Family Bargain Centers, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1966

160 N.L.R.B. 816 (N.L.R.B. 1966)

816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No1E-Notify the above-named employees if presently serving in the Armed
Forces of the United States of their right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of post-
ing, 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, 720
Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone 621-
4465
Family Bargain Centers , Inc. and Local 1687, Retail Store Em-
ployees Union , Retail Clerks International Association, AFL-
CIO. Case 3-C11-1691. August 31, 1966
DECISION AND ORDER
On April 26, 1966, Trial Examiner Jerry B. Stone issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
withal the lueaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom, and take cer-
tain aflirlnative action, as set forth in the attached Trial Examiner's
Decision. He also found that the Respondent had not engaged in
other unfair labor practices alleged in the complaint and recom-
mended dismissal of those allegations. Thereafter, the General Coun-
sel and Charging Party each filed exceptions to the Trial Examiner's
Decision and supporting briefs, and the Respondent filed cross-
exceptions and a supporting brief.
Pursuant to the provisions of Section "')(1)) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-lilenlber panel [Chairman McCulloch and l ''em-
bers Fa,nn;ng and Jenkins].
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 this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
I The Trial Examiner found that Respondent, by the conduct of lnckelson on or about
the middle of Api11 and on April 19, 19(15, bargained directly with eniploiees and requested
and encouraged them to deal directly with it rather than seek representation through the
Union, and that such conduct in connection with the promises of benefits and the granting
of benefits constituted conduct violatile of section S(a) (1) of the Act in affirming this
finding we disavow any possible implication that direct dealing or bargaining with em-
ployees who are not represented by a collective-bargaining repiesentative is necessarilv
Nlolative of Section 8(a) (1) of the Act However, where such direct dealing is undertaken
for the purpose of encouraging employers to reject union representation and iniolves the
promising and granting of benefits, as herein, we agicc with the Trial Exainlner that it
restrains, coerces, and interferes with employees' exercise of Section 7 rights and therefore
violates Section 8(a) (1) of the Act.
160 NLRB No. 66.
FAMILY BARGAIN CENTERS, INC. 817
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on April 23, 1965, by Local 1687, Retail Store Employees
Union, Retail Clerks International Association, AFL-CIO (herein sometimes
called the Union or Charging Party), the General Counsel of the National Labor
Relations Board, by the Regional Director of Region 3, issued his second amended
complaint and notice of hearing, dated August 18, 1965, against Family Bargain
Centers, Inc. (herein sometimes called Respondent, Employer, or Company).' The
August 18, 1965, amended complaint alleged conduct violative of Section 8(a)(1)
and (5) of the Act. Respondent's answer to the amended complaint by not deny-
ing certain allegations constituted (pursuant to Board's Rules and Regulations) an
admission to many facts. By denying other facts and the commission of unfair
labor practices, the answer placed in issue the question of conduct violative of
Section 8(a)(1) and (5) of the Act.
Pursuant to appropriate notice, a hearing was held before Trial Examiner Jerry
B. Stone, at Cortland, New York, on August 23, 24, 25, and 26, 1965, and on
January 12, 13, and 15, 1966. All parties,were represented at and participated in
the hearing and were afforded the right to present evidence, to examine and
cross-examine witnesses, to offer oral argument, and to file briefs. Briefs were
filed by all parties and have been considered.
,At the, hearing certain motions directed to Respondent's affirmative defense
allegations were granted inasmuch as they were directed to conclusions of law as
to issues not pertinent to the proceeding. On August 25, 1965, I, in my discretion,
granted a motion for continuance on the basis of the unavailability of a principal
witness. Later, on the same ground, I extended the adjournment of the proceed-
ing to January 12, 1965. Respondent opposed these rulings on the grounds that
his case was "prejudiced" by loss of potential witnesses. It is well known that
counsel has the duty in preparing his case to make such arrangement as is neces-
sary for attendance of witnesses. In this area of preparation for trial the use of
subpena is available. Failure of use of subpena to ensure the presence of witnesses
is counsel's responsibility alone. No evidence or contention has been or was
made that any witnesses was unavailable who was subpenaed by Respondent as
of the intial hearing date on August 23, 1965.
Accordingly, no valid basis in opposition to General Counsel's motion for con-
tinuances on the ground of unavailability of witnesses was made during the
hearing.
Upon the entire record in this case and from my observation of the witnesses,
the following findings of fact, conclusions of law, and recommendations are made .2
1 The said Regional Director in similar manner had earlier issued a complaint in Case
3-CA-2584 involving the same parties on May 26, 1965. Thereafter, the said Regional
Director had issued an order consolidating cases , had issued an amended and consolidated
complaint and notice of hearing, in Cases 3-CA-2584, 3-CA-2621, and 3-CA-2640 on
June 30, 1965. Thereafter, the Respondent filed an answer to. the amended consolidated
complaint (Cases 3-CA-2584, 3-CA-2621, and 3-CA-2640) admitting many facts but deny-
ing others and denying the commission of unfair labor practices. On July 12, 1965, the
said Regional Director issued an order severing Case 3-CA-2584 from Cases 3-CA-2621
and 3-CA-2640. On July 26, 1965, the Respondent moved for severance of Case 3-CA-2621
from Case 3-CA-2640 and for postponement of Case 3-CA-2621 from August 23, 1965,
until after September 6, 1965. On August 2, 1965, the said Regional Director by order
denied Respondent' s motion of July 26, 1965. On August 4, 1965, the Respondent reiterated
its July 26, 1965, motion to the National Labor Relations Board. On August 9, 1965, the
said Regional Director withdrew his order of August 2, 1905, and referred the same for
ruling to the Trial Examiner. On August 12, 1965, the General Counsel filed opposition to
Respondent's July 26, 1965, motion for severance and continuance. On August 17, 1965,
Trial Examiner vessel granted the Respondent's July 26, 1965, motion for severance, but
directed that Case 3-CA-2621 be heard on August 23, 1965
2 All credibility resolutions made with respect to the witnesses' testimony are based on
a composite evaluation of witness demeanor and logical consistency of evidence and facts.
25T-551-67-vol. 16 0- 5 3
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT 3
1. THE BUSINESS OF THE EMPLOYER
Family Bargain Centers, Inc., the Respondent, is and has been at all times
material herein a corporation duly organized under and existing by virtue of the
laws of the State of New York. At all times material herein, Family Bargain
Centers, Inc., has maintained its principal office in the city of Utica, State of
New York, and various other retail stores, places of business, warehouses, and
other facilities in the cities of Syracuse, Utica, Norwich, Auburn, Watertown,
Cortland, Johnstown, and various other locations in the State of New York, and
is, and has been at all times material herein, engaged at said retail stores and
locations in the business of retail department stores The Respondent's Cortland,
New Yolk, store is the only store involved in this proceeding. During the
12-month period ending on August 18, 1965, Family Bargain Centers, Inc, in
the course and conduct of its business operations, sold and distributed products,
the gross value of which exceeded $500,000. During the same period of time,
Family Bargain Centers, Inc., received goods valued in excess of $50,000 trans-
ported to its place of business in interstate commerce directly from States of the
United States other than the State of New York.
Considering the foregoing, it is concluded and found that Family Bargain Cen-
ters, Inc., is now, and has been at all times material herein, an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 1687, Retail Store Employees Union, Retail Clerks International Asso-
ciation, AFL-CIO, is now, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act. It is so concluded
and found.
III. THE UNFAIR LABOR PRACTICES
A. Issues
The issues in this case concern whether the Respondent (1) made promises
of benefits or threats of store closure and discharges to employees to induce them
to refrain from union activity, (2) granted employees benefits to induce them to^
refrain from union activity, (3) bargained directly with and encouraged employees
to bargain directly with it, and (4) refused to bargain collectively with the Union
within the meaning of the Act. As to the refusal-to-bargain issue, the critical
question herein is whether the Union represented a majority of the employees
in an appropriate unit.
B. Supervisory status
At all times material to the issues herein, the following named persons occu-
pied the positions set opposite their respective names, and have been at all times
material herein agents of Family Bargain Centers, Inc (the Respondent), acting
on its behalf, and are supervisors within the meaning of Section 2(11) of the Act.
Sidney Kamino-Respondent's president
Squire Michaelson-Respondent's district superintendent
Edward Ward-Respondent's district supervisor
Leonard Sebelowitz-manager-Respondent's Cortland store.
C. The commencement of union activity
1. Events of February and March 1965 union card solicitation 4
During the months of February and March 1965 the Union engaged in an
extensive organizational campaign at Respondent's Cortland store. Nellie Butts,
•' The findings of fact relating to (1) the business of the employer, (2) the labor orga-
nization involved, and (3) the supervisory status of certain individuals are based upon the
undenied allegations in the complaint which are deemed to he admitted pursuant to Sec-
tion 102 20 of the National Labor Relations Board's Rules and Regulations, Section 8, as
amended
, The facts as to the events of February and March 1965 and the union card solicita-
tion are based upon a composite of the credited aspects of the testimony of all witnesses
who testified concerning the events, including the testimony of Butts, Ripley, Wells,
Notartomaso, Maricle, Casterline, Kelley, Kolar, Wilcox, Marvin, Brown, Marks, Bleck,
Bowman, Phelps, Miller, and Durward.
FAMILY BARGAIN CENTERS, INC. 819
an employee at said store , was the principal solicitor of employees ' signatures to
authorization cards .5 Around April 1, 1965, the Union had secured a substantial
number of signatures to authorization cards.
2. The events of April 1, 1965, the union meeting 6
On about April 1, 1965, Nellie Butts and several other employees posted a
notice on the bulletin board in the ladies' lounge in the store , relating to a meet-
ing to be held at a place called The Terrace ( a restaurant ). The notice stated in
effect that there was to be an important party and that it was desired that all of
the girls (employees ) be there. The notice also indicated that the party would be
around 7:30 p.m. for the day girls and at 10 p.m. for the night girls . The notice
indicated that the ones coming to the party should sign their names on the paper.
Later, after the notice has been posted, Manager Sebelowitz had a discussion with
Nellie Butts. Sebelowitz asked Butts what was so important about the party and
stated that the girls had not been coming much to parties . Butts told Sebelowitz
about the union meeting. ? Sebelowitz asked Butts if the union representative would
be there. It is not clear whether Butts told Sebelowitz that the union representa-
tive would be there or not. Butts testified to the effect that she "thought" she
told Sebelowitz that the union representative would not be there .8
The meeting of the employees took place as scheduled at the Terrace Restau-
rant. Apparently around 10 p.m. one of the girl employees saw Frantinato, the
assistant manager of Respondent 's Cortland store, at an adjacent bar area and
invited him in with the group .9 At the time Nellie Butts, Cecilia Kolar, and other
employees were at the "meeting." During both sessions of the meeting Union
Representative Ripley was present and discussed unionism with those present.
3. Events concerning Ward's conduct and the granting of benefits
a. Ward's store meetings with employees April 3, 1965 10
Apparently on April 3, 1965, Edward H. Ward, Respondent 's supervisor of
stores, was in the Cortland store. Either on that day or shortly before Ward had
become aware of the question of a union attempt and of questions that some of
the girls had about company policy."
Ward instructed the local store manager , Sebelowitz, to set up a meeting with
as many employees as possible around 3 p.m. that day . Around 3 p.m. Ward spoke
to a substantial number of the employees in the store 's" stockroom . Ward's
meeting with the employees lasted approximately 30 minutes . Later that evening
Ward had a similar meeting with other employees.
5Cards whereby the language thereon Indicated that the signer was designutnig the
Union as his bargaining representative
9 The facts as to the events of April 1, 1965, are based upon the credited aspects of the
testimony of all witnesses who testified concerning the events including the testimony of
Butts , Ripley, Kelley , and Kolar
7 Butts ' testimony was somewhat generalized as to her conversation , with Sebelowitz.
From my observation of Butts ' demeanor on the witness stand, I find it hard to believe
that she did not freely reveal that the party was a union meeting
8It is not alleged that Sebelowitz ' question as to whether the union representative
would be there or not Is violative of the Act. In any event, under the circumstances de-
scribed I would not find it to be violative
9 There is no allegation or contention that Frantinato engaged in illegal surveillance
10 The facts are based upon a composite of the credited aspects of all witnesses v ho
testified concerning Ward's talks , including the testimony of Ward, Butts, Wells,
Notartomaso , Maricle, Casterline , Kelley, Kolar, Wilcox, Phelps, Marvin, and forward.
Ward's testimonial appearance was that of a witness constrained to limit his statements.
I do not find his testimony as presented to reveal fully and forthrightly what was said
and done. The testimony of witnesses inconsistent with the facts found is discredited as
being basically conclusionar y. Casterline' s testimony inconsistent with the facts found is
largely conclusionary and not found to be reliable. From all of the evidence I am con-
vinced that Ward has miscontrued what "established company policy" means . Ward 's testi-
mony that the effect about what he told the employees was established company policy is
discredited.
u The date was not precisely fixed by the witnesses . Butts placed the event "a day or
two after" the April 1, 1965, union meeting Ward admitted that the date could hale
been April 2, 1965 Under such circumstances I fix the time as being on April 3, 1965
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ward told the employees at the first meeting in effect that he had heard about
the Union trying to organize the store, that he was 100 percent for unions, that
he was not against unions, but that unions did not belong in the retailing aspect
of business. Ward told the employees that he understood that the union organizer
at another of Respondent's stores had a prison record but that the organizer at
this store had a clean record. Ward told the employees that the Union, could not
offer them anything that the store could not, that there were a great many, bene-
fits that the store had which the employees did not know about, that there were
a lot of things in effect at a lot of the Respondent's stores that paralleled the ben-
efits that the Union could get for them Ward told the employees that he wanted
to know why they were unhappy, that if they had any questions, to come to him
and he would try to help them.12 Some of the employees asked Ward questions.
One of the girls (Dorward) asked Ward if the Union could not be used as a
]ever to get things the employees wanted. Ward asked Dorward "why" pay for
things you get for nothing. Ward told the employees that they did not have to
pay for their job with the Company, that with a union you had to pay dues.
Dorward asked if an employee would be fired for union discussion. Dorward told
Ward that she wanted to hear both sides of the argument. One question was
why the employees could not work a 5-day workweek instead of 6,days..Ward
told the employees that there were other company stores that were on a 5-day
workweek 13 and that a 5-day workweek would be considered.
' Marie Wells told Ward in effect that working on the cash register caused her
to get behind in her other work and upset her.14 Wells asked if she could be
taken off her cash register duties. Ward told Wells that he would speak to the
manager concerning this problem.
b. Pay increases April 9, 1965 15
Apparently within the next day or two after April 3, 1965, Sebelowitz had a
paper posted for the employees. to list their names and dates of hire. Apparently
Sebelowitz took the aforedescribed list and forwarded recommendations for raises.
In any event it is clear that some 15 employees of the Respondent received a
10-cent hourly raise increase commencing during the pay week ending April 9,
1965.16 These 15 employees had all been in Respondent's employment for more
than 1 year and had since October 1, 1964, received wage increases.17 The evi-
dence is clear that substantially all other employees had worked for less than 1
year for Respondent.la
112 Ward, testified to the effect that the question of presenting the company policy as to
unionism was not the purpose of the talks. Ward was examined initially by the General
Counsel as an adverse witness and later was examined as a Respondent's witness Ward's
testimony as to the facts and incidents reveal that he was attempting to narrowly answer
all questions and to avoid simply testifying to what was said in the talks Considering
the foregoing and the total consistency of the evidence and facts, I am persuaded that the
purpose of Ward's talks was to present the Company's opposition to the Union and to
present reasons for employees to reject the Union. I so find the facts and discredit Ward's
testimony inconsistent with such factual finding.
13 Ward testified to the effect that he merely stated to the employees what the com-
pany policy was. Ward's testimony was to the further effect that lie did not really know
what policy was actually implemented in the Cortland store. Ward's testimony as to the
5-day workweek was that he told the employees that the Respondent would consider the
5-day workweek. Ward impressed me as an intelligent, conscientious person. I find it hard
to believe and do not believe that he did not know what implementation of policy was-in
effect at the Cortland store. His testimony as to the 5-day workweek being in effect at only
5 of Respondent's 17 stores convinces me that he knew that the 5-day workweek was not
established policy but merely policy which could be established I discredit Ward's testi-
mony to the effect that he merely told employees of established policy
1s One of Wells' duties included at times the operation of the cash register
15 The facts are based upon a composite evaluation of the credited testimony of Butts
and exhibits in the record pertaining to employee employment records
16 The Respondent's brief refers to 14 employees but does not list Gilda Kelley who re-
ceived a wage increase on April 9, 19(15.
17 As indicated previously, I am convinced that Ward knew of such wage patterns.
is All of the employees whose records are in evidence other than the 15 employees who
received raises had worked for less than a year for the Respondent The record is barren
as to the employment records of contended employees Drake, Butler, and Bishop.
FAMILY BARGAIN CENTERS, INC . 821
Some of the employees complained about their wage rates in view of their time
of service.19 Ward told the employees that he was surprised at their wage rates,
that after employees had been employed a year that their records were reviewed
by the manager, that if the employee's work had been satisfactory that the manager
wrote a request to the main office for a raise for the employees and that the
manager could recommend increases for employees with less than a year' s service
if their work record was outstandmg.20
Ward told the employees that those who had over a year's service, with a satis-
factory record, would get a raise.21 Ward told Sebelowitz, who was present, to
get a list of the girls and their dates of hire and to review such records for pos-
sible wage increases. Ward told the employees that he knew of no wage-increase
request that ever reached President Kamino's desk that had been refused 22
Ward told the employees of the Respondent's profit-sharing plan. One of the
employees asked Ward about the Respondent's vacation plan and Ward told the
employees that the plan called for 2 weeks' vacation after an employee had worked
as long as 3 years. Sebelowitz interjected that the vacation plan stated was only
for men. One of the employees asked about a hospitalization plan. Ward told the
employees that Blue Cross and Blue Shield hospitalization plans were in all the
stores. Ward told the employees that he was not sure a hospitalization plan could
be included as long as the employees were receiving profit-sharing but that he
would see and discuss it with the Company. Ward also mentioned during his
talk that they might have a suggestion box and give prizes to employees who
made meritorious suggestions 23
Marvin credibly testified to the effect that at the evening meeting Ward told the
employees that the Union could not give them anything without bargaining and that
the Union could require employees to picket at another store. Marvin also credibly
testified that she complained about a new girl's having the same wage rate as she
did. Ward told Marvin that company policy was to give raises to satisfactory
employees after 1 year service and that even employees with over 6 months' service
were considered for wage increases, that the local manager (Sebelowitz) had author-
ity to review employees records and to recommend increases . Ward told Marvin that
10 That there were complaints about wage rates is self-evident from the testimony that
Ward told the employees he was surprised at their wage rate.
20 The policy as to wage increases as told by Ward reveals in effect that the local man-
ager had discretion at any time to recommend merit increases It was not cleai whether
the policy envisioned an annual review as to each employee or an annual rei ieiv of all
employees The records do not indicate either an annual ieview of all employees or an
annual review of individual employees according to hiring date. As indicated, however,
Ward was speaking to the employees of what would now be done, and not what would be
done according to established policy and procedure
a The facts reveal that substantially all employees with over 1 year service had received
raises in October 1964 I find it hard to believe and'do not believe that Ward did not have
knowledge that such employees had recently received wage increases
22 Ward's testimony was to the effect that lie merely told the employees of company
policy and told Sebelowitz to get the dates of hire of the employees. As indicated pie-
viously, Ward's testimonial presentation was not designed to present a complete factual
statement of what transpired The employee witnesses testified credibly to the effect that
Ward told them that employees with a year's service and a satisfactory record would re-
ceive wage increases. I am convinced the facts are as set out and so credit the testimony
accordingly.
23 Ward testified to the effect that he did not say that a company-paid hospitalization
plan would be included I discredit Butts' testimony that Ward referred to a company-paid
hospitalization plan to the extent that the testimony meant that the words "company paid"
were used. Although I do not believe that the words "company paid" were used, I am
convinced that the statement was made (as credibly testified to by Butts and Kolar) that
he was not sure that a hospitalization plan could be included as long as the employees
were receiving profit-sharing but that he would see and discuss it with the Company The
clear inference i5 present that the benefit referred to involved a cost to the Company Ward
also denied.-that he knew that Cortland did not have a "suggestion box." As indicated
previously, I am convinced that Ward knew of conditions at the Cortland store '1 discredit
his testimony to the effect that he did not know that the store did not hai e a suggestion
box As indicated elsewhere, I discredit Kolar's testimony to the effect that Ward thieat-
ened closure of the store and that Ward threatened the firing of the whole crew and hiring
a new crew.
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees with 1 year's service and satisfactory records would be considered for
wage increases. Ward also told Marvin that Sebelowitz was being instructed to make
such reviews and that he knew of no wage-increase request that reached President
Kamino's desk that was ever turned down.
On April 4, 1965, Manager Sebelowitz asked Wells why she had asked to be taken
off the cash register. Wells told Sebelowitz that she had asked him a month earlier
to take her off of the cash register, that he had said that he would see what he could
do about it, that she had received no further response, and that the problem was
getting on her nerves. Sebelowitz asked Wells if she would not consider running
the cash register again. Wells told Sebelowitz that she would not consider running
the cash register again, that she had asked to be taken off the cash register, that
such work upset her, and that she would not do it. Sebelowitz told Wells that if she
did not operate the cash register, that he would have to find someone who could.
Later the same day Wells told Ward of her conversation with Sebelowitz. Ward
told Wells that he would speak to Sebelowitz about the problem Apparently within
a day of two and at least by April 14, 1965, Wells was relieved of the responsibility
of operating the cash register.
c. The events of April 14 or 15, 1965 24
On April 14 or 15, 1965, Ward spoke to employees assembled at the Cortland
store. Ward asked the employees if he had kept his word about their raises. Ward
told employees that the Respondent was still working on the 5-day workweek ques-
tion Ward asked Wells if she were still working on the cash register. Wells told
Ward that she was not working on the cash register now.
d. The institution of the 5-day workweek 25
Approximately around April 24, 1965, the Respondent instituted a 5-day work-
week for its employees at the Cortland stores 26 Kolar indicated to the Respondent
that she desired to stay on a 6-day per week schedule and was allowed to do so.
Conclusions as to Ward's Conduct and Related Acts
Ward's April 3, 1965, statements to employees clearly reveal Respondent's opposi-
tion to the Union and, in connection therewith , Respondent 's desire to ascertain
employees' grievances and to favorably consider adjustment of the same. Ward's
statements constituted promise of benefits ( favorable consideration on adjustment of
grievances, a new pay increase for employees with over 1 year's service and a satis-
factory work record, a 5-day workweek, changes in job assignments , and favorable
consideration of additional benefits-such as hospitalization plans) if the employees
would refrain from engaging in union activity. Such conduct is violative of Section
8 (a)( I) of the Act. I so conclude and find 27
Considering all the foregoing, I am convinced, conclude, and find that the
Respondent in April 1965 granted employees (with over 1 year's service and a satis-
factory work record) a wage increase, that the Respondent changed the work
assignments of Marie Wells, and that the Respondent granted employees a change
2h The facts are based upon a composite of the credited testimony of Butts, Wells, and
Kolar.
Based upon a composite of the credited testimony of Butts, Wells, Wilcox, and Kolar.
Butts testified to the effect that Ward on April 14, 1965, stated that Respondent was still
considering the 5-day workweek. Wells placed the time of commencement of the 5-day
workweek as being 3 or 4 weeks after Ward's April 3, 1965, talk Kolar testified to the
effect that Ward announced the 5-day workweek on April 14, 1965 I discredit Kolar's
testimony as I am convinced that Kolar has confused the timing of the announcement. I
credit the version of the timing as indicated by Wells and Butts.
" The change involved no change In total number of hours worked or pay for such work
As indicated with respect to resolutions of credibility, I reject Respondent's apparent
contention that statements by Ward and Mickelson were mere recitements of established
company policy. The overall evidence reveals that as to much of the policy referred to
that the statements did not relate to existing established company policy I am convinced
and find from the overall evidence that Ward and Mickelson's statements to employees
about company policy concerned policy that each knew was not in existence at the Cort-
land store.
FAMILY BARGAIN CENTERS, INC. 823
from a 6-day workweek to a 5-day workweek for the purpose of inducing employees
,to refrain from engaging in union activity.28 Such conduct is violative of Section
8 (a)( I) of the Act. I so conclude and find .29
The General Counsel contends that Ward at the April 2, 1965, talks (1) threat-
ened employees at its Cortland store that it would fire the whole crew and hire a
new crew at the Cortland store if the employees selected and designated Local 1687
as the collective-bargaining representative and (2) threatened employees at its Cort-
land store that it would close down the Cortland store or all of its stores if the
employees selected Local 1687 as their collective-bargaining representative.
The General Counsel's evidence in support of these contentions comes from the
testimony of Kolar. Kolar's ultimate testimony was to the effect that Ward said:
"If need be, all employees could be fired," and that Ward said, "All stores could be
closed if the Union got in." None of the other witnesses who were questioned as to
whether Ward made such statements as set forth above in Kolar's testimony remem-
bered hearing Ward make such statement. Butts' testimony was to the effect that
Ward in his April 3, 1965, talk said that the stores would not be closed down if
the Union got in, that there was no intention of that. Kolar testified also to the
effect that Ward told Dorward, in answer to a question, that an employee would
not be fired for discussing the Union. Considering the foregoing and Ward's April 3,
1965, talks as a whole, I am convinced that Kolar misunderstood what Ward said.
The consistency of all of the evidence reveals that Ward engaged in promises of
benefits but did not utilize threats of discharge or store closure as a weapon against
the Union. I find Kolar's testimony as to a threat of discharge or store closure to be
unreliable and discredit it. Accordingly, I find that the General Counsel has not
established that Respondent, by Ward, made threats of closure of stores or of firing
of crews and hiring of new crews. It will be recommended that complaint allega-
tions VI(d) and (e), in this regard, be dismissed.
D. Events concerning Mickelson's conduct
1. The events of mid-April 1965-Mickelson talks with Butts and Watson 30
One day around- mid-April 1965 Butts had told Squire Mickelson, Respondent's
district superintendent, that she wished to see him about something. Mickelson told
Butts that he was busy right then and could not see her. The next day Mickelson
,telephoned Butts at the Cortland store and asked her if she wished to meet with
him. Butts told Mickelson that the store was in serious trouble, that she could not
tell him about it over the telephone, and that she would like to meet elsewhere.
Butts and Mickelson drove around in Mickelson's car. Mickelson asked Butts what
was bothering her. Butts told Mickelson that the store was in serious trouble. Mick-
elson asked what kind of trouble and Butts told Mickelson that it was about the
Union, that there was a lot of conflict among the girls, and that a lot of the girls
had signed union cards. Butts told Mickelson in effect that she was seeing him on
behalf of the employees, that a lot of the employees were confused on company
policy. Butts asked Mickelson if he would make arrangements to talk to the employ-
ees. Mickelson asked Butts if she had any influence over the girls and would she
try to use her influence in persuading the girls as to the company viewpoint. Butts
told Mickelson that she did not know whether she did or not, or whether she could
28 The Respondent contends that the change from a 6-day to a 5-clay workweek does not
reveal a benefit since the employees worked the same number of hours and received the
same pay I reject this contention. The employees had indicated to Ward that they desired
such a change. It is obvious that the schedule of hours of work has a considerable effect
on the employee's schedule of his own leisure time A change therein to a more desirable
schedule obviously constitutes a benefit.
2D I find it unnecessary, in view of other findings herein, to determine whether the
promise to employees of a suggestion box and of prizes for suggestions and the actual giving
of prizes for suggestions constitute conduct violative of Section 8(a)(1) of the Act.
30 The tacts are based upon a composite of the credited testimony of Michelson and Butts.
Considering the demeanor of Butts and Michelson as witneseses, I am more nnpressec'
with Mickelson's reliability in timing Butts' request for a meeting as being the day before
the meeting with Butts than I am with Butts" *testimony that she requested a meeting
several weeks earlier However, considering the total consistency of the evidence, I ani
convinced that unionism was discussed and discredit Mickelsen's testimony which appears
contradictory of the facts found. - `
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or not. Butts indicated that she would do so and told Mickelson that she was willing
to see President Kamino if Mickelson wanted her - to. Thereupon Mickelson
attempted unsuccessfully to telephone Kamino. Several hours after Butts and Mick-
elson had terminated their automobile drive, Mickelson telephoned Butts and told
her that he had been unable to contact Kamino. Mickelson asked Butts how many
of the girls had signed union cards. Butts told Mickelson that over 50 percent of the
girls had signed union cards 31
Several days later Mickelson telephoned Butts at the Cortland store and asked
Butts if she and Reta Watson would meet with him to discuss what the girls wanted
and the girls' grievances. Mickelson asked Butts to obtain a list of such grievances.
That night Butts and Watson met with Mickelson at The Terrace Restaurant. Butts
gave Mickelson a written list of the grievances of the employees. Mickelson told
Butts and Watson that a lot of what the employees complained of was already in
store policy, that he would see what he could do about the listed items and hold a
meeting with store employees.
2. The April 1965 "Thanksgiving" check
On April 16, 1965, all employees working during that payroll period who had
received a Thanksgiving holiday paycheck received another equivalent paycheck-
designated in the records as a "Thanksgiving" check.
3. The events of April 19, 1965, Mickelson's talk to employees, individual talks 32
On April 19, 1965, Mickelson spoke to the employees at the Cortland store on
company time and in the back of the store. Mickelson's talk lasted about 3 hours.
Mickelson spoke with reference to the grievances submitted by Butts. Mickelson
told the employees in effect that he was telling them what the store policy was.
Mickelson told the employees that he did not understand why they did not have
hospitalization (insurance), that all of the other stores had such a plan. Some of
the employees told Mickelson that they had never heard of the availability of the
hospitalization plan. Mickelson told the employees in effect that he was surprised
that no one had told the employees that Blue Cross and Blue Shield was available
to them, that such plans were open to anyone who wanted them and that in the fol-
lowing days someone would be at the store to discuss the hospitalization plan with
"Butts testified to the effect that Mickelson told her that if they could put this thing
over (to stop the union campaign) that there would be a new spring outfit in it for Butts.
Mickelson denied making such a promise A close question of credibility is presented in
this conflict. The facts reveal that Butts, a very active union adherent, solicited the union
cards with strong assurance to most employees that the cards were only for the purpose
of an election, that later the Union revealed plans for, a demand for recognition and a
.card check, that Butts thereafter approached Mickelson saying that there was "conflict
among the girls." The facts also reveal that on the evening after seeing Nllckelson that
Butts gave a written statement to the union representative in which she set forth that
Mickelson had made the promise of a spring outfit to her Butts' testimonial appearance
was that of a very uncomfortable witness who apparently felt pressured by the events.
Mickelson, in general, appeared to be attempting to tell the truth However, I do not be-
lieve his denial that he asked how many employees had signed a card Considering the
totality of the evidence and the totality of the testimonial appearances of both Mickelson
and Butts , I am not persuaded that Butts' testimony as to the promise of a spring outfit
Is more credible than Mickelson's denial . I therefore do not credit Butts' testimony to such
effect.
sa The facts are based upon a composite of the credited aspects of the testimony of Butts,
Mickelson, Maricle, Casterline, Kelley, Marvin, Durward, Wells, and Bowman. Mickelson's
testimony appeared more to the effect that he told employees that he was telling them of
company policy and not that what he told them was company policy Casterline testified
In a conclusionary fashion that Mickelson told the employees of company policy ,The
overall evidence convincingly reveals that company officials construed company policy as
being what they could do and not what was established company policy I am convinced
that Mickelson knew what policy was established at the Cortland store and knew that in
many aspects that he was relating new policy. I am convinced that lie referred to it in his
talks as being company policy in existence as a selling point Testimony of witnesses in-
consistent with the facts found and Indicating that all that Mickelson related in his talks
was company policy is discredited.
FAMILY BARGAIN CENTERS, INC. 825
them. Mickelson told the employees that there was a 6-day-a-year sick leave policy,
and that there was a day off every 2 months for sick leave. All of the employees
expressed surprise that there was such a policy. Mickelson told the employees that
holiday work was voluntary and that qualified employees who worked received the
equivalent of triple pay.33 Mickelson told the employees about a profit-sharing plan,
vacation plans, time-and-a-half pay for overtime, and other benefits. Mickelson also
told'the employees that they could get leaves of absence instead of quitting their
employment.
Following his April 19, 1965, talk to store employees, Mickelson had many of
the employees come in individually to see him and discuss their grievances. Mickel-
son evidenced an interest in finding out what problems the employees had.
4. Conclusions as to Mickelson's conduct and related acts
The General Counsel in his complaint and arguments contends that Respondent
by the conduct of Mickelson on April 14, 19, and 20, 1965, bargained directly with
employees and requested and encouraged its employees to deal directly with it
rather than seek representation through the Union.
Considering the conduct of Mickelson as set forth in the foregoing paragraphs
and in connection with Ward's statements and conduct on April 3, 1965, and the
granting of benefits thereafter, I am convinced, conclude, and find that the facts
do establish that Respondent, by the conduct of Mickelson, on or about the middle
of April and on April 19, 1965, did bargain directly with employees and requested
and encouraged employees to deal directly with it rather than seek representation
through the Union. Such conduct in connection with the promises of benefits, and
the granting of benefits, constituted conduct violative of Section 8(a) (1) of the Act.
I so conclude and find.
The General Counsel in his complaint contends that Respondent, by Mickelson,
promised an employee a spring outfit if said employee helped the Company defeat
the Union. As indicated elsewhere I do not find this allegation supported by credited
evidence.
The General Counsel contends in his complaint in effect that Respondent, by
Mickelson, on April 14, 1965, interrogated employees about their union activities.
The evidence as to this allegation appears to be the questioning of Butts by Mick-
elson as to the number of employees who had signed union cards. Considering the
circumstances, Butts' initial approach to Mickelson apparently to air the problems,
the April 12, 1965, demand for recognition and suggested card check, and the lack
of questioning as to specific identity of employees signing cards, I am convinced
that such questioning was not done in such a manner as to constitute interference,
restraint, and coercion within the meaning of the Act.
It might be contended, but apparently is not, that the individual interviews on
April 19, 1965, constituted in effect illegal interrogation within the meaning of the
Act. The evidence merely revealed questioning as to gripes. I see nothing wrong
about ascertainment of the gripes of employees. As indicated by other findings it is
the use of such information in the promising or granting of benefits that otherwise
would not be enjoyed by the employees that constitutes the gravamen of the illegal
action.
The General Counsel contends in his complaint that Respondent, by Mickelson,
on April 19, 1965, offered, promised, and granted at its Cortland store time and a
half for holidays, sick leave, and time and a half for work over 40 hours if the
employees refrained from becoming or remaining members of Local 1687 or giving
aid or assistance to the Union.
11 Maricle and Kelley testified to the effect that Mickelson said the policy was triple pay
for work on holidays. Kolar testified to the effect that Mickelson said the policy was double
time pay and time off. Considering the testimony of the witnesses which reveals that em-
ployees knew in the past that qualified employees who worked on holidays were entitled
to time off, the method of past payments of holiday pay, and the Company's statement in
the April 22, 1965, bulletin to employees, I am convinced that Mickelson said that qualified
employees received pay equivalent to triple pay for holiday work
As indicated previously I reject Respondent's contention that Ward and Mickelson
merely recited established company policy. I am convinced and find from the overall
evidence that Mickelson and Ward knowingly promised and granted new benefits to the
Cortland employees.
826 DECISIONS OF 1\TATIONAL LABOR RELATIONS BOARD
a The holiday, benefits
As indicated previously the employee testimony as to'what Mickelson said 'about
holidays is somewhat confusing. Maricle and Kelley testified that Mickelson said
that holiday work was voluntary, that if the employees worked on holidays that
they would receive equivalent to triple pay. Kolar testified to the effect that Mick-
elson said if an employee worked on a holiday that he (or she) would receive
double time pay 34 The testimony as to what was the holiday pay benefit policy is
similarly confusing. Sebelowitz testified to the effect that if an employee worked on
a holiday that he received equivalent double pay. Sebelowitz later recalled and
added that the employee received time off.
Employee records were placed into evidence as to holiday pay for Labor Day
and Thanksgiving 1964. Absent explanatory testimony as to such records, the ques-
tion of holiday pay policy is somewhat confusing.
A careful examination of the records as to the September 7, 1964, Labor Day
employment and pay appears to reveal that as to the employees who worked and'
who had over 1-year employment status 35 that the Respondent ignored the actual
hours worked on September 7, 1964, and apparently substituted therefor the nor-
mal hours that would have been worked and thereupon computed the weekly pay
for the employee 36 The Respondent computed on a separate basis so-called holi-
day pay for the actual hours worked on September 7, 1964. As to two employees
who worked on September 7, 1964, but who had been hired in April 1964 or there-
after the Respondent did not credit them with the hours they normally would have
worked for their weekly pay and deducted the actual hours worked on Septem-
ber 7, 1964,'but paid such employees a "holiday pay" for such hours worked on
September 7, 1964.31 Respondent appears to have made an error in Casterline's pay
and to have not credited her for the hours she would have normally worked, but
later corrected the error by a separate check. There is a sparseness of evidence as to
whether the aforesaid employees, hired before April 1964, also received any time
off. Kolar, a long-time employee, appeared to testify as to an unspecified time that
she had worked on a holiday, received double time pay, and time off.38 It appears
highly possible that the employees who qualified for holiday benefits on Septem-
ber 7, 1964, and worked, did receive additional time off. If so, it is not clear
whether the time off would be equivalent to normal hours they would have worked
or equivalent to the hours they did work on September 7, 1964.
As to the employees of 1-year-or-more employment status who did not work on
Labor Day 1964, it appears that Respondent gave them credit in their normal
weekly payroll for the hours they normally would have worked on said date. The
Charging Party's brief seems to point out that Marvin, an old-time employee, did
not work and did not receive pay for other than hours actually worked. Comparing
her check-in and check-out time for the week in question, Marvin worked only 33
hours although in the daily totals an extra 7 hours is marked. It would appear that
Marvin did get credit for the time she normally would have worked, even though
she did not work. Another employee, hired after September 7, 1964, and appar-
ently on September 11, 1964, did not receive any premium benefits whatsoever.
The records as to holiday pay for employees on Thanksgiving, November 24,
1964, also appear to show from all the evidence that the employees who did
31 Wilcox's testimony appeared similar in effect
35 Sebelowitz .testified to the effect that an employee to be entitled to holiday benefits
had to work the day before and after the holiday, and had to have a certain time in em-
ployment. Dorward testified that it seemed Michelson referred to employees receiving holiday
benefits after 6 months of employment.
sa However it is noted that Bleck-hired on August 4, 1964, was treated as an old-time
employee as regards the holiday Thanksgiving pay. It is'possible that Bleck's "double
payment" arose from a bookkeeping error Her timecard reflects for the 1964 Thanksgiving
week from time checked in and out and she worked 41/ hours on Monday, and for a 27-
hour weekly total The 41/2-hours total for Monday was erased-but not deducted from
her total weekly hours It is also possible that Bleck as an employee received special treat-
ment. It is noted that her pay for Thanksgiving week appears to give her an extra-holiday
premium.
37 Excepting as indicated in the case of Bleck.
38 Kolar's testimony was confused and it is not clear whether she meant that she received
double time pay and time off-or double time pay considering time off.
FAMILY BARGAIN CENTERS, INC. 827
receive a "Thanksgiving" check did work on that day for the -hours indicated in
such checks 39 It appears that the employees (who worked) with 1-year-or-more
experience and LoParco 40 received credit in their normal paychecks for hours they
normally would have worked, and that such employees received separate payment
for their Thanksgiving work. Of the other employees who worked, all were hired
September 1964 and thereafter and did not receive pay for the time they normally
would have worked on Thanksgiving Day, or for time actually worked in the regu-
lar payroll, but received separate pay for the hours actually worked on Thanksgiv-
ing Day 1964.
An employee named John Paul, whose employment with Respondent was for a
term in excess of 1 year, worked 33 hours during Thanksgiving week. Paul worked
7 hours on Thanksgiving Day but did not work on Friday. Paul received pay for
40 hours' work during the week. It appears possible from an examination of the
records that Paul is a straight time employee and that this would explain his pay
for 40 hours during that week. It also appears possible that he did not receive holi-
day pay because he did not work the day after the holiday.
The employees who did not receive separate Thanksgiving 1964 pay and who I
therefore believe did not work on Thanksgiving 1964 (November 24, 1964) were
treated as follows. All of said employees with over 1 year's employment and
Bleck 41 were given credit for what would appear to have been the hours they nor-
mally would have worked in their week's pay. Other employees who did not work
on Thanksgiving and whose employment status with the Respondent dated from
August 31, 1964, and thereafter received no pay for the holiday, constructive or
otherwise.
The evidence is almost totally lacking as to whether employees who qualified for
holiday pay and worked on Thanksgiving 1964 also received time off in addition to
pay. Wilcox's testimony seems to be directed toward the Thanksgiving incident and
seems to indicate that she was entitled to time off but didn't take it. This testimony
similar to witness testimony as to whether they were required to work on holidays,
or whether such work was voluntary, was so confused that it cannot be ascertained
whether the employee did not take the time off, or couldn't.
The evidence as to the Thanksgiving pay given in April 1965 simply reveals that
employees who received a separate Thanksgiving check in 1964 also received a
duplicate check in April 1965. It appears highly possible that employees qualified
for holiday benefits in 1964 complained that they did, not receive time off and that
Respondent issued the April 1965 Thanksgiving checks as a substitute for such time
off. It must be noted that those employees who apparently were not qualified for
holiday benefits but who worked on November 24, 1964 (Thanksgiving Day), and
received a Thanksgiving check also received the extra April 1965 Thanksgiving pay.
Although I do not find the testimony and the records sufficient to make findings
as to the "holiday" benefits policy with certitude, it appears likely that the policy
was as follows: Employees who had worked for the Respondent 6 months or a
year or more, and who worked on the day before and after the holiday, and who
worked on said holiday, received pay for the hours they normally would have
worked, pay for the hours actually worked on said holiday, and time off during the
next payroll period 42 for the hours they normally would have worked on the holi-
day. Employees, qualified as mentioned, who did not work on the holiday, received
pay for the hours they normally would have worked.
Considering all of the foregoing, I am not persuaded that the facts establish that
Mickelson did other than state the company policy as to "holiday" benefits. Accord-
ingly, I do not find that Mickelson's statements on April 19, 1965, as to holiday
benefits reveal a promise of any new benefit thereto.
As indicated, the evidence relating to the "holiday benefits" and the April 1965
"Thanksgiving pay" is extremely confusing. Since the facts found already reveal
violative conduct of the Respondent as regards illegal promises of benefits and ille-
gal granting of benefits ,43 and as the remedy , for such violative conduct found, will
remedy the conduct alleged herein , if violative , I find it unnecessary to make a
39 Sebelowitz testified that the Thanksgiving 1964 work was handled'on a separate payroll.
40 LoParco was hired in April 1964.
41 Bieck was hired on August,8, 1964
00 It appears possible that Bleck received special treatment on holiday pay.
Ward's conduct on April 3, 1965, and the granting of a 5-day workweek, etc
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finding as to whether the April 1965 "Thanksgiving pay" constitutes a violation of
Section 8(a)(1) of the Act.44
b. Sick leave policy and benefits
The credited evidence clearly reveals that the sick leave policy announced by
Mickelson was not in effect at the Cortland store prior to April 19, 1965. At the
time that Mickelson told the employees on April 19 of a sick leave policy, all
employees expressed surprise. Wilcox, an employee hired on September 30, 1962,
was sick for 5 days in January 1965 and received no compensation for time lost.
Kelley, an employee hired on May 15, 1961, was sick after the April 19, 1965,
meeting for 2 days. Kelley was only paid for her "sick leave" after she complained
and referred to what Mickelson had said. Later Manager Sebelowitz told Kelley
that Mickelson had said she was to be paid for 1 day's sick leave,45 that after 2
years in the store that an employee received pay for sick leave.
From the foregoing it is clear that the sick leave policy referred to by Mickelson
in his April 19, 1965, talks was not in effect prior to April 19, 1965, and was
placed into effect after April 19, 1965 46
Considering the foregoing and all of the evidence, I conclude and find that the
Respondent, by Mickelson, on April 19, 1965, promised and granted the employees
a new sick leave policy as an inducement to refrain from engaging in union activ-
ity. Such conduct is violative of Section 8 (a)( I) of the Act. I so conclude and find.
c. Leaves-of-absence benefits
The evidence as to leaves of absence is unclear. Kolar testified to the effect that
in the past she had been denied a leave of absence because she had not been
employed a sufficient length of time. Wells testified to having received a maternity
leave of absence in the past. Considering the foregoing and all of the evidence, I
conclude and find that the evidence is insufficient to establish that Mickelson made
promises of new benefits concerning leaves of absence or that Mickelson granted
new benefits as to leaves of absence.
d. Hospitalization benefits
Although the facts reveal in effect that Mickelson promised the employees the
benefits of a hospitalization plan and that Respondent apparently followed up with
the implementation of such a plan, the complaint does not allege that such conduct
of Mickelson constituted a promise of benefit or the granting of a benefit. In any
event the findings of other violative conduct as to promises of benefits and grant-
ing of benefits and the remedy thereto will remedy such conduct, if violative.
e. Time and a half for overtime benefits
Although the General Counsel's complaint alleged an illegal promise of benefit
and an illegal grant of benefits relating to time-and-a-half pay for overtime work,
I find no evidence in the record to reveal that Mickelson promised or granted new
benefits as regards overtime work.
"Respondent , although not presenting any evidence as to the reason for the April 1965
Thanksgiving pay, contends that such pay possibly was because of an inadvertent error by
the local manager in not granting employees who worked on Thanksgiving their time off.
The facts seem to suggest that this might be the cause for the extra April 1965 Thanks-
giving pay. If so, however, the Respondent erred again by apparently paying extra holiday
pay to employees who had worked on the holiday but who apparently were not qualified,
for holiday benefits. As indicated I find it unnecessary to make a finding as to whether the
April 1965 "Thanksgiving pay" constitutes a violation of Section 8(a) (1) of the Act. I
note, however, that in context with Respondent's illegal promises of benefits and the grant-
ing of benefits as to other matters, that the failure of Respondent to explain the April 1965
Thanksgiving pay makes it, at least, highly suspicious that Respondent granted the addi-
tional April 1965 "Thanksgiving pay" for an ulterior motive.
ss Thus it appeared to be that Respondent's sick leave policy described as 6 days a year
was in actuality a 1-day sick leave per every 2 months, for qualified employees, and on a
noncumulative basis. Kolar in May or June 1965 also received pay for an hour or two
sick leave.
f4I note that the Company 's April 22 , 1965, bulletin to employees omitted reference td
a sick leave policy.
FAMILY BARGAIN CENTERS, INC. 829
E. The alleged refusal to bargain
1. The Union's demand
On April 12, 1965, the Union transmitted a telegram to the Respondent demand-
ing the commencement of bargaining . The Union's telegram was to the effect as is
herein set out.
THIS IS TO ADVISE YOU THAT RETAIL CLERKS UNION LOCAL 1687
AFL-CIO REPRESENTS A MAJORITY OF THE EMPLOYEES WORKING
AT THE FAMILY BARGAIN CENTER STORE LOCATED AT GORTON
AVE CORTLAND NY INCLUDING ALL LEASE DEPARTMENTS BUT-
EXCLUDING STORE MANAGER, THE ASSISTANT STORE MANAGERS,
WATCHMEN, GUARDS AND SUPERVISORS AS DEFINED IN THE
NATIONAL LABOR RELATIONS ACT. WE HEREBY REQUEST THAT
THE EMPLOYEES SIGNED UNION AUTHORIZATION CARDS BEING
SUBMITTED TO AN IMPARTIAL AND DISINTERESTED PERSON ON
APRIL 16, 1965 FOR THE PURPOSE OF VERIFYING THE UNION'S
MAJORITY STATUS. FOLLOWING THE VERIFICATION OF THE
UNION'S MAJORITY STATUS, WE HEREBY DEMAND THAT YOU OR
A REPRESENTATIVE OF THE COMPANY MEET WITH THE DULY
AUTHORIZED REPRESENTATIVES OF THE UNION ON MONDAY
APRIL 26, 1965 TO COMMENCE NEGOTIATIONS ON A UNION CON-
TRACT COVERING RATES OF PAY, HOURS AND CONDITIONS OF
EMPLOYMENT FOR THE ABOVE MENTIONED APPROPRIATE UNIT
JAMES STERNS BUSINESS REPRESENTATIVE RETAIL CLERKS
UNION LOCAL 1687 261 WATER ST BINGHAMTON NY
On April 16, 1965, the Respondent , by Attorney Durante, transmitted a letter to
the Union . Durante's letter was to the effect as is herein set out:
Mr. James Sterns
Retail Clerks International Association
261 Water Street
Binghamton , New York
Re: Family Baigaiu Centeis, Inc.
Dear Sir:
We are associate counsel to Family Bargain Centers, Inc.
In reply to your telegram of this week to our client , please be advised that
the traditional American democratic way of determining whether your Union
represents a majority is by the employees alone voting by secret ballot. This is
particularly true where in instances such as here, many of the employees have
complained of pressures , duress and threats made to compel them to sign cards.
Moreover , many employees have stated that they regret signing such cards and
that they want to withdraw or resign from your Union.
Under the circumstances , therefore , if your Union believes that it represents
a majority of the employees in the appropriate unit ( the evidence appears to
the contrary), then the test for such claim of recognition is provided by the
United States Government through the National Labor Relations Act by filing a
petition for a representative election. In that way the employees in the unit can
express their free choice by secret ballot.
Please act accordingly.
Very truly yours,
James P. Durante
It is noted that the Union 's demand for recognition included in the bargaining
unit the lease departments. There are two leased departments at the Respondent's
Cortland store.
The Respondent contends that the lease departments do not belong in the appro-
priate unit.47 The General Counsel, in his brief, concedes that the lease departments
should be excluded from the appropriate bargaining unit. The Charging Party con-
cedes that the Karl Shoes lease department should be excluded from the appropriate
47 Durante, attorney for the Respondent, transmitted a letter to a sister local union on
April 30, 1965, in which he specifically raised questions as to appropriateness of the lease
department being included in the unit and alleged that the defect was similar to the detect
as to the demand in the instant case.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining unit but contends that the Vatco lease department should be included in
the appropriate bargaining unit. Whether the Respondent' s and the General Coun-
sel's contended appropriate bargaining unit or the Charging Party's contended appro-
priate bargaining unit is accepted or found does not affect the total number of
employees in the demanded bargaining unit. The only person who works as an
,employee for Vatco also works as an employee for the Respondent.
The General Counsel and the Charging Party contend that any error in demand
as to the inclusion of the lease departments in the demanded appropriate bargaining
unit was minor and did not make the Union's demand defective.
I find it unnecessary to resolve the questions pertaining to the appropriate bar-
gaining unit, to the demand, to doubts as to union majority, or as to union offers
relating to initiation fees, etc.48 The evidence does not establish that the Union
represented a majority of the employees in the demanded bargaining unit.
At the hearing the parties were in agreement that certain regular full-time employ-
ees be included in the unit. As to certain part-time employees, the parties did not
agree on the inclusion or exclusion of such employees. The parties' briefs reveal
agreement on, and the evidence supports, the inclusion in the appropriate bargaining
unites of April 12, 1965, of the following employees. The employees agreed on as
being in the appropriate bargaining unit on April 12, 1965, are: Marion Betz,
Elaine Bowman, Virginia Brown, Nellie Butts, Jean Dorward, Gilda Kelley, Cecilia
Kolar, Elsie Marshall, Betty Miller, Caryl Moorman, Helen Notartomaso, John J.
Paul, Reta Watson, Marie Wells, Charlotte Wilcox, Mary Toberman, Kay Packard,
Donald Fritts, Patricia Coville, Beverly Batsford, Freida Bleck, Cynthia Casterline,
Paul Husted, Beatrice Lambert, Cherelynn LoParco, Muryln Maricle, Janet E.
Marks, Lyla Marvin, Ann Phelps, Norma Salka, Sadie Walls, Stephanie Curtis,
Eleanor Jean Young, and Vera Brown.
The employees upon whom all parties agree should be in the unit number 34.
In his brief the Respondent contends that Jane Drake, Donald Bishop, and Maxine
Butler should also be included as employees in the bargaining unit as of April 12,
1965. At the hearing the General Counsel contended that Bishop belonged in the
unit , but Respondent contended that Bishop had been terminated prior to April 12,
1965. The record as to these named persons consists only of statements by counsel
and not of stipulations or evidence. However, in view of the ultimate findings herein
as to the number of valid union authorization cards, it is unnecessary to resolve the
issue as to whether Drake, Butler, or Bishop belonged in the unit, or as to who has
failed to carry the burden of evidence on such point.
It is undisputed that between February and April 12, 1965, Nellie Butts and
Ripley solicited employee signatures to authorization cards. Janet Marks solicited
the signature of Beatrice Lambert to one card during this period of time.
The language on the authorization cards that employees were solicited to sign
was as follows:
RETAIL CLERKS INTERNATIONAL ASSOCIATION
(Affiliated with the A.F.L.-C.I.O.)
Authorization for Representation
Desiring to enjoy the rights and benefits of collective bargaining _ I, the
undersigned , employee of the
(Firm Name)
Employed as Dept. or Store No.
(Job Title)
Home Address Phone
hereby authorize Retail Clerks International Association , A.F.L.-C.I.O. or
its chartered Local Union to represent me for the purposes of collective
bargaining , respecting rates of pay, wages, hours of employment , or other con-
ditions of employment, in accordance with applicable law.
Date ( Signature of Employee)
48 However, I am convinced and find that the Union's offer of waiver of initiation fees
and dues until the event of a contract did not constitute conduct which would affect the
validity of authorization cards herein
FAMILY BARGAIN CENTERS, INC. 831
During the period of time between February and April 12, 1965, the following 27
employees signed authorization cards containing language as set out above: 49
Butts, Kelley, Marvin, Miller, Notartomaso, Maricle, Casterline, Wells, Wilcox,
Virginia Brown, Janet Marks, Beatrice Lambert, Freida Bleck, Elaine Bowman, Ann
Phelps, Jean Dorward, Elsie E. Marshall, Glendell Deta Watson, Norma Salka, John
J. Paul, Caryl J. Moorman, Paul Husted,•Sadie Walls, Beverly H. Batsford, Marion
L. Betz, Cherelynn LoParco, and Cecilia Kolar.
Ripley credibly testified that he instructed Butts as to the purposes and uses of the
authorization cards. Ripley credibly testified to the effect that he told Butts that the
-cards could be used to get an election and used to support a card check connected
with a demand for recognition. Butts testified to the effect that Ripley told her the
purposes and uses of the cards and that she so told the employees. Butts also
testified to the effect that she told all the employees from whom she solicited signa-
tures that the "only" purpose of the card was to get an election. Butts ultimately
testified on redirect examination that she told all the employees solicited that the
,cards could be used in connection with a card-check demand for recognition.
Considering a composite of all of the facts, the testimony of the witnesses, and
Butts' demeanor as a witness,5e I am convinced and credit her testimony to the
limited effect that Butts told substantially all of the employees from whom she
solicited signatures to cards that the authorization cards were only for the purpose
,of an election and that she told some of the employees that the cards could be used
as a card check in support of a demand.
Considering'a composite of the testimony of Butts, Ripley, Virginia Brown, Mar-
vin, Kelley, and Miller, I am convinced that statements, at the time of solicitation of
signatures to the authorization cards, were made to Virginia Brown, Marvin, Kelley,
and Miller which revealed that one of the purposes of the authorization cards was
as indicated on said cards. I find the authorization cards of Kelley, Virginia Brown,
Marvin, and Miller to constitute valid authorization cards designating the Union as
the bargaining representative of such employees on April 12, 1965. Considering the
credited aspects of the testimony of Butts and Ripley, I am convinced, conclude,
and find that Ripley's statement to Butts revealed that one of the purposes of the
authorization cards was indicated on said cards. I find also that the authorization
,card of Butts constituted a valid authorization card designating the Union as the
bargaining representative of Butts on April 12, 1965.51
The employee, witnesses for the General Counsel on direct examination were
merely asked to identify the authorization cards and their signatures. The Respond-
ent on cross-examination of many of the witnesses elicited the fact that employees
were told -by Butts at the time of solicitation that the cards were not binding and
were only for an election. Butts, on cross-examination, testified to the effect that
she told all employees solicited that the cards were only for the purpose of an elec-
tion. Butts, on further direct examination, testified ultimately that she told all
employees solicited that the cards could be used for a demand for recognition and
a card check.
Based upon a composite evaluation of the credited testimony of Butts, Notarto-
maso, Maricle, Casterline, Wells, Wilcox, Janet Marks, Freida Bleck, Elaine Bow-
man, Ann Phelps, and Jean Dorward, I am convinced and conclude and find that
solicitation statements ( in connection with their signing of authorization cards) were
made to Notartomaso, Maricle, Casterline, Wells, Wilcox, Janet Marks, Beatrice
Lambert, Freida Bleck, Elaine Bowman, Ann Phelps, and Jean Dorward, to the
effect that the only purpose of the card was to obtain an NLRB election. Con-
49 Based upon a composite of the credited testimony of Butts, Ripley, Kelley, Marvin,
Miller , Kolar, Notartomaso, Maricle, Casterline, Wells, Freida Bleck, Elaine Bowman, Ann
Phelps, Jean Dorward, Wilcox, Virginia Brown, and Janet Marks. Although the Respond-
ent attempted to attack Ripley's credibility and to thus adversely affect his testimony as
to his being present at the signing of several cards, I am convinced from all of the testi-
mony that Ripley's testimony thereto was credible and credit it.
s"'Butts impressed me as a witness easily swayed by the pressure of events.
B1 As indicated previously it is not necessary to determine the effect of certain union
offers for waiver of dues until a contract was signed . I am convinced that such otter, in
fact did not affect the validity of cards herein . However, a contrary finding would not
affect the results of this case.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sistent with Board decisional law 52 the making of such statements in connection
with the solicitation of signatures to authorization cards constitutes misrepresentation
of such a nature as to destroy the validity of the designation of the Union as bar-
gaining representative as indicated on such cards . Accordingly, I conclude and find
that the authorization cards of the aforementioned persons do not constitute a bona
fide designation of the Union as the bargaining representative of such persons.
The evidence relating to the authorization cards of Elsie E. Marshall , Glendell
Reta Watson, Norma Salka, John J. Paul, Caryl J. Moorman, Paul Husted, Sadie
Walls, Beverly H. Batsford, Marion L. Betz, Cherelynn LoParco, and Cecilia Kolar
was essentially limited to proof of signatures and date. Of the aforementioned per-
sons, only Kolar was presented as a witness thereto. Butts, the main solicitor of such
signatures , was examined in a general manner as to what he said to all employees.
As indicated previously I am convinced , conclude, and find that Butts told sub-
stantially all of the employees that the only purpose for the cards was to obtain an
election (NLRB), and that Butts told some of the employees that one purpose was
to support a demand for recognition by a card-check method . I find it unnecessary
to determine the question of presumptions , rebuttal or presumptions , and the effect
thereof as to the ultimate proof of validity of these cards . Assuming such cards to
be valid designations by the employees for the Union as their bargaining repre-
sentative , the number of employees so designating the Union would be insufficient
to give the Union a majority designation by the employees in the demanded bar-
gaining unit. As indicated previously I have found only five employee authorization
cards to designate the Union as bargaining representative . Adding those 5 to the 11
cards involved in this group , the Union would only have 16 cards designating it
as bargaining representative out of a demanded bargaining unit of at least 34
employees.
2. Conclusion as to alleged refusal to bargain
Considering all of the foregoing, I conclude and find that the evidence does not
establish that the Union represented a majority of the employees in the demanded
bargaining unit. It follows and I conclude and find that the evidence does not estab-
lish that the Respondent has violated Section 8(a)(5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate , and substantial relationship to trade, traffic, and commerce upon
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that the Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Since the evidence reveals a substantial turnover , of employees, it is found that in
order to effectively dissipate the unfair labor practices found herein , that the
Respondent , in addition to normal notice -posting requirements , be required to mail
such signed notices to all persons not currently employed but who had the status
of employees from April 3, 1965 , to date.
Upon the basis of the above findings of fact and upon the entire record in the
case, the following conclusions of law are made.
5' Considering a composite of the testimony of the referred -to witnesses , I am convinced
and find that Butts , as she testified , did tell these witnesses that the "only" purpose of the
cards was to get an election . I find nothing in the testimony of these witnesses , excepting
Butts and Ripley, to reveal that the solicitation statements revealed a purpose consistent
with the purpose indicated on the cards . As indicated previously , I am convinced that
Butts did not tell all of the employees solicited that a purpose was for a carcl . check-
or demand for recognition Although I believe Ripley attempted to testify truthfully, I
am convinced that having explained the purpose of the cards to Butts , he has erroneously
assumed what Butts said without remembering what was said. I find his testimony, on
these events unreliable to credibly contradict the total effect of the employee witnesses,'
testimony and the testimony of Butts , and so discredit Ripley's testimony inconsistent with
the facts found. I discredit Butts' and Ripley 's testimony to the effect that the aforemen-
tioned employees were told about a demand for recognition or a card check.
FAMILY BARGAIN CENTERS, INC. 833
CONCLUSIONS OF LAW
1. Local 1687, Retail Store Employees Union, Retail Clerks International Asso-
ciation, AFL-CIO, is a labor organization within the meaning of Section 2(5) of
the Act.
2. Family Bargain Centers, Inc., the Respondent, is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The evidence does not establish the Family Bargain Centers, Inc., the Respond-
ent, engaged in conduct violative of Section 8(a)(5) of the Act.
6. The evidence does not establish that Family Bargain Centers, Inc., the Respond-
ent, threatened' employees with closure of stores or with firing of the whole crew
and the hiring of a new crew if the employees selected and designated the Union as
the collective-bargaining representative. The evidence does not reveal that Respond-
ent promised an employee a new spring outfit for support in fighting the Union.
Nor does the evidence establish that the Respondent illegally interrogated employ-
ees about union activities.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, it is recommended that Respondent, Family Bargain
Centers, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Promising its employees pay increases, new hospitalization benefits, new sick
leave benefits, changes in work assignments or schedules of hours of work, or
other benefits as an inducement or as benefits conditioned upon -the employees
refraining from becoming or remaining members of, or giving aid and assistance to,
Local 1687, Retail Store Employees Union, Retail Clerks International Association,
AFL-CIO.
(b)'-Granting its employees wage increases, changes in work assignments, changes
in schedules, of hours of work, new sick leave benefits, or other benefits as an
inducement or as benefits conditioned on said employees refraining from becoming
or remaining members of, or giving aid and assistance, to, Local 1687, Retail Clerks
International Association, AFL-CIO.
(c) In a manner constituting interference, restraint, and coercion within the
meaning of Section 8(a)(1) of the Act, bargaining directly with its employees and
requesting and encouraging employees to deal directly with it rather than seek
representation through Local 1687, Retail Store Employees Union, Retail Clerks
International Association, AFL-CIO.
(d) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the right guaranteed in Section 7 of the Act, except to
the extent that such rights may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized in Section
8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclo-
sure Act of 1959.
2. ' Take the following affirmative action designed to effectuate the policies of the
Act:
. (a) Post at. its premises in Cortland, New York, copies of the attached notice
marked "Appendix." 53 Copies of said notice, to- be furnished by the Regional Direc-
tor for, Region 3,, after being signed by the Respondent's representative, shall be
posted by Respondent immediately upon receipt thereof and maintained by it for
60 consecutive days thereafter in conspicuous places where notices to employees are
^ In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
257-551-67-vol. 16 0-5 4
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
customarily posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered , defaced, or covered by any other material.
(b) Sign copies of the attached notice marked "Appendix" 54 and mail signed
copies of said notice to the last known address of all employees not currently
employed by the Respondent but who had the status of employees at any date from
April 3, 1965, to date.
(c) Notify the Regional Director for Region 3, in writing , within 20 days from
the date of this Recommended Order, what steps the Respondent has taken to com-
ply herewith.55
As to the allegations of the complaint pertaining to illegal threats of store clo-
sure, and firing of employees and hiring of a new crew ( paragraphs VI(d) and (e) ),
it is recommended that such allegations be dismissed.
As to the allegations of the complaint pertaining to Mickelson 's illegal promise
of new spring outfit to employee (paragraph VI(g)), it is recommended that such
allegation be dismissed.
As to the allegation of the complaint (paragraph VI(i)) pertaining to Mickel-
son's illegal interrogation of employees , it is recommended that such allegation be
dismissed.
As to the complaint allegations relating to exclusive representative status of the
Union (paragraph IX) and as to Respondent 's refusal to bargain collectively (par-
agraph XI), it is recommended that such allegations be dismissed.
As to conclusionary complaint allegations , insofar as they refer to the allegations
recommended to be dismissed above, such allegations are recommended to be dis-
missed in such respects.
B' Footnote 53, supra.
es 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 the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES AND PERSONS WITH THE STATUS OF EMPLOYEES
AT ANY TIME FROM APRIL 3, 1965, TO DATE
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees, and persons who had the
status of our employees at any time from April 3, 1965, to date, that:
WE WILL NOT promise our employees pay increases , new hospitalization
benefits, new sick leave benefits, changes in work assignments or schedule of
hours of work, or other benefits as an inducement or as benefits conditioned
on our employees refraining from becoming or remaining members of, or giv-
ing aid and assistance to, Local 1687, Retail Store Employees Union, Retail
Clerks International Association, AFL-CIO.
WE WILL NOT grant our employees wage increaes , changes in work assign-
ments, changes in schedules of hours of work, new sick leave benefits , or other
benefits as an inducement or as benefits conditioned on our employees refrain-
ing from becoming or remaining members of, or giving aid and assistance to,
Local 1687, Retail Store Employees Union, Retail Clerks International Asso-
ciation , AFL-CIO.
WE WILL NOT in a manner constituting interference , restraint , and coercion
within the meaning of Section 8(a) (1) of the Act, bargain directly with our
employees or request and encourage our employees to deal directly with us
rather than seeking representation through Local 1687, Retail Store Employees
Union, Retail Clerks International Association, AFL-CIO.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of their rights guaranteed in Section 7 of
the Act, except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as, a condition of employment,
as authorized in Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
FAMILY BARGAIN CENTERS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
FORMEX COMPANY 835
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, Fourth
Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York 14202, Tele-
phone 842-3112.
Formex Company, Division of Huyck Corp . and United Textile
Workers of America , AFL-CIO. Cases 10-CA-6421 and 10-RC-
6492. September 1, 1966
DECISION, ORDER, AND CERTIFICATION OF
RESULTS OF ELECTION
On June 13, 1966, Trial Examiner Sidney Sherman issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had not engaged in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision. In addition, the
Trial Examiner found no merit in the objection to the election filed
in Case 10-RC-6492 and recommended that the objection be over-
ruled. Thereafter, the General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief, and the Respondent filed
a brief in opposition to the General Counsel's exceptions.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this consolidated case to a
three-member panel [Chairman McCulloch and Members Fanning
and Jenkins].
The Board has considered the Trial Examiner's Decision, the excep-
tions and briefs, and the entire record in this consolidated case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.
[The Board dismissed the complaint in its entirety and ordered
that the objection filed in Case 10-RC-6492 be overruled.]
[The Board certified that a majority of the valid votes was not cast
for United Textile Workers of America, AFL-CIO, and said organi-
zation is not the exclusive representative of the Employer's employees
in the unit heretofore found appropriate.]
TRIAL EXAMINER'S DECISION ON MOTIONS FOR JUDGMENT
ON THE PLEADINGS AND TO DISMISS
In Case 10-RC-6492, the Union on October 4, 1965 , filed a petition for an elec-
tion , which was held on December 14, 1965 . Thirty ballots were cast against, and 11
for, the Union . There were no challenged ballots. 'On December 21, the Union filed
a timely objection to the election , and, on December 28, filed the charges in Case
160 NLRB No. 67.