Brooks Brothers, A Division of Garfinckel, Brooks Brothers, Miller & Rhoads

National Labor Relations Board - Board Decisions

May 13, 1982

261 N.L.R.B. 876 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brooks Brothers, A Division of Garfinckel, Brooks
Brothers, Miller & Rhoads and United Food &
Commercial Workers Union, Local 400, UFCW
International, AFL-CIO. Cases 5-CA-12778,
5-CA-12842, and 5-RC-11326
May 13, 1982
DECISION, ORDER, DIRECTION, AND
DIRECTION OF SECOND ELECTION
BY MEMBFRS FANNING, JENKINS, AND
ZIMMERMAN
On December 2, 1981, Administrative Law
Judge Walter H. Maloney, Jr., issued the attached
Decision in this proceeding. Thereafter, Respond-
ent filed exceptions and a supporting brief and the
General Counsel filed a brief in opposition to Re-
spondent's exceptions and in support of the Admin-
istrative Law Judge's Decision.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, as further explained below, and to adopt his
recommended Order,2 as modified.
The Administrative Law Judge found, inter alia,
that Respondent violated Section 8(a)(1) of the Act
through certain statements by Assistant Manager
Linton to a group of employees. Respondent con-
tends that the statements in question did not consti-
tute an unlawful threat, as found by the Adminis-
trative Law Judge. We find merit in this conten-
tion.
Within 10 days of the election, salesman David
C. Barron, a union adherent, overheard Assistant
i Respondent has excepted to certain credibility findings made by the
Administrative I aw Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings
2 The Administrative Law Judge has recommended a broad cease-and-
desist order. In Ilfckmorr Foods,. Inc., 242 NLRB 1357 (1979), we held
that such broad injunctive language is warranted only when a respondent
has been shown to have a proclivity to violate the Act, or has engaged in
such egregious or widespread misconduct as to demonstrate a general
disregard for employees' fundamental statutory rights. Contrary to the
Administrative Law Judge, we do not find that the instant violations
meet this test. Consequently, we shall modify the Administrative Law
Judge's recommended Order to require the Respondent to cease and
desist from violating the Act "in any like or related manner."
To assure a "make-whole" remedy for Respondent's unlawful dis-
charge of Ira Kurtz, we shall additionally order Respondent to expunge
from its files any reference to the October 24, 1980, discharge of Ira
Kurtz and to notify him in writing that this has been done and that evi-
dence of this unlawful discharge will not be used as a basis for future
discipline against him.
261 NLRB No. 130
Manager Linton speaking on the floor of the store
to employees Margaret Vita, Mary Jane Young,
and George Stringer. Barron described what tran-
spired as follows: Linton stated that "he knew for a
fact that with a union contract there was no guar-
antee of higher commission rates or drawer rates"3
and he knew of instances "where they had gone
down with a union contract." Barron then walked
over and challenged Linton's comment by stating
he had no basis for it and asked "why should we
believe you." Linton replied that the employees
had nothing in writing from the Union to which
Barron retorted "we don't have anything in writing
from the company which is one of the reasons we
want a union." Barron then told the group how
commissions are computed at an area store (where
employees are represented by the Union), and the
added benefits of a union which he said "would
help management also." Linton did not respond.
The Administrative Law Judge concluded that
Linton's statement about commissions was a threat
to lower wages in reprisal for union activity and
therefore violated Section 8(a)(l). We disagree.
In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S.
575, 618 (1969), the Supreme Court set forth a
standard by which such conduct may be judged:
[A]n employer is free to communicate to his
employees any of his general views about un-
ionism or any of his specific views about a
particular union, so long as the communica-
tions do not contain a 'threat of reprisal or
force or promise of benefit.'
Thus, the Board has found the statement that the
Union would not automatically bring increased
benefits is proper, C & K Coal Company, 195
NLRB 1038 (1972), and we find that Linton's con-
duct is of a similar nature.
Linton did no more than express his view that
there was no guarantee of a higher commission if
the Union were elected and that he knew of in-
stances when commissions had gone down with a
union contract. The statement that there was no
guarantee of a higher commission was a truthful
statement or, at the least, a noncoercive expression
of Linton's views. Further, Linton described the
lowering of commission rates as a product of a col-
lective-bargaining agreement, rather than as the
result of the advent of a union. Finally, Barron was
able to counter Linton's statements and speak to
the same employees at some length without chal-
3 The amount of the commissions for sales personnel and the method
of computation of commissions were issues in the election campaign. All
Washington sales personnel are paid strictly on commission, receiving a
weekly draw and a monthly commission check from which this draw is
deducted.
876
BROOKS BROTHERS
lenge from Linton. Given these circumstances, Lin-
ton's statement was not a coercive threat that Re-
spondent would lower wages. Thus, we do not find
this conduct to be a violation of Section 8(a)(1).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Brooks Brothers, A Division of Garfinckel, Brooks
Brothers, Miller & Rhoads, Washington, D.C., its
officers, agents, successors, and assigns, shall take
the action set forth in said recommended Order as
so modified:
i. Substitute the following for paragraph l(b):
"(b) Threatening employees with loss of benefits
if they should select the Union as their bargaining
agent."
2. Substitute the following as paragraph 1(j):
"(j) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the National Labor Relations Act."
3. Insert the following as paragraph 2(c) and re-
letter subsequent paragraphs accordingly:
"(c) Expunge from its files any reference to the
discharge of Ira Kurtz on October 24, 1980, and
notify him in writing that this has been done and
that evidence of this unlawful discharge will not be
used as a basis for future discipline against him."
4. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that Case 5-RC-11326
be, and it hereby is, severed from Cases 5-CA-
12778 and 5-CA-12842, and that it be, and it
hereby is, remanded to the Regional Directior for
Region 5 for further processing in accordance with
the Direction below.
DIRECTION
It is hereby directed that, as part of the investi-
gation to ascertain a representative for the purposes
of collective bargaining with the Employer, the
Regional Director for Region 5 shall, pursuant to
the Board's Rules and Regulatons, Series 8, as
amended, within 10 days from the date of this De-
cision, Order, and Direction, open and count the
ballot cast by Ira Kurtz, and cause to be served on
the parties a revised tally of ballots including there-
in the count of the above-mentioned ballot. There-
after, the Regional Director shall issue a Certifica-
tion of Representative if the Union received a ma-
jority of the votes cast according to the revised
tally. In the event that the Union did not receive
such a majority, it is further ordered that the elec-
tion conducted on November 21, 1980, be, and it
hereby is, set aside, and that a new election be con-
ducted in accordance with the following:
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE' Wll L NOT interrogate employees con-
cerning their union sentiments and activities.
WE WII.E NOT implement or announce other
increases in wages or benefits for the purposes
of influencing the outcome of a representation
election.
WE WILl. NOT threaten employees that their
union activities will be remembered and held
against them when they are considered for
promotion to management positions.
WE wlIL. NOT threaten employees with loss
of benefits because they select a collective-bar-
gaining agent.
WE WILL. NOT insist that employees read
company campaign literature and WE WILL
NOT inquire of them whether they have done
so.
WE WIll. NOI attempt to dissuade employ-
ees from supporting a union by telling commis-
sion salesmen that we have remedied an over-
staffing problem by discharging employees.
WE WILL NOT confer a benefit upon com-
mission salesmen during the course of an orga-
nizing campaign by discharging a salesman in
order to enhance the earning opportunities of
remaining salesmen.
WE WILL NOT tell employees that their
union sympathies and activities are the subject
of company surveillance.
WE WILL NOT discharge or otherwise dis-
criminate against employees because of their
membership in or activities on behalf of United
Food and Commercial Workers Union, Local
400, UFCW International, AFL-CIO, or any
other labor organization.
WE WI L. NOT in any like or related manner
interfere with, restrain, or coerce employees in
877
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the exercise of rights guaranteed to them by
Section 7 of the National Labor Relations Act.
These rights include the right to form, join, or
assist labor organizations, to bargain collec-
tively through representatives of their own
choosing, and to engage in concerted activities
for their mutual aid and protection.
WE WItl.i offer full and immediate reinstate-
ment to Ira Kurtz to his former or substantial-
ly equivalent employment, without prejudice
to his seniority or other rights and privileges
previously enjoyed, and WI- WILl make him
whole for any loss of pay or benefits which he
may have suffered because of the discrimina-
tion pacticed against him, with interest.
WI WILL expunge from our files any refer-
ences to the discharge of Ira Kurtz on October
24, 1980, and wi wil.l. notify him that this has
been done and that evidence of this unlawful
discharge will not be useed as a basis for
future discipline against him.
All of our employees are free to become or
remain members of that Union.
BROOKS BROTHERS, A DIVISION O1
GARFINCKEI., BROOKS BROTHERS,
MII.ER & RHOADS, INC.
DECISION
FINIINGS OF FACT
STATIEMENTI Ol: TH CASE
WAI.TER H. MAIONEIY, JR., Administrative Law
Judge: This case came on for hearing before me in
Washington, D.C., upon a consolidated unfair labor prac-
tice complaint,' issued by the Acting Director of the
The principal docket entries in the complaint cases are as follows:
Charge filed in Case 5-CA-12778 against Respondent by the Union on
November 17, 1980; complaint issued by the Acting Director, Region 5,
against Respondent on December 30, 1980; Respondent's answer filed on
January 12, 1981; charge in Case 5-CA 12842, filed by the Union against
Respondent on December 15, 1980; first amended charge December 30,
1980; complaint issued by Acting Director, Region 5, against Respondent
on January 8, 1981; Respondent's answer in Case 5-CA 12842, filed on
on January 19, 1981; hearing held in Washington, D.C., on September 21,
22, 23, and October 2, 1981; briefs filed with me by the General Counsel,
the Charging Party, and Respondent on or before November 16, 1981.
The principal docket entries in the companion representation case are
as follows:
Representation petition filed by the Union herein on September 22,
1980, seeking an election in a unit composed of all of Respondent's full-
time and regular part-time selling and nonselling personnel, exclusive of
casual and seasonal employees, employees represented by another labor
organization, guards, and supervisors as defined in the Act who are em-
ployed at Respondent's Washington, D.C., retail store; Stipulation for
Certification Upon Consent Election approved by the Director, Region
5, on October 30, 1980; election held on November 21, 1980, resulting in
19 votes for the Petitioner, 18 votes against the Petitioner, and two re-
maining challenges; timely objections to the conduct of the election were
filed by the Petitioner on December 1, 1980; report on challenges and
objections and order consolidating cases issued by the Acting Director,
Region 5, on January 26, 1981.
Board's Region 5, which alleges that Respondent Brooks
Brothers, A Division of Garfinckel, Brooks Brothers,
Miller & Rhoades, Inc.,2 violated Section 8(a)(l) and (3)
of the Act.
Consolidated with this complaint case are objections
filed by United Food and Commercial Workers Union,
Local 400, UFCW International, AFL-CIO (herein
called Union or Local 400), to the conduct of a represen-
tation election which occurred on November 21, 1980, as
well as challenges filed by the Union and Respondent to
the eligibility of two voters who sought to participate in
that election.
More particularly, the consolidated amended com-
plaint alleges that Respondent threatened employees with
lower sales commissions, stricter attendance rules, and
loss of benefits if they selected the Union as their collec-
tive-bargaining representative; coercively interrogated
employees concerning their union sympathies and activi-
ties; created among employees the impression that their
union activities were subject to company surveillance;
threatened employees with the loss of retirement benefits
if they selected the Union as their bargaining representa-
tive; instituted a dental care plan to dissuade employees
from supporting the Union; and discharged Ira R. Kurtz
on October 24, 1980, because of his membership and ac-
tivities on behalf of the Union. The objections to the
conduct of the election parallel the allegations of unfair
labor practices contained in the amended consolidated
complaint. 3
Respondent denies the commission of any independent
violations of Section 8(a)(l) or engaging in any objec-
tionable conduct. It asserts that the announcement of a
new dental insurance plan before the election was not
designed to influence the result of the election but was
made in accordance with its longstanding practice of pe-
riodically reviewing and enlarging employee fringe bene-
fits. Respondent asserts that Kurtz was discharged be-
cause of an overstaffing problem at its Washington, D.C.,
store and was selected for discharge because he was the
junior employee on the staff, was still in probationary
status, and was an unsuitable employee.
The ballot of Ira R. Kurtz was challenged by Re-
spondent because he was no longer an employee on No-
vember 21, 1980, the date of the election, and the valid-
ity of his ballot rests upon a determination of whether or
not he was discharged illegally. The Union challenged
the ballot of Sandra Ellis, the office manager, on the
basis that she was and is a supervisor. Respondent con-
tends that she was and is a rank-and-file employee who
2 Respondent admits, and I find, that it is a Virginia corporation which
operates a retail department store in the District of Columbia. During the
preceding 12 months, a representative period, Respondent had gross rev-
enues in excess of $500,000 and purchased and received at its Washing-
ton, D.C., store directly from points and places located outside the Dis-
trict of Columbia goods and merchandise valued in excess of $50,000.
Accordingly, Respondent is an employer engaged in commerce within
the meaning of Sec. 2(2), (6), and (7) of the Act. The Union is a labor
organization within the meaning of Sec. 2(5) of the Act.
3 The critical period for objectionable conduct ran from September 22,
1980, until November 21, 1980.
878
BROOKS BROTHERS
was eligible to vote in the representation election. Upon
these contentions, the issues herein were joined.4
I. THE UNFAIR LABOR PRACTICES ALLEGED
Respondent Brooks Brothers is a chain of retail stores
specializing in the manufacturing and sale of high quality
clothing and accessory items. Its 26 retail stores and
three factories are operated from its headquarters office
in New York City. These stores, including the Washing-
ton, D.C., store involved in this proceeding, employ
about 1,400 people and are found in most major metro-
politan areas in the United States. Brooks Brothers is
owned by a holding company which in part bears its
name and whose headquarters is in Washington, D.C., a
few blocks from the Washington Brooks Brothers store.
At the time of the hearing in this case, the holding com-
pany also controlled Garfinckel's, a chain of department
stores in the Washington metropolitan area, and some
other retail chains in the Virginia Tidewater Area and
elsewhere in the United States. Garfinckel's employs
about 1,200 full-time employees in the Washington area.
The companies owned by the holding company employ
an aggregate of 7,500 full-time employees throughout the
country.
The Washington Brooks Brothers store employs about
40 unit employees including 25 full-time salesmen and
women. None of these employees have been represented
by a labor organization.S It also employs about 30 tailors
who are represented by the Amalgamated Clothing
Workers Union. The Washington store was formerly op-
erated on the second floor of a building located at Con-
necticut Avenue and L Streets. On May 10, 1980, the
store moved about three blocks to its present location
and 19th and L Streets, Northwest.
All of the Washington sales personnel are paid strictly
on a commission basis. They receive $175 for a weekly
draw and get a monthly commission check from which
the draw is deducted. In addition, they receive a number
of fringe benefits, such as health insurance and vacation
pay, the cost of which the Company bears. Because of
the fact that clothing salesmen are compensated on a
commission basis, an increase in the number of salesmen
can result in a reduction in the earnings of all salesmen
unless there is a corresponding increase in sales volume.
For this reason, the hiring of new salesmen is generally
looked upon with disfavor by incumbent salesmen, while
a reduction in force usually inures to their financial bene-
fit. In the store's former location, there were seven sales-
men in the men's clothing department. At the time of
Kurtz's discharge, which occurred about 5 months after
the store moved, there were 12 salesmen in that depart-
ment. There is agreement among the parties that the
sales volume of the store increased after the move, but
there is a dispute (and the record is unclear) whether the
increase in sales was proportionate to the increase in per-
sonnel in the men's clothing department.
In the spring of 1980, before the store moved to its
present location, former Store Manager Robert Bates
4 Certain errors in the transcript have been noted and are hereby cor-
rected.
5 A few of Respondent's stores in the New York metropolitan area and
elsewhere are organized hut most are not
mentioned to a number of employees his intention to hire
more salesmen. This announcement produced a strong
and immediate negative reaction. Saleswoman Mary Ma-
loney phoned Bates in New York while he was in the
process of making a visit to the home office and told
Bates that the employees were beginning to talk about
forming a union. Immediately upon his return to Wash-
ington, Bates held a meeting with the sales force and in-
formed them that he would limit new hiring to one sales-
man.
During this same period of time, salesman David C.
Barron was given a 3-month evaluation by Bates and
former Assistant Store Manager Robert Moran. Such re-
views were normally given at the end of a new employ-
ee's 90-day probationary period. During the review,
Barron generally received good marks but was told by
Bates that going to meetings after work to discuss union
activities was not considered constructive behavior. I
credit Barron's testimony to the effect that, on this occa-
sion, Moran told Barron that, if he did not see a change
in the near future, his job would be in jeopardy.
The union organizing effort began in the summer of
1980 when two or three salesmen went to the UFCW In-
ternational office, located near the Washington store, and
asked for assistance. They were put in contact with
Local 400, the UFCW's local in the Washington metro-
politan area, and were given union cards to be circulated
among the sales staff at the store. On July 31, 1981, Ira
R. Kurtz was hired by Respondent as a clothing sales-
man. Kurtz had been a salesman for Raleigh's, a union-
ized clothing retailer in Washington, for a period of
about 4 years. Between his service with Raleigh's and his
employment with Respondent he was briefly employed
by a stock brokerage firm. While at Raleigh's, Kurtz
worked at its Landrhark store in Northern Virginia and
served as the Local 400 shop steward in the store.
On September 22, 1980, the Union filed a petition
seeking an election among regular part-time and full-time
selling personnel at the Washington store. From that
point on a spirited campaign ensued. Moran and Larry
Linton, the other assistant store manager, regularly and
repeatedly handed out literature to unit personnel in op-
position to the organizing drive. Much of the literature
was authored or obtained from Joseph Maloney, Re-
spondent's Vice president in charge of personnel. 6 A
common theme, repeated by Respondent in oral state-
ments relating to the union drive as well as in company
literature, was that Local 400 was merely using the orga-
nization of the Brooks Brothers store as a springboard
for a future effort at Garfinckel's, a much larger store in
the Washington area which assertedly was the principal
target of the Union's efforts. In support of this conten-
tion Respondent circulated to its employees a clipping
from Women's Wear Daily, a trade publication, in which
Union President Tom McNutt was quoted as saying,
with reference to Brooks Brothers, "Maybe it's just a
small store, but it's a foot in the door to Garfinckel's."
6 One of Maloney's assignments was to keep track of union drives and
to provide resistance to organizing efforts in Respondent's stores During
the fall of 1980, another such drive was in progress at Respondent's Pitts-
hurgh store
870
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about October 11, Respondent replaced Store
Manager Bates with Richard Peet, who was manager of
Respondent's Paramus, New Jersey, store. Shortly after
Peet's arrival, clothing salesman Frank Mastro com-
plained to him that there were too many salesmen on the
floor in the men's clothing department. Peet disagreed,
saying that he had figures to justify the current size of
the sales force. Saleswoman Mary Maloney also voiced
the same complaint to Peet with respect to salespersons
generally. Peet told Mrs. Maloney that she was wrong
and that the salesmen were not making less money than
they previously had been making. On the following day,
Peet again spoke to Mrs. Maloney on this subject. He
told her that he had been wrong, had gone over figures
prepared by the previous store manager, and found that
salesmen were in fact making less money than before.
During the preelection period, Peet and Moran had
conversations with several different employees concern-
ing the organizing campaign. Moran spoke with Barron
repeatedly on the subject, frequently doing so as he was
handing out company campaign literature. I credit Bar-
ron's testimony that, on one or more occasions, Moran
asked Barron what he thought he would gain by unioniz-
ing and told Barron that he was a fool to believe that a
unionized store would gain him anything. Barron's stand-
ard reply was that a union would bring with it improve-
ments in the health plan, including a dental plan, and
more job security. I credit Barron's further testimony
that, on one occasion, Moran reminded Barron that the
latter had expressed interest in joining Respondent's man-
agement and that his union activity would be on his
record, would be considered, and would not be forgot-
ten.
On a couple of occasions, Barron discussed the Union
with Peet during dinner engagements at a prominent
downtown restaurant known as Clyde's. During one
such dinner meeting, Peet asked Barron what his feelings
were about the Union. He also asked Barron what he
thought the outcome of the election might be. Barron re-
plied that he thought the Union would win handily and
Peet countered with the opinion that the Company
would win. Peet told Barron on one of these occasions
that, if the Union did win, there would be no status quo.
When the parties went to the bargaining table, they
would start out with a blank sheet of paper. Peet told
Barron that things were different in Washington than at
other Brooks Brothers stores which were unionized, be-
cause the corporate office (of the holding company) was
located in D.C.
On another occasion, when Moran was handing out
company campaign literature at the store, he told Barron
that "It's going to be war and it's going to be fought at
Brooks Brothers." He went on to say that the Brooks
Brothers store had only 80 employees, but the corporate
offices and Garfinckel's were in the same town and em-
ployed thousands of employees. He told Barron that
there was no way that the employees could get what
they were seeking and no guarantee that they would get
anything, including the status quo, because anything the
Company gave to Brooks Brothers it would have to be
given to Garfinckel's employees. Barron replied that he
was aware of his rights under the Taft-Hartley Act and
did not think that Moran had the right to question him
concerning his union activities.
Sometime between August 1980 and the election,
Barron overheard Linton speaking on the floor of the
store to employees Margaret Vita, Mary Jane Young,
and George Stringer. Linton was saying that with a
union there was no guarantee of higher commissions or
higher draw rates and he knew of instances where union-
ization brought about lower rates. Barron butted into the
conversation and stated that what Linton was saying was
not true. He told Linton he had no basis for making the
statement and nothing to back it up with. Linton replied
that Barron had nothing in writing. Barron replied that
at Raleigh's the salesmen got their commissions comput-
ed on a weekly basis. He added his opinion that he
thought unionization would help management as well as
employees and stated that he could not understand why
the Company was against it.
On another occasion, Moran spoke to Kurtz about the
Union at or near the floor of the store. I credit Kurtz'
testimony to the effect that Moran asked him what he
thought of the Union and whether he had any intention
of joining. Kurtz' reply was that he would "go with the
flow." Moran admits that, on one occasion when he was
distributing campaign literature, he asked Kurtz whether
he had found the time to read a letter that had recently
been distributed. Kurtz said that he did not. Moran sug-
gested that he find the time to read it and Kurtz replied
that he was not about to do so. Moran then asked Kurtz
if he had read the other company literature which had
been distributed. Kurtz replied "No," and walked away.
Kurtz was not in fact the leader of the organizing
effort at Respondent's store. However, he did sign a
union card and discussed unionization at the store with
several other employees. His experience as a shop ste-
ward for the same local which was organizing Respond-
ent made him a ready source of information. I credit the
testimony of Barron that, before Kurtz' discharge, both
Moran and Linton admitted to him that they were aware
that Kurtz had been a shop steward during his previous
employment with Raleigh's. I credit the testimony of
former office clerical employee Andrea Pellegrino that
she overheard Office Manager Sandra Ellis tell Peet,
"We know who is behind the Union-Kurtz. We sent
Raleigh's for a recommendation and didn't get any and
Raleigh's is a union store." I also credit the testimony of
Barron that he overheard a conversation over the intra-
store telephone, when he was placing a call to the office,
between Miss Ellis and another individual in the compa-
ny office. Miss Ellis was heard to say to her unidentified
listener that she was convinced that Kurtz was handing
out union cards because he was a shop steward at Ra-
leigh's.
On Friday, October 24, Peet discharged Kurtz. At a
meeting attended by Peet, Linton, Moran, and Kurtz, the
latter was told that there were too many salesmen in the
men's clothing department. He was also told that he was
an unsatisfactory employee because he chewed a tooth-
pick at the store, had a run-in with a customer a few
days earlier, and was found sleeping on the job. Kurtz
asked for a transfer to another department in the store
880
BROOKS BROTHERS
but his request was denied. He then accused Respond-
ent's management of trying to get rid of him because he
was a former shop steward at Raleigh's. Peet claimed
that this was the first time he knew of any union affili-
ations on his part and that such considerations played no
part in the termination. 7
On the following morning, at a regular Saturday meet-
ing with employees, Peet announced that he had finally
solved the overstaffing problem which had given rise to
several employee complaints and had done so by dis-
charging Kurtz. Not long thereafter, Peet had occasion
to talk with Mrs. Maloney concerning the events which
had just transpired. Peet was asking if there was any-
thing the employees were either happy or unhappy about
and Mrs. Maloney replied that she was not particularly
unhappy about anything except the firing of Kurtz. Peet
retorted, "What do you mean 'you're not unhappy.'
You're one of the biggest union supporters." Mrs. Ma-
loney asked how he knew and he replied that he knew a
lot of things. Peet then added, "You're a hypocrite. I get
rid of one guy to make ten happy and you're still not
happy." The record is undisputed that Respondent has
never previously discharged or laid off a salesman in the
Washington store because of an overstaffing problem.
A couple of weeks before the election, Respondent
held a meeting of unit employees at the store during
which they were addressed by Roxanne Horning, the di-
rector of employee benefits for the parent holding com-
pany. The nature of Miss Horning's remarks was to out-
line to the employees, who had gathered together in the
shoe department, what benefits were currently available
to them at Brooks Brothers. Employees also brought up
problems they had encountered in taking advantage of
these benefits, particularly in making claims for reim-
bursement from Blue Cross-Blue Shield. At the end of
the meeting, Peet spoke up and stated that, if the Union
came in, they would lose those benefits.
On November 6, 1980, a high-level meeting was held
at the corporate office of the holding company which is
located on K Street in Washington. The meeting was at-
tended by representatives from Garfinckel's, Brooks
Brothers, and the principal officials of what is often
called the "corporate office," i.e., the parent holding
company. The details of this meeting are discussed, infra.
At this meeting, which lasted about 4 hours, the corpo-
rate office decided to institute a dental care plan for all
employees at Garfinckel's and Brooks Brothers, except
for those covered by collective-bargaining agreements
and those already covered by dental plans.8 The plan,
which was estimated to cost about $250,000 per annum,
amounted to an addendum to an existing disability insur-
ance program which the corporation had with the Aetna
Life & Casualty Company. It was scheduled to take
effect on January i, 1981, and contained a wide range of
dental benefits, including preventive care protection. It
covered not only employees but their dependents as
well. Frank T. Reilly, president of Brooks Brothers,
7 Peet testified that he did not regard Kurtz as one of the "ringlead-
ers.
8 The employees at a few Brooks Brothers stores already enjoyed pre-
paid dental plans.
wrote a letter to all Brooks Brothers employees, dated
November 10. The letter was distributed throughout the
chain, including the Washington store, and read as fol-
lows:
Dear Associate:
I am pleased to announce to you today a signifi-
cant addition to Brooks' Brothers employee benefit
program-Comprehensive Group Dental Insurance.
As you know, we are constantly evaluating our
benefit program to ensure that it meets the real and
often diverse needs of our associates.
As a result of our research, we found that despite
great progress made in dental care in recent years,
almost all Americans-98 percent-have some form
of dental disease. Many go to the dentist only for
emergency treatment-others have never been to a
dentist at all.
We feel group dental insurance provides one of
the best answers to this problem. Our plan will en-
courage you to seek preventive care regularly, so
that minor problems will not erupt into time-con-
suming and costly emergencies. Here are some of
the dental services which benefits will be paid
under the plan:
-oral examinations
-routine cleanings
-- dental X-rays
-fillings
-inlays, crowns
Benefits for additional services such as oral sur-
gery, root canal therapy, installation of bridgework
'and dental repair will also be available under the
plan.
A significant feature of our plan is that an asso-
ciate will be free to receive treatment by the dentist
of his or her choice.
All eligible associates who work 20 or more
hours per week, or 1000 hours per year, will be able
to obtain dental coverage for themselves and their
families as well.
We expect to put the new dental plan into effect
January 1, 1981. Within the next several weeks we
will be sending you complete information on the
benefits offered to you under the plan, as well as
enrollment forms.
As the cost of good dental care continues to
climb higher, we feel the introduction of dental
coverage is an important expansion of our group
medical coverage, and will represent a significant
savings to you.
In addition to writing the above-quoted letter, Reilly
came to Washington from his office in New York and
spoke to the Washington store employees shortly before
the election. He again told employees about the inaugu-
ration of the new dental plan and provided employees
with the address of the Aetna personnel from whom
they could obtain claim forms. After Reilly's talk, Peet
told employees that the institution of the dental plan
881
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proved that Respondent was trying to do something con-
structive about fringe benefits.
At the election on November 21, both Kurtz and
Office Manager Sandra Ellis cast challenged ballots. The
Union won a one-vote plurality of the ballots which
were counted. The two challenged ballots remain deter-
minative of the election.
II. ANALYSIS AND CONCLUSIONS
A. The Supervisory Status of Sandra Ellis
Respondent maintains that Office Manager Sandra
Ellis is not a supervisor within the meaning of the Act,
despite the job title which she holds. As a consequence,
her ballot should be opened and counted and remarks
credited to her concerning Kurtz' union background
should not be vicariously attributed to the Company. It
is well settled that the mere existence of a title which
connotes supervisory or managerial status is not suffi-
cient, in and of itself, to establish supervisory status as a
matter of law. N.L.R.B. v. Harmon Industries, Inc., 565
F.2d 1047 (8th Cir. 1977). In some cases, the term "office
manager" has been found not to be conclusive evidence
of such status. Saladmaster Corporation, 216 NLRB 769
(1975); Empire Gas Inc. of Denver, 254 NLRB 626 (1981).
However, Miss Ellis has more than a mere title connot-
ing supervisory status. The elements of her job responsi-
bilities establish this standing as well.9
Miss Ellis was hired as office manager on July 14,
1980, when her predecessor, Carol Fanning, took a job
as a saleswoman in the Women's Clothing department.
Miss Fanning broke Miss Ellis in on the job. Miss Fan-
ning testified credibly that the responsibilities of the
office manager included interviewing clerical job appli-
cants and effectively recommending to the store manager
whether or not a particular clerical applicant should be
hired.'10 She also said that it was the further responsibili-
ty of the office manager to evaluate the members of the
clerical staff. Among the jobs of the office manager is
scheduling vacations, time off, and the lunch hours of
the clerical staff. 'l She also recommends raises for sub-
ordinates. I credit record testimony that work is assigned
to clerical employees by the office manager and that,
from time to time, she switches employees from a desk
job in the office to the switchboard, the will-call desk, or
to a cashier's post as the need arises. I also credit Miss
Fanning's testimony that day-to-day assignments of work
to clerical employees by assistant managers are made
through the office manager.
9 I found Miss EIllis to be a wholly unreliable witness anid have not
credited her testimony on any controverted point in the absence of cor-
roboration.
"' While Miss Fanning and her immediate predecessor, Mar) Maloney,
testified in terms of what the job responsibilities of office manager called
for when they held the job, there is no reason to believe that these re-
sponsibilities changed materially after Miss Ellis too)k the job and no
credible evidence exists to suggest that they did.
I Miss Ellis admits that she is empowered to grant days off to clerical
employees in accordance with established criteria and that she makes the
judgment as to whether the reason for the requested absence is justified
Curiously, she denied that she had any authority to grant clerical em-
ployees time off for less than a day for such errands as medical appoint
ments.
The office manager was empowered to approve cus-
tomer credit applications, the cashing of personal checks
by employees, and was responsible for the preparation of
the daily cash report, although that report might be initi-
ated by another employee. She has access to all person-
nel files and processed information requests and applica-
tions concerning employee benefits, such as health insur-
ance. Miss Ellis is hourly rated and works a 37-1/2 hour
week. There are two full-time and four part-time clerical
employees under her supervision and control. She is paid
$2 per hour more than any of them except Donna Ed-
wards and receives $1.38 per hour more than Miss Ed-
wards. In light of these factors, I conclude that Sandra
Ellis is a supervisor within the meaning of Section 2(11)
of the Act. Accordingly, the challenge to her ballot is
sustained and the remarks credited to her concerning
Kurtz' union background should be attributed to Re-
spondent.
B. Independent 8(a)(1) Violations
On November 6, 1980, just 16 days before the election,
the parent company of Respondent decided to institute a
costly fringe benefit for all employees in its Garfinckel's
and Brooks Brothers chains, with the exception of a few
employees who were already enjoying this benefit. It de-
termined to enlarge its current Aetna insurance policy to
provide dental coverage to employees and their families.
Respondent announced the implementation of this plan
to its Washington store employees, both in writing and
orally, just a few days before the election. When an em-
ployer confers upon its employees an increase in wages
or benefits during the course of a union organizing cam-
paign, its action is presumptively a violation of Section
8(a)(1) of the Act. N.L.R.B. v. Exchange Parts, Company,
375 U.S. 405 (1964); N.L.R.B. v. Styletek, Division of
Pandel-Bradford, Inc., 520 F.2d 275 (Ist Cir. 1975); Gor-
donsville Industries, Inc., 252 NLRB 563 (1980). It is in-
cumbent upon any employer seeking to avoid the conse-
quences of this presumption to justify its action on some
nondiscriminatory, business-related basis. Respondent's
defense in this case is that the granting of dental benefits
and the announcement thereof were merely part and
parcel of its ongoing effort to improve fringe benefits
provided to its employees, arguing that it had been con-
templating the institution of a dental plan long before the
Union began its organizing drive in the Washington
store. The defense is without merit.
It is quite true that Brooks Brothers officialdom had
long been aware of the fact that dental plans were fast
becoming a popular fringe benefit. Indeed, some Brooks
Brothers retail outlets in the Metropolitan New York
area and on the West Coast already had dental plans and
two store managers, one from the West Coast and an-
other from the Washington store, had pressed the corpo-
rate headquarters in Washington to come up with such a
plan. It is likewise true that, from time to time, Brooks
Brothers made improvements in fringe benefits through-
out its system, either to meet what the competition was
offering or to equalize the benefits that all Brooks Broth-
ers employees were receiving. The Brooks Brothers Per-
sonnel Director had prevailed upon the company presi-
882
BROOKS BROTHERS
dent in June 1980 to spend $7,500 for a study of fringe
benefits, including but not limited to dental plans. How-
ever, nothing happened with regard to these fine
thoughts until Local 400 began to organize the Washing-
ton Brooks Brothers store and threatened to expand its
effort into Garfinckel's. At that point in time, years of
study and indecision suddenly crystallized into prompt
action.
Respondent's testimony suggests that an intracompany
tug-of-war took place concerning the inauguration of the
dental plan. While Brooks Brothers headquarters in New
York had spent a significant sum of money on a study of
a fringe benefit plan, including dental benefits, known as
the Becker Report, the report had not been completed
and forwarded in writing to the members of the corpo-
rate office as of the time they actually made the decision
to buy a dental plan. Roxanne Horning, the director of
employee benefits, indicated that she was aware that the
study was in progress but professed indifference to it and
its contents. She testified that she was reacting principal-
ly to the entreaties of Garfinckel's president, Henry
Detweiler, and Garfinckel's vice president in charge of
personnel, Harry Vanderhort. Both men were aware of
the fact that Local 400 had just won representation at
Woodward and Lothrop's (Woodies), a large Washing-
ton department store which employs several thousand
people. They were aware that Woodies had just negoti-
ated a contract in November 1979, which included a
dental plan and they were concerned by the announced
intention of Local 400 to begin an organizing drive at
Garfinckel's, a drive in which the Brooks Brothers cam-
paign was just a stepping stone. Miss Horning testified
that Detweiler expected the Local 400 drive at Garfinck-
el's to begin early in 1981, immediately after the end of
the Christmas season. Among her various responsibilities,
Miss Horning has the job of monitoring fringe benefits
offered by competitors and other employers in the Wash-
ington area. She was aware that many employers, includ-
ing the Federal Government, were beginning to include
dental coverage in their health insurance programs.
Late in 1979, a task force composed of Garfinckel's
and corporate officers began to study group insurance
and life insurance programs and obtained a feasibility
study concerning a dental plan. The task force recom-
mended lower employee contribution for medical insur-
ance, enlargement of the plan to cover all of the chains
in the corporate family, and additional inquiry into the
possibility of enlarging disability insurance coverage. In-
terestingly enough, the task force recommended to the
corporate headquarters that no action be taken concern-
ing dental insurance coverage because it felt that en-
larged disability coverage had a higher priority In
March, Aetna provided the corporation with a quotation
for disability coverage. The corporate office, and par-
ticularly Miss Horning, felt that the cost was exorbitant
and asked for a more realistic proposal. A second set of
Aetna proposals was submitted in September or October
1980, and was rejected upon the recommendation of cor-
porate actuaries and a consultant firm.
Late in October 1980, Miss Horning asked Aetna for a
proposal for dental insurance. On November 1, Aetna
provided Miss Horning with quotes for two different
types of dental plans. She preferred the more expensive
plan because it provided for preventive as well as reme-
dial care. A high-level meeting was "summoned," to use
Miss Horning's terminology, to meet at the corporate
office on November 6, to discuss this proposal.12 Present
at the meeting were principal Garfinckel's officers, cor-
porate officers, and two Brooks Brothers officers, Reilly
and Maloney. It appears from the testimony that the
latter two individuals said practically nothing during the
meeting. The meeting lasted 3 or 4 hours and was devot-
ed exclusively to the subject of instituting a dental plan
and specifically the high-option Aetna plan which Miss
Horning was recommending. In the course of the meet-
ing, the threat to organize Garfinckel's and the pending
representation election at the Washington Brooks Broth-
ers store were discussed and inquiry was made as to
whether the plan could be promptly implemented in
light of the forthcoming election on November 21. The
committee decided to implement the plan, effective on
January 1, and to announce the decision immediately.
Miss Horning admitted at the hearing in this case that
one of the reasons prompting the implementation of the
plan at that time was the concern of the committee over
future union activity.
As noted above, the inauguration of the dental plan
was announced in writing almost immediately to all af-
fected Brooks Brothers employees and all Garfinckel's
employees. Reilly discussed the plan when he made a
preelection speech to Washington store employees just
before the election.
The timing of the institution of the dental plan, the ad-
mitted fear of organizational efforts by Local 400, and
collateral evidence of animus, discussed infra, make it
abundantly clear that the motivation for implementing
and announcing the dental plan at the time it was imple-
mented and announced was to head off a union drive at
Garfinckel's, as well as the drive at the Washington
Brooks Brothers store which Local 400 was perceived to
be using as a springboard for organizing Garfinckel's.
Accordingly, by implementing and announcing a pro-
gram of dental insurance immediately before the Novem-
ber 21 election, Respondent herein violated Section (a)(l)
of the Act and engaged in objectionable conduct affect-
ing the outcome of the election.
(2) In the fall of 1980, while in the course of dissemi-
nating company campaign literature, Moran told Barron
that he was a fool to think that voting for the Union
would gain him anything and repeatedly asked him what
he thought he had to gain by supporting the Union.
These latter statements, uttered in the context in which
they were stated, constitute unlawful interrogation in
violation of Section 8(a)(1) of the Act and objectionable
conduct affecting the results of the election.
(3) Moran's further statement to Barron-that his
union activity would not be forgotten and would be on
his record when and if he was considered for promotion
to a management position-is a not-too-veiled threat
1 According to Miss Horning, this meeting was an unusual if not un
precedented meeting and was not a [priidic corporate committee meet-
ing
883
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which violates Section 8(a)(l) of the Act and is also ob-
jectionable conduct affecting the result of the election.
(4) Peet's questions to Barron at a dinner meeting
when he asked Barron what were his feelings about the
Union and how he thought the election would turn out
constitute unlawful interrogation which violates Section
8(a)(l) of the Act and are objectionable statements af-
fecting the outcome of the election.
(5) Liton's statement to various employees in Barron's
presence to the effect that, with a union, there was no
guarantee of higher commissions or draw rates and there
were instances where unionization brought about lower
rates is a threat to lower wages in reprisal for union ac-
tivity which violates Section 8(a)(1) of the Act and is ob-
jectionable conduct affecting the result of the election.
(6) Peet told Barron on one occasion that, if the Union
did win, there would be no status quo but the parties
would go to the bargaining table and start with a blank
sheet of paper. It is an unfair labor practice and objec-
tionable conduct for an employer, in the course of an or-
ganizing campaign, to tell employees that bargaining will
start "from scratch" or "from the bottom up," if the
thrust of these remarks is to convey the idea that Re-
spondent will discontinue existing benefits if it has to
engage in collective bargaining. Coach and Equipment
Sales Corp., 228 NLRB 440 (1977); Madison-Kipp Compa-
ny, 240 NLRB 879 (1979); Centre Engineering, Inc., 253
NLRB 419 (1980); Taylor-Dunn Manufacturing Company,
252 NLRB 799 (1980). Peet's statement to Barron on this
occasion carried with it no other meaning. Accordingly,
it is a threat of reprisal which violates Section 8(a)(l) of
the Act and is objectionable conduct affecting the result
of the election.
(7) On another occasion, in the context of a statement
in which he said "It's going to be war and it's going to
be fought at Brooks Brothers," Moran told Barron that
there was no way that employees could get what they
were seeking and no guarantee they would get anything,
including the status quo, because anything the Company
gave to Brooks Brothers it would have to give to Gar-
finckel's. For reasons set forth above in subsection (d),
these remarks constitute a threat of reprisal in violation
of Section 8(a)(1) of the Act and are objectionable con-
duct affecting the results of the election.
(8) Moran's question to Kurtz as to how he felt about
the Union was coercive interrogation which violates
Section 8(a)(1) of the Act and is objectionable conduct
affecting the results of the election.
(9) Moran's question to Kurtz as to whether he has
read company campaign literature and his insistence that
Kurtz do so constitute a violation of Section 8(a)(l) of
the Act and objectionable conduct affecting the results
of the election.
(10) Peet's statement to Washington store employees
following the discharge of Kurtz that he had solved the
overstaffing problem by discharging Kurtz constitutes,
under the peculiar facts and circumstances of this case,
an improperly motivated grant of a benefit in the form of
enlarged commission earning opportunities. It is a viola-
tion of Section 8(a)(1) of the Act and objectionable con-
duct affecting the results of the election.
(11) Peet's statement to employees, made at the con-
clusion of the meeting with Miss Horning at which
fringe benefits were discussed, that employees would
lose these benefits in the event of unionization constitutes
a violation of Section 8(a)(l) of the Act and is objection-
able conduct affecting the results of the election.
(12) Peet's colloquy with Mrs. Maloney following the
discharge of Kurtz that he fired Kurtz to keep 10 people
happy, his question to her as to whether she was
"happy," and his statement that she was one of the
strongest union supporters constitutes an unlawful an-
nouncement of a grant of benefit, coercive interrogation,
and a statement that the union activities of employees
were the subject of company surveillance. These state-
ments constitute a violation of Section 8(a)(l) of the Act
and are objectionable conduct affecting the results of the
election.
C. The Discharge of Ira Kurtz
The discharge of Ira Kurtz and the reasons proffered
in explanation thereof must be evaluated against a back-
ground of strong union animus and also with regard to
the timing with which the discharge was accomplished.
Kurtz was the junior clothing salesman in the men's
clothing department. While there is no evidence that the
Company followed a policy of seniority in making lay-
offs, the Company argues that, because of an economic
retrenchment, Kurtz was the logical one to go because
of his lack of seniority and because he was still a proba-
tionary employee. The shortcoming in this argument is
that Respondent had never before laid off a salesman in
its Washington store because of overstaffing, and well it
might not, since overstaffing among commission sales-
men has its principal adverse impact upon other commis-
sion salesmen, not upon the Company per se. Moreover,
Peet admitted that he would have discharged Kurtz
anyway, even if overstaffing had not been a source of
employee or company concern.
In Peet's opinion, Kurtz was not a satisfactory employ-
ee. The fact that Kurtz, during his brief period of service
with Respondent, a creditable record in making sales ap-
parently played no part in this appraisal.' Peet com-
plained that, during the early morning hours before cus-
tomers came in the store, he noticed that Kurtz had a
toothpick in his mouth and told him that, if he wanted to
13 The commissions for salesmen (by rank) in the men's clothing de-
partment which were paid in August and September 1980 are as follows:
August 1980
I -2,804
2-2,414
3-2,386
4 2,368
5-- 2,108
6-2,048
Ira Kurtz-1,890
8--1,852
9--1,776
10- 1,598
11--1,136
September 1980
I-S$2,443
2 2,429
3 2,340
4-2,321
5 2,318
Ira Kurtz--2,128
7-2,098
8 2,072
9-1,547
10-1,520
11 1,092
884
BROOKS BROTHERS
chew toothpicks, he should work for Korvette's. On Oc-
tober 17, a date previous to Peet's arrival on October 11
as the new store manager, Kurtz was feeling ill at the
end of the day, took an aspirin, and was sitting in the
service area resting and apparently asleep. Linton saw
him and asked him if he did not feel well. Kurtz asked
Linton if he could rest his head for a while. Linton said
"ok" and walked away. In his testimony, Moran com-
plained that Kurtz did not take stock work seriously and
would simply dust off clothes hanging on the rack rather
than arranging them. He also complained that, during the
regular Saturday morning staff meetings, Kurtz did not
participate very much and, on two occasions, seemed to
"stray away." He also found Kurtz ducking out early
one evening before the regular store closing time at 5:30
p.m. On another occasion, Kurtz failed to get manage-
ment approval before accepting a customer check in
excess of $200, as required by company policy.
These latter shortcomings were not brought to Kurtz'
attention during his exit interview as the grounds for dis-
charge. At this interview, conducted by Peet, Moran,
and Linton late in the afternoon of October 24, Kurtz
was told that he was being discharged because there
were too many clothing salesmen, because he chewed on
a toothpick, because Linton had found him sleeping on
the job, and because of an incident which occurred on
October 15 involving a customer named James J. Miceli.
Apparently Miceli and Kurtz had a problem during a
sales transaction in which Miceli asked to buy a coat for
his son in New York and Kurtz had difficulty in locating
the style Miceli wanted in the size which was required.
When the sale was being written up, Kurtz had to figure
postage and New York State sales tax into the transac-
tion and was taking too long to suit Miceli, so he com-
plained to Moran. During the course of their discussion,
Moran sold Miceli a second coat by back-ordering it
from another store. When Miceli left, he asked Kurtz for
his business card. Shortly thereafter, Moran asked Kurtz
what the problem was and Kurtz said that the customer
had been running him about the store. In Moran's opin-
ion, Kurtz had been in a hurry to go to lunch. This inci-
dent was recited by Peet as one of the bases for the dis-
charge.
Kurtz protested, saying to the store management that
the real reason for the discharge was his union activities.
Peet professed that this was not so and that he did not
even know that Kurtz was active for the Union. As
noted above, Peet announced to employees the following
morning that he had solved the overstaffing problem by
discharging Kurtz.
Kurtz was an experienced clothing salesman who, in a
short time with Respondent, had achieved a creditable
sales record, one which had even brought a compliment
from Peet not long before he discharged Kurtz. Kurtz
was active in the organizing drive and demonstrated to
Moran his indifference to the Company's strongly urged
antiunion position. Kurtz was not, in fact, the most
active union supporter, but he came to Respondent's
employ just after the drive was getting underway and
just 6 weeks before the representation petition was filed.
He was a former shop steward for the same Union
which was trying to organize Brooks Brothers and this
fact was known to Respondent's management. Ellis' re-
marks to Peet, just a week before the discharge, that she
thought Kurtz was behind the organizing drive was, in
fact, management's perception of his role in the union
effort. As the drive picked up steam just after Kurtz was
hired, it is easy to see why Kurtz was looked upon as its
principal mover.
The discharge of Kurtz was part and parcel of a man-
agement effort to assuage clothing salesmen who felt
their commissions were being reduced by overstaffing.
This effort was aimed at cooling their enthusiam for
Local 400. As Respondent's pawn in this game, Kurtz
would have acquired the status of a discriminatee, even
if he had been entirely neutral in the organizational dis-
pute. However, in light of Respondent's explanations of
Kurtz' discharge, the reasons asserted are pretextual,
since the timing, animus, and company knowledge of
Kurtz' union sympathies more convincingly describe Re-
spondent's actual motivation than do a host of petty
complaints which were dredged up during his final week
of employment to provide a patina of respectability for
an illegal act. Accordingly, I conclude that, by discharg-
ing Ira Kurtz because of his membership in and activities
on behalf of the Union, Respondent herein violated Sec-
tion 8(a)(l) and (3) of the Act and engaged in objection-
able conduct affecting the result of the election. Because
Kurtz was illegally discharged, he was eligible to vote in
the representation election which took place on Novem-
ber 21. Accordingly, the challenge to his ballot should
be overruled and the ballot should be opened and count-
ed.
Upon the foregoing findings of fact and upon the
entire record herein considered as a whole, and pursuant
to Section 10(c) of the Act, I make the following:
CONCL USIONS 01 LAW
1. Respondent Brooks Brothers, A Division of Gar-
finckel, Brooks Brothers, Miller & Rhoades, Inc., is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. United Food and Commercial Workers Union,
Local 400, UFCW International, AFL-CIO, is a labor
organization within the meaning of the Act.
3. By discharging Ira Kurtz because of his membership
in and activities on behalf of the Union herein, Respond-
ent violated Section 8(a)(3) of the Act.
4. By the acts and conduct set forth above in Conclu-
sion of Law 3; by implementing and announcing a pro-
gram of dental insurance in order to influence the out-
come of a representation election; by asking employees
how they felt about the Union, how they thought the
representation election would turn out, and what they
hoped to gain by supporting the Union; by threatening
employees that their union activities would be held
against them when they were being considered for pro-
motion to management positions; by threatening employ-
ees that collective bargaining would mean the loss of ex-
isting fringe benefits and a lowering of wages; by insist-
ing that employees read company campaign literature
and asking them if they had done so; by attempting to
dissuade employees from supporting the Union and tell-
885
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing commission salesmen that a grievance concerning
overstaffing had been remedied by discharging an indi-
vidual; by discharging an employee in order to enhance
the earning opportunities of other employees; and by tell-
ing employees that they were known as leading union
adherents, Respondent violated Section 8(a)(1) of the
Act.
5. The acts and conduct set forth above in Conclusions
of Law 3 and 4 constitute objectionable conduct war-
ranting the setting aside, under certain circumstances, of
the representation election conducted at Respondent's
Washington, D.C., store on November 21, 1980.
6. The unfair labor practices recited above have a
close, intimate, and substantial effect on the free flow of
commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that Respondent herein has engaged in
certain unfair labor practices and objectionable conduct
affecting the conduct of an election, I will recommend
that it be required to cease and desist therefrom and to
take other affirmative actions which are designed to ef-
fectuate the purposes and policies of the Act. Since the
independent violations of Section 8(a)(1) of the Act
found herein are repeated and pervasive, I will recon-
mend to the Board a so-called broad 8(a)(1) order. Ilick-
mont Foods, Inc., 242 NLRB 1357 (1979). I will also rec-
ommend that Respondent be required to offer full and
immediate reinstatement to Ira Kurtz to his former or
substantially equivalent position, and that it make him
whole for any loss of pay he may have suffered, in ac-
cordance with the Woolworthi 4 formula, with interest
thereon calculated at the adjusted prime rate used by the
U. S. Internal Revenue Service for the computation of
tax payments. Olympic Medical Corporation, 250 NLRB
146 (1980); Isis Plumbing & Heating Company, 138 NLRB
716 (1962). I will also recommend that Respondent be re-
quired to post the usual notice informing its employees
of their rights and of the results of this case.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record herein considered as a
whole, and pursuant to Section 10(c) of the Act, I make
the following recommended:
ORDER 5
The Respondent, Brooks Brothers, A Division of Gar-
finckel, Brooks Brothers, Miller & Rhoades, Inc., its offi-
cers, agents, supervisors, successors, and assigns, shall:
I. Cease and desist from:
(a) Coercively interrogating employees concerning
their union sympathies and activities.
(b) Threatening employees with loss of wages or bene-
fits if they should select the Union as their bargaining
agent.
4 F. W WWoolnrth Company, 90 NLRB 289 (1950).
'5 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.
(c) Instituting or announcing a dental plan or any
other increase in wages or benefits for the purpose of in-
fluencing the outcome of a representation election; pro-
vided that nothing herein shall be construed to require
Respondent to rescind or reduce any increase in wages
or benefits heretofore granted.
(d) Telling employees that their union sympathies and
activities were subject to company surveillance.
(e) Attempting to dissuade employees from supporting
the Union by telling commission salesmen that a griev-
ance concerning overstaffing had been remedied by dis-
charging an employee.
(f) Telling employees that their union activities would
be remembered and held against them when they were
considered for promotion to management positions.
(g) Insisting that employees read company campaign
literature and interrogating them as to whether they had
done so.
(h) Conferring a benefit upon commission salesmen
during the course of an organizing campaign by dis-
charging another salesman in order to enhance the earn-
ing opportunities of remaining salesmen.
(i) Discouraging membership in and activities on
behalf of United Food and Commercial Workers Union,
Local 400, UFCW International, AFL-CIO, or any
other labor organization by discharging employees or
otherwise discriminating against them in their hire or
tenure.
(j) By any other means or in any manner interfering
with, restraining, or coercing employees in the exercise
of rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative actions designed to
effectuate the purposes and policies of the Act:
(a) Offer to Ira Kurtz full and immediate reinstatement
to his former position or, in the event that his former po-
sition no longer exists, to substantially equivalent em-
ployment, without prejudice to his seniority or to other
rights which he formerly enjoyed.
(b) Make whole Ira Kurtz for any loss of pay or bene-
fits which he may have suffered by reason of the dis-
crimination found herein, in the manner described above
entitled "Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll and other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Washington, D.C., copies of the at-
tached notice marked "Appendix."l 6 Copies of said
notice, on forms provided by the Regional Director for
Region 5, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken to ensure that
16 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National lIabor Relations Board."
886
BROOKS BROTHERS
said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
IT IS FURTHER ORDERED that Case 5-RC-11326 be,
and it hereby is, severed from the two complaint cases
and that it be, and it hereby is, remanded to the Regional
Director for Region 5; and that the challenge to the
ballot of Sandra Ellis which was cast in a representation
election conducted in said case on November 21, 1980,
be, and it hereby is, sustained, and that the challenge to
the ballot of Ira Kurtz which was cast in the aforesaid
election be, and it hereby is, overruled; and that the Re-
gional Director be, and he hereby is, directed to open
and count the challenged ballot of Ira Kurtz and to pre-
pare and serve upon the parties a revised tally of ballots.
If the Petitioner receives a majority of the valid votes
cast, the Regional Director shall issue a certification of
representative. If the Petitioner does not receive a major-
ity of the valid votes cast, according to the revised tally,
IT IS FURTHER ORDERED that the election held on No-
vember 21, 1980, among certain employees at Respond-
ent's Washington, D.C., store be set aside and that the
Regional Director be directed to conduct a second elec-
tion at such time as he deems that circumstances permit
the free choice of a bargaining representative.
887