Charles Kushins Co.

National Labor Relations Board - Board Decisions

Nov 20, 1967

168 N.L.R.B. 339 (N.L.R.B. 1967)

CHARLES KUSHINS CO.
Charles Kushins Co. - Oakland and Office &
Technical Employes' Union , Local 29 , AFL-CIO.
Case 20-CA-4283
November 20, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On July 12, 1967, Trial Examiner Howard
Myers issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. He also found that the Respondent had not en-
gaged in certain other unfair labor practices alleged
in the complaint and recommended that those al-
legations be dismissed. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision
and a supporting brief, and the General Counsel
filed a brief in support of the Trial Examiner's Deci-
sion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner, as herein modified.2
I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
I Respondent excepts to the Trial Examiner's credibility findings.
It is the Board's established policy, however, not to overrule a Trial Ex-
aminer's resolutions with respect to credibility unless , as is not the case
here, the preponderance of all the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products, Inc , 91 NLRB
544, enfd 188 F 2d 362 (C A 3).
2 While adopting the Trial Examiner's finding that Cheryl Morns
credibly testified regarding an interrogation by the secretary of the
Respondent, Arthur A Berea , we note that her testimony was not without
contradiction as stated by the Trial Examiner. Moms' testimony was, in
fact, contradicted by that of Beren In addition, although the Trial Ex-
aminer found that discharged employee Janet Hickerson was first given an
assistant for a period of a month in or about April 1966, it would appear
that the first full-time assistant was in fact assigned to her for a period of
I month sometime in February 1966 when Hickerson's predecessor on
the job, Judy Singer, left the Respondent's employ Neither such modifi-
cation, however, inhibits our affirmance of the Trial Examiner's findings,
conclusions, and recommendations
168 NLRB No. 51
336-845 0 - 70 - 23
339
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Charles Kushins
Co. - Oakland, Oakland, California, its officers,
agents, successors, and assigns, shall take the ac-
tion set forth in the Trial Examiner's Recom-
mended Order, as herein modified:
1. Substitute the words "on forms provided" for
the words "to be furnished" in paragraph 2(f) of the
Trial Examiner's Recommended Order.
2. Substitute the word "nonselling" for the word
"nonsell" in the appropriate unit of the notice.
3. The telephone number for Region 20 appear-
ing at the bottom of the notice is amended to read
Telephone 556-3197.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HOWARD MYERS , Trial Examiner : Upon a charge and
an amended charge duly filed on October 21 and
December 6, 1966 , respectively , by Office & Technical
Employes' Union , Local 29, AFL-CIO, herein called the
Union , the General Counsel of the National Labor Rela-
tions Board , herein respectively called the General
Counsel' and the Board , through the Regional Director
for Region 20 (San Francisco , California), issued a com-
plaint , dated January 10, 1967, against Charles Kushins
Co. - Oakland, herein called Respondent , alleging that
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1), (3), and
(5) and Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended from time to time, 61 Stat. 136,
herein called the Act.
Copies of the charges, the complaint , and notice of
hearing were duly served upon Respondent and copies of
the complaint and notice of hearing were duly served
upon the Union.
Specifically , the complaint, as amended at the hearing,
alleged that Respondent ( 1) on or about certain stated
dates in September and October 1966, through certain
named officials , interfered with , restrained , and coerced
its employees in the exercise of the rights guaranteed in
Section 7 of the Act by (a) unlawfully interrogating em-
ployees about their union activities , (b) offering em-
ployees wage increases to induce them to abandon their
union activities , and (c) granting certain employees wages
in order to induce them to abandon their union activities;
(2) on or about September 10, discharged Janet Hicker-
son because of her membership and activities in behalf of
the Union ; and (3 ) since on or about September 3, has
refused to bargain collectively with the Union as the duly
selected and designated representative of the employees
in a certain described appropriate unit although the
Union , since September 1, has been such representative.
On January 23, 1967, Respondent duly filed an answer
denying the commission of the unfair labor practices al-
leged.
Pursuant to due notice , a hearing was held at San Fran-
cisco , California , on April 18 and 19 , 1967, before the
Trial Examiner . The General Counsel and Respondent
were represented by counsel and participated in the hear-
' This term specifically includes counsel for the General Counsel ap-
pearing at the hearing
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing. Full and complete opportunity was granted to all
parties to be heard, to examine and cross-examine wit-
nesses, to present evidence pertinent to the issues, to
argue orally on the record at the conclusion of the taking
of the evidence, and to file briefs on or before May 12,
1967.2 Briefs have been received by the General Counsel
and from Respondent counsel which have been carefully
read and considered.
Upon the entire record in the case and from his obser-
vation of the witnesses, the Trial Examiner makes the fol-
lowing:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS OPERATIONS
Respondent, a wholly owned subsidiary of United
States Shoe Corporation, is a California corporation hav-
ing its principal offices and place of business in Oakland,
California, where it is engaged in and during all times
material was engaged in the sale, at retail, of men's,
women's, and children's shoes and related items.
During the year immediately preceding the issuance of
the complaint herein, Respondent's gross sales of shoes
and kindred articles exceeded $500,000. During the same
period, Respondent's out-of-State purchases of men,
women, and children shoes and kindred articles exceeded
$50,000.
Respondent also owns and operates three other retail
shoe stores. Each of these stores does business under a
separate corporate name and is located in Walnut Creek,
El Cerrito, and Hayward, California.
Upon the basis of the foregoing undisputed facts, the
Trial, Examiner finds, in line with established Board
authority, that Respondent is engaged in and during all
times material has been engaged in a business affecting
commerce within the meaning of Section 2(6) and (7) of
the Act and that its operations meet the standards fixed
by the Board for the assertion of jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to mem-
bership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion
1. Prefatory statement
Respondent's Oakland store, the employeees of which
are the only ones involved in these proceedings, is located
at 1915 Broadway and also houses Respondent's prin-
cipal offices. These offices also serve three other corpora-
2 At the request of Respondent's counsel, the time to file briefs was ex-
tended to May 26, 1967
3 Weston and Beren both share the duties of general manager.
4 In the light of the Trial Examiner's observation of the conduct and de-
portment at the hearing of all the persons who testified herein, and after a
very careful scrutiny of the entire record, all of which has been carefully
read and parts of which have been reread and rechecked several times,
and being mindful of the contentions of the parties with respect to the
credibility problems here involved, of the fact that in many instances
testimony was given regarding events which took place many months
prior to the opening of the hearing, and of the fact that very strong feelings
tions doing business under the Kushins trade name with
retail shoe stores located in El Cerrito, Walnut Creek,
and Hayward, California. These three corporations are
wholly owned subsidiaries of Respondent. As noted
above, Respondent is a wholly owned subsidiary of
United States Shoe Corporation.
Respondent's Oakland facility consists of a retail shoe
store with the women's and children's departments on the
main floor, both executive and clerical offices on the mez-
zanine, the men 's selling department is in the basement.
The stockroom is also located in the basement.
The executive offices, occupied by Vice President
Arthur D. Weston, and Secretary Arthur A. Beren3 and
their private secretary, as well as a public restroom, are
at the rear of the store on the mezzanine. The clerical of-
fice, including the desk of Office Manager Lester Sim-
mons, is at the front of the store also on the mezzanine.
The store is an "open store," the executive and clerical
offices being separated by 70 feet of open space, without
partitions, so that the executive and clerical offices are
each clearly visible from the other. There is no direct
means of proceeding from one mezzanine to the other. It
is necessary to go down one flight of stairs, cross the
depth of the first floor selling floor and up one flight of
stairs to the other mezzanine.
Respondent has, and during all times material had, only
one collective-bargaining agreement and it is with the
Retail Clerks Union, covering the selling employees,
cashiers, and receiving and stockroom employees.
Weston has actively participated for many years in
labor-management matters and has for many years served
as a trustee of the Retail Clerks Union Trusts. Prior to
September 1966, the nonselling employees, the janitor,
and the window trimmer were not represented by any
labor organization.
The office clerical job of NCR-2000 machine operator,
otherwise known as sales audit desk or accounts receiva-
ble operator, consists of adding and auditing the sales tags
for all four stores on a tape, "inputting" these figures into
the NCR-2000 machine, which produces another tape.
The figures for each store on this latter tape are called the
"scores." These figures or "scores" are used to prepare
the folllowing: daily sales reports and summaries for each
store; the "green book" containing "pairage" or sales of
pairs of shoes for each department for each store; the
"black book" containing net sales per day and pairage by
volume on a yearly basis, cash receipts summary of cash
flow; daily charge sales information for accounts receiva-
ble department; daily net sales information for each
salesman for the payroll department; and sales tax break-
down.
2. The pertinent facts4
In the latter part of June 1966 , 5 Janet Hickerson,6
while in the lunchroom located in the Oakland store with
have been generated by the circumstances of this case, coupled with the
fact that it would unnecessarily protract this Decision to summarize all the
testimony or to spell out fully the confusion and inconsistencies therein,
the following is a composite picture of all the factual issues involved and
the conclusions based thereon The parties may be assured that in
reaching all resolutions, findings, and conclusions herein, the record as a
whole has been carefully considered, relevant cases have been studied,
and each contention advanced has been weighed , even though not specifi-
cally discussed
Unless otherwise noted, all dates hereinafter mentioned refer to 1966
c Hickerson's discharge is discussed in detail infra
CHARLES KUSHINS CO. 341
two coworkers, Patricia Comber and Mary Melanson,
complained to Comber and Melanson about the store's
hours and the wages paid. Nickerson then suggested that
the employees "get a union started."
Nothing, however, was done about getting "a union
started" until August 29, when Hickerson, Comber,
Melanson, and Sharon Adams each signed cards express-
ly authorizing the Union to represent them for collective
bargaining. Identical authorization cards were signed by
employee Betty Carlsen on August 20 and by employees
Carol Pritchett and Glen Nash on August 31.
Under the date of September 1, the Union wrote
Arthur Weston, Respondent's vice president, requesting
that Respondent afford the Union "recognition as the col-
lective bargaining agent for all employees at your
Oakland location, excluding those represented by other
unions, confidential employees, guards and supervisors,
as defined in the Act." The letter concluded with a
request that Respondent advise the Union "when and
where you wish to meet to negotiate the collective bar-
gaining agreement."
The letter referred to immediately above was received
on September 2, while Weston was vacationing on the
east coast, and was placed, after being opened and the
date stamped September 2, in a folder together with other
Weston letters and papers to await his return.7
On Tuesday, September 6, the Union, not having
received a reply to its September 1 letter requesting
recognition, filed a petition with the Board seeking to be
certified as the bargaining representative for the em-
ployees in the unit described in the Union's aforemen-
tioned letter.8
The same day that the above-referred-to petition was
filed, or on the day following, a Board agent, Dawn
Girard, telephoned Respondent and asked Arthur A.
Beren , Respondent's secretary, whether Respondent had
received a letter from the Union. Beren replied, "No, it
was addressed to Mr. Weston." Beren , after he made the
above-quoted reply, removed the letter from the Weston
mail folder and then continued his conversation with said
Board agent who had called to advise Respondent of the
filing of the petition and to obtain certain information per-
tinent thereto. °
On Wednesday afternoon, September 7, after one of
his talks with Girard,1° Beren requested Lester B. Sim-
mons, Respondent's office manager , to send a list of the
employees' names to Girard.
According to the credible and undenied testimony of
Betty Carlsen and Janet Hickerson, Simmons called them
by telephone while he was at Weston's desk on the rear
mezzanine office to their work area on the front mezzan-
ine." Carlsen answered the phone. Simmons asked,
"What is this about a union ?" Carlsen replied, "I don't
know." When Simmons asked, "What do you mean, you
don't know," Carlsen said, "Mr. Simmons you had better
talk to Janet [Hickerson]; she knows more about it than
I do." Thereupon, Carlsen handed the telephone to
Hickerson saying, "Janet, it is Mr. Simmons. He would
like to know about the union ." When Hickerson got on
the phone, Simmons asked her "something like," "What
is this about you girls wanting to join a union?" When
Hickerson replied, "What do you mean?" Simmons re-
peated his question; Hickerson said, "Well, because all of
us in the office want better wages and better hours." Sim-
mons then replied, "Well, why didn't you come to me
about it?" When Nickerson did not reply, Simmons con-
cluded the conversation by remarking, "Well thanks a lot
for doing it behind my back."
Cheryl Morris credibly testified, and without con-
tradiction, that she was at one time confidential or private
secretary of Weston and Beren; that in the forepart of
September, Beren came into the office and asked her if
she "knew who had started the Union, did [she] know
anything about the Union," and that the following then
ensued:
He bought up names ... did I know if they knew
anything about the Union; had I signed up for the
Union; did I know that I was temporary help, that I
would be there for three months and in a month
longer I would have nothing to do with it, the Union
wouldn't cover me, and he asked whether these girls
were going into the Union ... were they dissatisfied
with their positions, with their pay, what was the
main reason why they were doing this rather than
coming to him.
Morris then credibly testified, and without contradiction,
as follows:
Q. [By Mr. Teagle] 12 Did Mr. Beren mention
any specific names that you can remember?
A. I think he asked me if Pat [Comber] had
anything to do with it.
Q. [By Mr. Teagle] Can you remember any of
the other girls that were mentioned at that time?
A. Whom he asked if they had anything to do with
it?
Q. Yes.
A. I think he asked me something about Janet.
Q. Janet who?
A. Janet Hickerson.
Q. Anybody else?
A. No, I think that he just more or less asked -
brought up these names ... I guess just names he
thought of offhand and the others were just-
About 2 weeks after Hickerson's September 10
discharge , Beren asked Carlsen, to quote from her credi-
ble and undenied testimony, "If we girls were still in-
terested in the union upstairs?" When Carlsen replied in
the affirmative, Beren asked her why the girls were still
interested in the Union. Thereupon Carlsen replied, "We
wanted better benefits and higher wages."
' Weston left on his vacation on or about August 19 and returned on
September 13.
6 A copy of said petition, together with a covering letter from the Board,
was received by Respondent on or about September 7.
9 Case 20-RC-7164
10 Apparently , Beren had three telephone conversations with Girard
between September 6 or 7 and September 9 The first was about the
Union 's September I letter and the filing of the representation petition,
the second was when Girard requested a list of names of the employees,
and the third, on Friday, September 9, when Girard advised Beren that
she had not received the names of the employees
11 Carlsen and Hickerson both place this incident as having taken place
during the first week of September It is apparent, and the Trial Examiner
finds, that it took place during business hours on or a day or two after Sep-
tember 6 and before September 9 On the latter date, Simmons collapsed
while at work, left the store, and did not return to work for about a week.
Hickerson was discharged on September 10
12 Counsel for the General Counsel
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Refusal To Bargain Collectively
The complaint, as amended at the hearing, alleged,
Respondent conceded at the hearing, and the Trial Ex-
aminer finds, that all nonselling personnel employed at
Respondent's Oakland, California, store, excluding all
other employees covered by existing collective-bargain-
ing agreements, confidential employees, guards, and su-
pervisors as defined in the Act, at all times material con-
stituted, and now constitute, a unit appropriate for the
purpose of collective bargaining within the meaning of
Section 9(b) of the Act, with respect to grievances, labor
disputes, rates of pay, wages, hours of employment, and
other conditions of employment. The Trial Examiner
further finds that said unit insures to Respondent's
Oakland store employees the full benefit of their right to
self-organization and collective bargaining, and otherwise
effectuates the policies of the Act.
1. The Union's majority status in the appropriate unit
Respondent's counsel contended at the hearing and in
his brief argued that the union authorization cards
received in evidence of Virginia Hooper, Kathleen Lane,
Carol Pritchett, and Glen A. Nash are invalid to support
and 8(a)(5) violation for various and sundry reasons and
hence the Union did not represent an uncoerced majority
of the employees in the appropriate unit on September 1,
the date of its letter to Respondent requesting recognition
as the collective-bargaining representative. The cards of
these four persons are discussed seriatim' 13
Hooper testified, and the Trial Examiner finds, that she
was first employed by Respondent on September 15,
1966, and that she signed a union authorization card on
the following October 4. Obviously, Hooper's card can-
not be considered in support of the Union's majority as of
September 1 and the Trial Examiner so finds.
Lane testified, and the Trial Examiner finds, that she
was first employed by Respondent on September 10,
1966, and that 3 days later she executed a union
authorization card. As in the case of Hooper, Lane's card
is not considered in support of the Union's majority
status as of September 1.
Pritchett was first employed by Respondent on April
20, 1966, as an addressograph clerk and later was trans-
ferred to the mail desk. Pritchett left Respondent's em-
ploy on January 20, 1967.
Pritchett, after first reading the authorization card,
completely filled it out, and then signed it on August 31,
1966.
In his brief (p. 23-24), Respondent's counsel points to
the following testimony of Pritchett elicited by him on
cross-examination in support of Respondent's contention
that said card is invalid because "The employee was
mislead [sic] by the representative [Comber] as to use
of the card ." and hence the card should not be
counted toward the Union's majority:
13 Respondent does not contest the authenticity or validity of the union
authorization cards signed by Janet Hickerson, Sharon A Adams, Betty
Carlsen, Mary E. Melanson , and Patricia Comber
14 Amalgamated Clothing Workers of America [Hamburg Shirt Corp.]
v N L R B , 371 F 2d 740 (C A D.C ), N L R B v Gotham Shoe Manu-
facturing Co, Inc , 359 F 2d 684 (C A 2), N L.R B v. Security Plating
Co, 356 F 2d 725 (C A 9), Bernard S Happach v. N L.R B 353 F 2d
629 (C.A 7), N.L R B v. Cumberland Shoe Corporation, 351 F 2d 917
Q. [By Mr. Hoyt] This card that you signed,
Mrs. Pritchett , who gave it to you?
A. Pat Comber.
Q. And where were you at the time you signed it?
A. I was in our lunch room or at the restaurant
across the street ; I don't remember which.
Q. Was any explanation given you prior to the
time that you signed this card as to the use this card
would be put to?
A. Yes. That the Union would help me get better
benefits and an increase in salary.
Q. That is the only explanation that was given
with respect to the benefit or use of this card?
A. Yes.
It is well settled that where, as here, an employer seeks
to avoid his bargaining obligation by claiming that his em-
ployees were actually misled into executing their union
designations, it is incumbent upon the employer to show,
by clear and convincing proof, that such misconduct ac-
tually took place .14 Clearly, Comber' s references to cer-
tain benefits Pritchett might receive through the Union if
she signed the card cannot , by any stretch of the imagina-
tion, be classified as misleading nor can Comber's re-
marks "negative the overt action of [Pritchett] having
signed a card designating the union as bargaining
agent ." 15 Accordingly , the Trial Examiner finds Re-
spondent 's contention lacks merit.
Nash was first hired by Respondent about mid - August
1966 as a window trimmer16 and was still in Respondent's
employ at the time of the hearing. Nash signed and
completely filled out a union -proffered authorization card
at Comber ' s behest.
[Respecting ] Respondent ' s contention that Nash's
card is invalid and therefore should not be counted in sup-
port of the Union 's claimed majority status, Respondent's
counsel relies heavily on the following portions of Nash's
testimony elicited by him on cross-examination and set
forth pp. 24 and 25 of his brief:
Q. [By Mr . Hoyt] Did she [Pat Comber] give
you an explanation as to the use of this card?
A. She said it was an opportunity for the em-
ployees of the store to go to meetings which we
would be mailed also, letting us know when these
meetings occur , and that is all.
Q. And that is the only explanation she gave
you-
A. Well, that-
Q. - as to the use of the card?
A. Well, that the union would let us know what
benefits we could get by joining and that all the girls
in the office wanted to join and would I please sign a
card.
Q. Was there any explanation given to you to the
effect that this card would permit the girls to go to a
meeting?
(C A. 6), Jas H Matthews & Co v N L.R B , 354 F 2d432 (C A 8).
15 Joy Silk Mills, Inc v N.L R.B., 185 F.2d 732, 734 (C.A D C.). Ac-
cord N L R B v. Gene Hyde, dlbla Hyde's Supermarket, 339 F.2d 568
(C A 9)
is Nash referred to himself as a "display manager " Despite this self-
styled designation the record is clear, and the Trial Examiner finds, that
Nash does not possess any supervisory or managerial authority In short,
Nash, at all times material was, and still is, a nonsupervisory employee
CHARLES KUSHINS CO. 343
A. Yes. Nothing on the card saying that , that is
what she told me.
A. She [Pat Comber] told me this would help
them get better pay, more benefits, and she just said
it was important to them, they had to have so many
cards or they couldn't attend the meetings and she
didn't tell me that it meant that we were going to have
a vote or anything else, just that they could go to
meetings and that was all.
Nash, who attended 4 years of college and who im-
pressed the Trial Examiner as being a very intelligent per-
son, credibly testified that he read and completely filled
out the authorization card before he signed it; and that he
voluntarily signed the card on the date it bears.
Nash's card, as well as all the authorization cards here
under consideration, clearly and unambiguously express-
ly stated that it was for the sole purpose of designating the
Union as the collective-bargaining representative of the
signer thereof. Respondent does not dispute that fact.
Under the circumstances, the Board, with court approval,
has repeatedly and consistently held that an employee's
execution of such an authorization card constitutes an ef-
fective designation of a union as his bargaining
representative. 17 The Trial Examiner is convinced, and
finds, contrary to Respondent's contention, that Nash's
card is not invalid based upon Comber's statements to
him at the time of the presentation and execution of said
card.
Respondent also contended that Nash's card should
not be counted since Nash does not, to quote from
Respondent's brief (p. 20), "have a real community of in-
terest with the office and clerical employees which is the
basic composition of the unit as proposed by the Union."
In support of said contention, Respondent argues in its
brief (p. 20) that Nash "does not have the same super-
visor as the office employees, his work is performed at all
four stores and has no relationship to the office and clen-
cal employees. The work is more closely related to adver-
tising than to office work." At the hearing, in response to
questions propounded by Respondent's counsel, ap-
parently for the purpose of supporting Respondent's con-
tention that Nash should be excluded from the ap-
propriate unit, Weston testified that Nash's work is con-
fined to window displays at all four Respondent's stores;
that there is no interchange of work between Nash and
the office employees; and that Beren is Nash's super-
visor. On redirect examination by the General Counsel,
Weston testified that the number of days a week Nash
works at the Oakland store varies.
Nash, a General Counsel witness, testified, both on
direct- and cross-examination, that normally he works
several days a week at the Oakland store; that when not
working at the Oakland store he works at one of the other
three Respondent stores; and that on occasion he spends
an entire week at the Oakland store.
The basic theme of Respondent's argument that Nash
should be excluded from the appropriate unit runs along
these lines: Even though Respondent, "for the purpose of
the Consent Election agreed to the inclusion of" Nash in
the appropriate unit it now "on further examination,
[Respondent] believes [Nash] should now be excluded
from the unit" and hence, for the reasons advanced the
appropriate unit "should be limited to `office and clerical
employees, excluding those represented by other unions,
janitors, displaymen, confidential employees, supervisors
and guards as defined by the Act.' " (Resp. brief p. 20.)
Respondent's arguments run afoul of the facts in the
case and the law applicable thereto. First, the day, Sep-
tember 6, the Union filed the petition seeking to be cer-
tified by the Board as the collective-bargaining represent-
ative of "All [Respondent] employees at the above loca-
tion (Oakland) excluding those represented by other
unions, confidential employees, guards and supervisors
as defined in the Act," the Regional Director, with whom
said petition was filed,. wrote Respondent requesting "a
list of names of all employees within the described unit,",
with their respective job classifications, prepared from
the Company's most recent payroll." Second, on at least
two, and probably three, separate days between Sep-
tember 6 or 7 and September 9, Board Agent Girard
requested such a list from Beren. Third, under date of
September 28, Weston forwarded to Board Agent Girard
a "list of the names and addresses of the employees on
the payroll as of September 15, 1966."19 Included on this
list was Nash's name. Weston's said letter contained the
name of no employee covered by any then existing bar-
gaining contract to which Respondent was a party.20
Fourth, Weston, who admittedly "has actively par-
ticipated in labor-management matters and has for many
years served as a Trustee" (Resp. brief p. 5) of the (Retail
Clerks - Employers) Northern California Employers
Fund, and a past president thereof as well as being a past
president of the Eastbay Health and Welfare Fund (Retail
Clerks Union - Employers) prepared and forwarded to
the Board under date of September 28, the above-
referred-to September 15 eligibility list upon the advice
and approval of the United Employers , Inc., an em-
ployers' association labor relations-consulting-and
research firm, of which Respondent has been a member
for approximately 20 or 30 years .21 Fifth, Nash appeared
at the Board's conducted October 17 election, voted
therein, and his right to do so was not challenged nor
questioned.
Under the circumstances, and upon the entire record in
the case, the Trial Examiner finds that Respondent's be-
lated contention that Nash should not be included in the
appropriate unit is without merit or substance.
Respondent also challenged the right of Hideo
(Murphy) Nazakawa, Respondent's janitor or porter, to
17 This rule is an application of the familiar principle that "in the
absence of fraud or wilful deceit , one who signs a contract which he has
had an opportunity to read and understand , is bound by its provisions "
Allied Steel and Conveyors, Inc v Ford Motor Company, 277 F.2d 907,
913. All the employees who had signed union authorization cards relied
upon in support of the Union's majority status, were called as witnesses
and each testified that he or she read the card prior to signing it. None
testified that he or she did not understand the meaning or purport of the
card
11 That is, the unit set forth in said petition , a copy of which was en-
closed in said Regional Director 's September 6 letter.
'° The eligibility date agreed to in the Consent Election Agreement
10 A "note," in the nature of a postscript, typed at the foot of this letter
reads. ,
By submission of these names , the company does not relinquish its
right to challenge the vote of any individual
21 At p 29 of the stenographic report of the hearing, the following
question asked of Weston (I 15) should read, "Did you prepare this
[eligibility list] with its [United Employers] consent9" instead of, as it
now erroneously reads , " Did you prepare this consent"
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be included in the appropriate unit for the reasons very
similar to those advanced by it for excluding Nash.
Despite the fact that there is no evidence in the record
that Nazakawa's, whose name, incidentally, appears on
the aforementioned September 15 eligibility list, inclusion
or exclusion from the unit would not affect the Union's
majority status as of September 1, the date when the
Union requested recognition as the collective-bargaining
representative of the employees here involved, the Trial
Examiner, nevertheless, finds that Nazakawa who voted,
without challenge or question in the aforementioned
Board-conducted election, should be included in the ap-
propriate unit.
At the hearing there was introduced in evidence by the
General Counsel a list prepared by Respondent, as well
as Weston's September 28 letter to Board Agent Girard,
containing the names of all the employees in the unit
hereinabove found appropriate. The list shows that on
September 1, the date of the Union's letter requesting
recognition, Respondent had in its employ 13 persons22
in said unit.
On behalf of the General Counsel, there was offered
and received in evidence seven cards23 expressly
authorizing the Union to represent the signers thereof for
the purpose of collective bargaining. The genuineness of
the signatures appearing on the cards was not challenged.
The Trial Examiner has compared the names appearing
on the aforesaid seven authorization cards with the afore-
mentioned list submitted by Respondent, as well as
Weston's letter of September 28 to Board Agent Girard,
both of which documents were received in evidence as
General Counsel's exhibits, and finds that as of Sep-
tember 1, seven employees in the appropriate unit had
signed cards designating the Union as their collective-
bargaining representative. The Trial Examiner therefore
finds that on September 1, the Union was, and at all times
thereafter has been, the duly selected and designated
representative of Respondent's employees in the unit
hereinabove found appropriate. Accordingly, pursuant to
Section 9(a) of the Act, the Union at all times material
was, and now is, the exclusive representative of all the
employees in said unit for the purpose of collective bar-
gaining with respect to grievances, labor disputes, rates
of pay, wages, hours of employment, and other conditions
of employment.
On September 6, the Union filed with the Board's Re-
gion 20 a petition seeking to be certified as the statutory
collective-bargaining representative of the employees in
the unit hereinabove found appropriate.
Under date of September 13, the Union signed a con-
sent-election agreement. Under date of September 20,
Respondent signed said agreement, which the Director of
Region 20 approved on September' 22.
On October 17, an election was conducted under the
direction and supervision of the aforementioned Regional
Director among Respondent's Oakland store employees
in the agreed-to unit. Of the 14 eligible voters, 6 cast bal-
22 Namely, Sharon Adams, Betty Carlsen, Patricia Comber, Janet
Hickerson, Linda Kelsoe, Bess Lally, Mary Melanson, Hideo Nazakawa,
Glen Nash, Carol Pritchett, Frances Reel, Laura Ross, and Winifred Sim-
mons (wife of Lester Simmons, Respondent's office manager).
za Signed by Comber, (8/29/66); Melanson (8/29/66); Carlsen
(8/30/66), Pritchett (8/31/66), Adams (8/29/66), Nash (8/31/66), Hicker-
son (8/29/66).
14 In addition to the seven valid union authorization cards signed within
a few days immediately prior to September 1, Kathie Lane signed a valid
lots for the Union, 7 cast ballots against it, and the ballot
of Winifred Simmons, the wife of Office Manager Lester
Simmons, was challenged by the Union.
On October 21, the Union filed timely objections to the
conduct affecting the results of the election , a copy of
which was duly served upon Respondent.
Of the four union objections submitted , the Regional
Director on January 4, 1967, issued his report on objec-
tions, in which he overruled the first two, sustained one,
and made no ruling upon the fourth , which related to
Janet Hickerson 's discharge , upon the ground , the Re-
gional Director ruled , that said discharge was the subject
matter of an amended charge filed by the Union on
December 6, 1966, in Case 20-CA-4283. The said Re-
gional Director , upon the basis of the investigation of the
objections filed , set aside the aforesaid October 17, 1966,
election.
2. Refusal to bargain
Credited evidence establishes that on September 1, the
day Ann Willis, the Union's business representative,
wrote Respondent
The Office Technical Employes' Union, Local 29,
AFL-CIO, hereby requests recognition as the col-
lective bargaining agent for all employees at your
Oakland location , excluding those represented by
other unions , confidential employees, guards and su-
pervisors , as defined in the Act.
Please let me know at your earliest convenience
when and where you wish to meet to negotiate the
collective bargaining agreement.
the Union, in fact, had been selected and designated by a
majority of the employees in the appropriate unit as their
collective-bargaining representative. Under the circum-
stances, Respondent was under a statutory duty to recog-
nize and bargain with the Union as such representative.24
Instead of fulfilling its statutory duty, Respondent en-
gaged in serious unfair labor practices specifically
designed to undermine the Union's majority status. Thus,
within a week of the receipt of the aforementioned union
letter, Simmons queried Carlsen and Hickerson about the
employees' union symphaties and activities and about a
week or two after Simmons' aforementioned unlawful in-
terrogation, Beren queried Morris about her participation
in the union movement, why the employees desired union
representation, and whether certain named employees
were responsible for bringing the Union into the store. It
is well settled that such conduct, which interferes with,
restrains, and coerces employees in the exercise of their
guaranteed Section 7 rights, violates Section 8(a)(1) of the
Act.25
In addition to the above-described unlawful conduct of
union authorization card on September 13 and Virginia Hooper signed a
valid union authorization card on October 4.
25 Interrogation of employees concerning union activities and the
identity of leaders: Bon Hennings Logging Co v. N.L.R.B., 308 F 2d 548
(C.A 9), N.L R .B v. Lozano Enterprises , 318 F.2d 41 (C.A. 9),
N.L.R.B. v Ace Comb Co, 342 F 2d 841 (C.A 8); N.L.R.B. v . Wings &
Wheels, Inc ., 324 F.2d 495 (C A. 3); N.L.R B . v. Smith, dlbla Service
Parts Co, 209 F.2d 905 (C A 9); N L.R.B. v Victory Plating Works,
Inc., 325 F 2d 92 (C.A. 9)
CHARLES KUSHINS CO. 345
Simmons and Beren , and without notice to or consulta-
tion with the Union, Respondent granted wage increases
to Comber and Carlsen in October.
Comber had asked Simmons for a raise on three dif-
ferent occasions in July and August. Carlsen had asked
Simmons for a raise in July. On each occasion Simmons
informed the two employees that salaries were made
under review by Weston and Simmons would let them
know when the review was completed. While Weston was
away on vacation (from about August 19 to September
13), Simmons advised Comber and Carlsen when they
asked for a raise that no increase would be given during
Weston's absence.
Late in September, Comber was told by Weston that
she would receive a $40 raise. On October 1, Comber's
salary was increased from $360 to $400 per month.26
On September 12, Beren told Carlsen that in October,
she would receive a $30 raise. On October 15, Weston,
upon learning that Carlsen was upset because she had not
received the promised wage increase and that she had
threatened to quit, told Carlsen that she would get the
promised raise right after the scheduled Board-conducted
October 17 election. Carlsen's next paychecks reflected
a raise from $260 to $290 per month, retroactive to Oc-
tober 1.
In an attempt to absolve itself from any liability under
the Act with respect to the Comber-Carlsen wage in-
creases, Respondent points to Weston's testimony
wherein he testified that upon his return from his vacation
Simmons reminded him of the salary review which had
been under consideration prior to his leaving and to the
receipt by Weston, prior to going on his vacation, of a
booklet called "Salary Survey Summary" published by
Federated Employers of the Bay Area and distributed by
United Employers, Inc; that he had advised United Em-
ployers, Inc., of receipt of a copy of the Union's represen-
tation petition and of his intention of granting salary in-
creases to certain employees; that United Employers had
advised him not to give salary increases to any employee
pending the Board-conducted election except to those
employees who had requested salary increases and who
were otherwise entitled to such increases; that pursuant
to this advice, he granted wage increases to Comber and
Carlsen based solely on this work performance and the
positions held then by them; that Comber started with
Respondent on August 5, 1961; that she had several in-
terim increases prior to 1966 and was granted a salary in-
crease effective October 1, 1966; that at the time of the
increase Comber was payroll clerk and as such, under the
"East Bay Area Office Salary Survey," which showed a
low of $416, a high of $524, a median of $483, and an
average of $478, the increase to $400 for Comber was "a
modest increase"; that Carlsen started with Respondent
on February 7, 1966, in sales audit. She was granted a sa-
lary increase effective October 1, 1966, of $30 per month
from $260, her starting salary, to $290 per month; that at
the time of the increase as of October 1, Carlsen had been
recently advanced to the senior position in sales audit;
that sales audit was comparable to a junior clerk on the
"East Bay Office Salary Survey," which disclosed that
junior clerks were paid a low of $313, a high of $389, a
median of $353, and an average of $359; that he believed
the $30 a month increase to Carlsen to be "a modest in-
crease."
The granting of the wage increase to Comber and Carl-
sen, in the opinion of the Trial Examiner, was adroitly
and strategically timed to impress upon the employees
that continued union adherence was a fruitless gesture,
would bring them naught, and they could rely upon their
employer's unilateral generosity to attain their needs.
Recognizing the impact of this technique upon em-
ployees, the Board and the courts have long held that the
granting or announcement of economic benefits during a
union organizational campaign, or during the crucial
period preceding a representation election, constitutes
unlawful interference with the employees' rights, in viola-
tion of Section 8(a)(1) of the Act, where, as here, such ac-
tion is taken for the purpose of inducing the employees to
reject the union. As the Supreme Court emphasized in
N.L.R.B. v. Exchange Parts Company, 375 U.S. 405 at
409-410:
The danger inherent in well-timed increases in
benefits is the suggestion of a fist inside the velvet
glove. Employees are not likely to miss the inference
that the source of benefits now conferred is also the
source from which future benefits must flow and
which may dry up if it is not obliged. The danger may
be diminished if, as in this case, the benefits are con-
ferred permanently and unconditionally. But the
absence of conditions or threats pertaining to the par-
ticular benefits conferred would be of controlling sig-
nificance only if it could be presumed that no
question of additional benefits or renegotiation of ex-
isting benefits would arise in the future; and, of
course, no such presumption is tenable.27
The fact that Respondent had salary increases under
review prior to the Union's organizing drive and the
Union's request for recognition, does not privilege
Respondent conduct. Comber's and Carlsen's wage in-
creases were announced and given after the advent of the
Union, and that is when Respondent's conduct had its in-
tended effect upon the employees. To permit Respondent
to reap the fruits of such conduct solely because it con-
ceived its scheme of anticipation of the Union's cam-
paign, rather than as a counteraction to the campaign
after it had started, would subvert the purposes of the
Act.
Not only did Respondent violate Section 8(a)(1) of the
Act, by announcing and granting the aforementioned
wage increases, but Respondent also violated Section
8(a)(5) of the Act by ignoring the Union's bargaining
request of September 1 and giving said wage increases
without first notifying or consulting with the Union.
It is undisputed that Respondent never replied to the
Union's September 1 request for recognition and for a
bargaining conference. Respondent defends its admitted
silence on:
(1) No valid demand for recognition and bargaining
was made, (2) it entertained a good-faith doubt of the
Union's majority status, and (3) the Union did not
represent a majority of the unit employees on September
I or at any time thereafter.
As to (1), the courts have repeatedly and uniformly
held that no special formula or form of words is necessary
26 Comber, in Respondent 's employ since 1961, received a $15 raise in N L R B v Trimfit of California, 211 F.2d 206 (C A. 9), N L R B v
April 1963, a $15 raise in August 1964, and a $20 raise in August 1965. Parma Water Lifter Co, 211 F.2d 258 (C.A. 9); N L.R B v.
See also May Department Stores Co v N.L.R.B., 326 U.S. 376 , D'Armigene , lnc , 353 F 2d 406 (C A 2), and cases cited therein
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to arouse the statutory obligation to bargain, so long as
the request is reasonsbly implicit in the language used.28
Respondent may not now properly claim that the Union
did not request recognition and bargain for in paragraph
IV of its answer to the complaint herein it admitted "that
commencing on or about September 1, 1966, the Union
had requested, and is requesting, Respondent to bargain
collectively with respect to rates of pay, wages, hours of
employment or other terms and conditions of employ-
ment as the collective bargaining representative of the
unit described in paragraph VIII of the Complaint. . .."
This paragraph was never withdrawn nor amended.
It may be, as it now claims, that Respondent may not
have read the Union's "request for recognition" as being
a "demand for recognition;" the phrase in context being
somewhat ambiguous. But Respondent's response was
unambiguous. Respondent completely ignored the
Union's letter and engaged in a course of conduct which
was calculated to dissipate he Union's majority status.
Respondent lays great stress on the fact that the
Union's September 1 letter makes "no mention or in-
ference of' its "majority status."29 This omission does
not affect the validity of the request for recognition and
bargaining. This precise question was before the Board in
a strikingly similar case of Lincoln Manufacturing Co.,
Inc., 160 NLRB 1866. There, as here, the union's letter
did not mention the majority status of the union. The
Board affirmed and adopted the Trial Examiner's Deci-
sion which specifically held that the request of the union
there involved was not defective, stating in pertinent part:
The intent of the Union's letter is clear; it was
requesting recognition and bargaining on behalf of
the Respondent's employees. The mere fact that the
letter did not state explicitly that the Union
represented a majority of the employees does not, in
my judgment, vitiate the request. It is well settled
that a request for recognition "need not follow a
prescribed form so long as it is clear from the entire
situation that the essential elements of a valid de-
mand are present." Barney's Supercenter, Inc., 128
NLRB 1325, 1327, enfd. 296 F.2d 91 (C.A. 3). No
"special formula or form of words" is required by the
Act. Joy Silk Mills, Inc. v. N.L.R.B., 185 F.2d 732,
741 (C.A.D.C.), enfg. 85 NLRB 1263. Inherent in a
clear and unequivocal request for exclusive recogni-
tion and bargaining, which identifies the union by
name and address and clearly describes the unit, is a
claim that the union represents a majority of the em-
ployees in the unit sought. [160 NLRB at 1877.]
As to (2) Respondent's officials, Weston and Beren,
each testified that he entertained a good-faith doubt of the
Union's majority status. Upon the basis of the entire
record, the Trial Examiner is convinced that Respondent
ignored the Union's September 1 request for recognition
and bargaining not, as now contended by Respondent,
because it in good faith doubted the Union's majority
status, but solely for the purpose of gaining time to un-
dermine such status. Accordingly, the Trial Examiner
finds that the reasons advanced by Respondent for ignor-
ing the Union's recognition and bargaining request of
September 1 to be without substance or merit. Moreover,
it stands to reason that when an employer ignores a
union's request for recognition and then engages in, as
here, flagrant unfair labor practices in order to destroy
said Union's majority he cannot successfully defend his
intentional disregard of the recognition request by simply
saying he had a good-faith doubt of the union's majority
status.
As to (3) the credible evidence discloses that on Sep-
tember 1, and at all times thereafter, the Union
represented a majority of the unit hereinabove found ap-
propriate. Despite this clear and convincing evidence,
Respondent contends that the filing of the representation
petition and its subsequent execution of the consent-elec-
tion agreement, clearly indicate that the Union did not
represent the majority of the unit employees at the time
it wrote Respondent on September 1. This contention is
without merit.
The mere fact that the Union filed a petition for elec-
tion or the fact that Respondent signed a consent-election
agreement did not and does not relieve the Respondent
from its statutory duty to recognize the Union and bar-
gain in good faith.30 In Lincoln Manufacturing Co., Inc.,
supra, the Union filed a representation petition on the
same day the Respondent received the union demand
letter. The employer in that case signed a consent-elec-
tion agreement 3 days later. The Board affirmed and
adopted the Trial Examiner's Decision which held in per-
tinent part, at 1877:
The mere act of filing of a petition at the time of a de-
mand, or shortly thereafter, by a majority union does
not indicate that the union has abandoned its claim in
this regard. Indeed, the Board has held that in filing
a representation petition "[a] union has not altered
its position that it represents the employees and is
entitled to recognition." Bernel Foam Products Co.,
Inc., 146 NLRB 1277, 1280.
At the time that the Respondent received the bar-
gaining request in this case, the Union commanded
majority status. Thus, Respondent was under a duty
to bargain in the absence of a good-faith doubt.
Happach v. N.L.R.B., 353 F.2d 629 (C.A. 7); Mid-
West Towel and Linen Service, Inc., 339 F.2d 958
(C.A. 7), enfg. 143 NLRB 744. The fact that the
Union also filed a representation petition and the
Respondent consented to an election does not relieve
the Respondent of this duty. Master Transmission
Rebuilding Corporation, 155 NLRB 364; Crown
Tar and Chemical Works, Inc., 154 NLRB 566;
Permacold Industries, Inc., 147 NLRB 885. See also
N.L.R.B. v. Frantz and Co., 361 F.2d 180 (C.A. 7),
62 LRRM 2229, decided May 24, 1966; N.L.R.B.
v. Eliott-Williams, 345 F.2d 460, 464 (C.A. 7). The
[8(a)(1) violations] clearly indicate that Respondent
was not acting in good faith and was unwilling to test
the Union's majority in a fair election. Such conduct
shows that the Respondent was seeking to frustrate
the employees' freedom of choice and was motivated
by the desire to undermine the Union's majority
status in complete rejection of the collective-bargain-
ing principle. Joy Silk Mills, Inc., supra. Since the
2e See, for example, Joy Silk Mills, Inc v N L.R B , 185 F 2d 732
(C.A D C) Accord N.L R B v. Southeastern Rubber Mfg Co, 213
F.2d 11 (C A. 5), N L R B v Dallas Concrete Co, 212 F 2d 98 (C.A
5), N L.R.B v L E. Farrell Company, Inc., 360 F.2d 205 (C A 2).
29 The letter, written on the Union's letterhead, clearly identified the
Union and its place of business
au Bernel Foam Products Co, Inc , 146 NLRB 1277, 1280 Master
Transmission Rebuilding Corporation, 155 NLRB 364, enfd 373 F.2d
402 (C A 9).
CHARLES KUSHINS CO.
Regional Director set aside the election as a nullity
based on timely objections filed by the Union, the
requirements of Irving Air Chute Company, Inc.,
149 NLRB 627, enfd. 350 F.2d 176 (C.A. 2), are
satisfied. Therefore, under the Board's decision in
Bernet Foam Products Co., Inc., supra, I find that
Respondent violated Section 8(a)(5) of the Act and
that a bargaining order should issue as a proper
remedy.
Upon the entire record in the case, which clearly
establishes that at no time did Respondent attempt to ful-
fill its statutory obligation to bargain collectively with the
chosen representative of the majority of the employees in
the unit hereinabove found appropriate, the Trial Ex-
aminer finds that on September 2, 1966, and at all times
thereafter, Respondent failed and refused to bargain col-
lectively with the Union as the duly designated and
selected representative of the employees in the ap-
propriate unit, in violation of Section 8(a)(5) and (1) of the
Act, thereby interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Sec-
tion 7 thereof.
The Trial Examiner further finds that the Union's loss
of majority, as evidenced by the results of the Board-con-
ducted election, was attributable to Respondent's unfair
labor practices such as (1) by its granting wage increases
to Comber and Carlsen without first notifying the
Union'31 (2) by its unlawful interrogation, (3) by unlawful
refusal to bargain with the Union, and (4) by discrimina-
torily discharging Janet Hickerson, the details of which
are discussed below.32
C. The Discharge offanet Hickerson
Hickerson was first hired by Respondent in November
1965, as a sales audit operator at the Oakland store. This
office clerical job consists of adding and auditing the sales
tags for Respondent's four stores on a NCR-2000 tape.
The figures for each store on this tape are called the
"scores." The "scores" are used to prepare (a) the daily
sales reports and summaries for each store, (b) the so-
called green book which contains the "pairage" or sales
of pairs of shoes for each department for each store, (c)
the so-called black book which contains the daily sales
and pairage by volume on a yearly basis, (d) cash receipts
summary, (e) daily charge sales information for the ac-
counts department, (f) daily sales information for the
payroll department for each salesman, and (g) sales tax
information.
Hickerson's starting salary was $275 per month. In
April 1966 she was raised to $300 per month.
In March 1966, after Hickerson had been in charge of
the sales audit desk for about a month,33 both Beren and
Simmons complemented her for her good work.
In or about April, Hickerson was given an assistant,
who remained on the job for about a month and then quit
Respondent's employ. Thereafter, and for about a month
or two, Hickerson worked without any help or with ir-
regular help for about a few hours a day from employees
31 See Medo Photo Supply Corporation v N L R B, 321 U S 678,
N L R B v Hyde, dlb/a Hyde's Supermarket, 339 F 2d 568 (C A 9),
N L R B v Chain Service Restaurant etc., 302 F 2d 167 (C.A. 2),
N L R B v. Parma Water L i f t e r Co , 21 I F 2d 258 (C.A 9)
32 Franks Bros. Company v N.L.R.B., 312 U S 702, Ray Brooks v
NLRB,348US 96
347
regularly assigned to other store work, or with the
assistance for about a month of a girl named Michele. In
or about late June, Carlsen, who had commenced her em-
ployment with Respondent in February 1966 as a file clerk,
then became an addressograph operator, and then was put
on the mail desk, was assigned to assist Hickerson. When
Hickerson was discharged on Saturday, September 10,
Carlsen, who did not work continuously as Hickerson's
assistant but was more frequently assigned to work in the
credit department, was given Hickerson's job the follow-
ing workday. On September 15, Virginia Hooper was
hired as Carlsen's assistant at $290 per month.34
Respondent maintains that it discharged Hickerson on
September 10, not for her union membership and activi-
ties, but solely because Hickerson's work became in-
creasingly worse.
With respect to Hickerson's work record, the credited
evidence discloses that Hickerson was trained by Judy
Singer for about 3 months prior to Singer leaving Re-
spondent's employ in February 1966; that when Singer,
an admittedly experience NCR-2000 operator, quit her
job with Respondent, Hickerson had not completed her
training period but had reached, as Singer expressed it
at the hearing, "polishing-off" stage; that when Singer
left her job she was pleased with Hickerson's progress
and felt that Hickerson would become a "better and
better" operator as time went on.
As noted above, in about March, both Beren and Sim-
mons expressed to Hickerson their satisfaction with her
job performance and the following month raised Hicker-
son's salary $25 a month; that commencing about a
month or two after granting_ the $25, Beren became
aware that Hickerson was so far behind in her work that
it, to use Beren's expression, "aborted" his own work;
that Beren, in about May or June, told Simmons about
Hickerson's falling behind and also informed Hickerson
that he had to have "the work" she was doing; that in
June Hickerson was about 15 days behind in her work, at
which time Simmons, because Hickerson had no regular
assistant and only had infrequent help from persons em-
ployed elsewhere in the store, helped Hickerson prepare
sales summaries for all four stores, one of which stores
was 17 days behind in its summaries; that in July, Hicker-
son was behind at least I week in her work of which fact
Beren was aware; that in August, Beren knew that
Nickerson was behind in her work about 3 or 3-1/2-
weeks. Despite this knowledge by both Beren and Sim-
mons neither one assigned anyone to give steady, con-
tinuous assistance.
The record further establishes that at no time before
her discharge had Hickerson been told that she might be
discharged for being behind in her work or for any other
reason; that she offered to continue working upon notifi-
cation of her discharge on September 10, until Respond-
ent could find someone else, but said offer was refused
by Beren; that Hickerson was partially behind in her
work on September 10 as follows: the black book was 3
days to one week behind but only with respect to totals,
i.e., the daily entries were current; that in the green book,
33 Judy Singer, Hickerson's predecessor on the desk and who had been
in charge of the desk for a long time and who had trained Hickerson to be
a NCR-2000 operator, quit Respondent's employ in or about February
19, 1966
34 In October Carlsen's salary was raised from $260 to $290 per month
In February 1967 both Carlsen and Hooper were given $20 per month in-
creases
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
daily entries were complete for August, but totals were
not entered for the last 2 weeks in August and there were
no entries for the first 10 days in September; that the
payroll information for salesmen's payroll was 3 to 4 days
behind; that the balancing of day sales was partially in-
complete 3 to 5 days for the Oakland store and only 3
days with respect to the other three stores; and that im-
mediately prior to Hickerson's discharge, Respondent ex-
perienced the usual after Labor Day back-to-school shoe
business upsurge.
After Beren discharged Hickerson from her $300 posi-
tion, she accepted a $325-per-month position on Sep-
tember 23, with Pacific Continental Securities in
Oakland as a stock and mutual fund trader. At the time of
the hearing this employer had increased her salary to
$345 per month. When Pacific Continental Securities
asked Beren about Janet Hickerson, Beren replied, "She
was fine," that she "was honest and came to work on
time," that "her habits were fine," that "she was a very
fine person," and that "she was a good worker."
Respondent's knowledge of Hickerson's union sym-
pathies at the time of her discharge cannot be successfully
challenged for the uncontroverted, credible testimony of
Hickerson and Carlsen establishes that a few days prior
to Hickerson's discharge, Simmons phoned from
Weston's desk to where Hickerson and Carlsen were
working and when the latter answered the phone, Sim-
mons questioned her about the Union; that when Carlsen
suggested that Simmons speak to Nickerson, because
"she knows more about it than I do," and handed the
phone to Hickerson, Hickerson answered Simmon's
inqueries regarding why the employees desire the Union
by telling him, "Because all of us want better wages and
hours"; and that when Hickerson failed to answer Sim-
mons' question why the employees did not come to him
first about their complaints Simmons ended the conversa-
tion by saying, "Thanks a lot for doing it behind my
back."
This case presents the comparatively rare situation
where the recitation of the facts leading up to the
discharge vividly reveals its discriminatory character.35
The very sequence of events surrounding the discharge
renders immediate suspect to Respondent's proffered ex-
planation in justification of its conduct. Thus, in the face
of Respondent's unconcealed animosity to the em-
ployees' union activities, Respondent urges that the true
reason for the discharge of Hickerson was her poor, inef-
ficient work. The Trial Examiner is convinced, and finds,
that Hickerson's purported shortcomings only became in-
surmountable in her Employer's eyes when Hickerson
joined the other employees in Respondent's store in sup-
porting the Union's organizational campaign'36 and that
Respondent's advanced reason for the discharge was
merely a pretext. This finding is supported to some extent
by the fact that it seems unreasonable to the Trial Ex-
aminer that Beren, a man of great business acumen,
should summarily discharge the only person then in his
employ who could produce the data which he now claims
to be so vital to the operation of Respondent's four stores
when the store was "short handed," when Weston was
away on vacation, and Simmons had collapsed in the
store the day before and had to be revived by the local
fire department and by an ambulance assistant.
Upon the entire record as a whole, which clearly
reveals Respondent's union animosity, the Trial Ex-
aminer finds that Hickerson was discharged because of
her union activities and not for the reasons advanced by
Respondent. In N.L.R.B. v. May Department Stores Co.,
154 F.2d 533 (C.A. 8), the court said, at 538, regarding
a situation similar to the one presented here, that there is
a "broad scope of inference open ... on questions of mo-
tive and discrimination, where the evidence indicates a
desire to thwart or nullify unionizational efforts, either
generally or as to a particular employee-organization."
And where, as here, the employer has shown strong op-
position to its employees' organizational efforts, "a very
convincing case of discharge for cause would have to be
made to make unreasonable a conclusion that [the]
discharge was because of union affiliation."37
D. The February 1967 Wage Increases
Under date of January 23, 1967, Respondent's counsel
wrote the Union as follows:
This office represents Charles Kushins
Co. - Oakland, with respect to certain matters
presently pending before the National Labor Rela-
tions Board arising out of an election held October
27, 1966, in which a majority of the employees voted
not to have your Union represent them.
As a consequence of the charges filed by your
Union, it is not now possible for the Employer to
deal with a Union if it does not in fact represent a
majority of the employees and it is also illegal for the
Employer to deal unilaterally with the employees if
they are represented by a Union.
For many months, the Employer has attempted to
make certain wage adjustments for certain em-
ployees, which proposed wage increases your Union
has objected to. The Employer has again reviewed
the general wage level in comparable positions in the
Oakland Area, and the Employer reaches the same
conclusion that it reached many months ago. That
conclusion is that the following employees should be
granted wage increases effective Februal ry 1, 1967,
as follows:
Carol Jean Candelaria , from $ 260.00 per month
to $290 . 00 per month.
Betty Carlsen , from $290.00 per month to
$310.00 per month.
Virginia Hooper, from $290.00 per month to
$310.00 per month.
Kathleen Lane , from $260.00 per month to
$310.00 per month.
Jean Simmons, from $360.00 per month to
$400.00 per month.
In view of the fact that the charges filed by your
Union following the election will probably not be
35 Compare the oft-quoted observation of Chief Judge Parker in
Hartsell Mills Company v N L R B , III F 2d 291, 293 (C A 4) "
direct evidence of a purpose to violate the statute is rarely obtainable
Accord N L.R B v. Bird Machine Company, 161 F 2d 589, 592 (C A
1), N L R B v Dan River Mills, Incorporated, 274 F 2d 381 (C A 5),
Northern Virginia Steel Corp v. N.L R B., 300 F.2d 168 (C A 4)
36 As found above, it was Nickerson who, in the summer of 1966, sug-
gested to some of her coworkers that they unionize in order to better their
working conditions
39 Dannen Grain and Milling Company v N L R.B, 130 F.2d 321,328
(C A. 8).
CHARLES KUSHINS CO.
resolved for many months or possibly years, the
Company requests that you consent to the foregoing
proposed wage increases so that these employees
may enjoy the benefit of increased monthly wages
immediately.
The Employer will commence payment of the
foregoing wage increases on February 1, 1967.
Please advise me immediately if you object to the
payment of the proposed wage increases so that the
employees may be advised in advance as to why they
are not receiving the increased salaries.
The General Counsel contended at the hearing and ar-
gued in his brief that by granting wage increases men-
tioned in the above-quoted letter, Respondent violated
Section 8(a)(5) and (1) of the Act. The Trial Examiner
finds this contention and argument to be without merit or
substance. Accordingly, the Trial Examiner recommends
that the allegations of the complaint with respect to these
wage increases be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations
described in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and, such of them as have been
found to constitute unfair labor practices, tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1), (3), and (5) of
the Act, it will be recommended that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent on September 2,
1966,38 and at all times material thereafter, has refused to
bargain collectively with the Union as the duly designated
representative of the employees in an appropriate unit, it
will be recommended that Respondent, upon request,
bargain collectively with the Union as the exclusive
representative of said employees, and, if an agreement is
reached, embody such understanding in a signed agree-
ment.
Having found that Respondent has discriminated in re-
gard to the hire and tenure of employment and the terms
and conditions of employment of Janet Hickerson, it will
be recommended that Respondent offer her immediate
and full reinstatement to her former or substantially
equivalent position, without prejudice to her seniority or
other rights and privileges. It will also recommend that
Respondent make Janet Hickerson whole for any loss of
pay she may have suffered by reason of Respondent's dis-
crimination against her by payment to her of a sum of
money equal to the amount she normally would have
earned as wages from September 10, 1966, the date of
her discharge, to the date of Respondent's offer of rein-
statement, together with interest thereon at the rate of 6
percent per annum, less her net earnings during said
period.
349
Loss of pay shall be computed and paid in the manner
and to the degree set forth in F. W. Woolworth Company,
90 NLRB 289, and in Isis Plumbing & Heating Co., 138
NLRB 716.
The unfair labor practices found to have been engaged
in by Respondent are of such a character and scope that
in order to insure Respondent's employees their full
rights guaranteed them by the Act, it will be recom-
mended that Respondent cease and desist in any manner
from interfering with, restraining, and coercing its em-
ployees in their exercise of the rights to self-organization.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, the Trial Examiner
makes the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce or in
a business affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All Respondent's nonselling Oakland, California,
store employees, excluding all other employees covered
by existing bargaining agreements, confidential em-
ployees, guards, and supervisors as defined in the Act,
constitute, and at all times material constituted, a unit ap-
propriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
4. On September 1, 1966, and at all times since, the
Union has been, and now is, the exclusive representative
of Respondent's employees in the aforesaid unit for the
purpose of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By refusing on and after September 2, 1966, to bar-
gain collectively with the Union as the exclusive
representative of the employees in the aforesaid unit,
Respondent has engaged in and is engaging in an unfair
labor practice within the meaning of Section 8(a)(5) and
(1) of the Act.
6. By granting two employees pay increases in Oc-
tober 1966, without notice to or consultation with the
Union, Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
7. By discriminating in regard to the hire and tenure of
employment and the terms and conditions of employment
of Janet Hickerson, at the time and in the manner set
forth in the foregoing findings of fact, Respondent has en-
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
8. By the aforesaid discrimination, and by interfering
with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed by Section 7 of the Act, as
found in the foregoing findings of fact, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
9. By (1) unlawfully questioning its employees about
their union activities and sympathies, (2) by unlawfully
questioning its employees regarding the union member-
ships, activities, and sympathies of their coworkers, and
(3) by granting pay increases to Patricia Comber and
Betty Carlsen in October 1966, Respondent has engaged
3" The date Respondent received the Union's September I letter
requesting recognition and bargaining
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
10. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
11. By granting pay increases to some employees in
February 1967, Respondent did not violate the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the record as a whole, the
Trial Examiner recommends that Respondent, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Office &
Technical Employes' Union, Local 29, AFL-CIO, as the
exclusive representative of all the employees in the unit
hereinabove found appropriate with respect to
grievances, labor disputes, rates of pay, wages, hours of
employment, and other conditions of employment.
(b) Discouraging membership in, or activities on be-
half of, Office & Technical Employes' Union, Local 29,
AFL-CIO, or any other labor organization of its em-
ployees by discharging, laying off, or in any other manner
discriminating against any of its employees, in regard tc
their hire or tenure of employment, or any term or condi-
tion of employment.
(c) Unlawfully interrogating its employees concerning
their activities and sympathies on behalf of any labor or-
ganization.
(d) Unlawfully interrogating its employees regarding
the union memberships, activities, and sympathies of
their coworkers.
(e) Granting its employees pay increases in order to
discourage membership and activities in support of the
Union.
(f) Granting its employees pay increases without prior
notice to or consultation with the Union.
(g) In any manner interfering with, restraining, or
coercing its employees in the exercise of their rights to
self-organization, to form labor organizations, to join or
assist the Office & Technical Employes' Union, Local
29, AFL-CIO, or any other labor organization, to bar-
gain collectively through representatives of their own
choosing, or to engage in other concerted activities for the
purposes of mutual aid or protection, as guaranteed by
Section 7 of the National Labor Relations Act, as
amended, or to refrain from any and all such activities.
2. Take the following affirmative action which the
Trial Examiner finds will effectuate the policies of the
Act:
(a) Upon request, bargain collectively with the Office
& Technical Employes' Union, Local 29, AFL-CIO, as
the exclusive representative of the employees in the
described appropriate unit, with respect to grievances,
labor disputes, rates of pay, wages, hours of employment,
and other conditions of employment, and if an un-
derstanding is reached, embody such understanding into
a signed agreement.
(b) Offer to Janet Hickerson immediate and full rein-
statement to her former or a substantially equivalent posi-
tion, without prejudice to her seniority or other rights and
privileges previously enjoyed.
(c) Make Janet Hickerson whole for any loss of
earnings she may have suffered as the result of Respond-
ent's discrimination against her, in the manner and to the
degree set forth in the section of the Decision entitled
"The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(e) Notify Janet Hickerson if presently serving in the
Armed Forces of the United States of her right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Train-
ing and Service Act, as amended, after discharge from the
Armed Forces.
(l) Post at its store in Oakland, California, copies of
the attached notice marked "Appendix."39 Copies of said
notice, to be furnished by the Regional Director for Re-
gion 20, after being duly signed by its representative,
shall be posted by it 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.
(g) Notify the Regional Director for Region 20, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.40
IT IS FURTHER RECOMMENDED that unless on or before
20 days from the date of receipt of this Decision the
Respondent notify said Regional Director, in writing, that
it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring
the Respondent to take the action aforesaid.
IT IS FURTHER RECOMMENDED that the allegations of
the complaint that Respondent violated Section 8(a)(5)
and (1) of the Act by granting to some of its employees
wage increases in February 1967 be dismissed.
39 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
40 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read. "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT discourage membership of any em-
ployees in the Office & Technical Employes' Union,
Local 29, AFL-CIO, or any other labor organization
of our employees, by discharging employees or by
discriminating in any manner in regard to hire or
CHARLES KUSHINS CO. 351
tenure of employment or terms or conditions thereof.
WE WILL NOT unlawfully interrogate employees
concerning their union activities and desires and the
union membership and desires of other of our em-
ployees.
WE WILL NOT grant to our employees pay in-
creases, in order to induce them to refrain from
becoming or remaining members of the Union or giv-
ing any assistance or support to the Union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights to self-organization, to form labor or-
ganizations, to join or assist the above-named or any
other labor organization, to bargain collectively with
representatives of their own choosing , to engage in
concerted activities for the purpose of collective bar-
gaining, or other mutual aid or protection, and to
refrain from any or all such activities.
WE WILL, upon request, bargain collectively with
the above-named Union as the exclusive representa-
tive of all our employees in the unit found ap-
propriate with respect to grievances, labor disputes,
rates of pay, hours of employment, and other terms
and conditions of employment , and, if an understand-
ing is reached, WE WILL embody such understanding
in a signed agreement . The bargaining unit is:
All our nonsell Oakland, California, store em-
ployees, excluding all other employees covered
by existing bargaining agreements , professional
employees, confidential employees, guards, and
supervisors as defined in the National Labor
Relations Act, as amended.
WE WILL offer to Janet Hickerson immediate and
full reinstatement to her former or a substantially
equivalent position, without prejudice to her seniori-
ty and other rights and privileges, and make her
whole for any loss of pay she may have suffered
because of the discrimination against her with 6-per-
cent interest. If she should currently be serving in the
Armed Forces of the United States, we will notify
her of her right to full reinstatement upon application
after discharge from the Armed Forces in ac-
cordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended.
All our employees are free to become or remain, or to
refrain from becoming or remaining, members of the
above-named or any other union, except to the extent that
this right may be affected by an agreement in conformity
with Section 8(a)(3) of the National Labor Relations Act.
Dated By
CHARLES KUSHINS
CO. - OAKLAND
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive,
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board' s Regional Office, 450 Golden
Gate Avenue, Box 36047, San Francisco, California
94102, Telephone 556-3797.