Franklin Stores Corp.

National Labor Relations Board - Board Decisions

Sep 14, 1972

199 N.L.R.B. 52 (N.L.R.B. 1972)

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Franklin Stores Corporation , and its Wholly Owned
Subsidiaries, Barkers of Willimantic , Inc., and Bark-
ers of Wallingford , Inc., and the Miles Shoes Mel-
disco Willimantic , Inc. and Local 919, Retail Clerks'
International Association, AFL-CIO. Cases 1-
CA-7728, 1-CA-7935, and 1-CA-7989
September 14, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On May 22, 1972, Trial Examiner Paul E. Weil
issued the attached Decision in this proceeding.
Thereafter, Respondent and General Counsel filed
exceptions and supporting briefs:
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
Trial Examiner's Decision in light of the exceptions
and briefs and has decided to affirm the Trial
Examiner's rulings, findings,' and conclusions and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
Respondent, Franklin Stores Corporation, and its
wholly owned subsidiaries, Barkers of Willimantic,
Inc., and Barkers of Wallingford, Inc., and the Miles
Shoes Meldisco Willimantic, Inc., their officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's recommended Order.
1 The Respondent has excepted to certain credibility findings made by the
Trial Examiner It is the Board's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear preponder-
ance of all of the relevant evidence convinces us that the resolutions were
incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F.2d
362 (C.A 3). We have carefully examined the record and find no basis for
reversing his findings
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WELL, Trial Examiner: On June 28, 1971, Local
919, Retail Clerks' International Association, AFL-CIO,
hereinafter called the Union, filed with the Regional Direc-
tor for Region 1 (Boston, Massachusetts) of the National
Labor Relations Board, hereinafter called the Board, a
charge alleging that Barkers Store of Willimantic, Connecti-
cut, violated the Act by discharging six named employees
and by other acts and conduct. This charge was amended
on July 26, adding the name of a seventh alleged discrimina-
tee, and amended again on August 25, adding the names of
two more alleged discnminatees, and additionally charging
"Meldisco Shoe." A complaint and notice of hearing on the
above charge and amended charges was issued by the Re-
gional Director on September 16, 1971, naming as Respon-
dent Franklin Stores Corporation, d/b/a Barkers Store and
Meldisco Shoe. Respondents' answer to the complaint cor-
rected the names of Respondents to Franklin Stores Corpo-
ration and its wholly owned subsidiary, Barkers of
Willimantic, Inc., and The Miles Shoes Meldisco Williman-
tic, Inc.; admitted that certain employees were discharged;
and denied the commission of any unfair labor practices.
On October 26, 1971, the Union filed another charge
(1-CA-7935) alleging that Barkers Inc., violated Section
8(a)(1) and 8(a)(3) by the discharge of an employee from its
Wallingford, Connecticut, store. On December 7, 1971, the
Union filed another charge (1-CA-7989) realleging the dis-
charge of the employees involved in the original charges
upon which a complaint had already been issued, and alleg-
ing additionally the discharge of two other employees as
violations of Section 8(a)(3) of the Act. This last filed charge
was amended on December 14, 1971, naming the Respon-
dents in accordance with the answer filed by Respondents
to the original charge, and correcting the name of one of the
alleged discriminatees. Thereafter, on January 4, 1972, the
Acting Regional Director issued an order consolidating
cases, an amendment to the complaint, and a new notice of
hearing, adding to the earlier complaint allegations with
regard to one discharge and various 8(a)(1) allegations at
the Wallingford store and the constructive discharge of an
employee at the Willimantic store. After a motion for a bill
of particulars, and an answer thereto, and a ruling thereon,
the matter came on for hearing before me on January 26,
1972. The heanng took place on January 26, 27, and 31, and
February 1, all in the year 1972. All parties were represented
by counsel and had an opportunity to call and examine
witnesses, and to adduce relevant and material evidence. At
the close of the hearing the parties waived oral argument,
and thereafter briefs were received from the General Coun-
sel and from the Respondent. Upon the entire record in this
matter, and in consideration of the briefs, I make the follow-
ing:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENTS
Respondent, Franklin Stores Corporation, is a Dela-
ware corporation engaged in the operation of retail discount
department stores in various States of the Union. Respon-
dents Barkers of Willimantic, Inc., and Barkers of Walling-
ford, Inc., are Connecticut corporations wholly owned by
Respondent Franklin Stores Corporation, and operate indi-
vidual retail discount department stores in Willimantic and
Wallingford, Connecticut, respectively, Respondent, The
Miles Shoes Meldisco Willimantic, Inc., is a Connecticut
corporation which leases the shoe department of the store
199 NLRB No. 10
FRANKLIN STORES CORPORATION 53
operated by Barkers of Willimantic, as well as other Barkers
and Franklin Stores. Each Respondent has gross sales re-
ceipts in excess of $500,000 annually, and each receives
goods valued in excess of $50,000 annually from points
outside the State of Connecticut. Each of the Respondents
are employers engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
Respondent Franklin Stores Corporation and Barkers
of Willimantic, Inc., by virtue of the lease arrangement with
the Respondent Miles Shoes Meldisco Willimantic, Inc.,
(hereinafter called Respondent Meldisco) has the right to
veto the employment of employees by Respondent Meldis-
co and to insist on the discharge of employees by Respon-
dent Meldisco for breach of Respondent Franklin Stores
Corporation rules. Accordingly, Respondent Franklin
Stores Corporation and Respondent Meldisco are coem-
ployers of the employees who work in Meldisco's shoe de-
partment at Willimantic.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
Background
Commencing around the beginning of April 1971, the
Union started an organizational campaign at Respondents'
Willimantic store. The union organizer in charge of the
campaign was Albert Valsecchi. A disgruntled former em-
ployee, Robert C. Green, Jr., was recruited as a paid union
agent, and he and Valsecchi did most of the organizing
work, sometimes assisted by another organizer, McAvoy,
and one or two others on occasion.
Respondents' store in Willimantic faces the main street
with a parking lot surrounding it. The front of the store
consists of plateglass windows with checkout counters near
the door. The organizers had free access to the parking lot
in front of the store where, especially at times that employ-
ees were entering and leaving, they tended to congregate
talking to the employees and probably soliciting their sup-
port.
The organization was by no means surreptitious. To-
ward the end of April, Valsecchi left his business card with
the manager. Commencing about the end of May or early
June union buttons were handed out to the union support-
ers and they wore them in the store. After the overt organi-
zation commenced, the Union's paid representatives would
enter the store several times a day on some occasions, and
fan out, walking through the store and greeting the clerks,
as well as the supervisory personnel. There is no evidence
that at any time while they were in the store the union agents
solicited employee support or handed out union cards or
buttons; the object appears to have been nothing more than
an overt display to management and the employees of their
presence.
Respondents' management found the presence of the
organizers in the store irritating. The manager, Stanley Bar-
clay, ordered that whenever organizers were walking
through the store, supervisors were to follow them, appar-
ently to prevent their engaging in any organizing activities.
Manager Barclay, immediately upon learning of the
advent of the Union, informed his superiors. Under Re-
spondents' administrative setup the Connecticut stores are
under the immediate supervision of Alvin Korn. Under
Kom is a group of employees known as merchandising
supervisors, who visit the various Connecticut stores, gener-
ally once a week, advising and consulting with the depart-
ment managers and the store manager.
Sometime in mid-May Korn instructed one of his mer-
chandising supervisors, Alan Wilstein, to take a picture of
any union organizers that came into the store. Wilstein was
given a miniature camera by the camera department man-
ager, and took a picture of union organizer Green the next
time he came into the store. According to the testimony of
Green, he had stopped to greet an employee, Paulette Lucas
(Haines) in the ladies' ready-to-wear department, when he
noticed Wilstein take a picture of the two of them. Wilstein
denied that any employee appeared in the picture, stating
that he took the picture of Green as he walked through the
department. Mrs. Haines, although she testified that she left
her job because of harassment by management involving
the union organization, when asked to specify the harass-
ment, did not mention the picture taking incident. Accord-
ing to the testimony of Wilstein and of Korn the film when
developed showed no image.
After the union campaign started Respondent mount-
ed a campaign against the union organization. Barclay
spoke individually to most, if not all, of the employees, and
he and Kom spoke to the employees in meetings attended
by all employees in the store.
In early June Bernard Kossar, the executive vice presi-
dent of the parent corporation, visited the Willimantic store,
along with Alvin Kom. Kossar testified that he visited all
of the stores at least twice a year, and some of them three
or four times. As a result of his visit, under circumstances
which will be explicated below, an employee was discharged
from the ladies' ready-to-wear department because the store
was allegedly overstaffed; three employees were discharged
from the store because they were related to other employees
of the store; and an employee was discharged from the shoe
department by Meldisco on Kossar's demand, allegedly be-
cause of his poor performance and appearance. The last
four of these discharges are alleged by the General Counsel
to be violative of Section 8(a)(3) of the Act.
The organizational campaign continued through the
summer. In the fall it spread to other stores operated by
Respondents, including the Wallingford store. The Union
used the same group of organizers at the other stores that
it used at Willimantic.
The record does not disclose whether the Union has
achieved a majority at any of Respondents' stores or has
sought recognition in them.
The Discharges
The General Counsel alleges that eight employees were
discharged in violation of Section 8(a)(3) of the Act, and
that two other employees were constructively discharged by
Respondent, all at the Willimantic store, and that another
employee, Alice Souza, was constructively discharged at the
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wallingford store . At the close of the General Counsel's
case, I dismissed the 8(a)(3) allegations with regard to Willi-
mantic employees Edith D. Vertifeuille and Shirley R. Lan-
don, neither of whom appeared at the hearing, and as to
whom the record did not disclose a prima facie case. The
Respondent admits discharge of the remaining six employ-
ees, but asserts that they were discharged for cause, and not
in violation of the Act.
Annette L. Postler. Annette Postler was a clerk in the
hardware department at the Willimantic store. Her imme-
diate supervisor was Department Manager Bealieu. Postler
had been employed at the store for about 3 years. She was
one of the earlier union supporters and was wellknown as
such to Respondent.
Respondent contends that Mrs. Postler spent a great
deal of time organizing on company time . The only evi-
dence of this fact is found in the testimony of Regina Cehel-
nik, who became the manager of the shoe department in
mid-April. Cehelnik testified that prior to becoming manag-
er, the then manager of the shoe department was James
Crouch, and that he was very prounion. She testified that
Mrs. Postler spent some time visiting with James Crouch
and Tom Limanni during working hours and discussing
union affairs. She also stated that Mrs. Postler urged her
during working hours to join the Union. Miss Cehelnik, who
was led through a good deal of her testimony by counsel for
the Respondent, testified, in answer to his question asking
what Postler said to her about signing cards, as follows:
Well, Mr. Crouch did most of the work and he felt
that we should sign a union card and it would help get
the Union in faster, so he said that we were going to
sign cards and everything so we all did sign cards.
Q. Including yourself.
A. I signed a card also and everything and so then
Anne Postler came and she said that if we didn't sign
cards that Crouch said he would fire us.
She testified that either Crouch or Limanni gave,her the
cards to sign. On cross-examination Mrs. Cehelnik testified
that she did not know whether Mrs. Postler was on her
break I or on duty at the time of her conversations with
employees in the shoe department. She also testified that she
signed a union card so as "not to get any enemies" and that
she signed it before she became manager. I deduce from
Mrs. Cehelnik's testimony that Mrs. Postler, on talking
about the Union, was talking in the warehouse section of the
shoe department because when asked whether she was pre-
sent when Mrs. Postler visited with Crouch or Limanni, she
answered, "not too often. I stayed on the floor mostly." In
answer to the question from Respondents' counsel, "and I
take it that this is prior to your becoming manager of the
department, is that correct? Or after as well?" she answered,
"after as well." "Both before and after, she would come in
and say these things to you?" "Yes." From this Respondent
argues that Mrs. Postler continued organizing among the
employees of the shoe department after mid-April. Howev-
er, it is improbable, in my opinion, that this is true. I do not
credit Mrs. Cehelnik. I think if she had had a truthful story
to tell she would not have had to be led through it. Further,
1 Employees at the Willimantic store get coffeebreaks of 10 minutes each
morning and afternoon.
I find no cause to believe that Mrs. Postler spent any
amount of time organizing in the shoe department after the
departure of James Crouch, if, as Cehelnik testified, all of
the employees of the shoe department signed union cards
before Crouch left, at his request.
Respondent adduced no other evidence that Postler
engaged in any organizing activities on company time. It is
clear that when the various union agents would parade
through the store, they would normally greet Mrs. Postler
and occasionally stop and talk to her briefly. However,
there is no evidence that the Union was ever mentioned in
these conversations, and I believe that in view of the close
surveillance of the union organizers while they were in the
store by management officials it is highly improbable that
any union affairs were discussed. Nevertheless, on several
occasions Hardware Manager Beaulieu cautioned Mrs.
Postler about "socializing" with her friends during business
hours, and on one occasion gave her a warning after she had
had a brief conversation with Bob Green on one of his tours
of the store.
On the occasion of Kossar's visit at the Willimantic
store in June, he called Mrs. Postler into the manager's
office, and told her that he had a statement that she had
been handing out union buttons during business hours on
the store premises, and that he was going to discharge her.
Mrs. Postler denied that she had handed out union buttons
during business hours, saying that she had only two union
buttons, and had given one to a friend during a lunch break
and was wearing the other. On hearing this Kossar lectured
Mrs. Postler on engaging in union activities on company
time, and told her that he expected a full day's work out of
her, and would not tolerate anything less. Kossar also told
her that if she was caught handing out buttons on company
time again, that she would be discharged.
Kossar testified that he had been informed by Assistant
Manager Zenowitz that Postler had handed out union but-
tons on company time. Although Zenowitz took the witness
stand, and testified about other matters, he was not asked
about this incident. Mrs. Postler denied that she had handed
out any buttons on company time.
I do not credit Cehelnik's testimony that Postler said
that Crouch would have the employees fired if they did not
join the Union. According to Cehelnik's testimony, this
took place after Crouch had already prevailed on all of the
employees in his department to join the Union. If, in fact,
Postler and Crouch were in close communication as Cehel-
nik stated, Postler must have been aware of this fact. Ac-
cordingly, it is improbable that Postler would have uttered
such a threat to people who had already joined the Union.
I believe that Cehelnik, who, as will be seen below, has had
good evidence of the ability of Respondent Barkers to disci-
pline employees of Respondent Meldisco, is doing anything
she can to cooperate with Respondents in their presentation
of this case.
It was Postler's custom on arriving and departing from
the store to stop and talk with union organizers who usually
were standing in front of the store. One occasion, she testi-
fied, her department manager, Beaulieu, advised her that it
did not look good for her to stand in front of the store
talking to the union organizers. Beaulieu denied making the
statement, although he testified that on several occasions he
FRANKLIN STORES CORPORATION
warned her about talking to the union organizers inside the
store. Beaulieu obviously took seriously Barclay's admoni-
tions to break up conversations between the organizers and
his employees in the store. He testified that he told Green,
on a couple of occasions, to leave his help alone during
working hours. He apparently had reference only to Green's
conversations with Mrs. Postler, which lasted from 2 sec-
onds to 2 minutes, according to his testimony. Beaulieu told
Kom that Green habitually talked to Mrs. Postler while he
was in the department, and Kom told him to tell her that
if she wanted to associate with her friends during business
hours, she should punch out, and not do it on company
time. Beaulieu testified that he could see out the front of the
store and saw employees talking to union organizers outside
the front of the store, merely by looking out of the window,
but he never intentionally watched employees, and never
saw Mrs. Postler talking to any union organizers outside the
store. I do not credit him in this regard. He appears to have
been sincerely devoted to management's cause during the
organizational campaign, and I believe that he observed the
organizing going on outside the store as carefully as any
member of management during the summer of 1971.2 How-
ever, by and large, I find that Beaulieu attempted to be
truthful in his testimony. I think that Mrs. Postler's testimo-
ny is incorrect with regard to the alleged admonition.
There can be no question that Mrs. Postler was consid-
ered one of the leading union supporters. On one occasion
she and another girl were entering the store and passed
Assistant Manager Zenowitz at the door. Zenowitz ob-
served to another person standing with him, "Here come the
union organizers, they are late today." Zenowitz testified
that he did not have reference to Mrs. Postler and her com-
pamon, but was merely observing that the professional un-
ion organizers who were normally present at the store when
the employees arrived, had not arrived. He also testified that
they were not in sight at the time. Under the circumstances
I can only believe that he was referring to Postler and her
companion.
Mrs. Postler testified that about June 1 Department
Manager Beaulieu told her that Respondent was going to
issue her three written warnings, and then discharge her
because of her union activities. Beaulieu denies making any
statement like this. Thereafter, on June 24 Beaulieu gave her
a warning slip that stated that she had been socializing with
friends on company time. I believe that the statement attrib-
uted to Beaulieu by Mrs. Postler was made either in contem-
plation of, or at the time he gave her the warning slip, and
I believe it amounted to no more than a warning that three
such warning slips made her liable to discharge under the
company's rules?
2 Beaulieu was partisan enough in the campaign that when called at home
by Green, who attempted to enlist his support in the organizing campaign,
Beaulieu the next morning reported Green's call to his store manager
2 The time of the occurrences herein, no one had any clear idea what the
Company's rules were A few of the employees apparently had been given
employee handbooks which had some of the rules spelled out briefly in them.
In addition, it appears that the Respondent had at least two books containing
rules, one of which was distributed only to department managers and store
managers, the other apparently distributed only to the store managers. The
department manager Cehelnik testified that employees were bound by Bark-
er rules as well as by Meldisco's, but was apparently of the opinion the only
rules that existed were rules concerning how clerks should dress on duty The
managers of both the Wallingford and Willimantic stores were apparently
55
Respondents' store apparently has no lunch counter. It
is customary for the managers of the various departments
to appoint an employee to go to a nearby shop to get coffee
for the employees' coffeebreaks in the morning and af-
ternoon. Mrs. Postler had been appointed by Beaulieu and
had over a period of time , been making this trip. After the
organizing campaign began, Store Manager Barclay came
to the conclusion that Postler took too long to get the coffee.
He obviously was suspicious that this was attributable in
some way to her organizing activities, and he advised Beau-
lieu that Postler was no longer to go for coffee, but that he
should send some other employee. Beaulieu so advised her.
She said "it looks as though they are discriminating against
me," and he agreed with her. He then appointed another
employee to go in her stead. The General Counsel contends
that this incident amounted to a suspension of Mrs.
Postler's coffeebreaks, and constitutes unlawful discrimina-
tion. Inasmuch as Mrs. Postler continued to have her coffee-
breaks thereafter, but simply did not go get the coffee, it is
difficult to see in what way she was discriminated against.
If, in fact, she had been using the time, which was company
time, to engage in organizing activities, or to confer with the
union organizers, Respondent had a right to stop her, and
if she had not, there is no detriment either to her or to the
organizing activities of the employees in her removal from
this task, even if it may have been occasioned by suspicion
that she was engaging in union activities. Accordingly, I
shall recommend that the allegation with regard thereto be
dismissed.
The General Counsel also contends that the remark of
Zenowitz to Mrs. Postler and her friend, Mrs. Johnston,
concerning the late arrival of the union organizers, consti-
tute giving employees the impression of surveillance of their
union activities. While under the circumstances that em-
ployees were engaging in union activities, and the Employer
could become aware of it only by surveillance, such a re-
mark would have this coercive effect. In the circumstances
of this case, where the union activities were carried on open-
ly by the employees in full view of management, I do not
believe that Zenowitz's statement is coercive or otherwise
violative of Section 8(a)(1). Similarly, the General Counsel
alleges that Respondent, through its officers, engaged in
surveillance of the employees by looking at them through
the window as they were talking to union organizers. There
is no evidence that Respondent, in effect, maintained a
watch to ascertain what employees were talking to organiz-
ers. The evidence merely reveals that Respondent's supervi-
sory personnel, who normally spent their time at the front
of the store, saw the employees as they came and went and
stopped to talk to the organizers in front of the store. I find
no violation in this activity, and I shall recommend that the
two allegations be dismissed. The General Counsel con-
tends that Kossar's statements to Mrs. Postler with regard
to handing out buttons on company time constituted a
threat to employees for engaging in union activity on
Respondent's premises. However, it appears, both from the
testimony of Kossar and from that of Mrs. Postler, that the
threat was made with regard to her engaging in organizing
dimly aware that there was a rule against hiring members of the family, but
neither paid any attention to it Testimony from various management offi-
cials concerning the rule put it into several versions , and at least two versions
appear in writing
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities on company time . Respondent has a right to warn
employees not to engage in organizing activities on compa-
ny time, and it is clear that Kossar's threat to discharge
Postler immediately was withdrawn when she protested that
she had not, in fact, distributed buttons. Under all the cir-
cumstances I do not find that this violates Section 8(a)(1) as
alleged, and I shall recommend the complaint be dismissed
with regard thereto.
With regard to the admonitions by Beaulieu, both on
his own behalf and on behalf of Supervisor Kom, to Postler
that she should cease speaking to union representatives on
Respondent's premises or time, I find a somewhat different
situation. There is no evidence that at any time Mrs. Postler
talked about union affairs with the organizers or with other
employees on company time. The admonitions directed to
her were, in fact, generally couched in terms of socializing
with her friends, rather than talking with organizers, a eu-
phemism adopted by Beaulieu and apparently by Kom, and
Barclay. There is no evidence that Respondent had any rule
or enforced any rule against employees socializing with ac-
quaintances or friends coming into the store. In view of the
fact that most of the employees were teenagers, and in a
small town such as Willimantic probably knew a good many
of the people who entered the store, a rule against the small
conversation that would normally take place would proba-
bly be unenforcible. The record is quite clear that the objec-
tion of Respondent was not to socializing as such, but rather
was to speaking with the union organizers going through the
store.
The gravamen of an 8(a)(1) violation is that it has a
reasonable tendency to interfere with, restrain, or coerce
employees in the valid exercise of their union activities. The
Board has long realized that it cannot draw hard and fast
rules with regard to such violations. Each must be consid-
ered in context rather than alone. In this instant situation
it is apparent that the Union was engaging in a sort of game
with management , the only effect of which was to demon-
strate to employees management's inability to control the
actions of the union agents . No organizational activities
took place during the patrolling of the stores by the union
agents , and the General Counsel does not even contend that
the following of the union agents by Respondent's supervi-
sors is violative. The effect of the union organizers' activities
was to waste the time of the supervisors who were delegated
to follow them through the store, and to waste the time of
the employees to whom they would speak, albeit, briefly. As
Respondent's counsel pointed out at the hearing, although
each conversation may have been no more than a greeting,
the multiplication of the greetings by the constant circulat-
ing of union agents among the employees who were suppos-
ed to be at work could become a costly problem to
Respondent, and one against at which it had a right to
protect itself. The employees were aware of this situation.
They must have watched with amusement the alertness of
Respondent's supervisors at the entrance of the union or-
ganizers , and the intentness with which they followed each
other around the store. That this interfered with employees'
work was probably amusing to the union agents , but it must
have been galling to Respondent. I do not believe that it is
reasonable to assume that employees will be coerced, re-
strained , or interfered with in their union activity by the
attempts made by Respondent to stop this activity, and I
believe that when employees joined in the game to the ex-
tent that Postler did of stopping her work and talking to
union agents, even if only for a minute or two, Respondent
has a right to admonish her and, if necessary, threaten to
give her a warning notice and ultimately discharge her if she
persists. Accordingly, I find no violation in Respondent's
acts with regard thereto, and recommend that the complaint
be dismissed, insofar as a violation is alleged.
On the weekend of June 26 Respondent took its semi-
annual inventory at the Willimantic store. On the Friday of
that weekend, and perhaps on the Thursday, the stock in the
warehouse sections of the store, known as the perimeter,
was counted and slips of paper with the value of the mer-
chandise were posted in the warehouse. From the time the
warehouse was counted merchandise was not supposed to
be removed therefrom and put into the stock on the floor
to be sold. However, the record reveals that if a customer
calls for an expensive item that is not in the floor stock, and
is available in the perimeter, the clerk would be allowed to
get the item out of the perimeter stock after changing the
count and informing the manager. On Saturday, June 26,
the perimeter count was spotchecked by supervisory per-
sonnel, and then on Sunday, when the store was closed, the
floor stock would be counted, and all of the slips of paper
collected and sent to New York where they are collated and
a value is given to the merchandise. Mrs. Postler and a
newly hired part-time employee were assigned to count the
perimeter stock in the hardware department. According to
her testimony, which is not controverted by Respondent,
she and her companion went into the perimeter together. He
would count the merchandise in the various storage loca-
tions, and she would fill out the papers, initialling each as
she completed it. They would then post the paper on the
merchandise and then move on to the next location and
continue the count. On Saturday Assistant Manager Ze-
nowitz testified that on June 26 he had discharged employee
Shirley Landon, at 5:40, after which he went into the perim-
eter and began spotchecking the inventory slips. In the up-
per perimeter in the hardware department he came across
one or two mistakes bearing the initials AP, which referred
to Anne Postler. He came back downstairs and looked for
Mrs. Postler. He was informed that she had left and he
notified Surendi. He testified he gave the slips on which the
errors appeared to Surendi, and "he took it from there."
According to the testimony of Surendi, who was a mer-
chandise supervisor, and was in charge of the inventory at
the Willimantic store on this occasion, Zenowitz found a
mistake while Surendi was inventorying in the luggage de-
partment, and called Surendi to the perimeter, where he
showed him the merchandise and the slips that did not
balance. Surendi testified that he made the correction and
then he sent Zenowitz to get Mrs. Postler. Zenowitz re-
turned without her, stating that he could not find her,
whereupon he and Zenowitz continued to check the perime-
ter, and found a few more mistakes and went to look for her,
at which time they ascertained that Mrs. Postler had left
with Shirley Landon a little before 6, and as they left, Mrs.
Postler made a statement "You ain't heard the last of this.
We'll be back."4
4 Shirley Landon was alleged in the complaint to have been discharged
because of her union activity . She did not appear at the hearing, and the
complaint was dismissed with regard to that allegation
FRANKLIN STORES CORPORATION 57
Surendi identified five documents as the inventory slips
that contained the mistakes which he and Zenowitz correct-
ed. He testified that he identified them by his initials on the
slips, and that he had Surendi initial the corrections that
they made. The first of the five slips shows one item crossed
off, with no initials . Another item, six units at $19.99 per
unit, is crossed off, with the initials of Surendi, and below
it is written five units at $19.99. On the second exhibit an
item of three units at $2.99 is crossed off, and below it is
written two units at $2.99. The crossed off item is followed
by an initial that looks like M.O.E. The third slip contains
one line crossed off, five items at $27.99, and written on the
bottom of the list are four items at $27.99. Also there is one
item at $1.99, one at $15.99, one at $16.98 and another item,
which is obscured by the court reporter's stamp, and cannot
be read, all crossed off, and with the initials M.O.E. or
M.O.C. and Surendi's initials written after it. On the fourth
slip nothing is crossed off, and no initials appear. And on
the fifth slip two items are crossed off, one, six units at
$19.99 and the other, five units at $19.99, and two items are
written, both, four units at $19.99. These are initialed by the
M.O.E. initial on one side and Surendi's on the other. It is
notable that each of the items in which there was allegedly
a mistake was a reduction of one rather expensive unit from
the count.
The next morning when Mrs. Postler came to work to
complete the inventory, Surendi met her at the door and
would not permit her to enter the store. He told her that she
was suspended and that she should see the store manager
the following day. Surendi immediately told Korn of the
actions he had taken. Kom called Barclay early Monday
and told him to tell Postler, when she came to the store, that
she was suspended until Kom could investigate. When
Kom next came to Willimantic he told Barclay to leave
Postler suspended until he had had a chance to complete his
investigation. What investigation he had in mind is not
disclosed. Barclay put Postler on vacation, which was due
her. At the end of her vacation she contacted Barclay who
told her that she was discharged because her work was
unsatisfactory. She asked whether it took 3 weeks to find out
that she was unsatisfactory. Barclay stated that he had been
told by New York to discharge her.
I conclude that Mrs. Postler was discharged because of
her union activity. She testified without contradiction that
in past years she had assisted in the inventory a number of
times, and that she and other employees had made mistakes,
that she had found mistakes made by other employees, and
that no reprimands had ever ensued therefrom. She did not
deny making the mistakes attributed to her on this occasion,
but there is no way for her to have known anything about
them, since she was never permitted in the store after they
had allegedly been found. It is clear that Respondent made
no investigation of the inventory taking, and under the cir-
cumstances, it appears that the mistakes could equally well
have been that of employee Lawson, her companion in the
count, if, in fact, there were mistakes. However, in view of
the testimony and the exhibits with regard to the mistakes,
I find that there is considerable question about them, too.
If I believe Surendi that each of the mistakes was initialed
by him and counter-initialed by Zenowitz, only two of the
five exhibits were mistakes involved in this incident. If I
were to accept the testimony of Zenowitz, only one or two
mistakes were found by him at all, although Surendi testi-
fied that he and Zenowitz went back and found several
more. I am assuming that the M.O.E. initial is that of Ze-
nowitz, although he identified himself on the witness stand
as Arthur Zenowitz and it is difficult to see how M.O.E.
becomes A.Z. In addition, the type of correction made on
the four inventory tickets that display a correction reveals
a reduction of one expensive item in each case. It appears
that it was not uncommon for expensive items to be taken
out of stock after the count was made, and the inventory
slips changed. Zenowitz's testimony appears credible that
he found one or two mistakes in all. Whether these mistakes
are attributable to Mrs. Postler was apparently explored
neither by Respondent at the time nor by any party at the
hearing, yet without more Surendi determined to suspend
Mrs. Postler from further work on the inventory. Postler's
testimony was not contradicted that mistakes on prior in-
ventories had been made by her and by others without any
repercussions whatsoever. Some other factor would appear
to have been at work in this instance. Respondent would
have us believe that the added factor was the early depar-
ture of Mrs. Postler on that Saturday. Respondent deduces
that she departed some minutes before her normal quitting
time upon being asked to take Shirley Landon home. Mrs.
Postler admits that she left early, but stated that it was only
a minute or two before 6 when she departed. According to
Zenowitz's testimony, he discharged Shirley Landon at 20
minutes to 6, thereafter went to work checking the inventory
in the hardware section, found a mistake, called Surendi's
attention to it, and then set out to seek Mrs. Postler. It
appears improbable that all of this could have taken place
in a very few minutes, and I believe it is much more proba-
ble that Mrs. Postler's estimate of a minute or two before
6 is more nearly correct. At any rate, Mrs. Postler testified
without contradiction that she and other employees had
been permitted to leave a few minutes before their normal
quitting time under various circumstances in the past, with-
out being disciplined before. Again we seek a distinguishing
characteristic and it may be Postler's statement that the
Respondent had not heard the last of the matter of the
discharge of Miss Landon, which I think can safely be as-
sumed was considered by Respondent to be a reference to
union action .5 I conclude that the suspension by Surendi
resulted from Mrs. Postler's union activity, probably topped
off by her "threat" that Respondent had not heard the last
of the discharge of Miss Landon.
During the several weeks between the suspension of
Mrs. Postler and her discharge, it is apparent that no investi-
gation was made into the circumstances of the alleged in-
ventory mistakes. Korn and Barclay had a conversation, as
a result of which, according to Barclay's testimony, it was
decided that the suspension would be converted to a dis-
charge because of the unsatisfactory work of Postler since
the union campaign began. Specifically, according to Bar-
t Store Manager Stanley Barclay testified that "any time I did anything,
everybody would say, oh, it' s because I'm in the Union."
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clay, Postler's work became unsatisfactory in that she spent
an inordinate amount of time talking to other employees,
and to union representatives in the store on company time,
and that she did not timely prepare inventory order lists
referred to by Respondent as laundry lists . It does not ap-
pear that the latter fault was of such magnitude that it, at
any time, led to a reprimand, but Respondent would have
us believe that it was one of the prevailing reasons for the
conversion of the suspension to discharge . Respondent did
not show, except for the testimony of Cehelnik, which I have
discredited , that Mrs. Postler engaged in any union organiz-
ing activities on company time . Respondents position in
that regard is unsupported . It is clear that Beaulieu was
suspicious of her conduct and watched her closely during
the period of union organization, but he was able to testify
to no union activities on her part on company time. I con-
clude that the reasons given for the discharge are pretextual,
and that the real reason for the discharge was Respondent's
aim to rid itself of the girl who was probably the leading
union adherent in its store. I find that the discharge violated
Section 8(a)(3) and (1) of the Act, and I shall recommend
an appropriate remedy therefore.
Biaggio Mangano: Mangano was a clerk in the hard-
ware department under department manager Bealieu. He
had worked in that capacity since 1969, starting as an eve-
ning employee, and then had shifted to daytime work.
When Posstler was suspended Beaulieu asked Mangano to
work her evening shift for 2 weeks , and Mangano agreed.
In the second week in July Barclay was informed that
Postler's suspension was to be converted to a discharge, and
he thereupon informed Mangano that the night work would
be permanent. Mangano declined to work nights, whereup-
on Barclay told him that he would have to lay him off. The
next day, however, Barclay asked Mangano if he would
work 2 nights a week. Mangano said he would think it over
and let Barclay know. Mangano then had a conversation
with department manager Beaulieu and agreed with him to
work 2 nights a week. Beaulieu so informed Barclay, who
agreed and told Mangano so. However , the next day, Bar-
clay again approached Mangano and stated that there was
a misunderstanding, and that he would have to work 3
nights and not 2. Mangano declined to work 3 nights a week
and was discharged on July 17. Mangano testified that at his
discharge he asked Beaulieu if he was being laid off because
of his refusal to work nights, or because of his union sympa-
thies, and that Beaulieu replied that he thought it was be-
cause Mangano was prounion.
Mangano's union sympathies were well known. Beau-
lieu testified that he was one of the two employees in the
hardware department whom he saw wearing union buttons,
the other being Postler. Mangano also testified that when he
first started wearing a union button , Manager Beaulieu
pointed to the button and said "that doesn't help matters
out." Beaulieu testified on the contrary that Mangano asked
him whether he thought management and the Union would
get together, and that he replied that he did not know, and
asked Mangano what he had to gain out of wearing a but-
ton. The General Counsel contends that this exchange con-
stitutes a warning by Beaulieu to employees about wearing
a union button and violates Section 8(a)(1) of the Act. From
Beaulieu's demeanor at the time he testified concerning the
conversation, I conclude that Mangano's version of the ex,
change is correct, and I credit it. However, I credit
Beaulieu's report as to the question by Mangano that pre-
ceded his statement. I do not find it coercive. I believe that
Beaulieu was, in effect, answering Mangano's question with
the suggestion that the display of the union buttons by the
employees was liable to make it harder for the Union and
the Employer to get together. I consider that this is a state-
ment of Beaulieu 's personal opinion in the matter, which
was asked by Mangano, and did not constitute a threat
against employees or specifically against Mangano. I shall
recommend that this allegation be dismissed.
Mangano also testified that store manager Barclay stat-
ed that when he saw Mangano's union button, "of all people
I least expected you to be wearing a button." This was not
denied by Barclay, nor is it alleged to be a violation. Howev-
er, I think it provides the key to my conclusion with regard
to Mangano. I think that Barclay was speaking the simple
truth. Mangano, on the witness stand, did not appear to be
a militant type of person, nor one who would be interested
in rocking the boat in which he was riding. It is notable that
when Postler was taken off the task of getting coffee for the
department, it was Mangano who was appointed to that job
and continued doing it until his discharge. I accept
Respondent's explanation of the need to have more person-
nel working on the evenings rather than through the day,
especially in view of the fact that two of the clerks were no
longer employed by Respondent. Mangano's insistence that
he would work no more than 2 evenings a week in place of
the 3 evenings a week previously worked by Mrs. Postler,
was, I am convinced, the cause of his discharge. It is clear
that the Respondent made every effort to go along with him
and to convince him that he should work the additional
evenings. There is no evidence that the Respondent had any
reason to believe that Mangano would refuse to work 3
evenings a week. He was originally hired to work evenings.
I reject his testimony that Beaulieu told him when he was
being laid off, that he thought it was because he was proun-
ion. I do not believe that Beaulieu thought so, and I do not
believe that he said so. Whatever he said, in response to
Mangano's statement that he suspected that his union activ-
ity was the reason for his layoff, I believe that Mangano did
not hear correctly .6
Accordingly, I conclude that the General Counsel has
not proved by a preponderance of the evidence, that Man-
gano was discharged in volation of Section 8(a)(3) and I
shall recommend that the allegation be dismissed.
Deborah Johnston: Deborah Johnston had been em-
ployed in the toy and layaway sections for a number of
years, and was apparently the senior girl in the layaway
section. She was known to Respondent as a union partisan,
almost from the beginning of the union campaign. She held
meetings at her home and wore a union button. At a meet-
ing of employees in June 1971, Johnston challenged District
Supervisor Kom to call in the union people outside and
debate with them, or to meet them at the union hall and
debate with them. The challenge was not accepted. Accord-
ing to Johnston's testimony, which I credit, when she first
wore a union button her supervisor, Florence Lee, suggested
6 On the witness stand Mangano testified that his hearing was poor.
FRANKLIN STORES CORPORATION 59
that she should take it off or she would more than likely be
fired. This was denied by Mrs. Lee, whom I do not credit.
Mrs. Johnston testified that Assistant Store Manager Engel-
son told her in October that he was shocked to hear that she
had anything to do with union activity. Engelson's version
of the statement was that Johnston asked him what affect
her being in the Union would have upon her job, to which
he replied he did not know anything about it, that her deci-
sion was her own. I do not believe either version of this
incident, and I make no finding with regard thereto. I agree
with Respondent that it is highly improbable that Engelson,
in October, would profess to be shocked to hear that John-
ston was engaged in union activity. There could have been
no one in the store, I think, at that time unaware of her
union adherence. One the other hand, I can no more con-
ceive of Johnston at that stage in the campaign, stopping
Engelson on his way through the store to ask him what
affect her union membership would have on her Job. By this
time the General Counsel had already issued a complaint in
the matter alleging that nine individuals had lost their jobs
because of their union adherence. Mrs. Johnston was hold-
mg union meetings at her home, and I do not believe she
was unaware of the filing of the charge or the attendant
circumstances. She did not impress me as being a naive
person in any regard. That there was an exchange, I do not
doubt, but I find no credible evidence to support the allega-
tion of the General Counsel, and accordingly, I shall recom-
mend that the complaint, insofar as it alleges that Engelson
"created the impression of surveillance" by this incident, be
dismissed.
Johnston testified that in the latter part of October,
Supervisor Lee asked her if it was true that she held union
meetings at her home, to which Johnston replied in the
affirmative. Johnston added, on cross-examination, that
Miss Lee told her that it would not be to her advantage to
associate with union organizers. Manager Lee denied mak-
ing the statement or asking this question, but admitted that
she had had a number of conversations with Deborah John-
ston concerning the Union. In each of these instances, ac-
cording to her, Johnston asked her how she felt about
unions and she replied that they could be bad, and she
wanted no part of them. Mrs. Lee went on then to say that
Johnston would urge her to attend the meetings, and she
declined. I find that Lee asked Johnston if it was true that
she held union meetings at her home, and that Johnston
admitted that it was true and invited Lee to attend them. I
believe that her testimony that Lee told her it would not be
to her advantage to associate with union organizers was a
light misquotation, and that what Lee said was that it would
not be to Lee's advantage to be seen associating with union
organizers in the store. I do not believe Lee's testimony that
Johnston repeatedly commenced conversations asking Lee
how she felt about unions. As I have stated above I do not
think Johnston is naive or stupid, and I doubt if she would
have asked that question twice.
I conclude that although technically Florence Lee in-
terrogated Deborah Johnston, asking her if it was true that
she had union meetings at her home, this interrogation was
not coercive or otherwise violative of Section 8(a)(1). John-
ston made no secret of her union adherence, and was out-
spoken, even in the employee meeting with District
Supervisor Korn. Lee made no attempt to find out who else
attended such meetings or any details concerning what took
place at them. Johnston testified that five such meetings
were held at her home. In the rather close community of
Respondent's store, it is improbable that there was any
secret about this, especially in view of the open and public
nature of the organizing activities. I believe, under the cir-
cumstances of this case, that this does not constitute a viola-
tion, and I shall recommend that the complaint be dismissed
with regard thereto.
Early in November Johnston asked Store Manager
Barclay for a leave of absence from November 13 through
December 6, in order to go on a business trip with her
husband. Barclay said that he would check with Kom, be-
cause all leaves of absence had to be cleared through him.
On November 12 Barclay told Johnston that he would not
give her a leave of absence because the period during which
she planned to be gone was the busiest time at the layaway
desk, and her presence was needed at the store. She gave,
as her opinion, that the refusal to grant her a leave of ab-
sence was attributable to her union activity. Barclay merely
shrugged. According to Johnston thereafter, she and Bar-
clay had a discussion about the Union dunng the course of
which, he asked her why she felt that way about the Union,
and at the end of which she asked if she could return to work
on December 6 if she reapplied, and Barclay told her there
would be no openings for her.
There is no evidence that after her return , Johnston
made any attempt to reapply at Barkers Store. She was
replaced by another employee during her absence. The rec-
ord does not disclose whether this girl is still employed at
the Barker store.
The General Counsel contends that Johnston was ter-
minated because of her union activities. I do not so find. I
find that she was terminated on being told that she could
not have a leave of absence, and on her determination to go
on the trip with her husband anyway. The General Counsel
further contends that the Respondent discriminated against
Johnston by refusing in advance to rehire her on her return.
However, Johnston quoted Barclay as saying that there
would be no openings on her return, and there is no evi-
dence that Johnston ever attempted to ascertain whether, in
fact, there were openings, or whether there have been open-
ings since her return. I find insufficient evidence in support
of the General Counsel's allegation, and I recommend that
it be dismissed.
Ronald M . Beaulieu , Leonard J. Nelson, and 'Deborah
A. Dunstan
When Kossar came to the Willimantic store in June,
according to his testimony, he chanced upon the fact that
there were two employees named Nelson working in the
hardware department. He inquired of manager Barclay
whether they were related and was told that they were father
and son, whereupon, if I credit him and credit Barclay, he
lost his temper, cursed at Barclay, and demanded that he
comply with what he knew to be the Company's rule that
no two persons in the same household should be employed
in the same store. At this point, he and Barclay went over
the list of employees in the store and ascertained that there
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were four such combinations , Ronald M. Beaulieu , the son
of Hardware Department Manager Beaulieu , Leonard J.
Nelson , whose father worked in the hardware department
as did he , and Deborah Dunstan , whose mother worked in
the store . In his anger, Kossar demanded that Barclay dis-
charge one member of each family immediately , but Korn
interceded on Barclay 's behalf and secured permission for
him to take a few days or a week to separate the supernu-
merary family member so that the store 's equilibrium would
not be upset . Accordingly , to this Kossar reluctantly agreed.
Accordingly , Barclay in each case, selected the child of the
family combination , and gave them the blue slips which
meant discharge . This appears on the face of it to be open
and shut. Kossar testified that this is a firm rule of the
Company , and that he expects managers to follow the rule,
and that he enforces the rule where he finds it to be broken.
The General Counsel , however, adduced interesting evi-
dence with regard to the rule . In the first place , it appears
that the rule has, in fact , been in existence over a period of
years . In the Barkers employee 's manual , which is distrib-
uted to newly hired employees occasionally , the rule ap-
pears in this form , "the Company does not look favorably
upon the hiring of relatives to work in the store." In a
document entitled , "Manual of Operating Procedures" for
Barkers stores , dated June 10, 1970 , the rule appears in this
form, "no two members of the same family may be em-
ployed in the same store ." The testimony of the various
officers and supervisors of Barkers would indicate that the
rule is that no two members of the same household may be
employed in the same store . Miss Cehelnik, who managed
the shoe department , testified that she had never heard of
the rule , although she was responsible for the enforcement
of Barkers rules . It is clear that at no time in at least the past
five years , had anyone ever made any move to enforce the
rule at the Willimantic store . Although the rule is a strict
Barkers policy , according to Kossar, the record reveals that
there are a number of families represented by two or more
members each in the Wallingford store , and no move has
ever been made to enforce the rule there.
The Respondent adduced evidence that a fourth per-
son, Barbara Carey, a cashier whose mother worked in the
stationery department , was discharged in the latter part of
June because of the rule . This discharge was not alleged to
be a violation , although it is difficult to see on what basis
the General Counsel draws a distinction.
Leonard Nelson testified that he signed a card for the
Union at the home of Deborah Johnston in the presence of
Union Agent Valsecchi and another union organizer, and
he thought that Anne Postler and Ronald Beaulieu were
there . To his knowledge he never told any management
personnel that he had joined the Union . Nelson testified
that he wore a union button one day. Nobody ever men-
tioned it to him or told him to take it off , and he did not
wear it thereafter , although other employees did. Ronald
Beaulieu testified that he wore a union button in the store
and once Assistant Manager Zenowitz asked what the word
July in the middle of the button stood for. Deborah Dun-
stan testified that she never wore a union button , and never
did anything which would have let the Company know that
7 There is some evidence that the rule was adopted five years ago.
she had signed a union card , which she did in her own home
in the presence of her parents . No one from management
ever , mentioned the Union to her prior to her termination.
Deborah Dunstan testified that when she was dis-
charged by Zenowitz she asked him if it was because of the
Union, and he said that it was ; Zenowitz denied making any
such statement . I found Zenowitz's testimony for the most
part credible . In addition, I consider it highly unlikely that
this management-oriented young man, if he were , in fact,
privy to a pretextual discharge of this nature, would have so
frankly admitted it to the employee being discharged. I
credit his denial that the statement was made.
Of the four employees laid off obstensibly because of
the "family rule" it can be inferred that two were known to
Respondent to be union supporters , although the inference
is rather thin as to Nelson . There is no evidence to contro-
vert the testimony of Barclay and Kossar that the store was
overstaffed and overbudget on personnel, and it is clear
that, although the rule had not been followed , a rule against
the employment ,of two members of the same family in the
store existed, had been promulgated some years before, and
had, on occasion, in other stores been enforced. While I
conclude that Kossar knew of the union organization when
he went to the store , and while the evidence that Kossar in
effect threw a tantrum on hearing of the employment of
relatives raises a suspicion , such suspicion does not consti-
tute substantial affirmative evidence that his purpose was to
discriminate against union supporters rather than either en-
force the rule or cut down the payroll . There is no evidence
that Beaulieu or Nelson were strong union supporters or
that the Employer had any knowledge that the other two
young people caught in the discharge were union supporters
at all. I believe an inference that their discharge related to
union activities is too far-fetched for me to reach . Accord-
ingly, I find that the General Counsel has not sustained his
burden of proof with regard to the allegations with regard
to Ronald Beaulieu , Leonard Nelson, and Deborah Dun-
stan , and I recommend that the complaint with regard to
them be dismissed.
Mark Cireto: When Respondent 's Vice President Kos-
sar visited the Willimantic store in June, he took the occa-
sion to cruise through the store with District Supervisor
Korn. According to his testimony , he noticed a number of
people in the shoe department , some of whom asked him for
help in locating merchandise. He asked Korn where the help
was, and Korn pointed out two young men standing at the
side talking with two young ladies . The young men were
Thomas Limanni and Mark Cireto . It is clear that at this
time Miss Cehelnik was not in the store. According to her
testimony, she had left at 5 p .m., her normal quitting time
on Saturday. Limanni was dressed in a white shirt open at
the neck, no tie , and a pair of slacks . Cireto was dressed in
a pair of slacks and what he referred to as a Yukon shirt,
which is apparently a knit, short -sleeved, sport shirt. Ac-
cording to Kossar , he and Korn stood and watched Cireto
for 8 to 12 minutes , talking with the two young ladies.
Kossar walked toward Cireto and the young ladies "sort of
drifted away ." Kossar asked Cireto if he worked in the
department and whether he was "punched in." Cireto an-
swered in the affirmative. Kossar asked where the depart-
ment manager was, and Cireto said that she was out . Kossar
FRANKLIN STORES CORPORATION 61
asked whether Cireto thought he was properly attired, and
pointed out that he was not wearing the employee identifi-
cation badge. Cireto said that he did not know where his
badge was, and that he knew that he was not properly
dressed. Kossar also stated that the department was in a
state of turmoil as far as merchandise was concerned; mixed
sizes of shoes, unfilled counters, and scattered tables; and
that he confronted Cireto with this fact, which Cireto admit-
ted. Kossar and Korn•went into the perimeter of the depart-
ment and found on an empty shelf papers, union buttons,
and nail files with the name of the Union printed on them.
Kossar asked Cireto and Limanni if they knew where this
material came from, and was it theirs, or did they know how
it got there. They denied ever having seen it before. Korn
put the material in his pockets and he and Kossar left the
department. Kossar gave Kom instructions to have Cireto
immediately discharged. Kossar stated that the reason he
determined that Cireto should be discharged was that he
was not doing his work, that he was not dressed in conformi-
ty with the company rules, and that he had been neglecting
customers while engaging in a personal conversation with
the young ladies.
The General Counsel pointed out that the dress rules,
which required that male employees wear shirts, ties, and
jackets, as well as employee identification badges, are fre-
quently broken. The record is clear that stockboys are per-
mitted to wear sport shorts when they are working on stock
work, but are expected to wear shirts and ties when waiting
on customers. It appears that Cireto and Limanni had had
a long history of failing to wear ties , both according to the
testimony of Cehelnik. Both she and her predecessor
Crouch had frequently had occasion to insist that the two
boys wear ties, at least on Saturday. Apparently nowhere in
the store was the rule that employees should 'wear jackets
enforced. Similarly, it appears that it was not infrequent that
employees would appear on the floor without their employ-
ee identification badges. Cireto stated that his badge had
been lost for some time, and it appears that nothing had
been said to him prior to this occasion, by Cehelnik or any
of the Barker supervisors. According to the testimony of
both Cireto and Limanni, the store was not busy at the time
of the incident, and there were not 8 to 12 customers milling
around as described by Kossar.
The understanding of Cehelnik of the store rules was
that employees would be warned twice about breaking the
employee rules, and on the third occasion could be dis-
charged. When she was given instructions by Korn, at
Kossar's orders, to discharge Cireto she declined to do so,
and contacted her division manager, who was not normally
at the store. He gave her instructions to give Cireto a warn-
ing, and talked to Cireto himself over the telephone. When
Kom learned the following week that Cireto had not been
discharged, he contacted the Meldisco supervisor and insist-
ed that Cireto be discharged, whereupon the supervisor ad-
vised Cehelnik to fire Cireto and she did so.
I do not believe Kossar's testimony that the conversa-
tion between Cireto and the girls lasted from 8 to 12 minutes
while he stood and watched. Cireto testified that it lasted 4
minutes. It is unbelievable to me that Kossar, standing in a
department full of people, at least three of whom in a minute
asked him for help, would have simply stood and watched
for 8 to 12 minutes. Kossar attempted in his testimony to
put the incident in its worst possible light to justify his
insistance on the immediate discharge of Cireto, rather than
following the normal course of reprimanding him. While
there is evidence that on another occasion Barclay had spo-
ken to Cireto and a female clerk in the perimeter, and told
one of them to go on the floor, there is no evidence that
Kossar knew anything of it or that it had anything to do
with the discharge which clearly resulted from this one inci-
dent.
The General Counsel urges that the real reason for the
discharge was the fact that Cireto was a union advocate and
had been reprimanded by Cehelnik for talking to Green in
the department shortly before this occasion. The incident in
question resulted from one of Green's perambulations
through the shop. Cireto testified that he stopped and asked
Green how he was doing because he recognized him as a
former employee. They spoke for a minute or two while
Barclay stood nearby watching. Later, according to Cireto,
Cehelnik came to him and told him that if he was ever
caught "affiliating" with the Union again, something could
possibly come of it, he could possibly be terminated. Ac-
cording to Cehelmk, what she said was that Cireto should
not spend time talking to the Union on company time, and
Cireto told her that he was not talking about the Union. She
denied any threat that she could or would have Cireto fired.
I do not find Miss Cehelnik particularly credible. However,
I believe that what she said was, in effect, that Cireto should
stop talking to the union agent on company time or he might
be fired. This is alleged by the General Counsel to be a
violation of Section 8(a)(1). I think it is no more than a
warning which management had a right to make under the
circumstances , and I shall recommend that the complaint
be dismissed with regard to this incident.
With regard to the discharge, however, I believe that
Cireto was discharged because he was known to be a union
adherent, and because Kossar attributed the union mate-
rials that he found on the shelf in the backroom to Cireto.
It must be recalled that Kossar had already, on the same
day, threatened to discharge Mrs. Postler for distributing
union buttons in the store. I believe that the failure of the
Respondent to follow its normal course of discipline of an
employee for the breach of the rules gives rise to an infer-
ence that the breach of The rules was not the actual cause
of the discharges, especially under the circumstances here
that the rules had not been strictly enforced in the past, and
there is no indication that anyone had ever been discharged
for any of the reasons alleged by Kossar to have entered into
his thinking. I do not credit his testimony that the union
activities that he attributed Cireto had nothing to do with
the discharge. I find that Cireto was discharged because of
his suspected union activities, in violation of Section 8(a)(3)
and (1) of the Act.
Paulette N. Lucas: The Ladies' ready-to-wear depart-
ment was under the supervision of Muriel E. Miner, a lady
who had once been in show business, and a member of two
unions in New York City. Her feelings, apparently, are
ambivalent with regard to unions. She testified that she had
attempted to remain neutral during the employees' organiz-
ing campaign, although her sympathies and loyalties were
for the Employer. One of the employees, Paulette Lucas
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Haines,8 testified that she had a conversation with Mrs.
Miner and Mrs. Blanche Hooker, Mrs. Miner' s assistant,
during the course of which Mrs. Miner told her that Debbie
Johnston and Miss Lucas were suspected of being union
organizers and soliciting on store time. Mrs. Miner suggest-
ed that Miss Lucas and Mrs. Johnston not be seen together
in the store, and that others were watching her. At a later
time, according to Mrs. Haines , Mrs. Miner asked her if she
had a union card. Mrs. Haines did not trust Mrs. Miner and
told her that she had not because there was not a union.
Mrs. Miner then asked her if she could get her one of those
little white cards, apparently referring to a union card.
On or about May 21, according to Mrs. Haines, Mrs.
Hooker called her into the office and told her that she was
instructed by a supervisor, who she did not name, to give
the supervisor Mrs. Haines' membership card to the Union.
Mrs. Haines made the same answer and was quite upset and
asked why she was being singled out. She asked if she could
go to Supervisor Korn. Miss Hooker said that Mrs. Haines
was not to leave the department or talk to anyone about it.
Mrs. Haines immediately left the department and went to
Barclay's office where she confronted Barclay and Korn.
She asked Barclay who told him that she was a union organ-
izer. He said that he would not give her that information,
but he had heard that she had been active. She asked him
at that time for a transfer to another department, and he
said he would see what he could do. At this point Mr. Kom
lectured her about the Union stating that the manager
would no longer be in control if the Union came in, and
stating that union agents all drove Cadillacs. He criticized
Bob Green and pointed out that the union agents were not
permitted to solicit in the store. Korn questioned Mrs.
Haines about Mrs. Miner, but Mrs. Haines said nothing
about her.
Early the next morning, according to Mrs. Haines, she
had a telephone call from Mrs. Miner, who was upset and
asked her what she had told Barclay and Korn the day
before. Haines answered that she went in and told them that
she was sick of being harassed about the Union, and she was
trying to find out who was "hassling" her. Miner asked
whether she told them any names and she said that she did
not. Miner then said that Mrs. Haines had no right to go
over her head, and told her that except for the fact that Mrs.
Miner liked her, Mrs. Haines would not be working. Shortly
after this telephone call, Mrs. Haines called Barclay at his
home and told him of the conversation with Mrs. Miner,
and again asked for a transfer. She stated that Barclay asked
her about the union card again and said that he would take
care of it Monday morning. The next morning she again
asked Barclay for a transfer and he said he would take care
of it, but he never did. On May 25, 2 days later, Mrs. Haines
called Mrs. Miner and told her that she was quitting. Mrs.
Miner appeared distressed and just hung up. Mrs. Haines
testified that she quit because she could not stand the har-
assment. She was working two jobs at the time and was
being driven crazy. She also informed Barclay that she was
8 Miss Lucas, after the incidents involved herein , but before the hearing,
married. Her name is now Paulette Haines.
9 Mrs. Haines testified that Mrs. Miner encouraged the girls to join the
Union and asked her any questions about it, that she was very "gung ho"
for it, but did not want to jeopardize her job.
quitting. She has not been back to the store since.
On cross-examination Mrs. Haines testified that the
advocacy of the Union by Mrs. Miner, to which he referred,
consisted of Mrs. Miner calling the girls together and saying
"I don't want you girls to overtly commit yourselves, but if
you are for the Union I will not, hold it against you." On
another occasion she heard Mrs. Miner giving Green in-
structions how to get to her home. She also testified that
when Deborah Johnston would try on clothes during her
break, Mrs. Miner would openly suggest that she was for the
Union, and encourage the employees to work for it because
she sympathized with their reasoning in wanting a union.
Mrs. Miner testified that everyone in the store must
have known her stand on unions, that she did, in fact, tell
her employees that it was a matter of their own consciences
whether to join the Union or not, and she would never hold
it against them, but they were not to work for the Union on
company time. With regard to her telephone call to Mrs.
Haines early on a Sunday morning, she testified that she
had been informed by Mrs. Hooker that the girls in the
department were upset because Paulette Lucas had gone to
the manager's office. She testified that she was on vacation
at the time, but she was afraid of her department falling
apart in her absence. Accordingly, she called up Mrs.
Haines and told her that the girls were upset because she
went to the office and they were afraid of what she was
saying. Mrs. Haines assured her that she did nothing to hurt
the girls, and that they should know it, and this concluded
the conversation. Mrs. Miner then called Mrs. Hooker and
told her to tell the other girls that everything was all right.
She testified that she had no further conversation with Mrs.
Lucas until she called a couple of days later and said that
she was quitting. Mrs. Miner was a little shocked that Mrs.
Haines had quit in the middle of the union campaign, but
said nothing more.
The General Counsel contends that Mrs. Haines was
constructively discharged by the harassment of Respon-
dent. The harassment to which he refers he spells out as the
"continuous pattern of harassing tactics directed at Haines
by constant interrogation as to a union card." It is clear
from the record that Mrs. Haines is a very excitable woman,
and that she was very suspicious of Mrs. Miner because she
could not believe that Mrs. Miner was sincere in her support
of the employees' organizational attempt. I believe that Mrs.
Miner understated the extent to which she encouraged her
employees to join the Union. I believe that she spoke quite
freely to her employees assuring them that she would not
hold it against them if they supported the Union, but advis-
ing them to be careful in their support, not to breach
management's rules with regard to solicitation on the selling
floor during working hours. I find that, in fact, Mrs. Miner
warned Mrs. Haines that she and Deborah Johnston, who
apparently frequently visited the women's ready-to-wear
department on her break time, could cause comment be-
cause of their protracted discussions and that supervision
was on the alert for union activities undertaken by employ-
ees on company time. I find it incomprehensible that Mrs.
Miner would have pressed Mrs. Haines to get a union card,
especially in view of the fact that Mrs. Miner apparently
spoke to Green and other union representatives when they
circulated through the store, and could very easily have
FRANKLIN STORES CORPORATION
gotten a card from one of them if she had been so inclined.
I do not credit Mrs. Haines that Mrs. Miner asked her to
get a card, but I think that she, in her state of excitement,
misunderstood something that Mrs. Miner said to her.
Mrs. Miner obviously runs her department with an iron
hand, and permits no interference in so doing. It is only
natural that a nervous and excitable person such as Mrs.
Haines would be in fear of Mrs. Miner, particularly if she
mistrusted her, as she testified that she did. Mrs. Haines
testified that Blanche Hooker, who was Mrs. Miner 's assist-
ant, came to her and asked for her union card. Mrs. Hooker
was not called to testify, so this testimony goes uncontro-
verted. That makes it no more comprehensible. There is no
explanation why, with all of the known union adherents in
the shop, management should have had such a desire to see
Mrs. Haines' union card, or for that matter, any employee's.
I think it much more likely that Mrs. Hooker asked Mrs.
Haines for a union card, which is consistent with the testi-
mony of Haines and of Mrs. Miner that Mrs. Miner, in
effect, urged the employees to sign union cards.10 Appar-
ently acting solely on the deductions that she had drawn
from Mrs. Miner's warnings to her and from Mrs. Hooker's
request for a union card, Mrs. Haines went to Barclay's
office where she confronted Barclay and Korn. She knew
that she was not only ignoring a direct order of Mrs. Hook-
er, but that she was going over the head of Mrs. Miner,
something it appears Mrs. Miner never permitted. She was
obviously in a state of nervous excitement when she con-
fronted Kom and Barclay, and demanded to know why
they suspected her of being a union organizer. According to
her testimony Barclay rather honestly said that he had
heard that she had been active in the Union, and Korn gave
what appears to have been the set speech that he gave any
employee when he had an opportunity, running down the
Union, pointing out the high salaries paid to union organiz-
ers and deprecating the effect that a union might have on
the store, none of which I believe to be violative of Section
8(a)(1). When Mrs. Haines demanded that she be transfer-
red because of her fear of Mrs. Miner, probably augmented
by the fact that she knew that Mrs. Miner would be angry
with her for going to Barclay's office, Barclay temporized
with her and told her not to worry.
As might be expected Mrs. Hooker immediately called
Mrs. Miner when Haines went to Barclay's office, and Mrs.
Miner was angry, as could be expected, and attempted im-
mediately to reach Mrs. Haines. By the time she reached her
the following morning, Mrs. Miner was apparently appre-
hensive that Mrs., Haines had told the top management
about the participation of Mrs. Miner in the union organiz-
ing and what employees had joined the Union, all of which
led to a stormy telephone conversation, and added to Mrs.
Haines' unease about her position at the store. Under these
circumstances she again contacted Barclay in an attempt to
get transferred, and when he failed to transfer her, she
walked out of the store and went to work full time for the
other employer for whom she had been working part time.
10 There is no evidence that Mrs. Hooker had any supervisory characteris-
tics, even though she was denominated Mrs. Miner's assistant. It appears that
in Mrs. Miner's absence Miss Hooker was required to contact Mrs Miner
by telephone before taking any sort of personnel action, or in the event of
any untoward happening at the store
63
It may well be that to a person of Mrs. Haines' temper-
ament, the incidents recited above were intolerable, but I do
not believe that they were of such a nature that her resigna-
tion should be termed a constructive discharge. Surely Re-
spondent has no reason to believe that Mrs. Haines was
being harassed, and indeed, I believe that very few people
would have felt harassed by what had taken place. Mrs.
Miner's attempt to encourage and protect her employees in
their union activities was completely misread by Mrs.
Haines, and the normal warnings against solicitation during
working time were taken by her to mean something more
than they, in fact, constituted. The telephone call between
Mrs. Miner and Mrs. Haines was completely the result of
Mrs. Haines' own almost hysterical reaction the day before
when she went to Barclay's office, and while it may have
added to her unease, is scarcely attributable to Respondent.
I conclude that the General Counsel has failed to show that
Mrs. Haines' resignation was forced upon her by
Respondent's actions in any regard, and I shall recommend
that the complaint be dismissed insofar as it is so alleged.
Alice Souza: Alice Souza testified that in August 1971,
she was employed as the head cashier at Barkers Walling-
ford store. Her manager was Jerome Sternberg. Sometime
in that month Sternberg told her that he had been told that
the Union was trying to organize at the Willimantic store,
and they would be coming to the Wallingford store talking
to different employees. He inquired of her what her feelings
were about the Union, and whether her husband belonged
to a union. She told him she did not know much about
unions, and had nothing to say at the time. Sternberg sug-
gested that she talk to her husband about it and made it
clear to her that the Union would never get into Barkers,
and that there was nothing that the Union could do for
her. I t
After her conversation with Sternberg, Mrs. Souza ap-
proached Ray Trementano, the manager of the hardware
department, and asked him if he knew anything about the
Retailers' Union that Sternberg had spoken about. Tremen-
tano said he knew about the Union and that it was a good
one. Mrs. Souza asked him if he could contact the Union
to come and talk to the employees, and he said that he
would do so. About a month later, on September 16, accord-
ing to Mrs. Souza, she had a fellow employee prepare a list
for the purpose of inviting people to a Tupperware party,
and had left the list on the courtesy desk. When she came
back the list was gone and she got the impression that
Sternberg had it. She entered his office and he told her that
he understood that there was some union business going on
in the store, and that he'expected her as a department head
to give the names and information about the Union. She
said that she would not do this because she worked with the
girls for almost five years and could not betray them. Then
she went on to tell Sternberg that she understood that he
had taken her Tupperware list and believed that it was for
the Union. Sternberg answered "yes," and she demanded to
know why he took her list, why didn't he approach her
directly, there was no secret. She went on to complain about
people listening in on her telephone calls, and about Stem-
berg asking fellow employees what she and Trementano
11 Sternberg denied this conversation in its entirety I credit Mrs. Souza's
testimony in this regard.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
talked to them about in conversations in the store . Accord-
ing to her, Sternberg denied doing any of these things and
told her to be quiet . She argued with him and he told her
that there was going to be a housecleaning in the store and
that Mr . Wolfe was at the head of the list with his family.
She told him that he could not run the store without Mr.
Wolfe, the assistant manager , because he had to ask Mr.
Wolfe everything that went on before he could do anything
himself . She ended up testifying that Sternberg told her that
if he caught her or Trementano talking Union or passing out
union cards he would personally pick them up bodily and
throw them out of the store.
Mrs. Souza testified that on the following day , Septem-
ber 17 , Sternberg again asked her to give him information
of the union activities and names of the employees engaging
in them . She told him that she refused to do that , and got
into an argument . She quoted him as making improper and
lewd suggestions to her, and she told him to stop talking like
that. In the course of the argument he said he was going to
do something about it and she said she was going to do
something about it , too, and she walked out and punched
the timeclock , and quit.
On cross-examination Mrs. Souza testified that there
had been no union activities in the store prior to her dis-
charge . Confronted with her affidavit , however , she admit-
ted that she stated in her affidavit that she and Mr.
Trementano had contacted the Union and had been con-
tacting employees about the Union several months before
her discharge in September . She also testified on cross-ex-
amination that in an unemployment hearing before the
hearing in this instant case , she had testified under oath that
she resented being questioned about the Union by Stern-
berg because she had nothing to do with the Union. She
explained that she , in fact , had nothing to do with the Un-
ion. She had been talking to employees outside the store
trying to find out about the Union , but no employees knew
anything about it.
After Mrs . Souza punched out she left the store. Some-
time later her husband called the store and arranged with
Sternberg to have her termination papers and check ready.
When she and her husband came to get it in the early
afternoon , they had a conversation outside the store with
Sternberg and Kom . Sternberg told her that her job was
available if she wanted it, and she said that she did not think
that they could work very well together and did not want
her job back . She discussed with Kom a grievance that she
had with him because he had allegedly been instrumental in
"quashing" a warrant or a complaint against some other
person against whom she had sworn out a warrant sometime
in the past.
As I stated above Sternberg denied the conversation
attributed to him on August 15. With regard to the Septem-
ber 16 incident he testified that Souza came up to him one
afternoon and accused him of taking her Tupperware list
that she had left at the courtesy desk . He denied having
anything to do with it, to which Mrs. Souza said "Yes you
did, you know that it was a union list , and therefore you
took it." He again denied it, stating that he did not know
anything about a union or a union list. He also testified that
this is the first that he knew of the Union being mentioned
in Wallingford . The following morning, he testified, Mrs.
Souza accused another employee of taking a bus schedule
that she had left on the desk. He remonstrated with her and
told her that she should not make unfounded accusations
against people. At this point, according to Sternberg, Mrs.
Souza got very excited and upset and started yelling and
screaming, and accused him of trying to make a case be-
cause he thought that she was involved with the Union. He
again denied knowing anything about the Union and she
lost her temper and yelled at him some more, and ended up
saying "you don't want to have a cashier, you want an ass
wiper; I quit." And she did so. The last statement is the only
point at which the two accounts converge.
I believe that the truth lies somewhere in between the
two accounts. I believe that Mrs. Souza was probably in-
strumental in getting the Union in the first place, and I
believe that she was afraid that her activities with regard to
the Union would be known to management. I further be-
lieve that Sternberg had reason to believe that the union
organization would ultimately reach the Wallingford store,
and that he instructed her as head cashier that if union
organizers came into the store and interfered with employ-
ees at work, she was to call for help and have them ejected.
I believe that she took this as a threat to her, or as a hint
that her union activities were known. Later when she missed
the Tupperware list 12 she suspected that she was under
surveillance by the manager. I believe that she lost her tem-
per and accused Sternberg of taking the list, which he de-
nied. Thereafter, the following day when she accused
another employee of taking the bus schedule off the courte-
sy desk, Sternberg remonstrated with her and she lost her
temper again, and ended up quitting. I believe that she
embroidered the incidents in her testimony, and that she is
fundamentally an unreliable witness. Since there is no other
evidence in support of the allegations with regard to her
discharge, I find that the General Counsel has not sustained
his burden of proof, and I recommend that the allegation
with regard to her discharge be dismissed. I also recommend
that the 8(a)(1) allegations of the complaint dealing with her
testimony, first that Betty Surendi engaged in an act of
surveillance, second, that store manager Sternberg instruct-
ed her to spy on the union activities of her coemployees, and
third, that he threatened her with bodily harm and discharge
if she engaged in union activities, should all be dismissed for
failure of proof. The allegation that Sternberg interrogated
Mrs. Souza about her position regarding the Union is sup-
ported and clearly violates Section 8(a)(1) of the Act.
The Independent 8(a)(1) Allegations
The General Counsel contended that Respondent vio-
lated Section 8(a)(1) by keeping employees under surveil-
lance by the use of a camera, referring to the incident about
May 21, when Supervisor Wilstein attempted to take a pic-
ture of business representative Green as he walked through
the Willimantic store. As I found above, the evidence that
there was an employee in the picture is not supported. I do
not think it makes any difference. In the first place, it is not
unlawful for an employer to engage in surveillance of union
12 It is not at all clear from Mrs Souza's testa.. any that the alleged Tupper-
ware list was actually not a list that she was preparing for the Union.
FRANKLIN STORES CORPORATION
organizers on the selling floor of a retail store,13 because the
Employer has the right to lawfully prohibit such incidents
altogether, and surveillance is a less restrictive measure to
prevent intrusion on an employer's effort to carry on his
business. With the same rationale, I do not see that it would
be unlawful to take a picture of an employee talking to a
union agent on the floor of the retail store in direct breach
of the Employer's rules against solicitation on the floor of
the store. Accordingly, I recommend that the complaint be
dismissed with regard to that allegation.
Mrs. Donahque Guerraz testified that she was asked by
Mrs. Miner to remove her union button on the first day that
she wore it. Mrs. Guerraz testified that everybody was very
excited because it was the first day they all put their union
buttons on, and it was also the first day that Korn came to
the store. She said that her manager asked her to remove the
button because it was upsetting to Mr. Korn. Mrs. Guerraz
did not remove the button, and nothing ever happened.
Deborah Johnston testified that her supervisor, Florence
Lee, about the same time, similarly told her to take off her
union button, and said that she could be fired for wearing
it. Mrs. Lee denied these allegations. However, I credit both
employees that the statements were made as reported. I do
not credit Lee's denial, especially coupled with her denial
that she ever saw Deborah Johnston wear a union button.
Mrs. Miner did not deny the testimony of Mrs. Guerraz.14
I find that Respondent violated Section 8(a)(1) by these
supervisor's instructions to employees to remove their union
buttons.
The General Counsel alleged interrogation by Supervi-
sor Korn on or about May 21. The only evidence that I find
that might have relation to this allegation is the visit by Mrs.
Haines to Barclay's office on May 21, in which Korn deliv-
ered his opinion of the Union, but there was no suggestion
of interrogation in Mrs. Haines ' testimony. Accordingly,
this allegation must be dismissed.
The General Counsel alleged that on or about May 24
Barclay gave the impression of surveillance to employees.
At the close of the General Counsel's case, the General
Counsel stated that the allegation related to an interroga-
tion by Barclay in which he stated that he knew that an
employee had signed a union card. However, there is no
such interrogation alleged on or about that date, and I find
nothing in,the transcript to support the General Counsel's
allegation, so I shall now dismiss the allegation.
The General Counsel alleged surveillance in the evi-
dence of management officials looking through the window
at employees talking to union officials outside the store; I
dealt with this above. It is my opinion that this does not
constitute a violation of the Act, under the circumstances of
this case , and I recommend that this allegation should be
dismissed.
The General Counsel alleged that toward the end of
September Wallingford Store Manager Sternberg instructed
the employees to organize a campaign to request the return
of their union cards. The incident referred to is found in the
testimony of employee TenEyck that he and other union
13 G. C Murphy Co, 171 NLRB 370.
16 The complaint alleges two incidents of interrogation by Mrs Miner The
record reveals only one, that testified to on cross-examination by Mrs Guer-
raz. The complaint must be dismissed with regard to the June 14 date alleged
65
supporters suspected that information concerning the union
organization was getting to management's attention, and he
determined that he would attempt to ingratiate himself with
Manager Sternberg, and find out the source of
management's information. With this in mind, TenEyck
went to Sternberg and told him that he needed his job and
would do anything to keep it, whereupon Sternberg asked
him if he wanted to get his union card back, and asked him
to go around and tell the other employees his feelings about
revoking his card from the'Union. Sternberg especially told
TenEyck to speak to two employees, Chris Samuel and
Tommy Martino. On a couple of occasions thereafter Stem-
berg asked how he was doing. TenEyck answered that noth-
ing was happening. On cross-examination he testified that
he had been discharged since this incident allegedly for
misappropriation of property.
Sternberg testified that TenEyck came to him and said
that he had made a mistake and signed a union card and
asked him how he could get it back. Sternberg told him that
he should then send a registered letter with return requested
to the Union in Hartford telling them that he was sorry that
he signed the card, and had made a mistake. TenEyck
thanked him and left the office. I credit Sternberg in his
testimony. I believe if, in fact, TenEyck wanted to ingratiate
himself with Sternberg he would have followed the course
of asking Sternberg how to get his card back, rather than
simply telling him he wanted to keep his job. Aside from
that fact, if it was evident that TenEyck feels that he has a
grudge against Respondent, and I believe that this influ-
enced his testimony, herein. I recommend that the com-
plaint be dismissed insofar as this incident is alleged as a
violation of Section 8(a)(1).
Eugene Corderre, who is employed at the Wallingford
Barkers Store as a sign painter, and was one of the original
employees involved in commencing the union organization
at the Wallingford store, testified that on or about Septem-
ber 20 he was called to Manager Sternberg's office where
Sternberg stated that he had heard that Corderre was solic-
iting for the Union. He told Corderre that he could remain
silent, and told him that he could do anything he wanted
with regard to the Union on his own time, but he was not
to solicit in the store. Sternberg went on to give what he
considered to be the bad points about unions and the good
points about management, according to the testimony of
Corderre. Corderre also says that Sternberg asked him why
he was collecting names for the Union. Sternberg testified
that he had heard that Corderre was soliciting in the store,
called Corderre into his office, and told him that he could
remain silent, but that he was not permitted to solicit either
union cards for their signatures in the store on company
time. Whatever Corderre wanted to do on his own time is
all right. Sternberg said in the store he had to obey the rules
and regulations. Sternberg said at this point he sent Corder-
re back to work. However, he testified elsewhere that he
spoke to a number of employees concerning the Company's
position on the Union in the store. He evaded the question
as to what employees he spoke to.
I conclude that Sternberg, at this juncture, had been
well advised as to what he could and could not say to
employees, that he called Corderre into his office and ad-
vised him to remain silent and told him substantially what
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sternberg testified he said, but in addition added the antiun-
ion arguments that management was promulgating in both
stores. I think it is within management's rights to warn
employees individually or in groups that the store rules
about soliciting on the floor were to be enforced, and that
this incident is no violation of the Act.
On or about October 20, according to Corderre's testi-
mony, he was told by Assistant Store Manager Wolfe that
if the Union came in there would be a number of company
policies that had not been enforced in the past which would
be enforced, and specifically the policy with regard to hiring
relatives of employees. Under this rule Corderre would be
discharged because his mother was employed in the same
store.
Wolfe testified that he was having trouble with the
production of signs by Corderre, and he talked him in the
sign shop, saying "We hired you in defiance of company
rules, which says that no two relatives of the same house-
hold can be employed by the same store. We increased your
hours from 20 to 40 when you wanted to go to school. All
I want is 25 signs a night and no mistakes. If I can't get them
from you, I will be forced to get them from somebody else."
He denied that he had ever threatened Corderre or any
other employee with discharge if the Union came in. This
incident is alleged, both as a threat of reprisal and a threat
of discharge, in two separate allegations. I credit Wolfe's
testimony that the Union was never mentioned in the con-
versation. It is clear that he has had problems with Corderre
over a period of time about his production, and it was clear
from Corderre's testimony that he suspects the Employer of
an attempt to discriminate against him, and is looking for
evidence of that intent. I believe that consciously or uncon-
sciously he twisted something that was said by Wolfe be-
cause he believes that Wolfe's warnings somehow stemmed
from the union organization. I recommend that these allega-
tions 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 Respondents' opera-
tions as described in section I, above, have a close, intimate,
and substantial relations to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
V THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom, and take affirmative action designed to
effectuate the policies of the Act. It has been found that
Respondent unlawfully discharged Annette L. Postler and
Mark Cireto. It shall be recommended that Respondent
Franklin offer to Annette L. Postler immediate and full
reinstatement to her former, or in the event her former job
is not available, a substantially equivalent job, without prej-
udice to her seniority or other rights and privileges, and
make her whole for any loss of earnings suffered by reason
of her unlawful termination, by payment to her of a sum of
money equal to that which she would normally have earned
from the date of her discharge to the date of Respondent's
offer of reinstatement, less net earnings during such period.
It will also be recommended that Respondent Franklin in-
form Respondent Meldisco that it withdraw its objection to
the employment of Mark Cireto, and that Respondent Mel-
disco offer to Mark Cireto immediate and full reinstatement
to his former job, or if this is no longer in existence, to a
substantially equivalent job, without prejudice to his senior-
ity or other rights and privileges, and make him whole for
any loss of earnings suffered by reason of his unlawful
termination, by payment to him of a sum of money equiva-
lent to that which he would normally have earned from the
date of his discharge to the date of Respondent's offer of
reinstatement, less net earnings of such period. Backpay for
both employees shall be computed on a quarterly basis in
the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289. Backpay shall carry interest at the
rate of 6 percent per annum, as set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondents are, each of them, engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminatorily discharging Annette L. Postler
and Mark Cireto, thereby discouraging membership in the
Union, Respondents have engaged in, and are engaging in,
unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
4. By threatening to discharge employees because of
their union activities, and by interrogating its employees
with regard to their, and other employees' union activities,
Respondents have interfered with, restrained, and coerced
employees in the exercise of their protected rights, thereby
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:15
ORDER
Respondent Franklin Stores Corporation and its whol-
ly owned subsidiaries, Barkers of Willimantic, Inc., and
Barkers of Wallingford, Inc., and the Miles Shoes Meldisco
Willimantic, Inc., their officers, agents, successors, and as-
signs, shall:
15 In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Section
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
FRANKLIN STORES CORPORATION 67
1. Cease and desist from:
(a) Discouraging membership in Local 919, Retail
Clerks' International Association, AFL-CIO, or any other
labor organization, by discharging employees, or in any
other manner discriminating in regard to hire and tenure of
employment, or any term or condition of employment.
(b) Coercively interrogating employees concerning un-
ion activities and threatening to discharge employees for
engaging in union activities.
(c) In any like or related manner interfering with, re-
straining, or coercing 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 Respondent immediately upon receipt
thereof, and be maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondents to ensure that said
notices are not altered, defaced, or covered by any other
material.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to Annette L. Postler and Mark Cireto imme-
diate and full reinstatement to their former jobs, or if these
jobs no longer exist, to substantially equivalentjobs without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings as set forth
in "The Remedy" section above.
(b) Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of their right to full reinstatement upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(c) Preserve and upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(d) Post at their stores in Willimantic and Wallingford,
Connecticut, copies of the attached notice marked "Appen-
dix."16 Copies of said notice, on forms provided by the
Regional Director for Region 1, after being duly signed by
Respondent's representatives, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by them for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondents to ensure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith.17
16 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
17 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read - "Notify
the Regional Director for Region I, in writing, within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had a chance to give evidence,
the National Labor Relations Board has found that we
violated the National Labor Relations Act and has ordered
us to post this notice and we intend to carry out the Order
of the Board and abide by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representatives of
their choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with or
restrains or coerces employees with respect to these
rights.
WE WILL NOT discriminate against our employees
for engaging in activities on behalf of the Union or on
the own behalf.
WE WILL NOT coercively interrogate our employees
concerning their or other employees' union activities.
WE WILL reinstate Annette L. Postler and Mark
Cireto to their former jobs, and make them whole for
any earnings they lost as a result of our discrimination
against them.
FRANKLIN STORES CORPORATION,
BARKERS OF WILLIMANTIC, INC, AND
BARKERS OF WALLINGFORD, INC,
MILES SHOES MELDISCO WILLIMANTIC,
INC
(Employer)
Dated By
(Representative) (Title)
WE WILL NOTIFY immediately the above-named individual(s),
if presently serving in the Armed Forces of the United
States, of the right to full reinstatement, upon application
after discharge from the Armed Forces, in accordance with
the Selective Service Act and the Universal Military Train-
ing and Service Act.
This is an official notice and must not be defaced by
anyone.
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. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Bulfinch Building-7th Floor, 15
New Chardon Street, Boston, Massachusetts 02114, Tele-
phone 617-223-3300.