate Plaza, Northhampton, Massachusetts,
exclusive of managers, executive, administrative, profes-
sional employees, guards and all supervisors as defined in
Section 2(11) of the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of
Section 9(b) of the Act." The parties also agree that there
were 35 employees in this unit as of August 11, 1974. It is
recalled that Respondent rejected the Union's recognition
request on August 7, 1974. By that date 15 of the 35
employees in the bargaining unit had signed cards
designating the Union as their bargaining representative.
Five more employees, signed authorization cards in the
next few days, so that 20 employees had designated the
Union by August 11.
The Steel-Fab case is the Board's decisional progeny of
the Supreme Court's holding in N.L.R.B. v. Gissel, supra.
Discussing the propriety of abargaining order upon the
basis of unfair labor practices, the Court-held that such
order is appropriate on the basis of a majority card
showing in an appropriate unit, both in "exceptional cases
marked by `outrageous' and `pervasive' unfair labor
practices" which are , so coercive "that a fair and reliable
election cannot be held," and in "less extraordinary cases
marked by less pervasive practices which nonetheless"
make "the possibility of erasing the effects of past practices
and of ensuring a fair election ... by the use of traditional
remedies . slight" (395 U.S. at 613-614). Finally, the
Court observed that "there is still a third category of minor
of less' extensive unfair labor practices which, because of
their minimal impact on the election'machinery, will not
sustain a bargaining order" (id at 615).
The General Counsel urges that the present case falls
within the first two categories described by the' Supreme
Court, while the Respondent contends - even assuming
the unfair labor practices found here - that the case falls
within the "third category of minor or less extensive unfair
labor practices" having "minimal impact on the election
machinery" and Respondent also cites in this connection
Linden Lumber Division, etc. v. N.L.R.B., 419 U.S: 301
(1974). Respondent, thus argues, inter alia, that "the card
authorization vote actually increased after August 6th,
which certainly proves that the increased wages and
benefits posted on that date did not dissipate the alleged
vote for the Union."
The situation involved here is - similar to that in
International Harvester Company, 179 NLRB 753 (1969)
where the employer interrogated employees concerning the
union and questioned them about complaints and griev-
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
antes and then took immediate steps "to correct said
grievances and complaints." The Board held as follows:
We are satisfied that a bargaining -order is warranted
on the facts in this case under the latter standard of
Gissel. Thus, the Respondent, upon being confronted
with the Union's demand for recognition , which was
clearly supportable , embarked upon a deliberate
campaign to undermine the Union 's majority status.
The Respondent utilized the forum of an assembled
meeting of the store employees to interrogate the
employees, and, subsequently, ascertained their com-
plaints and grievances , which were of long-standing
duration, and immediately corrected them , in violation
of Section 8(a)(1) of the Act. These unfair labor
practices, which, although perhaps not extensive in
number, nor heinous in character , nevertheless were
deliberately and calculatedly designed to interfere with
the employees , designation of their bargaining repre-
sentative . There arefew unfair labor practices so effective
in cooling employees' enthusiasm for a union than the
prompt remedy of the grievances which prompted the
employees' union interest in the first place. Under such
circumstances , Respondent's unlawful conduct tended
to undermine the Union's majority and impede the
election process, and thus the possibility of erasing the
effects of the past unfair labor practices and of ensuring
a free election by the use of traditional remedies is
slight. We therefore find, on balance, that the employ-
ees' sentiment , expressed through die, membership
applications and the paid initiation fees, is a more
reliable measure of employee desires, and that statutory
policies are better effectuated by issuing a bargaining
order in this case. [Emphasis supplied.]
Accord: Texaco Inc., 178 NLRB 434, 435, enfd. 436 F.2d
520, 525 (C.A. 7, 1971); Tower Enterprises, Inc., d/b/a
Tower Records, 182 NLRB 382, 387, enfd. 79 LRRM 2736
(C.A. 9, 1972); Skaggs Drug Centers, Inc., 197 NLRB 1240,
1241, enfd. 84 LRRM 2384 (CA. 9, 1973). And for fully
explicated reasons which are equally applicable here, the
Board has also held that Gissel bargaining orders may be
appropriately directed even though a majority of employ-
ees did not sign union cards until after a campaign of
unfair labor practices undertaken by an employer to defuse
or undermine the employees' organizing initiative. Merritt
Motor Company, 181 NLRB 1099, 1106 (1970); Mid
Missouri Motors, 194 NLRB 505, 510-51'1(1971).
The General Counsel contends, in summary, that
"Respondent's actions in soliciting' grievances, from and
making promises to virtually all' of its employees and
subsequently - within a matter of six (6) days - granting
substantial wage increases and other benefits to all
employees with full knowledge of their concerted activities
amounted to a gross violation of Section 8(a)(1) of the Act.
Further, these unfair labor practices were a `pervasive', and
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all -purposes.
`outrageous' course of action to eliminate and thwart the
employees' attempts to obtain union representation. Thus,
Respondent's actions .:. require along with other
traditional r e m e d i e s the entry of a bargaining-order as `.. .
the only effective remedy.' " N.L.R.B. v. Gissel Packing
Co., 395 U.S. 575, 614 (1969). 1agree.
Upon the basis of the foregoing fmdings of fact, and
conclusions of law, upon the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended: '
ORDER1
The Respondent Bookland, Inc.; Holyoke, Massachu-
setts, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
-(a) Coercively interrogating employees concerning union
membership and activities.
(b) Soliciting and adjusting grievances, and promising or
granting wage increases or any other employment benefits
to employees for the purpose of undermining or thwarting
their union membership and activities.
(c)' In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights-under Section 7 of the Act.
2. Take the following affirmative action:
(a) Upon request, recognize and bargain collectively with
Local 1459, Retail Clerks International Association, AFL-
CIO, as exclusive -representative of its employees in the
following appropriate - unit and embody in a signed
agreement any understanding reached:
All full time and part time employees of Respondent
employed at its retail stores located at .2217 North-
hampton Street, Holyoke, Massachusetts, 1490 Memo-
rial Drive, Chicopee, Massachusetts, and in the King's
Gate Plaza, Northhampton, Massachusetts, exclusive
of managers, executive, administrative, professional
employees, guards and all supervisors as defined in
Section 2(11) of the Act.
(b) Post at its three stores copies of the attached notice
marked "Appendix B."2 Copies of said notice, on forms
provided by the Regional Director for Region 1, after
being duly signed by Respondent, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 1, in writing,
within 20 days from the receipt of this Order, what steps
the Respondent has taken to comply herewith.
2 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
BOOKLAND, INC. 41
APPENDIX A
August 6, 1974
In accord with my discussions with most of our Bookland
staff during the past few days, I am pleased to announce
the following changes in our wage and benefit program:
DEFINITIONS: Employees who regularly work 40 hours per
week are considered full time employees.
Employees who regularly work at least 30 hours per week
are considered regular part time employees. In order that
as many people as possible, may qualify for benefits,
management will make every effort to make 30 hours of
work available to persons who are now working 27, 28 or
29 hours on a regular schedule.
HOLIDAYS ON WHICH THE STORE IS CLOSED: All full time
and regularly scheduled part time employees will get
holiday pay at straight time rate on holidays when the
stores are closed provided they work their scheduled
working day before and their next scheduled working day
after the holiday and provided they work one day during
the week in which the holiday occurs. Full time employees
will be paid 8 hours straight time holiday pay. Regularly
scheduled part time employees will be paid straight time
for the hours they would have been regularly scheduled to
work on that holiday day.
HOLIDAYS ON WHICH THE STORE IS OPEN: All employees
who work on Company recognized holidays when the store
is open will receive 1-1/2 time for all hours worked on that
holiday.
VACATIONS: Will be paid to all Full time employees and to
regular part time employees on the following basis:
One week after one year continuous uninterrupted
service.
Two weeks after two years continuous uninterrupted
service.
Three weeks after ten years continuous uninterrupted
service.
Eligible employees will be paid vacation pay for each week
of vacation on the basis of their regularly scheduled work
week. Employee will be eligible for vacation pay on the
anniversary of his/her employment date.
SICK DAYS: Regular full time employees will receive 3 days
sick leave per, year after one year of continuous uninter-
rupted service with company which may be used for bona
fide illness ,anly where necessary. Company may require a
,doctor's certificate as proof of illness if necessary.
Regular full time employees will receive 5 days sick leave
per year after five years on continuous uninterrupted
service and seven days sick leave per year after ten years
on continuous uninterrupted service.
Above sick leave when not used in any year may be
accumulated up to a total of fifteen, days.
HEALTH INSURANCE: The company will arrange for and pay
the cost in full of individual coverage under the company's
Blue Cross Blue Shield Master Medical Program (Blue
Cross's best currently available coverage) for all full time
and regular part time employees-after 30 days employment.
Employees wishing to take advantage of family-dependen-
cy coverage may do so by notifying the company and
agreeing to pay the difference in the cost under the said
plan.
LIFE INSURANCE: The company will pay the full cost of a
$4000 life insurance policy for all full time employees.
DISCOUNT: All employees will receive 20% discount on
personal purchases.
WAGE POLICY: The following wage policy will be imple-
mented immediately for all employees effective from this
date.
Employees will be hired for a 3 month probationary
period at $2.10 per hour.
After 3 months there will be an automatic increase to
$2.20.
After 6 months there will be an automatic increase to
$2.25.
After one year there will be an automatic increase to
$2.30.
Above time periods refer to continuous uninterrupted
service.
All employees will be reviewed on January 1st and July 1st
of each year for increases based on merit.
PROFIT SHARING RETIREMENT PLAN: The company has a
profit sharing-retirement plan, membership in which is
open to all employees who have two full years of service
and are 25 years of age as of the last Sunday in July of each
year, and who regularly work 30 hours or more each week
and who is not, or does not become a participant in any
other pension or deferred profit-sharing plan to which'the
company contributes. In the eight years of the plans
existence, the company has contributed an average of
7.125% of each eligible employees total annual pay to the
plan each year. The money is held in trust by the First
Bank and Trust Company, is invested in securities, and the
income from this money as well, as the capital fund itself is
not taxed to the employee until he receives it on his normal
retirement date or date of disability. The company has, in
the past, notified employees of this plan as they became
eligible. This plan is subject to certain vesting 'require-
ments.
The company intends , periodically , to review company
benefits in order to make improvements when feasible and
practical based upon industry conditions and practices as
well as the company's financial ability . The company also
intends to carry on periodic communications with its
employees regarding company policies , wages, and work-
ing conditions.
BOOKLAND, INC
Martin H. Zanger
President