Gaylord Discount Stores of Delaware, Inc.

National Labor Relations Board - Board Decisions

Jun 8, 1962

137 N.L.R.B. 557 (N.L.R.B. 1962)

GAYLORD DISCOUNT STORES OF DELAWARE, INC., ETC. 557
ing on the label which will now be applied, must be concerned with
the problem of a "supervisor-employee" with conflicting loyalties.
We are also disturbed by the implications of this decision with
respect to the Board's decision in the Nassau and Suffolk case.1e One
of the arguments advanced in this proceeding for the result reached
by our colleagues here is that all union officers, including presump-
tively the union negotiators, come from the group involved in this
decision. The practical effect of our colleagues' decision, therefore,
is to place the Board's imprimatur upon the possible control of the
Union by the Employer's supervisors. As our colleagues' disposition
of this issue must necessarily turn on a finding that these supervisors
are "employees" in the statutory sense,'' they would seem as eligible
to participate in negotiations as in other union activities. Thus, our
colleagues seem to sanction the Employer's presence on both sides of
the bargaining table.
Congress in 1947 sought to resolve this problem by excluding super-
visors from the definition of "employee." In fairness to employees, to
unions, and to management, we would continue to construe the Act
as Congress intended.
10 Nussua and Suffolk Contractors' Association , Inc., 118 NLRB 174, in which the Board
held that certain supervisors who were long- time union members and who , through
custom and practice In the industry , were voluntarily included by the parties in the
bargaining unit, might lawfully participate in union affairs including serving on union
committees and holding union office, but might not lawfully participate In bargaining
negotiations.
11 The fact that these seasonal supervisors are being permitted by our colleagues to
vote-a right belonging exclusively to employees under the Act-at precisely the time
when they admittedly "would not be performing rank-and -file duties within the unit"
serves, in our opinion , to emphasize how unrealistic and untenable the position of our
colleagues actually is . If, as our colleagues seem to hold, these supervisors can com-
partmentalize their interests , would they , when casting their votes in their status as
supervisors , be voting their interests as supervisors or their interests as employees? If
they vote as supervisors , is not management intruding Into an area where it does not
belong? If they vote as employees , what of their duty to be loyal to management while
they are supervisors ? Our colleagues provide no answers to these questions.
Gaylord Discount Stores of Delaware, Inc., Gay Apparel Corpo-
ration and Local 1349, Retail Clerks International Association,
AFL-CIO
Marrud , Inc., Archer Sales Co ., Hardlines Distributors , Inc. and
Local 1349 , Retail Clerks International Association , AFL-CIO..
Cases Nos. 4-CA-2418 and 4-CA-2449. June 8, 1962
- DECISION AND ORDER
On January 8, 1962, Trial Examiner Frederick U. Reel issued his
Intermediate Report in the above-entitled proceeding, finding that
all the Respondents except Marrud, Inc., had engaged in and were
engaging in certain unfair labor practices, and recommending that
137 NLRB No. 66.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they cease and desist therefrom and take certain affirmative action, as
set forth in the Intermediate Report attached hereto. He also found
that the Respondents had not engaged in certain other unfair labor
practices alleged in the complaint, and recommended dismissal of such
allegations. Thereafter, those Respondents who the Trial Examiner
found had committed violations of the Act filed exceptions to the In-
termediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
IIEirBER RODGERS took no part in the consideration of the above
Decision and Order.
On January 8, 1962, upon the issuance of the Intermediate Report. the proceeding
was transferred to the Board pursuant to Section 102.45 of the Rules and Regulations
After the 20-day period yet by the Inteimedi,ite Report for voluntary compliance, Re-
spondent nardlines Distributors, Inc , filed a motion with the Regional Director request-
ing severance as to itself and offering to comply with the recommendations of the Intei-
mediate Report without thereby admitting the allegations of the complaint The offer of
settlement under the condition imposed is untimely and, together with the motion to sever,
is hereby denied
The following paragraph is added to the notices attached to the intermediate Report
as Appendixes Employees may communicate directly with the Board's Regional Office,
1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsyl-
vania , Telephone Number, Pennypacker 5-2612, if they have any question concerning
compliance with the provisions of this notice
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Case No. 4-CA-2418 was initiated by a charge filed August 4, 1961, by Local 1349,
Retail Clerks International Association, AFL-CIO, herein called the Union, alleg-
ing that Gaylord Discount Stores of Delaware, Inc. (herein called Gaylord) and
Gay Apparel Corporation (herein called Gay) had violated Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519)
by discharging certain employees for union activity, and by other acts and conduct.
Case No. 4-CA-2449 was initiated by a charge filed by ,the Union September 25,
1961, alleging similar statutory violations by Marrud, Inc., Archer Sales Company,'
and Hardlines Distributors, Inc. (herein called Marrud, Archer, and Hardlines,
respectively). The cases were consolidated by the Regional Director for the Fourth
Region, who issued a consolidated complaint on October 13, 1961, alleging that
each of the five-named Respondents was responsible for each of the seven alleged
discriminatory discharges, and for various other acts of interference, restraint, and
coercion. The five Respondents, each of whom was represented by the same counsel,
filed a single answer, particularizing as to the business of each, either admitting the
it was stipulated at the hearing that the organization named in the complaint as
Archer Sales Co has undergone various corporate changes, which do riot appear to be
material to the issues here, and that at the time of the alleged unfair labor practice,
and of the hearing its correct name was Archer Sales, Inc, a Delawaie corporation
GAYLORD DISCOUNT STORES OF DELAWARE, INC., ETC. 559,
fact of discharge or averring lack of knowledge thereof (depending upon whether
the dischargee in question was admitted to be in the employ of the particular
Respondent at the time of the discharge ) and denying the allegations of discrimi-
nation and other violations.
Prior to the opening of the hearing, Respondents moved to dismiss the complaint
on the ground that it failed to particularize which Respondents were allegedly liable
for which violations .2 This motion was denied by Trial Examiner Donovan, and
Respondents thereupon moved the Board for leave to appeal from that ruling, and
to postpone the hearing , set for November 13, 1961 , in Wilmington , Delaware.
At the opening of the hearing, the Board had not acted on the motion before it,
and Respondents moved before me to dismiss the complaint or in the alternative
to postpone the hearing until the Board ruled . These motions were denied, with
the understanding that they could be renewed at the conclusion of General Counsel's
case.
The hearing commenced in Wilmington on the morning of November 13, 1961,
with all parties represented by counsel . Late that afternoon the Board granted the
leave to appeal but affirmed the ruling of Trial Examiner Donovan. Notice of this
action did not reach the parties until the following day . Meanwhile , when the
hearing adjourned on November 13, the Trial Examiner , over the objection of
counsel for the Charging Party, granted the request of General Counsel ( made in
large part to accommodate , and with the concurrence of, counsel for Respondents)
to recess the hearing until the following Thursday , November 16, 1961 , in Phila-
delphia, Pennsylvania.
The hearing resumed as scheduled on November 16. At the conclusion of
General Counsel 's case, Respondents moved to dismiss the complaint, which motion
was denied , and leave to appeal was likewise denied . Respondents thereupon
presented their evidence , and General Counsel produced rebuttal testimony. At
this point, General Counsel requested a further recess to call an out-of-town witness
to testify concerning a certain newspaper advertisement introduced as General
Counsel 's Exhibit No. 10. In lieu of calling the witness, the parties stipulated
that the exhibit could be received and accorded its presumptive weight, unless a
motion to reopen the record to take testimony with respect to that exhibit was made
by December 1, 1961. No such motion has been received.
At the conclusion of the testimony , both sides argued orally on the record, and
Respondents again urged that I grant their motion to dismiss on the grounds previ-
ously passed on by Trial Examiner Donovan and the Board. I advised Respond-
ents that I did not regard that motion as now pending before me . In the event it
was pending before me, or in the event that Respondents renewed the motion by
contending that it was before me , the motion is hereby denied. As appears below,
I find some merit in Respondents ' contentions respecting their liability for the
conduct of each other , but the deficiencies I find in General Counsel's case to go to
the proof and not to the pleadings.
After the conclusion of the hearing, General Counsel and Respondents filed briefs
which have been duly considered. Upon such consideration and upon the entire
record before me 3 and my observation of the witnesses , I make the following:
2 The motion to dismiss also rested in part on the failure of the compl a int to specify a
place of hearing This deficiency was supplied over 2 weeks prior to the opening of the
hearing, and Respondents have apparently abandoned that point which , In view of the
timely notice , is plainly unineritorious
"After the hearing was closed , counsel for Respondents filed "Proposed Corrections to•
Official Report of Proceedings " Insofar as this document purports to correct typo-
graphical errors in the transcript of the hearing, I direct that the record be corrected In
accordance with the proposed corrections Insofar as this document repre,ents an
attempt by Respondents ' counsel to correct and claiify certain statements made In his
oral argument at the conclusion of the hearing, the record correctly reflects the state-
ments made by counsel , but counsel ' s present desire to disavow certain concessions made
by him Is accepted , and my findings and conclusions are not based on his previous
concessions
General Counsel after the hearing likewise filed a motion to correct various errors in
the transcript This motion is hereby granted , and I direct that the record be corrected
accordingly
I should add that not even diligent counsel has unearthed all the typographical ei rors
For example the expression " cost meeting" on page 360, lines 22-23, should read "cos-
metics " The numerous errors were occasioned by difficulty with the stenotype machine
i sin satisfied , however . that the transcript Is intelligible and reflects the testimony with
sufficient accuracy to permit a fair review of the record
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Respondent Gay, a New York corporation, is a holding company, which owns
all the stock in Respondent Gaylord, a Delaware corporation. The officers of
both corporations are identical . Gaylord holds the lease on a large shopping center
in Wilmington , where it operates a discount department store known as Gaylord's.
In that store the only departments actually operated by Gaylord are the ladies'
apparel, children's apparel, appliance, and phonograph records departments; the
other departments are leased to various licensees . Among these licensees are Re-
spondent Hardlines, which operates the hardware department, Respondent Archer,
which operates the domestics department, and Di-Deb, a wholly owned subsidiary
of Respondent Marrud, which operates the cosmetics department.
Gaylord in the year preceding July 1, 1961, had gross sales in excess of $1,000,000
and received over $1,000,000 worth of merchandise directly from outside the State
of Delaware . Hardlines is a multistate enterprise with headquarters in Massa-
chusetts, which in the year preceding July 1, 1961, had gross sales of over $1,000,000,
Archer in its various corporate forms is a multistate enterprise, likewise with Massa-
chusetts headquarters, which in the year preceding July 1, 1961, had gross sales in
excess of $1,000,000. Marrud, a Massachusetts corporation with its main office in
Boston, had gross sales for the fiscal year ending July 1, 1961, of over $10,000,000.
I find that Gay and Gaylord are a single employer for purposes of the Act, that
each of the Respondents is engaged in an activity affecting commerce within the
meaning of Section 2(6) and (7) of the Act, and that the Board has, and should
exercise, its jurisdiction in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Local 1349, Retail Clerks International Association , AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Employers and their agents
As stated above, Gaylord operates only the women's, children's, appliance, and
records departments in the store; the remaining departments (e.g., toys, snack bar,
domestics, cosmetics, etc.) are leased to independent licensees . The manager of
each leased department is responsible to his "home office" and not to Gaylord for
the operation of his department. These managers have authority to hire and fire
the employees in their departments, and fix the wage rates of their own employees.
Gaylord does not pay workmen's compensation or social security or other taxes on
the employees in the leased departments. When an employee was hired or dis-
charged in a leased department, the department manager would notify the store
manager "for security reasons "
Gaylord employed a store manager as well as managers of the various departments
it operated. The store manager hired cashiers, wrappers, and porters, but the de-
partment managers hired the personnel for their own departments, just as did the
managers of the leased departments.
All the employees on the selling floor, whether employed by Gaylord or by a
lessee, wore buttons bearing the name "Gaylord's" and wore a uniform smock or
jacket. Customers purchasing merchandise would carry it to the cashiers at the
front of the store, where the various articles would be "rung up" on a cash register
which recorded an appropriate notation for the department making the sale. Re-
turns of all merchand se whether purchased in a Gaylord or a lessee department,
were handled at the front of the store by Gaylord employees, who gave the customer
cash refunds and notified the appropriate department.
The prices of merchandise in the leased departments were fixed by the particular
lessee. On occasion, however, a "shopper" employed by Gaylord would report that
prices in a particular leased department were out-of-line with prices charged in other
discount department stores in the area, and Gaylord's manager would then sug-
gest to the manager of the leased department that the latter adjust his prices.
Meetings of the managers of the various departments would be held from time to
time, called and conducted by the store manager, and devoted to common problems,
advertising and sales campaigns , and the like. From time to time a representative of
Gay would visit the store and would inspect all departments, including those oper-
ated by lessees. This representative would, on occasion, address meetings of all
store employees, including those employed by lessees as well as Gaylord employees.
GAYLORD DISCOUNT STORES OF DELAWARE, INC., ETC. 561
Each department was responsible for recruiting its own staff. Advertisements for
help wanted would be placed in the Wilmington newspapers in Gaylord's name, but
the advertisement would direct the prospective employees to apply at the particular
department.
The leases or license agreements covering the various departments leased to Hard-
lines, Di-Deb, and Archer are in evidence. They provide, inter alia, that the persons
employed in the lessee's business in the store "shall be, and hereby are , recognized
to be employees of Licensee," but that such employees shall conform to all rules
in force in the store. Gaylord reserved the right to require each lessee "immedi-
ately to dismiss from its employment any employee deemed unsuitable . . . or who
shall in any way conduct himself to the dissatisfaction of [Gaylord's].. ." The
agreements further provided that if Gaylord entered into a collective-bargaining
agreement, the employment terms there established would be observed by the lessee
with respect to its employees.4 The agreements also provided that Gaylord employ-
ees might be made available to lessees, and that employees of lessees were to be
available to Gaylord, and in each case the party using the employee would reimburse
the employee's regular employer for his services.
At the time of the events in question (July and August 1961) the position of store
manager was vacant, and the authority normally vested in that position was divided
between Joseph Schwartz, who was then a "manager-in-training," and Perry Horen-
stein (often referred to as Mr. Perry), the assistant manager. During the same
period Jane Carrigan was manager of the ladies' and children's departments, run by
Gaylord; John Kamenicky was manager of domestics, an Archer-operated depart-
ment; Frank Martin was manager of the hardware department, leased by Hardlines;
Frances Chew had recently succeeded Frank Finch as manager of Di-Deb's cos-
metics department ; her sister, Stella Mullins, was manager of the lessee -operated
snack bar; the toy department, likewise lessee-operated, was managed from January
until July 14, 1961, by Ed Hostetter, and thereafter, through October, by Ed Grandel.
In addition Schwartz and Horenstein, Kamenicky, Martin, Hostetter, and Grandel
were not connected with the store at the time of the hearing. The latter two had
joined the Union while working at the store (Grandel before he became a manager),
and both testified in support of the complaint.
B. Interference, restraint, and coercion
Union activity in the store came to the attention of various managerial personnel
in July 1961. Assistant Store Manager Horenstein told Manager Hostetter of the
toy department that Horenstein would have let an employee named Pordham go
if she signed a card and that while he was acting manager he would try to keep the
Union out. Cosmetics Manager Kamenicky told Grandel, after the latter had suc-
ceeded Hostetter as manager of toys, that Kamenicky had been told he would have
to get rid of two employees for signing union cards, and that Gayloid would furnish
him help until he could hire replacements. At about the same time Hardware
Manager Martin asked Grandel how many toy department employees were union
members, adding that he had interrogated his employees and ascertained that they
were members.
Mabel Robinson (whose discharge from Gaylord's children's department is dis-
cussed below) testified that in June union organizers gave her organizational mate-
rial which she handed to Store Manager Schwartz, who put the union men out of
the store. She further testified that in July the manager of her department, Jane
Carrigan, discussed the Union with her, asking what the employees needed a union
for and stating that a union could do no more for the employees than Gaylord could
do. Robinson also testified that in mid-July Manager Carrigan was paged over the
loudspeaker system to come to the store office, and that Carrigan upon her return
said to Robinson and another employee: "I've just been told that anyone who signs
a union card will be fired on the spot . . . and that two will be fired today." Car-
rigan denied Robinson's testimony; indeed Carrigan testified that she first heard of
the union activity in the store after she returned from vacation at the end of July.
For reasons set forth below under "Concluding findings," I credit Robinson's testi-
mony and I do not believe Carrigan's testimony to the contrary.
On July 21, 1961, before the store opened in the morning, and again after the
store closed in the evening, the employees on the morning and evening shifts, re-
spectively, were summoned to a meeting where they were addressed by Herman
4 A rider to the Hardlines agreement provided that in the event Gaylord entered into
negotiations with a union, Hardlines would receive "notice of and an opportunity to
attend negotiations" before any agreement was concluded.
649856-63-vol. 137-37
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rothchild , an official of Gay, who oversees several Gay stores , and who was making
one of his infrequent visits to Gaylord. According to witnesses called by General
Counsel, Rothchild, without referring to the Union by name, suggested to the em-
ployees that they did not need a "third party" or an "outsider" to come between them
and management . According to General Counsel's witnesses Rothchild pointed out
that certain employees ( Frances Chew and Ed Grandel , both of whom were em-
ployed by independent lessees rather than by Gaylord) had been quickly promoted
to supervisory positions , and stated that such promotions would not be so easy to
make if a "third party" entered the picture. According to testimony adduced by
General Counsel , Rothchild in his remarks referred to the existing good sick leave
policy, and stated that "if the organization got into Gaylord " the employees would
no longer be able to obtain a day's leave for the asking . He warned the employees
that if they turned to a "third party " they would have to picket in all kinds of
weather, stated that the "organization " had prevailed in another store and that con-
ditions there were not happy , and observed that at present the employees at Gaylord
were not reprimanded for tardiness but that management would change this condi-
tion if ,a "third party" came between management and the employees . According
to General Counsel's witnesses , Rothchild late in his speech asked the employees
whether they needed a "third party," asked them to repeat their chorused "No"
with greater volume, and concluded with "To hell with the Union." According to
Store Manager Schwartz , he attended both the morning and evening meetings; they
lasted only a few minutes ( not 35 or 40 as the employees had testified ); and Roth-
child discussed only such matters as courtesy to customers , cleanliness of the wash-
rooms, and neatness of the counters , and did not refer to the Union , to a "third
party," or to an "organization ." For reasons detailed below under "Concluding
findings" I reject Schwartz ' testimony with respect to this episode as altogether
false, and I credit the testimony of General Counsel's witnesses with respect to the
content of Rothchild's remarks.
On July 27, 1961, Frank Martin, manager of the hardware department which was
operated by Respondent Hardlines , asked his employee , Richard Houston, whether
Houston had signed a union card . Martin went on to tell Houston that an employee
in another department , one Joe Dougherty , was actively organizing for the Union,
that Martin had orders from Hardlines to lay off union supporters , and that two
other boys who had signed union cards did not know what they were getting into
At about the same time John Kamenicky , manager of Respondent Archer's domestics
department , told his employee Bernadette Monaco that anyone who signed a union
card would be fired, and told Assistant Manager Morgenstern that if he signed a
union card he would be demoted
C. The discharges
1. Leola (Pat) Adams: Adams was hired by Gaylord in March 1960 as a salesgirl
in the ladies ' department , and was later transferred to the service desk where she was
engaged in giving refunds on exchanges , furnishing change to cashiers , and handling
the switchboard until her dischargeo n July 15, 1961, 2 days after she signed a union
card. Adams was or became friendly with Robert Hostetter, who came to the store
in January 1961 as manager of the toy department , and who became a leading union
protagonist before his discharge on July 14. Their friendship was generally known
throughout the store , and Manager Schwartz admitted that he occasionally made a
bantering reference to it when speaking to Hostetter . The latter 's prounion sym-
pathies at the time of his discharge were likewise known to, or at the least strongly
suspected by, management ; Assistant Manager Horenstein accused Hostetter, a few
days before his dismissal , of trying to get the Union into the store.
According to Adams' testimony , Horenstein came to her on July 15 and told her
she was being laid off, as Gaylord needed to cut its payroll . She protested that
others employed at the service desk were junior in employment to her, but Horen-
stein gave her no satisfactory reply except to assure her that her work had been satis-
factory, and that she was not being discharged because of shortages in the cash
register which she and several other employees operated. Adams further testified
that when Mr. Stein , manager of the camera department in the store , learned of
her discharge, he suggested that he might be able to give her a job, but that the next
day when she talked to Stein, he told her he had talked to Horenstein, that he (Stein)
could not employ her, and that he would rather not discuss the matter
According to Manager Schwartz, Adams had been neglecting her work, spending
too much time on the telephone, letting customers wait, and talking too long and
too frequently with Hostetter Schwartz further testified that Adams had been
warned about these derelictions twice before her discharge. Schwartz stated that
shortage in the cash register had increased substantially during the last months of
Adams' employment, and had returned to normal after her discharge , but that
GAYLORD DISCOUNT STORES OF DELAWARE, INC., ETC. 563
other employees also had access to the cash registers. In closing argument, counsel
for Respondent stated that Adams had been discharged for spending too much time
talking to Hostetter, but that she was not "beyond rehabilitation" and might be
reemployed if business improved.
As noted above, Adams was discharged on July 15 and Hostetter on July 14.
Also as noted above, employee Robinson testified that in mid-July her manager,
Jane Carrigan (who was on vacation the week of July 24), was summoned to the
store manager's office and stated on her return to her department; "I've just been
told that anyone who signs a union card will be fired on the spot . . . and that two
will be fired today."
2. Joseph Dougherty: Dougherty worked in various departments in the store be-
tween the start of his employment early in 1961 and his discharge July 31. He spent
a short period at the snack bar, work which he testified made him "nervous" because
it involved contact with the shopping public. He later worked in the hardware de-
partment where he was hired by Manager Earl Jones, but Jones was thereafter re-
placed by Frank Martin, with whom Dougherty could not get along. At Dougherty's
request, and with the help of Assistant Store Manager Horenstein, Dougherty in mid-
July transferred to the cosmetics department, then managed by Frank Finch. Shortly
thereafter Finch transferred to the sporting goods department and was succeeded at
cosmetics by Frances Chew.
Dougherty's duties in cosmetics were those of a stock boy, unloading merchandise
and placing it on shelves, helping with inventories, etc. He actively and openly
solicited employees to join the Union. On July 17, Frank Martin, manager of the
hardware department and Dougherty's former supervisor, commented to employee
Houston about Dougherty's union activities. Ed Grandel, who succeeded Hostetter
as manager of the toy department in mid-July, testified that he was aware of Dough-
erty's union activity, as he could plainly see the union cards in Dougherty's pocket.
According to Dougherty's testimony, on July 31 he saw Store Manager Schwartz
and Cosmetics Manager Chew talking together and Schwartz pointed at him. Later
that morning Chew said to him that "All this is getting on my nerves. I'll have to
let you go." Dougherty further testified that he had not theretofore had trouble with
Chew, but that, on the contrary, she had complimented him on his work.
Chew testified that while Dougherty did good work when he worked, he loafed
much of the time and kept irregular hours. She further testified that he had dis-
obeyed instructions with respect to taking inventory on Sunday, July 30, and that on
the next morning he again disobeyed orders when he insisted on putting a shipment
in the warehouse rather than on the selling floor as she directed. At this point, ac-
cording to Chew, she told him that his refusal to take orders was getting on her
nerves, and he would have to straighten out or quit. According to her, he there-
upon inquired if she wanted him to punch out, she told him this was as good a time
as any, and he then did so. Chew denied any knowledge of Dougherty's union ac-
tivities and testified that she had no knowledge of any union activity until several
days after Dougherty's discharge. According to the testimony of Mabel Robinson,
who is Dougherty's mother, she learned of her son's discharge that day, asked Chew
about it, and was told that Schwartz had ordered the discharge to cut expenses and
not for union activity.
3, 4, and 5. Mabel Robinson, Frances Robinson Flickinger, and Linda Wassil:
After Joseph Dougherty's discharge the morning of July 31, he left the store, but
returned that afternoon accompanied by one Kudla, a union organizer, and by Ed
Hostetter, who, after his discharge as manager of the toy department, had apparently
remained active in the Union's efforts to organize the store. The three men went to
the snack bar in the store where they were joined by Mabel Robinson (Dougherty's
mother), Frances Robinson Flickinger (Mabel's sister-in-law), and Linda Wassil.
The latter two were employed in Gaylord's women's apparel department; Mabel
Robinson worked in the children's department. Dougherty handed three union cards
to his mother, who retired to the ladies' room, signed one of the cards, and returned
it to her son. Robinson then took Linda Wassil into the ladies' room, where Linda
signed a card and gave it to Robinson, whereupon the two returned to the snack bar
and Robinson handed that card to Dougherty. The same process was then repeated
by Robinson and Flickinger, who signed a card in the ladies' room and then returned
to the snack bar where Robinson handed the card to her son. The meeting at the
snack bar was in plain view of Store Manager Schwartz' office window, and Schwartz
admitted that he saw the group there and that Union Organizer Kudla waved to him.
According to the testimony of several of the employees Schwartz could see them
return the cards to Dougherty, but Schwartz denied this. The employees also testified
that Stella Mullins, manager of the snack bar, and Frances Chew, Mullins' sister and
head of cosmetics, saw Mabel Robinson hand the cards to Dougherty, but Mullins
and Chew deny having seen it. Later that day, according to Mabel, she saw Schwartz
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
staring at her, and the store policeman, dressed in plain clothes, lingered near the
department where she worked, and told her that Schwartz had stationed him there
in anticipation of "trouble."
The next day, Tuesday, August 1, Schwartz laid off Mabel Robinson and Frances
Robinson Flickinger. Wassil had her day off on August 1, and Schwartz laid her off
on August 2. In each case the explanation given the employee was that a cut in
payroll was necessary because business had fallen off, and Schwartz told each of
the employees that she would be recalled if business improved. According to Mabel
Robinson, she was paid off at once, although her normal payday was Wednesday.
Frances Robinson Flickinger was junior in employment to the others in her depart-
ment, having worked there for only 3 weeks at the time she was laid off. Linda Wassil
had been steadily employed there from October 1960 until her layoff. Mabel Robin-
son had worked in the department from September 1960 to February 1961 (when she
quit for failure to get a pay raise) and again from May (when she returned to work
at the urging of Department Manager Carrigan) until her layoff. The other full-
time employees in the women's and children's department were senior in employment
to these three; several part-time employees in the department were junior to these
three.
According to Department Manager Carrigan, she learned from top management in
mid-July that her payroll was too high in the light of falling business attributable to
increased competition. She testified that when she returned from vacation on July 31,
Store Manager Schwartz asked her to name the people last hired in her department.
Carrigan denied any knowledge of any union activity prior to August, and did not
recall the fact that Rothchild addressed the employees on Friday, July 21, the
.day before she left on vacation. Store Manager Schwartz testified that the idea of
using seniority as the basis for the layoffs originated not with him but with Carrigan.
,Carrigan testified that, with one exception, aside from the cases before us, during the
19 months in which she has been department manager, she and not the store
manager notified employees in that department of their separation from employment.
From July 25 to August 1, inclusive, Gaylord advertised in the "help wanted"
column of two Wilmington newspapers seeking an experienced saleslady in the
"ready-to-wear" department.
6 and 7. Ellsworth Morgenstern and Bernadette Monaco: Morgenstern and
Monaco were employed by Respondent Archer in the domestics department, managed
by Frank Kamenicky, who told them on August 2, 1961, that, pursuant to instruc-
tions he had received from Archer's Boston office, they were being laid off until
business improved. Both of them had signed union cards approximately a week
before they were laid off. According to the uncontradicted testimony of Ed Grandel,
who was manager of the toy department at the time of the layoffs, he talked to
Kamenicky about the "union trouble" at that time, and Kamenicky stated that he
(Kamenicky) was told he would have to get rid of Morgenstern and Monaco for
signing union cards and that Gaylord's would furnish Kamenicky with sales help
until he could hire someone else.
D. Concluding findings
1. Credibility of witnesses
At the time of the hearing in this case the Union was picketing the store, and
feeling on both sides was manifestly high. With minor exceptions, the testimony of
all the witnesses was colored by their direct economic interest in the case or by their
personal hostility to or friendship for the principals, or by their desire to further the
interest of the side with which they were identified. This is not a case, therefore, in
which I can accept the testimony of either side in toto. By the same token, witnesses
whose testimony and whose demeanor on the witness stand were such as to lead me
to regard them as generally credible, seem to have testified falsely in certain matters,
and conversely, witnesses whose testimony was in large part unworthy of belief
appear to have testified truthfully in some respects. It therefore becomes necessary
to resolve each material conflict in the testimony separately.
Two such conflicts arise with respect to the alleged violations of Section 8(a)(1),
and will be disposed of at this point. Other conflicts in testimony arising in connection
with the discharges or with the remedy will be disposed of in the discussion of the
individual cases.
As noted above, Schwartz' testimony concerning Rothchild's speeches was in
sharp contradiction to the testimony of the employee witnesses. On this subject I
find Schwartz totally unworthy of belief. In so doing, I do not find it necessary to
rely on the concession, since repudiated, of Respondents' counsel (see footnote 3,
supra). Quite apart from that concession I credit the employees' testimony on this
GAYLORD DISCOUNT STORES OF DELAWARE, INC., ETC. 565
matter as it was given in a convincing manner with such details as suggest that the
witnesses were accurately reporting the content as well as the manner of Rothchild's
address. The fact thta Schwartz gave such flagrantly false testimony on this matter
casts a shadow over all his testimony, for his prevarications with respect to Rothchild's,
speeches can only be attributed to a zeal to support Respondents' case in all respects
and at all costs.
Robinson testified that she had discussed the Union with Carrigan, and that in mid--
July Carrigan stated to Robinson and one Jennifer Rose (not called as a witness) that
anyone who signed a union card would be fired on the spot. Carrigan testified that
she never heard of the Union prior to her return from vacation on July 31. I do not
credit Carrigan's testimony in this respect .5 The record shows that union activity in
the store had been discussed by Horenstein and Hostetter prior to the latter's discharge
on July 14, and that the activity was sufficiently well known to management officials
before Carrigan's vacation to be the subject of special meetings at which all employees
were assembled to be addressed by a managerial spokesman from New York. More-
over, Robinson's demeanor and manner of testifying were such as to lead me to
credit her in this respect; I regard her as a forthright, if over-loquacious witness.
I also regard it as unlikely that she would have fabricated the detailed account she
gave with respect to the mid-July episode, for although Robinson was an interested
party with respect to her discharge and her son's, in mid-July she was not a union
supporter, and her testimony with respect to that episode has little, if any, bearing
on the discharges with which she was particularly concerned. For the foregoing
reasons, I credit Robinson's testimony in this regard.
2. Conclusions with respect to interference, restraint, and coercion
I find that Manager Carrigan's statement to Robinson in mid-July that anyone who
signed a union card would be fired on the spot, and Rothchild's addresses to the
employes in which he threatened that advent of a union would impede promotions
and would result in management's "tightening up" on absences and tardiness tended
to interfere with, restrain, or coerce employees in the exercise of their right to engage
in union activities, and that Respondents Gay and Gaylord, acting through Carrigan
and Rothchild, thereby violated Section 8 (a) (1) of the Act.
I further find that Respondent Hardlines by Martin's interrogation of his employees
as to their union membership and by his warning to Houston, at the time of the
interrogation, that union supporters would be laid off similarly violated Section
8(a) (1) of the Act, as did Respondent Archer, by Kamenicky's statement to Monaco
that anyone who signed a umon card would be fired, and by his threat to demote
Morgenstern if the latter signed a union card.
3. Conclusions with respect to the discharges
As to five of the seven alleged discriminatory discharges, I regard the proof as so
clear as to warrant little discussion. The cases of Adams and Dougherty are sub-
stantially closer and will be treated at greater length.
John Kamenicky, manager of Archer's domestics department, discharged Morgen-
stern and Monaco on August 2, 1961. Shortly before then Kamenicky told Ed
Grandel, according to the latter's uncontradicted testimony which I credit, that
Kamenicky was about to discharge Morgenstern and Monaco because they had
signed cards. Under these circumstances I find that a preponderance of the evidence
establishes that Morgenstern and Monaco were discharged in violation of Section
8(a)(3) and (1) because of their union membership.
Mabel Robinson, Frances Robinson Flickinger, and Linda Wassil were discharged
on the next working day after they signed union cards. I credit Robinson's testi-
mony, and discredit Schwartz' denial, that he saw her hand the cards to Dougherty
in the presence of a union organizer. And, in the light of Gaylord's hostility to the
Union. I find "considerably more than a coincidental connection" between their sign-
ing union cards on one day and their discharges on the next, N.L.R.B. v. Condenser
Corp., 128 F. 2d 67,75 (C.A. 3).
It should also be noted that these layoffs or discharges were handled by Store
Manager Schwartz rather than by Department Manager Carrigan, who normally
6 Carrigan testified that she "must have been on vacation" duiing Rothchild's July 21
speech. Her vacation, however, did not start until the next day. Schwartz suggested that
Carrigan might have left early. But Linda Wassil, whose tesimony I credit in all re-
spects as she gave the impression of testifying with great precision and a desire to be
absolutely accurate, positively identified Carrigan as being at the meeting.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
handled such matters, that Schwartz ' and Carrigan 's testimony is contradictory as to
which of them decided that there should be layoffs from Carrigan 's department, and
that during the week preceding the layoffs Gaylord had advertised for a saleslady
with ready-to-wear, experience-a fact which substantially disposes of Gaylord's
contention that the layoffs were due to a loss of business . Although the three affected
employees had the least seniority of the full -time help in their department , there were
part-time employees with less semority . When Schwartz was asked why he did not
offer some of the laid-off employees an opportunity to take part -time jobs, he replied
"I really couldn 't answer that ." While it is true that Gaylord 's sales in Carrigan's
department had declined in June and July 1961 from the comparable months in
1960-probably because two competitors had entered the field-the decline in July
was somewhat less than that in June. Indeed, the hiring of Flickinger 3 weeks before
her discharge in itself rebuts the defense that the inroads of competition forced a
curtailment of Gaylord 's sales force . In any event upon a consideration of the entire
record I find that a preponderance of the evidence establishes that Robinson , Wassil,
and Flickinger were discharged in violation of Section 8(a) (3) and ( 1) because Gay-
lord knew they had signed union cards.
Leola (Pat) Adams was discharged July 15 , 1961, allegedly for neglecting the work
at the service desk and spending too much time conversing with Robert Hostetter.
As Hostetter had been discharged the day before, it would seem that no further
action with respect to Adams would have been necessary to correct the situation which
allegedly troubled management . The question in Adams' case , however, is not
whether management acted reasonably in discharging her, but whether it did so
because of her union activity , for she had signed a card 2 days before.
The evidence as to company knowledge of her union activity is rather meager.
Basically, it consists of two items : Adams' friendship with Hostetter , whose prounion
tendencies were apparently discovered or strongly suspected just prior to his dis-
charge; and Carrigan 's statement in mid-July that two employees were about to be
fired for union activity . ( Adams was the only Gaylord employee whose employment
terminated between July 10 and July 20, except for one Moody , who worked only 1
week. ) Recently the Board stated in Product Engineering and Mfg. Co ., 133 NLRB
1375:
If Respondent was, as we find , aware of Melvin's activity on behalf of the
Union , it is proper to infer that it was also aware of the union activity of his
brother and of Wood, which occurred at the same time and place , or, at the
very least , that the Respondent suspected that, in the view of their close associa-
tion during work and otherwise , Rollie and Wood shared Melvin's prounion
sentiments . Accordingly , we find adequate evidence in the record that the Re-
spondent believed that all three were union adherents.
Applying this rationale to the instant case, I find that because of Adams' apparent
close friendship and known association with Hostetter , Gaylord knew or suspected
she was a union adherent at the time of her discharge.
The testimony of Adams and Schwartz is in conflict as to whether Schwartz or
Horenstein discharged her and as to whether Schwartz ever admonished her for
spending too much time talking to Hostetter . On the former point I credit Adams
and find that Horenstein told her she was laid off because of a payroll cut, but on
the latter I am inclined to credit Schwartz. It does not follow , however, that her
visiting with Hostetter was the cause of her discharge , for with Hostetter already
out of the store it seems to me unlikely that Adams would have been let go the day
after his discharge merely because she had in the past spent too much store time in
his company . Adams had worked for Gaylord for 16 months at the time of her
discharge , had seniority over other girls in similar jobs, and impressed me with her
demeanor as one who must have been a distinct asset to the store in terms of public
relations in her work at the service desk , handling refunds and exchanges and also
handling telephone calls In sum , I find that Gaylord (whose antiunion animus is
well established on this record) knew or suspected Adams of union activity because
of her close association with Hostetter , that it discharged her for that reason on
July 15 , 1961, giving her a false reason (cut in payroll ) and that the Company's
later alleged reason ( spending too much store time talking to Hostetter ) was not the
real reason , except insofar as her association with Hostetter led to the conclusion
that she was also a union supporter . There is some suggestion in the record of cash
shortages in her department , but this is not and never was alleged as a ground for dis-
charge, was never regarded by Respondents as traceable to Adams, and is not now so
regarded , for Respondents ' counsel expressly stated that her discharge was for
"talking and kibitzing on the floor " and ,that she "might be rehabilitated."
GAYLORD DISCOUNT STORES OF DELAWARE, INC., ETC. 567
The question whether Dougherty's discharge violated the Act depends in large
part upon whether his testimony or that of Frances Chew is to be credited. Un-
fortunately, neither impressed me as an altogether truthful witness. Dougherty's
inability to remember important dates and other facts of his employment and his
general demeanor on the witness stand were not such as to inspire confidence in his
credibility, while Chew's testimony that she knew nothing about the Union and had
heard nothing about it until after she fired Dougherty was so patently incredible
that she modified it herself under persistent cross-examination to "just a little bit."
The evidence establishes that Dougherty was an active union supporter, that he
distributed union cards to the employees, and that this activity was ill-concealed and
was well-known to supervisory employees. The evidence also establishes that
Dougherty had proved unsatisfactory in two other jobs in the store before he was hired
in the cosmetics department. According to Dougherty, on the morning of his
discharge-he saw Department Manager Chew and Store Manager Schwartz in con-
versation, that Schwartz "kept looking and pointing to me when he talked," and that
thereafter Chew said, "I have to let you go, and all this is getting on my nerves."
According to Chew, Dougherty had been disobeying her instructions during the past
few days, and when he again refused to do as she asked with respect to the place-
ment of certain stock, she told him he would have to obey orders or be let go, where-
upon he offered to "punch out" at once and she agreed. From my observation of
Dougherty on the witness stand, I am inclined to credit Chew's version as it seems
thoroughly consistent with Dougherty's personality and character. I therefore find
that Dougherty was discharged for good cause, and not for union membership.6
4. Conclusions with respect to the joint liability of the several Respondents
General Counsel contends that in view of the integrated operation of the store
and of the fact that all the Respondents made common cause against the Union, each
Respondent is liable for any statutory violations committed in the store. Under this
theory, as stated by General Counsel, as Adams' discharge at the hands of Gaylord
has been found discriminatory, an order should be entered directing each of the Re-
spondents to offer her reinstatement and backpay. Under this theory, moreover,
even the operators of leased departments who were not named in the complaint
would be responsible for remedying unfair labor practices committed in other de-
partments of the store. To be completely anomalous , it appears that in one such
department-the toy department operated by Playmor Sales-the employer was
probably gulity of a violation of Section 8(a)(2) and (1) in that the manager,
Hostetter, asked his subordinate to join the Union, so that under General Counsel's
theory this employer could be guilty of both unlawful support of the Union and un-
lawful conduct adverse to it. In any event, I find no basis in law or in fact for hold-
ing any or all the lessees liable for conduct committed by Gaylord or by other
lessees.
A different question, however, is presented in considering Gaylord liability for
discrimination against employees in the leased departments. Gaylord had and
exercised considerably more control over the employees of the several licensees than
any of the licensees exercised over the employees of any other. For example, the
licensing agreements provided that if Gaylord signed a union contract, the terms
thereof would be binding upon the licensees "as the same shall affect its employees."
Significant also is the fact that when Rothchild made his antiunion speech to the
employees, he addressed all employees in the store, and not merely the Gaylord
employees. In fact, in discussing the advantages of not having a union, Rothchild
pointed to the speedy promotions of Grandel and Chew to supervisory positions,
but such promotions were effected, not by Gaylord, but by independent licensees.
Further, when Kamenicky had to lay off two Archer employees for union activity,
Gaylord agreed to supply him with help until he could replace them. Finally,
Gaylord reserved the right to require the licensee to dismiss any employee whose
conduct was unsatisfactory to Gaylord. It appears, therefore, that although each
licensee had primary responsibility for its own employees, Gaylord did engage in
6In the event my finding as to Dougherty is reversed on review. I further find that
after his discharge Dougherty did not engage in any activity which would render him
unfit for future employment by any of the Respondent in otner words I credit
Dougherty's version of his post-discharge conversations with Nancy Martin, who testified
as to alleged misconduct by Dougherty
Apparently no charge has been filed alleging that Playmor or Hostetter violated Sec-
tion 8 ( a)(2) or (1).
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices affecting all the employees in the store, and should share to
some degree in the liability for the discriminatory discharges in the licensed depart-
ments. This matter is further discussed in the section of this report captioned "The
Remedy."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operation of the Respondents described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that Respondents , except for Marrud , have engaged in unfair labor
practices , I shall recommend that they cease and desist therefrom and take certain
affirmative action necessary to effectuate the purposes of the Act.
Insofar as Morgenstern and Monaco are concerned , I shall recommend that
Respondent Archer offer them reinstatement and backpay , in the manner hereinafter
specified , and I shall further recommend that if Archer fails or refuses to do so
(i.e., if, for example , Archer should abandon operations at Gaylord 's before com-
pliance with this recommendation is achieved ) Respondent Gaylord shall offer them
reasonably comparable positions in its organization , and shall be liable for their
backpay. In other words, I recommend that Archer be held primarily liable, and
Gaylord secondarily liable , for the discrimination against the two Archer employees.
See N.L .R.B. v. Lexington Electric Products Co., Inc., 283 F. 2d 54, 57-58 (C.A. 3),
certiorari denied , 365 U.S. 845 .8
With respect to each of the discriminatees (Adams, Robinson ,9 Flickinger , Wassil,
Morgenstern , and Monaco ) I shall recommend that the appropriate Respondent
offer each of them immediate and full reinstatement to his former or substan-
tially equivalent position (Chase National Bank , 65 NLRB 827 ), without prejudice
to his seniority or other rights or privileges , and make each whole for any loss of
pay he may have suffered as a result of the discrimination against him by payment
to each of a sum of money equal to the amount he normally would have earned as
wages from the date of his discharge to the date of the offer of reinstatement, less
his net earnings during said period, with backpay computed on a quarterly basis in
the manner established by the Board in F . W. Woolworth , 90 NLRB 289, 291-294.
I shall also recommend that Respondents Gaylord and Archer make available to
the Board upon request , payroll and other records to facilitate the determination of
the amounts due under this recommended remedy 10
As the violations committed by Archer and Gaylord reflect an attitude of such
hostility to the rights of employees under the Act as to lead me to believe that
future violations on their part may fairly be anticipated unless expressly restrained,
I shall recommend that those Respondents cease and desist from any invasion of
employee rights under the Act. I find no evidence in the record to warrant impo-
sition of so broad an order against Respondent Hardlines.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
8 Respondents in their brief alleged that Monaco and Morgenstern have already been
reinstated by Archer This is a matter to be developed in compliance negotiations and
proceedings, but If they have been reinstated the notices to be posted by Archer and
Gaylord may be amended to reflect the actual situation, in that the Gaylord notice may
omit the reinstatement (but not the backpay) language as to those employees, and the
Archer notice may read "we have reinstated" instead of "we will reinstate "
91 find no basis for Respondents' contention that Robinson engaged in misconduct
forfeiting her right to reinstatement. Her outburst to Schwartz at the time he discharged
her was thoroughly understandable (c£ N L.R B v. Vermont American Furniture Corpora-
tion, 182 F. 2d 842, 843-844 (CA. 2) ), and there is no showing of serious picket line
misconduct.
10 After the close of the hearing, the Charging Party filed a motion asking that interest
be included in any backpay awarded in this case While I am sympathetic with the view
that interest should be Included in backpay awards, whether to do so or not is a matter
to be decided by the Board as a matter of overall policy. As of the date of this report,
I am aware of no Board Order awarding interest in a situation comparable to this.
I therefore deny the motion and leave the Charging Party free to raise this matter before
the Board by filing an appropriate exception to this denial of the motion.
GAYLORD DISCOUNT STORES OF DELAWARE, INC., ETC. 569
CONCLUSIONS OF LAW
1. Gay and Gaylord constitute a single employer for purposes of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. By interrogating employees as to their union membership and by warning an
employee that union supporters would be laid off, Respondent Hardlines interfered
with, restrained, and coerced its employees in the exercise of their statutory rights,
thereby violating Section 8(a) (1) of the Act.
4. By threatening employees with discharge or demotion if they signed union
cards, and by discharging Morgenstern and Monaco for union membership, Respond-
ent Archer engaged in unfair labor practices violative of Section 8(a)(1) and (3)
of the Act.
5. By discharging Adams, Robinson, Flickinger, and Wassil for union activity, by
warning employees that union membership would lead to their being discharged, and
by threats of other reprisals if the Union succeeded in organizing the store, Re-
spondents Gay and Gaylord engaged in unfair labor practices violative of Section
8(a)(3) and (1) of the Act.
6. Respondents Gay and Gaylord are also responsible, albeit secondarily, for
Respondent Archer's unlawful discharge of Monaco and Morgenstern, and thereby
further violated Section 8(a) (3) and (1) of the Act.
7. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in the case, I recommend that:
A. Respondent Hardlines Distributors, Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from coercively interrogating its employees as to their mem-
bership in a labor organization, from threatening them with discharge for such ac-
tivity, and from in any like or related manner interfering with, restraining, or coercing
its employees in the exercise of their rights under the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Post at the Gaylord store in Wilmington, Delaware, copies of the notice
attached hereto marked "Appendix A." 11 Copies of said notice, to be furnished
by the Regional Director for the Fourth Region, shall, after having been duly signed
by a representative of Respondent Hardlines, be posted by Respondent Hardlines
immediately upon receipt thereof and be maintained by it for 60 consecutive days
thereafter in conspicuous places, including all places where notices to employees
are customarily posted. Respondent Hardlines shall take reasonable steps to in-
sure that such notices are not altered, defaced, or covered by any other material.
(b) Notify the said Regional Director in writing, within 20 days from the receipt
of this Intermediate Report and Recommended Order, as to what steps it has taken
to comply herewith.12
B. Respondent Archer Sales, Inc., its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening employees with demotion or discharge because of their union
membership or activities, or in any other manner interfering with, restraining, or
coercing its employees in the right to self-organization, to form labor organiza-
tions, to join or assist Local 1349, Retail Clerks International Association, AFL --
CIO, or any other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to refrain from any or all of
11 In the event that these Recommendations be adopted by the Board, the words "A De-
cision and Order" shall be substituted in the notice for the words "The Recommendations
of a Trial Examiner" In the further event that the Board's Order be enforced by a
United States Court of Appeals, the words "A Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order."
12 In the event that these Recommendations be adopted by the Board this provision
shall be modified to read: "Notify the Regional Director in writing within 10 days from
the date of this Order what steps Respondent Hardlines has taken to comply herewith."
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such activities except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as authorized in Section 8(a)(3) of
the Act.
(b) Discouraging membership in Local 1349, Retail Clerks International Asso-
ciation, AFL-CIO, or in any other labor organiation of its employees, by discrim-
inatorily discharging any of its employees or by discriminating in any other manner
in regard to hire or tenure of employment or any term or condition of employment.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer to Ellsworth Morgenstern and Bernadette Monaco immediate and full
reinstatement to their former or substantially equivalent positions and make each
whole for any loss of earnings attributable to the discrimination found, in the
manner set forth in "The Remedy" section of the Intermediate Report.
(b) Preserve and, upon request, make available to the Board, or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary for the deter-
mination of the amount of backpay due under the terms of this order.
(c) Post at the Gaylord store in Wilmington, Delaware, copies of the notice at-
tached hereto marked "Appendix B." 13 Copies of such notice to be furnished by
the Regional Director for the Fourth Region shall, after being duly signed by Re-
spondent Archer's authorized representative, be posted by Respondent Archer im-
mediately upon receipt thereof and be maintained by it for a period of 60 con-
secutive days thereafter in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall be taken to insure
that the notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Fourth Region, in writing, within 20
days from the date of receipt of this Recommended Order what steps have been taken
in compliance.14
C. Respondents Gay Apparel Corp. and Gaylord Discount Stores of Delaware,
Inc , their officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Advising employees that those who sign union cards will be discharged, or
that any current conditions of employment would be changed for the worse if a
union succeeded in organizing the store, or in any other manner interfering with,
restraining, or coercing their employees in the exercise of their right to self-
organization, to form, join, or assist Local 1349, Retail Clerks International Asso-
ciation, AFL-CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, or to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to refrain
from any and all such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condition of
employment as authorized in Section 8(a) (3) of the Act.
(b) Discouraging membership in Local 1349, Retail Clerks International Asso-
ciation, AFL-CIO, or in any other labor organization of its employees, by dis-
charging or laying them off or in any other manner discriminating in regard to
their hire or tenure of employment or any term or condition of employment.
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Offer Leola Adams, Mabel Robinson, Linda Wassil, and Frances Robinson
Flickinger immediate and full reinstatement to their former or substantially equiva-
lent positions without prejudice to their seniority or other rights and privileges, and
make each of them whole in the manner set forth in the "The Remedy" section
of the Intermediate Report.
(b) In the event Archer Sales, Inc., fails to comply with this Order with respect
to Ellsworth Morgenstern or Bernadette Monaco, offer to each of them a position
in the Gavlord store in Wilmington. Delaware, substantially equivalent to the posi-
tion each held in the store at the time of their unlawful discharge, and make each
of them whole in the manner set forth in "The Remedy" section of the Intermediate
Report.
13 See footnote 11. supra.
1s In the event that these Recommendations be adopted by the Board, this provision
shall be modified to read* "NTotifv the said Regional Director In writing within 10 days
from the date of this Order what steps have been taken in compliance "
GAYLORD DISCOUNT STORES OF DELAWARE, INC., ETC. 571
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records. time-
cards, personnel records and reports, and other records necessary to analyze the
amounts of backpay due under the terms of this Order.
(d) Post in the Gaylord store at Wilmington, Delaware, copies of the notice
attached hereto marked "Appendix C." 15 Copies of said notice to be furnished
by the Regional Director for the Fourth Region shall, after being duly signed by
Respondents Gay and Gaylord be posted by them immediately upon receipt thereof
and be maintained by them for 60 consecutive days .thereafter in conspicuous places,
including all places where such notices are customarily posted. Reasonable steps
shall be taken by Respondents Gay and Gaylord to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Fourth Region, in writing, within 20 days
from the receipt of this Intermediate Report and Recommended Order, what steps
Respondents Gay and Gaylord have taken to comply herewith.1e
It is recommended that the complaint against Marrud, Inc., be dismissed.
15 In the event these Recommendations be adopted by the Board, the words "A Deci-
sion and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order."
10In the event that these Recommendations be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director in writing within 10 days from
the date of this Order what steps Respondents Gay and Gaylord have taken to comply
herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT coercively interrogate employees about their union activities
or threaten reprisals against employees because of their union activities, or in
any like or related manner interfere with, restrain, or coerce our employees in
the exercise of the right to self-organization, to form labor organizations, to
join or assist any labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or to re-
frain from any and all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor organization as a
condition of employment, as authorized by the National Labor Relations Act.
HARDLINES DISTRIBUTORS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage affiliation with Local 1349 , Retail Clerks Inter-
national Association , AFL-CIO, or any other labor organization , by discharging
our employees , or discriminating in any other manner in regard to their hire or
tenure of employment or any term or condition of employment.
572 DECISIONS Or NATIONAL LABOR RELATION' S BOARD
WE WILL NOT threaten our employees with demotion or discharge because of
their union affiliation and activities or in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist the above-named union, or any other
labor organization, to bargain collectively through representatives of their own
choosing, and to engage in collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities except to the extent that such
right may be affected by an agreement requiring membership in a labor organiza-
tion as authorized by the National Labor Relations Act.
WE WILL offer Ellsworth Morgenstern and Bernadette Monaco immediate and
full reinstatement to the positions they formerly held, or their equivalent, with-
out prejudice to seniority or other rights and privileges, and make them whole
for any loss of pay they may have suffered as a result of the discrimination
against them.
ARCHER SALES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage affiliation with Local 1349, Retail Clerks Inter-
national Association, AFL-CIO, or any other labor organization, by discharging
our employees, or by discriminating in any other manner in regard to their
hire or tenure of employment or any term or condition of employment.
WE WILL NOT advise our employees that those who sign union cards will be
discharged or that any current conditions of employment would be changed for
the worse if a union succeeds in organizing the store or in any other manner
interfere with, restrain, or coerce our employees in the exercise of the right to
self-organization, to form labor organizations, to join or assist the above-named
union , or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities except to
the extent that such right may be affected by an agreement requiring member-
ship in a labor organization as authorized by the National Labor Relations Act.
WE WILL offer Leola (Pat) Adams, Mabel Robinson, Linda Wassil and
Frances Robinson Flickinger immediate and full reinstatement to the posi-
tions they formerly held, or to substantially equivalent positions without preju-
dice to seniority or other rights and privileges, and make each of them whole for
any loss of pay they may have suffered as a result of the discrimination against
them.
WE WILL, if Archer Sales, Inc., fails to do so, offer Ellsworth Morgenstern
and Bernadette Monaco, positions substantially equivalent to those they held
with Archer Sales, Inc., and make each of them whole for any loss of pay they
may have suffered as a result of the discrimination against them.
GAY APPAREL CORPORATION,
Employer.
GAYLORD DISCOUNT STORES
OF DELAWARE, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must i emain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.