Gerry's I.G.A.

National Labor Relations Board - Board Decisions

Sep 29, 1978

238 N.L.R.B. 1141 (N.L.R.B. 1978)

GERRY'S I.G.A.
Gerry's Cash Markets, Inc., d/b/a Gerry's I.G.A. and
Amalgamated Food Workers District Local Union
10, Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO and Retail Store
Employees, Local 372, Retail Clerks International
Association, AFL-CIO. Cases I -CA- 12428, 1 -RC-
14786, 1-CA-12504, 1-CA-12637, and I-RC-
14827
September 29, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On June 22, 1978, Administrative Law Judge Ir-
ving M. Herman issued the attached Decision in this
proceeding. Thereafter, Respondent and the General
Counsel file exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified below.
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 Or-
Respondent has excepted to certain credibility findings made by the Ad-
rmnistrative Law Judge. It is the Board's established polio5 not to overrule
an Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibil-
ity unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A, 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
The Administrative Law Judge found (fn 12) that David Frampton testi-
fied that neither Store Manager Peter Bellavance nor Assistant Store Man-
ager DeCoff was present on Saturdays when he punched in. Our review of
the record persuades us that Frampton was refernng to Saturday, November
13, 1976, the I day he worked after his work schedule was unlawfully
changed. This does not alter our conclusions: rather, it reinforces our finding
that Respondent's defense is pretextual
In the remedy section of his Decision, the Administrative Law Judge prop-
erly ordered, inter alia, that Frampton and Robert MacKenzie be made
whole in contormance with standard Board precedent. It is hereby clarified
that, with respect to Frampton's net interim earnings, the earnings from his
full-time job are to be determined on the basis of the net increase over
predischarge earnings. Isaac and Vinson Securitv Services. Inc, 208 NLRB 47
(1973)
'On January 3, 1980, the Respondent filed a motion to amend the notice
to employees to reflect its compliance with the Board Order and the Order of
the Court of Appeals for the First Circuit. The Board considered the matter
and on January 24, 1980, issued an Order Amending Decision and Order to
substitute the attached notice
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Gerry's
Cash Markets, Inc., d/b/a Gerry's I.G.A.. Clare-
mont, New Hampshire, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph l(e):
"(e) Publishing, promulgating, maintaining, en-
forcing, or applying any rule or regulation prohibiting
its employees from engaging in union solicitation dur-
ing their nonwork time in nonselling areas of the
store."
2. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Expunge from Frampton's and MacKenzie's
personnel files any reference to or any warnings or
letters regarding their respective discharges or demo-
tions.
3. Substitute the attached notice* for that of the
Administrative Law Judge.
APPENDIX
NOTI(Et To ENPILOYEES
POSTED BY ORDER OF THE
NATIONAI LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILI_ NOI discharge, change the working
conditions of, or otherwise discriminate against
any' employee because of his union or other pro-
tected activity.
WE WILL NOT demote, change the working
conditions of, or otherwise discriminate against
any supervisor becasue of his failure or refusal to
engage in the commission of an unfair labor
practice.
WE WILL NOT delay or withhold or threaten to
delay or withhold any benefit from our employ-
ees to interfere in a union campaign or discour-
age support for union activity.
WE WILL NOT promise or grant any benefits to
our employees to interfere in a union campaign
or discourage support for union activity.
WE WILL NOT publish, promulgate, maintain,
enforce, or apply any rule or regulation prohibit-
ing our employees from engaging in union solici-
tation during their nonwork time in nonselling
areas of the store.
WE WILL NOT threaten to refuse to bargain
about requiring employees to take a psycholog-
ical stress test or about any other subject that the
law requires us to bargain about.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
238 NLRB No. 161
1141
DECISIONS OF NATIONAL L.ABOR REI.ATIONS BOARD
ercise of their rights under the National Labor
Relations Act, as amended.
WE: reinstated David Frampton to his former
job and to his regular hours of work prior to
November 26, 1976, without prejudice to senior-
ity or other rights and privileges and made him
whole for any loss of pay suffered by reason of
discrimination against him, plus interest. WE
wilItl make Robert MacKenzie whole for any
loss of pay suffered by reason of the discrimina-
tion against him plus interest.
Wr! have expunged from Frampton's person-
nel file and will expunge from MacKenzie's per-
sonnel file any reference to or any warnings or
letters regarding their respective discharges or
demotions.
WE have made whole all employees at our
Keene store for any loss suffered as a result of
the withholding on November 23, 1976, of the
benefits announced that day for our employees
at Claremont and Bellows Falls.
WF have granted to our employees at Keene
all benefits that were announced for our Clare-
mont and Bellows Falls employees on November
23, 1976.
GERRY'S CASH MARKETS, IN(., D/B/A
GERRY'S I.G.A.
DECISION
STATEMEN'I OF THEF CASE
IRVIN(; M. HFRMAN, Administrative Law Judge: This
case was heard before me on April 11 - 13, 1977, at Boston,
Massachusetts, on a consolidated complaint issued March
22, 1977. based upon a second amended charge filed De-
cember 8. 1976 (Case I-CA 12428), by Amalgamated
Food Workers District Local Union 10, Amalgamated
Meat Cutters and Butcher Workmen of North America,
AFL CIO (herein called the Meatcutters), and upon a
charge filed December 3, 1976 (Case I1-CA-12504), and an
amended charge filed February 23, 1977 (Case I CA--
12637), by Retail Store Employees. Local 372, Retail Clerks
International Association, AFL-CIO (herein called the
Clerks), all duly and timely served upon Respondent. The
primary issues are whether Respondent violated Section
8(a)(1) of the National Labor Relations Act, as amended
(29 U.S.C. 151, et seq.), herein called the Act, by maintain-
ing and enforcing an invalid no-solicitation rule and
changed the working conditions of Robert D. MacKenzie, a
supervisor, for failing to enforce the rule; whether it vio-
lated Section 8(a)(3) by reducing the working hours and
then discharging David Frampton for not complying with
the rule and by denying certain benefits to its employees at
its Keene, New Hampshire, store because of their union
activities; whether it violated Section 8(a)(1) by other coer-
cive conduct; and whether the election held at Keene on
January 13. 1977, should be set aside and a new election
ordered on objections filed by the Clerks.
Upon the entire record., including my observation of the
witnesses, and after due consideration of the briefs filed in
behalf of the General Counsel and Respondent. I make the
following:
FINDINGS ANr) CO N('I :SiONS
1. TIIE Ei MPI.)YR IN OI() EI)
The complaint alleges, the answer admits, and I find that
Respondent. a Vermont corporation, with its principal of-
fice and place of business at Claremont. New Hampshire,
operates retail grocery, stores in Claremont and Keene, New
Hampshire, and Bellows Falls. Vermont: that in the course
of its business Respondent purchases goods valued at over
$50,000 directly from points outside New Hampshire and
has a gross annual volume in excess of $500,000: and that
Respondent is an employer engaged in commerce within
the meaning of the Act.
II. tIHE l.ABOR OR(GANIZAIl()NS IV()I.NVII)
The complaint alleges, the answer admits, and I find that
the unions here involved are labor organizations within the
meaning of Section 2(5) of the Act.
III. IHEi ULNFAIR L ABOR PRA( II( ES
A. 771e Fbt.s
1. The no-solicitation rule and its application during the
organizing drive
In the week ending Saturday, October 23. 1976,2 David
Frampton, employed at the Keene store, approached an
agent of the Meatcutters to complain about his and other
employees' displeasure over Respondent's insistence on ad-
ministering what the employees referred to as a lie detector
test but Respondent more euphemistically termed a psycho-
logical stress evaluation test (PSE). The agent gave Framp-
ton some authorization cards to distribute, which he pro-
ceeded to do that weekend.3 Some of his activity occurred
on company time, and some occurred away from his de-
partment. Other employees assisted in the solicitations.
Frampton's efforts included a lengthy conversation with the
deli-bakery manager. Dilworth, whose signature he solic-
ited.4 The following Saturday. October 30, Peter Bella-
vance, who was manager of the Keene store and the son of
Respondent's owner' and to whom Dilworth had reported
the conversation, called Frampton into the meat room and,
I The typewritten transcript of testimony is hereby corrected by changing
"Bellavance" to "Dilworth" at p. 259. 1.14.
2 The testimony as to dates in certain respects was somewhat confusing,
but the discrepancies are less than critical for present purposes. The recon-
ciliation herein is based on a synthesis of all the testimony
3Frampton was working only Saturdays and Sundays at that time.
'Although Dilworth is alleged in the complaint and admitted in the an-
swer to have been a supervisor (along with Freight Manager Reichardt and
Meat Department Manager Ron Woods). the Unions contended in the rep-
resentation proceedings that all three were statutory employees.
'Peter Bellavance is herein called Peter: his father is called Gerry.
1142
GERRY'S l.G.A
in the presence of Meat Department Manager Woods and
Wayne Wardwrell. spoke to him as follows, according to
Frampton's direct examination:
A. Mr. Bellavance said to me very strongly that I
was not allowed to discuss the union on work time. He
said what I discussed after work was my business, but
I was not allowed to talk about the union on working
hours.
I questioned him, and said-as it was explained to
me I was not allowed to solicit for the union. I was
not allowed to leave my post or go gather signatures
during working hours: but that to merely talk about
the union on working hours was legal and aboveboard.
On cross-examination, this became:
Q. What did Mr. Peter Bellavance say to you. and
what did you say to him concerning your activities on
working time?
A. He came in and said to me that he wanted to
make one thing clear, that I was not allowed to talk
about the union on company time. What I did on my
own time was my own business, but I was not allowed
to talk about the union on company time.
Peter's account of the event states. "I told him there would
be no solicitation on the premises" and that there was a
company rule to that effect.
The rule maintained by Respondent and to which Peter
thus referred is entitled "Solicitation on Premises" and
reads as follows:
To maintain efficiency and give service to our cus-
tomers it is the company policy that employees handle
their personal business on their own time. There shall
be no solicitation or non-business activity regardless of
cause conducld on the premises without the prior per-
i.s.sion of the Store Owrner or Store nMatlger.
Violations of the policy will result in disciplinary ac-
tion.
This rule, which, according to Peter, bans "solicitation of
any type." appears on the sixth page of a document labeled
"Gerrv's ('ash Markets Personnel Policy & Procedures.
January 1976." Peter testified that he gives every new' em-
ployee a copy of the first three pages of this "policy man-
ual" and informs him at the time of hire of the remainder
"that goes into more depth that they should ... read," that
it is "available in the store for them." According to Gerry,
there were two copies of the "complete" manual in each
store, the respective managers "had been told to put those
on the bulletin board or in the coffee break area," and he
"personally saw to it that they were there.... the entire
[manuals] . . . were posted in an around the store for the
employees to read."
After learning of the organizing drive, Peter called a
meeting of the departmental managers at Keene. He testi-
fied he told them "that there would be no solicitation on
company time" and "made it clear to the managers that
there was a rule against it. And when it was actually inter-
fering with their work . . . they were not to allow it." He
added that he said "that there was a rule pertaining to it
that they knew about" and which "they were to enforce"
and that he had had occasion himself to enforce the rule in
June 1976 against a collection for a farewell gift for a de-
parting employee because "there was no solicitaition sup-
posed to he going on in the store": and he acknowledged
that he had told Frampton of the rule (without actually
showing it to him) on October 23 when, as noted supra. he
"told him there would be no solicitation on the premises."
Peter also testified, however. that he never had occasion tO
invoke the rule other than in the June incident and that of
October 23 and that he had never invoked it "against an
employee who was talking during work time." And he testi-
fied, on examination by Company counsel:
Q. Did you from time to time during the fall of 1976
observe employees discussing union matters while then
were working?
A. Yes. Several times.
Q. Did you say anything to them on those occa-
sions?
A. Long as it wasn't interfering with work I didn't
say anything to them.
Q. Did you ever observe employees in the Keene
store discussing union matters in the coffee room for
example?
A. That was pretty prevalent at that time. Yes.
Q. Did you ever say anything to them about that')
A. No, I did not.
Q. Did you ever observe employees talking about
the union in the back rooms, or store rooms. or ware-
house rooms, as distinct from rooms the public'
A. Yes.
Q. Did you ever say anything to them at that time?
A. No. I didn't.
On October 25, Robert MacKenzie, who, as assistant
store manager, had been in charge of the store the weekend
of October 23 24, was called into Peter's office and was told
that Peter did not want union activity "going on in the
store." According to him. the Girl Scouts. Heart Fund, and
other outside groups had been permitted bh Peter to set up
tables and pass out literature in the store. On October 29.
MacKenzie was demoted (sec. A, 2. infro).
Frampton testified that on October 31. he was talking to
another employee about some notices on the bulletin board
concerning unauthorized pay deductions when Emma. who
had succeeded Mackenzie as assistant store manager. ap-
proached them and said that Peter didn't like the Union
and had instructed the supervisors not to let the employees
talk about the Union. On cross-examination. however, his
testimony limited the statement to "store time" or "com-
pany time," and although he testified that throughout this
period he understood his superiors to mean such talk was
banned all the time he was on the clock. he conceded that
they distinguished between actual working time and break-
time, saying that what he did on his own time was his busi-
ness.
On November 6, Peter changed Frampton's hours of
work from a Saturday-Sunday schedule to one of Thurs-
day-Friday-Saturday. notwithstanding Frampton's other
commitments on weekdays. Frampton reminded Peter of
these commitments (sec. A, 3. inlr). but while Peter al-
lowed him to stay out the following Thursday and Friday
(November I I-12). he told Frampton as he was leaving on
1 143
DECISIONS OF NATIONAL LABOR RELATIONS BOAR[)
the 13th that he was expected to report the next Thursday,
the 18.6
Earlier on November 13, upon finding Frampton talking
with McElroy., a fellow employee, near the meat counter.
Peter had ordered McElroy to start bagging up front and
ordered Frampton to get to work, telling him to leave the
other employees alone when they had jobs to do. McElroy
testified that Peter told him he was not to talk to people in
other departments and he had never been told that before,
although he had been told sometime in November by
freight manager Reichardt that Peter had ordered that
there was to be no talk about unions on "company time" or
"store time" and he responded that he could talk about
unions if the others could talk about baseball and other
subjects that interested them. Frampton confirmed that he
talked to employees all day long about everything while
working the meat case and testified that that was what he
was doing during his conversation with McElroy but that
Peter threatened to fire him if he "talked about the union
any more.
Frampton did not report to work on November 18 and
was fired on the 19th. One of the three reasons given on his
discharge notice was "solicitation on the premises."
2. MacKenzie's demotion
MacKenzie had been an assistant manager at Keene (and
hence in charge on certain nights and Sundays) for at least
4 years when the union activity commenced herein. As indi-
cated above, he wras called down by Peter immediately after
Frampton's initial weekend of organizing, and 4 days later
he was relieved of his supervisory duties' and assigned to
working on freight with a reduction in working hours, albeit
at the same hourly rate.' According to MacKenzie, Peter
told him he "didn't need a manager like that," which Peter
did not explain except to say that MacKenzie was doing
work himself which he should have been delegating. How-
ever, only about a week earlier Peter had told him that
Respondent was planning to expand and open a new store
and asked him if he wanted to be assistant manager with
the possibility of future promotion to manager; he declined
because he was "semi-retired" and did not want to assume
new duties.9 After denying on cross-examination that Peter
had ever criticized his job performance, he conceded that
Peter had discussed with him at least one customer's com-
plaint about treatment at the courtesy booth in respect to
the check-cashing policy '° and that Peter had twice com-
6 Meanwhile, the Meatcutters had filed a representation petition (1-RC-
14827) on November 11. The Clerks had filed a petition (I RC 14786) on
October 26.
' Peter's testimony puts this on October 22, relating it to his confrontation
with MacKenzie on October 18 over Frampton's solicitation of Dilworth the
day before. As indicated above, however. the solicitation of Dilworth oc-
curred on October 24. MacKenzie's demotion, therefore, did not occur until
the 29th This conforms not only to MacKenzie's recollection but also to
Gerry's testimony that Emma's first Sunday in that position was October 31.
8 A couple of weeks before the hearing MacKenzie was transfered to the
job of checking in all incoming goods, in which position he reports directly to
Peter.
' The offer was not necessarily for the new store, but did entail the possi-
bility of moving from Keene.
'° MacKenzie apparently was unaware of the incident until Peter men-
tioned it.
plained about his not having enough boys up front for bag-
ging and once about his not having a cash register covered.
MacKenzie also admitted having refused a request that he
take the PSE test a second time despite his knowledge that
Peter considered management's taking the test important.
And he acknowledged that he had not requested any expla-
nation from Peter when Peter said he did not need a man-
ager like him in view of the "delegation of work and so
forth," because he "understooxd." He denied, however,
knowing that these things caused Peter concern about his
performance as manager, and he testified that Peter did not
mention either the PSE test or the bagging problem when
they talked on October 25 or 29.
Peter testified that his "area of contention" with Mac-
Kenzie was not only MacKenzie's failure to enforce the no-
solicitation rule but the fact that people were allowed by
MacKenzie to stray from their departments for long periods
of time. He testified further that he consulted with Gerry
before acting and that they had conferred a couple of times
prior to the solicitation about "a couple of customer com-
plaints" and other Sunday problems and that there was "a
big breakdown in communications" with MacKenzie that
could no longer be tolerated.
Gerry testified on direct examination to "many" cus-
tomer complaints involving MacKenzie: "a lack of leader-
ship on MacKenzie's part which [he] personally called to
his attention more than one time"; his withdrawal of Mac-
Kenzie's privilege to use his own discretion in cashing
checks and MacKenzie's confinement to the fixed check-
cashing policy because of his experience in accepting bad
checks; and MacKenzie's hostile attitude toward the PSE
test. He also testified, however, that while he relayed these
concerns through Peter. "the only discussions that I had
with MacKenzie were regarding the courtesy cards and the
checks." He further testified that he had discussed with Pe-
ter "on many occasions" a change in MacKenzie's position
and that its consummation was delayed 2 or 3 weeks for
Emma's decision on whether to take MacKenzie's job.
On cross-examination, he testified as follows:
Q. And you related various times when you spoke
with [MacKenzie] concerning complaints, concerning
lack of leadership, etcera. Can you recall when these
conversations took place?
A. I don't believe I related anything about leader-
ship to Mr. MacKenzie; I talked to him about checks,
and so on.
Q. Well, you said you spoke to him about com-
plaints from customers, did you not?
A. Through the manager of the store; not directly
myself.
Q. So, you never spoke to him directly?
A. No. Only in respect to the checks.
He also testified that his conversations with Peter concern-
ing MacKenzie's performance started in August or early
September, precipitated by MacKenzie's alleged rudeness
to a customer, which MacKenzie denied ever happened,
and that he and Peter started discussing Emma's replacing
MacKenzie in late September or the first part of October.
Emma's testimony was that he first learned that he was
going to succeed MacKenzie on October 19 or 20, but he
1144
employee, Etheridge. whom Frampton wanted to attend.
Peter told Frampton that he was being put back on the
Thursday-Friday-Saturday schedule he had worked in the
past because, according to Peter. "he could not seem to
punch in or out when he was needed or as his schedule
called for." and by virtue of the change either Peter or
Assistant Manager DeCoff "would be present to make sure
that Mr. Frampton did abide by his schedule."':
Respondent contends that because New Hampshire re-
quires payment to employees for clock time exceeding 5
minutes before the start of work, its practice is to prevent
clocking in prior to such 5 -minute period. Its policy manual
contains the following provision, on w hich the General
Counsel relies:
REPORTIING FOR WORK
To maintain orderly shift changes. employees. are ex-
pected to report for work not earlier than 15 minutes,
or later than 5 minutes prior to the start of their shift.
Another manual provision, not cited b, either party. states.
under the heading "Store Opening':
Employees shall be permitted to enter the store fifteen
(15) minutes prior to their starting time. Emplovees are
required to be at their stations and reads, for work at
their starting time. No employee will punch in early.
Punch in on time and leave on time.
However. Respondent asserts a distinction between report-
ing for work and punching in. contending that the 15-min-
ute period provided applies only to the torimer According
to Peter, he had cautioned Frampton about this in F ebru-
ary and, wuhile "rearranging the schedule a little bit" to
"accomodate [Framptonl better," he "made it clear to him
at the time that he shouldn't punch in more than five nmin-
utes early," and it did not happen again until October 30."
Peter testified that he would have known it Frampton had
punched in earl) during that period. since he initials each
timecard of every employee, and that he "h;ad spoken to
several [other employees] during the course of the ysear'
about this problem, including the bakery manager himself
(still employed), who punched in 15 20 minutes earl b "a lot
of times."" In fact. Frampton's timecards shoAs that he
punched in more than 5 minutes early on August 28. Sep-
tember 1 I. and October 2. and indeed earlier on those dates
than on November 6. Frampton testified that he had "al-
ways punched in early" and that indeed this had been con-
firmed by the arrangement he had reached with Peter in
February. Prior to that time, he had been coming in early in
order to get instructions from the meat manager (who left
with the crew at 5 o'clock) as to what to put into the show-
case, what to cut for the next day. etc.. and because he was
not being paid for that time his request to advance his start-
ing time on Thursday and Friday to 4:45 was granted.
Frampton denied that Peter, either on that occasion or at
any other time, told him not to punch in until 5 minutes
12 Frampton testified without contradiction that neither Peter noir )DeCoffl
was present on Saturdass when he punched in
1' Peter testified that Meat Department Manager Woods AIas present it
the February conversation. As noted above. Woods did not testihs
14 Asked whether ans of these people were disciplined or gilen warnings.
Peter testified. "Thes weren't. because after the firsit tiitie sith them thes
corrected the situation"
obviously predated the event by a week, for he also testified
that he assumed the new position the following Sunday.
October 24, and, as we have seen (fn. 7. supra). MacKen-
zie's removal did not occur until October 29.
3. The discrimination against Frampton
a. Background
Frampton worked full time for Respondent from 1971
until he quit in 1973. He was rehired in September 1975. In
negotiating his rehire he informed the then manager at
Keene (Thibeault) that he desired part-time work that
would not interfere with his business as a self-emploved
commercial artist specializing in illustrations from books
and magazines that required his presence at home during
the day on weekdays. They agreed on a schedule of 5 9
p.m. Thursday and Friday and 7 a.m. to 5 p.m. on Satur-
day." for which Thibeault secured approval before Framp-
ton commenced work. Around July or August 1976, ac-
cording to Frampton, he asked Meat Manager Woods if he
could work Sundays because his business had grown to the
point where he could no longer spare Thursday and Friday
evenings. He was receiving calls relating to his artwork
"well into 5 o'clock" which he wanted to be able to answer:
and he also had to spend more time out of town, so that.
e.g.. if he had to spend a week in New York he preferred to
do it at one time rather than to make two trips there inter-
rupted by the need to be in Keene Thursday and Friday
evenings. About a month later the man working Sunday in
the meat department quit, and Frampton's schedule was
changed by substituting Sunday (7 a.m.-2 p.m.) for the
Thursday and Friday evenings.
Peter's testimony as to this change was as follows:
Mr. Frampton came up to me with Mr. Ron Woods,
and requested that he have his hours changed from a
Thursday, Friday, Saturday work schedule to a Satur-
day,. Sunday. And Mr. Frampton pointed out that at
the time he thought with one man doing both days
every week we'd have more consistency.
I talked to Mr. Ron Woods, and I said, "Can you cov-
er his Thursday, Friday schedule?" And he said he
could; and then I approved the change.
Woods did not testify.
b. The change in hours
Frampton clocked in on Saturday. October 30, at 6:46
a.m. The office girl called this to Peter's attention, together
with the fact that Frampton (whom Peter acknowledged to
be a good worker) had overstayed his scheduled quitting
time by a half hour the previous Sunday, and Peter told
Frampton to stick to his schedule, although he paid him for
the extra half hour.
Frampton punched in at 6:47 the following day, Sunday.
On November 6. his next workday, after Frampton had
clocked in at 6:53, Peter called Frampton to his office,
where, in the presence of Meat Manager Woods and an
" The latter included lunch from 11 30 to 12 p.m
GERRY'S I.G.A 1145
DECISIONS OF NATIONAL LABOR REItATIONS BOARID
before working time, although he acknowledged Peter's
having talked with him on October 30 for the first time
about a store policy against punching in early and men-
tioned the rule to him. Frampton also denied ever hearing
any employees discussing the 5-minute rule.
Employee McElroy testified without contradiction that
sometimes he had been told to punch in early when the
store was busy and he was waiting at the clock and that on
one recent occasion he had accidentally punched in half an
hour early, and First Assistant Manager DeCoff had merely
told him to take an extra half hour for lunch. Employee
Etheridge testified that he had never been spoken to about
occasions when he punched in more than 5 minutes before
his starting time, and that he understood the 5-minute rule
to mean only that payment would not be made for the early
time, but he was never told not to punch in early, even 20
minutes early. Sharon Forest, a heavy-duty clerk and week-
end cashier, testified she had never been told not to punch
in more than 5 minutes before her scheduled worktime but
only that she would not be paid for such time.
After testifying that he was not familiar with "any pol-
icy" against punching in more than 5 minutes early. Mac-
Kenzie conceded that there was a policy that "you
shouldn't do it. You wouldn't get paid for it." On further
examination he testified that the policy did not mean that
"you weren't supposed to do it" but only that "you
wouldn't get paid for it." His final word on the matter.
however, was that the rule barred punching in over 5 min-
utes early. Gerry testified as follows about the published
rule:
A. The policies are, and have been, all employees
are expected to be on the premises no later than five
minutes before their checkin time: and not to punch in
any earlier than five minutes before their scheduled
time.
* *: *
JuI)(i; HERMAN: What you're talking about is check
in time?
Tlii w.iiN:ss: I'm afraid I don't know what you
mean by check in time.
JUI)(;E HERMAN: Well, you just used the words. You
said that they' are required to be on the premises no
more than five minutes before check in time.
Tbiu WiNiNSS: No later than five minutes before.
JUIc(;i HERMAN: No Later?
Tit: W\riiNESS: Their check in time, that is actual
punch in time--the time that they actually punch the
clock. I should say no later than five minutes before
the scheduled time. If the schedule reads 5:00 o'clock,
an employee should be on the premises no later than
five minutes before: so that he's ready to go on duty at
5:00 o'clock.
JU'D(GE HERMAN: The rule that has been put in evi-
dence here has some language there about reporting no
more than fifteen minutes before the start of the shift?
THI WITNESS: That's right.
JU)(il: HERMAN: Now your statement of the policy
just now doesn't refer to that at all.
THmI w'lirNSS: I didn't get that far. The fifteen min-
utes there refers only to one thing. We do deal with a
lot of young people, and they have a tendency to come
in and loiter. They may get out of school, let's say, at
2:00 o'clock in the afternoon; and thev're scheduled to
come in at 3:00 o'clock. They might leave their school
and come in and loiter on the premises. We don't want
to have anybody loitering on the premises. They
should not be on the premises for working purposes
any earlier than fifteen minutes before time; because a
lot of them may people ride in with others. They
commute with others.
Assistant Manager Emma's understanding of the rule was:
A. That you should he at the store between about
five minutes early to punch. They don't expect you to
be there anymore than 15 minutes early. They don't
want you to be there any earlier than 15 minutes early.
However, you should be there about five minutes of--
between five of and zero hour, so that you're on your
job. and ready to relieve anybody that you're reliev-
ing whatever, if you're a cashier, manager, what-
ever so that they can leave at their time to go.
Peter conceded that he had never fired an employee for
punching in early.
When Peter announced to Frampton on November 6
that he was being changed from Sunday hack to Thursday
and Friday evenings. Frampton protested. He testified to
telling Peter that he knew Frampton could not be available
Thursdays or Fridays: and that Peter acknowledged this as
well as Frampton's next statement that what Peter was
really doing was limiting Frampton's time to Saturdays. He
denied that his statement concerning his inability to work
weekdays was restricted to the next week, testifying rather
that he specifically told Peter that he had set up his art
schedule far in advance and had commitments that could
not be broken. Peter's testimony was that Frampton had
confined his objection to the following Thursday and Fri-
day and that he agreed to accommodate him to that extent.
He denied any' awareness of Frampton's inability to work
Thursdays and Fridays generally, testif'ying that all he
knew of the reason for the change the previous August was
that it was "more convenient for him." Pressed, however.
his testimony continued:
Q. Didn't he tell you that he couldn't work Thurs-
days and Fridays?
A. He told me that he couldn't work the following
Thursday and Friday, if I remember right.
Q. He didn't say he couldn't work Thursdays and
Fridays at all is what you're saying?
A. I'm not sure. I remember him stating exactly
asking for that Thursday and Friday. telling me he had
a business engagement. I'm not sure if he did nor [sic]
not on the other one. He could have, and he might not
have. I'm not positive.
Etheridge's testimony is similarly ambiguous. He testified
initially:
Q. Was there anything said with respect to working
Thursdays and Fridays?
A. Yes, there was. Peter Bellavance told David that
he was to work Thursday, Friday and Saturday. And
David told him that he could not work them three
1146
GERRY'S I.G.A.
days, because he had another business. that he had to
travel down to New York. And he said that he just
couldn't do that.
And Peter said that that was his schedule. and that
was the schedule that he was to work.
Q. Hlow was that resolved as best you can recall'
A. That David was to work Thursday. Fridas, and
Saturdav.
On cross-examination. however. he testified as follows:
Q. Now, did Mr. Frampton-all my questions are
addressed now to that particular meeting-did Mr.
Frampton say that he couldn't work only that next
Thursday and Friday. because he had business com-
mitments?
A. (No response.)
Jtli)(,; HLRMSAN: What he's asking is, was this di-
rected to that particular coming week? Or, were the'
talking about a permanent thing'?
Till WNIIESS: No. They was talking just about that
one week that he could not work.
Q. (By Mr. Swaim) While you were there was there
ans discussion about Mr. Frampton working other
Thursdavs and Fridays later on? Or. was thatjust ad-
dressed to that one week, as far as sou remember?
A. I don't remember.
c. The discharge
Pursuant to the understanding of November 6, Frampton
did not work on November 11 or 12. As he was leaving the
store on Saturday evening, November 13.17 Peter reminded
Frampton that he was scheduled for work the following
Thursday and Friday and would be fired if he failed to
appear, despite Frampton's protest that he could not work
those dayss. Peter testified that "the reason" he insisted was
that Department Manager Woods was on vacation. and
Frampton had always been cooperative in the past in ad-
justing his schedule to "help [Respondent] out." Frampton
did not report for work on the 18th or 19th. but in the late
afternoon of the 19th he telephoned Peter to ask if he was
fired for not showing up. and Peter said he was and for that
reason." Earlier that same day Respondent had sent the
following registered letter. which Frampton received on the
20th:
Dear Mr. Frampton:
You are hereby suspended from work at the Keene
IGA Meat Room per order of Peter Bellavance, in the
absence of Ron Woods who is on vacation this week.
You are being suspended for the following reasons:
1. Solicitation on the premises
2. Failure to follow schedule-not punching in and
out on time.
3. Failure to show up for work on November 18. as
scheduled.
)5 He had clocked in that day at 6:5 1, and Peter told him he would he fired
if he punched In early again
i On examination bs company counsel. Peter changed this h) testifsing
he "thlought]" he said that was one reason and that a letter had been sent
out also.
The letter had been drafted by Gerry after a discussion with
Peter. G(erry testified, with corroboration from company
records, that other employees had been discharged in the
past for inability to work when needed. hut apparentl1
without the formality of letters of discharge. "But, in this
case we felt a letter was in order. U nfortunately I dictated
that letter: and my intent was, on that, to show that we
were not strictly dismissing Mr. Frampton for one cause.
There'd been a series of causes." While the "wording" of
the letter was his, the "reasons" were Peter's.
4. Respondent's other alleged conduct
a. Def'erral of improved working conditions. granted at
Bellows Fall and Claremon, t
On November 23, every employee at the Bellows Falls
and Claremont stores was mailed the toollowing conmuni-
cation:
TO: All Employees Bellows Falls and Claremont
IGA
GOOD NEWS
As a matter of information, we hare been working
on this for nearly a sear now -some of(, ou hav e heard
of it.
PROFIT SHARINGi
Who All Employees part time or full time betfore
Januarx 1, 1977.
When Now
Mones When Based upon 1976 audit usuall.
completed before March 15. 1977.
5(7 cost of living increase to all employees who have
been at their max. this 'ear or who have i)ot received a
pay' raise this year.
Paid vacation for part time employees who work 40
or more weeks from Januarv to January uar.
Prorated paid holida'ys for part time emploNees with
over 6 months service.
Continued repayment of accumulated sick pas. all
hours over 160 hours for full time employees who are
on payroll December 1 of each year-sick pay will not
be considered as earned in the event an employee
leaves before December I and therefore nothing due
upon separation.
A new grievance procedure.
New pay scale based upon todays labor market in
the Connecticut Vallex- no decrease but possible in-
crease based upon facts.
This is possible because of you-you who took
P.S.E. tests and did much and are doing much to cor-
rect past bad practices you who I am sure will con-
tinue to give vour best effort so that together we can
prosper.
YOUR FRINGE BENEFITS AT PRESENT FOR
FULL TIME EMPLOYEES:
1. Six paid holidays (New Years Memorial Day-
Thanksgiving. July 4th. Labor [ay -Christmas) 8
hours sour rate of pay.
2. Accumulated sick pas' (ratio) 27 of hours worked,
1147
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accumulated to 160 hours paid for all hours in ex-
cess of 160 on December 1, by December 15.
3. Paid vacation-- I week lyear, 2 weeks-3 years, 3
weeks-- 10 years.
4. Major medical plan-dental included-income in-
surance & life insurance-your cost $2.25- Family
and $1.00 single per week.
5. 1 time regular pay for Sunday and Holiday Work.
6. Automatic raises based on hourly increments.
7. Workmen's Compensation Insurance (against on
job related injuries.)
8. Unemployment insurance (protection against loss of
income)
9. An honest time card system that pays you for all
minutes worked on the job.
10. Coffee breaks with free coffee and cream.
II11. Free laundry service.
12. Opportunity for advancement.
Although the plans for such improvement in benefits, dis-
cussed periodically in 1974 and 1975 by Gerry and Peter,
had covered the Keene employees as well, they were ex-
cluded from the November 23 grant because of the pen-
dency of the supervening representation petitions filed by
the Clerks and Meatcutters, Peter testifying that Respon-
dent "understood we could not give them because of that"
and that absent the organizational drive or petitions the
employees at Keene would likewise have benefited.?
b. Implied promises at Keene
The Regional Director issued his direction of election on
December 10.'8 The following paper, date December 22,
was prepared by Gerry and intended for distribution at a
meeting of the employees at Keene he called for December
27:
TO: IGA Employees
RE: Thoughts for Your Consideration
Please consider some of the disadvantages that occur
if you vote the union into control over your affairs
here.
Voting for a union is not like joining a club. It is a
vote to have yourself controlled by a union. Before any
union has any power to use against an employer the
union must have power over the working people, must
be able to keep them in line. The people must give up
most of their individual rights and behave according to
union rules.
Union control is pretty must [sic] permanent control.
It is like signing up to make monthly payments for the
rest of your working life or as long as you work where
there is union control. It is not something you can try
out and then get out of easily.
Those who plan to vote NO are not voting against
unions or to defeat any union or that unions should be
abolished. All the NO vote means is that you have
decided to keep the union handy but to deny it control
'? This conduct was the subject of the Clerks' initial charge, filed Decem-
ber 3.
IS The election was held January 13, 1977.
over you in this particular company at this particular
time. By voting NO you keep the union outside but it
remains as handy to you as your telephone. Anytime
you might want to pay the union and hire it to take
control over you, you only have to call the organizer
and they will be glad to take your money.
Those who might think a union would be helpful
should consider the advantages of keeping it just out-
side the door waiting to come in. Don't you believe
that this encourages management to do the right thing?
The talk about the union has been useful. It has made
us more aware of our mutual problems and it has
helped us to see solutions and better ways to work
together. There is every reason now to avoid voting the
union into control while we all make efforts to find
better ways to work together than the union way.
In big monopoly type business where added costs
can be more easily pushed onto the consumer, the
union system seems to work pretty well as everyone
pays higher and higher prices. This system actually
tends to squeeze out little businesses like our own. It
makes it hard for us to compete. Sometimes it even
makes it hard for the big ones.
One example of this is A&P. A&P is nearly totally
unionized and is in the process of closing some 1,200
unprofitable locations, including a warehouse in
Rhode Island with 100 employees and another in New-
ark, N.J. with about 400 employees. According to
newspapers over 15,000 employees are to be affected.
The case proves beyond question that no union can
provide job security. This can only occur when the em-
ployer operates a successful business.
You should understand that we would bargain in
good faith with the union if a majority of the people
here feel that they must hire this union and give it
control over them right now. However, we would fight
to the best of our ability to avoid further cost increases.
We know of few if any businesses like ours which can
increase labor costs more often than about once each
year. We would try to discuss how much these labor
costs should be increased in the future-not now.
This would cause the union to urge you to go out on
strike which would be extremely unpleasant for you.
Our business would be hurt, but you would be the ones
on strike. It might take us a while to build back the
business and that will only make it more difficult for
the employees to progress.
It will be better for you to vote NO and keep your
independence here at this particular time. Talk it over
with the people you trust and respect and have known
awhile. People have worked together in our business
for many years without a strike or a need to hire and
pay union leaders to run things for them. Those people
could have gotten themselves a union anytime. You
will always be able to get a union, but once in the
union, you will find it next to impossible to ever get
back your independence again. You haven't got any-
thing to lose by voting NO and by trying to find other
less painful ways to work together for progress here.
Those who are the most antagonistic, unsually have
1148
GERRY'S I.G;.A.
been antagonistic for a long time, often long before the
union came here. Those people won't be happier with
the union. They will find that after they have paid the
union for twenty years, they will be just every bit as
unhappy as they are now.
We want to work with you, we don't want to fight
with you. Try to make a wise vote. Try to give yourself
and us the best chance to work together in harmony. If
you have any question or comment or suggestions,
please talk with me about it befbre the vote.
He did not hand it out at that time, however. but instead
placed about a dozen copies in the coffeebreak area "the
first part of January" and before the election.
c. Negotiabhili' of the PSE test
At the December meeting convened by Gerry in the
backroom of the Keene store on December 27'9 about 7
p.m., in the presence of some 20 employees. in which Gerry
expressed his opposition to the Union, he spent about an
hour on the subject of the PSE test, one of the main ques-
tions raised by the employees. Gerry's testimony was that
the union representatives had stressed that this would be
the first issue taken up with Respondent, and he stated.
reading from a prepared statement. "The management po-
sition was that we felt this was a management tool: and that
management we didn't feel that the PSE was any more
negotiable than the locks on the doors. But, we felt that
they would bring it up for discussion, which was their right
and their prerogative." Employee Pitts. who was in attend-
ance, testified that Gerry said that if a union was voted in,
the PSE test would not be negotiable, "that everybody
would definitely have to take it as far as he was concerned."
Employee Forest testified that when she went to the
courtesy counter on January 6. 1977, as usual, to pick up
her paycheck. she was told she would have to get it from
Gerry in the office upstairs and that as she got her check
Gerry asked her if she had any questions about what was
going on, and inter alia, she asked about the PSE test, evok-
ing from him the statement that "he would not, under any
circumstances. consider discussing giving it up." Gerry tes-
tified that his reply to Forest was substantially' a repetition
of what he had said at the December 27 meeting.
d. Promise of/ free laundnr service
In the same conversation on January 6. Forest also ques-
tioned Gerry about the failure to provide free laundry ser-
vice to all the full-time employees rather than limiting such
benefit to employees of the produce, bakery-deli, and meat
departments. Gerry replied that extending this benefit had
been planned for some time but that the laundry providing
the service under contract had failed in its commitments
and Respondent was seeking ways to correct the problem so
that the employees would get the service in the future. For-
est acknowledged that Peter had promised the service "long
before the union."
1I Bs which time the election date had already been set.
e. Promise offull-time employment conditioned on unions'
loss
On January 12. the day before the election, according to
Valerie Coates. who worked in the bakerD-deli area.2 0 Su-
pervisor Kennette2' approached her on company time, say-
ing he was a "salesman for Gerry" and that he would like to
"get [her] feeling" about the impending election. and she
complained that the Company had not kept the promise
Kennette had made when he hired her to give her full-time
work, and her testimony continued:
A. And Mr. Kennette told me that he couldn't do
anything at the present time, because of union negotia-
tions. And I understood him to mean the upcoming
election.
He told me also that hopefully on the Monday after
the election that I should be stated as full time, with
the pay.
Q. Did he say anything else with respect to when
you could possibly become full time?
A. Just as soon as the negotiations were over.
Kennette did not testif'.
f. Promise o/ new uniforms
Coates testified further that the same day (and more than
24 hours before the election) both Peter and Gerry came to
the bakery requesting the employees' support. that Ken-
nette. who was also present, said he was trying to get new
uniforms in the form of slacks for the girls who had been
suffering from the cold while wearing dresses," and that
Peter confirmed Kennette's statement. On cross-examina-
tion, Coates testified that she could not remember which
Bellavance had said this but "believe[d] it was Gerry." Ger-
r' admitted that he said good morning to the bakery em-
ployees that day and that he could not recall whether
Coates was in the group, but denied ever having a meeting
or discussion with Coates or being "involved in a meeting"
at that time "in which she was a participant to the best of
[his] memory" or saying anything about slacks on that day.
Peter did not testify concerning this matter, and Dilworth
gave no testimony.
g. Hot-waterfaucets
The answer admitted the allegations in the complaint
that Gerry promised employees a hot-water faucet on Janu-
ary 12 and had one installed on February 8.
B. Concluding Findings
1. The no-solicitation rule
Respondent's brief (p. 8) acknowledges "that the solicita-
tion rule contained in paragraph 8(a) of the complaint is
20 She was no longer employed by Respondent at the time of the hearing.
21 He evidently supervised the bakery departments at all three stores.
1 C(oates had previously mentioned the problem to her Immediate supervi-
sor, Bakers Manager l)iluorth, but some other employee mas have raised
the matter on this occasion. In her earlier conversation with Dilworth, he
gave no indication that he would try to resolve the matter
1149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presumptively or prima facie involved on its face as applied
to union solicitation matters" but urges consideration of
"the evidence relating to the employee's [sic] knowledge
about the rule and the Employer's application of the rule in
light of the Board's decision in Essex International, Inc.. 21 1
NLRB 749, and House ojfMosaics, Inc., 215 NLRB 704."
First, Respondent errs in asserting that "There was no
evidence whatsoever that any employee knew of the Rule
. ." (br., p. 9). As appears supra, Peter testified not only
that the entire policy manual is "available in the store for
[the employees]" but that he encourages every new em-
ployee to read those pages of the manual which he does not
receive at the time of his hire. Moreover, Gerry testified
that he had not only instructed the store manager to put the
"complete" manuals on the bulletin board or in the coffee-
break area but had seen to it "personally . . . that they were
there ... for the employees to read." An employer who has
taken such great pains to bring its restrictive rules to the
attention of the employees does not escape the obvious and
natural consequences of its efforts by asserting the employ-
ees' lack of knowledge of those rules merely because the
General Counsel may have presented no specific affirmative
evidence of such knowledge. And the clear inference of
such knowledge among the employees generally from the
testimony mentioned above is no less valid just because
Frampton personally may mot have seen more than the
first three pages of the manual.
Nor is there merit to Respondent's other contention of an
absence of evidence that the rule "has ever been enforced in
an improper manner" (ibid.). In the first place, Respondent
relies in this connection on Frampton's testimony that he
had been told by both Emma and Peter that "solicitation
was not permitted on company time" (br., pp. 9 10), and
equates "company time" with "working time," which was
held presumptively lawful in Essex, supra. The Board, how-
ever, has likened "company time" to "working hours,"
which Essex held presumptively unlawful (Florida Steel
Corporation, 215 NLRb 97, 98 99 (1974), endf. in this re-
spect 529 F.2d 1225 (C.A. 5, 1976)), and, according to
Frampton, Peter himself proscribed "working hours" for
union solicitation on October 30.
It is true that Frampton went on to admit at one point
that his supervisors distinguished "between while [he was]
actually at [his] meat case, or back in the meat room" and
"when [he was] on coffee break, or rest break," saying that
"what [he] did on [his] own time was [his] business." On the
other hand, he also appeared sufficiently confused to testify
that he understood his superiors to mean that solicitation
was banned "from the time [he] punched in to the time [he]
punched out." This confusion was understandable. Peter's
own testimony was that he told Frampton simply that
"there would be no solicitation on the premises" and that
there was a company rule to that effect, and indeed that
was precisely the rule." Peter further testified that he also
reminded the department managers of the written rule im-
mediately upon hearing of the organizing drive, and al-
though he said he told them that there would be no solicita-
tion "on company time," i.e., "when it was actually
interfering with their work," he himself enforced the rule
21 As stated above, MacKenzie testified that Peter had told him he did not
want union activity "going on in the store."
the previous June just because the rule banned solicitation
"in the store." Moreover, the culminating action in the dis-
charge letter to Frampton was in the language of the overly
broad written rule. "Solicitation on Premises." In the face
of this, the rule at best could only have been ambiguous,
even to Frampton. And ambiguities in this area must be
resolved "against the promulgator of the rule rather than
against the employees who are supposed to abide by it."
V. L. R. B. v. Harold Miller. d/b/a Miller Charles & Co. 341
F .2d 870 (C.A. 2, 1965); Foasco Industries v. ,.L.R.B., 412
F.2d 589, 590 591 (C.A. 4, 1969); Jas. H. Matthews & Co.
v. N.L.R.B. 354 F.2d 432. 441 (C.A. 8, 1965); cert. denied
384 U.S. 1002 (1966): Florida Steel Corp. v. N.L.R.B., 529
F.2d 1225, 1231 (C.A. 5, 1976).
As for other employees familiar with the written rule or
likely to have seen or learned of the letter and who had not
had the benefit of any narrowing commentary from above,
the rule was unambiguously defective as a total ban on
solicitation on company property. Assuming such a defect
were curable at all,"4 it could only be so through at least the
kind of showing needed to save an ambiguous rule that is
presumptively invalid, i.e., by evidence that the rule "was
communicated or applied in such a way as to convey an
intent clearly to permit solicitation" at such times and
places as the law requires. Essex International, Inc., 211
NLRB 749, 750 (1974). And, as Board Member Penello 2'
has repeatedly pointed out, "the clarification ... must come
from the employer alone, either by a written or an oral
explanation to all employees." Fssex, at 751-752; see also
McBride's of Naylor Road, 229 NLRB 795 at fn. 8 (1977);
St. Peter's M edical Center, 223 NLRB 1022, fn. 3 (1976);
Grahanm Ford, Inc., 218 NLRB 980, fn. 1 (1975). As indi-
cated supra, there is no evidence whatever of such commu-
nication here to the employees at large.2 1
Respondent further contends (br. at 9) that the rule
should be considered in light of the greater latitude enjoyed
by retail establishments to bar solicitation in selling areas.
The difficult, with this contention is that the rule is not
limited to selling areas. Cf. Albert's, Inc., 213 NLRB 686
(1974), enfd. 543 F.2d 417 (C.A.D.C., 1976), cert. denied
430 U.S. 930. And this is true not only of the rule on its face
but also of its enforcement insofar as union matters are
24 But for House of Mosairs, Inc'.. 215 NLRB 704 l 1974). I should find a per
se violation, since I see nothing to clarify. There is no issue here as to
whether the admittedly overly broad rule applies to unions Nor is there an
issue whether, though applicable to unions, the rule is justified by special
circumstances. Nor is there an issue as to the meaning of ambiguous lan-
guage. The sole issue is whether a rule unambiguously facially invalid and
admittedly applicable to unions, and not justified by special circumstances,
means what it plainly says or, put another way, whether extnnsic evidence
may be used to make white black. A newly hired employee, at least, who has
not yet enjoyed the opportunity of exposure to the Employer's coloring ef-
tbrts, must necessarily be inhibited in the exercise of his statutorily guaran-
teed nght immediately upon learning of the written rule. Yet the conse-
quence of failing to find a violation is the continued existence of the
inhibiting wntten rule. There can be no justification for such a result, If the
rule does not mean what it clearly says, it should be rescinded rather than
remain the source of an unwarranted restraint fbr however brief a period.
25 The third member of the majority in Esse.x, the other two of whom
constituted the majority in House of Mosiacs, Inc. supra. See Allis Chalmers
Corporation, 224 NLRB 1199, fn. 2 (1976).
26 Of course the rule is not sasved by the reservation for respondent's "per-
mission." Fasro Industries. Inc. v. N.L.R.B., vupra at 591, Esser, supra, John
H Swisher & Son, Inc., 211 NLRB 777. 779 11974): Pepsi-Cola Bottling Co.
of Los Angeles, 211 NLRB 870 (1974).
1150
GERRY'S I.G.A.
concerned. I do not credit any testimony of Peter's urged as
indicating the contrary. Instead, I credit MacKenzie that
solicitation for nonunion purposes was allowed even in sell-
ing areas, while Peter issued orders against union activity
"in the store": and I credit Frampton and McElroy that
talking among employees (which Peter distinguished from
solicitation) was regularly permitted anywhere in the store
on any subject but unions or one suspected to concern
unions. ThI us. the rule was also violative of the Act because
of the disparate treatment accorded union matters in its
enforcement. E.g., Mit.suhishi Airerali Internarional. Inc..
212 NLRB 856. 863-865 (1974).
2. MacKenzie's demotion
After some 4 years on the job. MacKenzie was replaced
as assistant store manager and assigned to a nonsupervisory
position in the freight department within the week follow-
ing Frampton's initial solicitation activity. immediately af-
ter which he had received a dressing-down from Peter for
allowing such activity to be carried out "in the store." Obvi-
ously, this timing suggests a connection between the demo-
tion and Respondent's expressed dissatisfaction with Mac-
Kenzie's failure to enforce the invalid no-solicitation rule:
and if such motive were established, the demotion would
constitute a violation of Section 8(a)( 1). since an employer's
enlistment of a supervisor in its unfair labor practices as the
price for retaining his job unlawfully coerces the statutory
employees in the exercise of their Section 7 rights. KAtey l'eist
Coca Cola Bottling ('onpatl!v, 140 Nl.RB 1359, 1360-1361
(1963): see also lFirvieu .Nursing lomnc, 202 NLRB 318, fn.
2 (1973): Donelson Packing Co., Inc.. 220 NLRB 1043
(1975). While Respondent's brief contends that it was oth-
erwise motivated, setting out six "problems" it had with
MacKenzie, "all" of which "arose before any possible
knowledge of union activity was known to the Employer"
(p. 7), Peter acknowledged that "part of' the motivation for
his decision was MacKenzie's failure to enforce the no-so-
licitation rule. Even crediting Respondent's testimony that
other motives entered into the determination. such partial
motivation suffices to establish the violation. Don Lucas In-
ternational, Inc., d/bl/a San Joset Bavarian Motors, 229
NLRB 127, 128 (1977). cf. N.L.R.B. v. tWi7tin fMachine
Works. 204 F.2d 883, 885 (C.A. 1).
I find, moreover, that the other alleged motives did not
enter into Respondent's calculations at all but simply pro-
vided a screen to cover its true motive. MacKenzie's testi-
mony stands undenied that only' a week before being found
unfit to remain a supervisor at Keene he had been offered a
similar slot either at Keene or somewhere else in the organi-
zation. Thus, to the extent that any other reasons may in
fact have existed for dissatisfaction with MacKenzie, they
were not deemed serious enough to warrant demotion until
he failed to join in Respondent's illegal assault on union
activity. Indeed, the internal contradictions in Respondent's
own testimony belie the very existence of at least some of
the alleged reasons. For example, after testifying that he
"personally" had called MacKenzie's attention on more
than one occasion to a lack of leadership on his part. Gerry
testified that his criticism of MacKenzie which he made
directly to the latter had been confined to his mishandling
the check-cashing policy, and he specificall 3 denied saying
anything to MacKenzie about his lack of leadership. Also.
Gerry's testimony to "many" customer complaints about
MacKenzie conflicted with Peter's "couple" of such com-
plaints. Moreover, withholding MacKenzie's discretion as
to cashing checks could alone have brought on the cus-
tomer complaints, the nature of which does not appear ex-
cept the single instance Mackenzie testified to aind the one
alleged incident of rudeness that MacKenzie denied. Fi-
nally, while Gerry's testimons indicates that Emma's re-
placement of MacKenzie had been planned for several
weeks and its consummation delasyed just in order to give
Emma an opportunity to decide if he wanted the job,
Emma, whom I credit. testified that the first he had learned
of the job was only 4 5 days before his first das on it.
Emma was thus offered the job only after MacKenzie's rep-
rimand for not enforcing the no-solicitation rule.
3. Discrimination against Frampton
I have already found that one aspect of the illegalit 3 of
the no-solicitation rule consisted of' Frampton's discharge
for violating it simply by "solicitation on the premises."
UInder Board law, "if an employee is discharged for solicit-
ing in violation of an unlawful rule, the discharge also is
unlawful unless the employer can establish that the solicita-
tion interfered with the employee's own work or that of
other employees and that this rather than violation of the
rule was the reason for the discharge." Dayvlin,. Inc.. d/h/a
.il/rer' Disvcouli Dept. .Stores. 198 NLRB 281 (1972). It is
impossible. of course. for the employer so to establish when
interference with work is not the reason given in the dis-
charge letter and the discharge letter instead is in the literal
language of the overly broad rule. Cf. Groendi kc Tranvsorlt,
Inc.. 211 Nl RB 92 1.922 (1974), enfd. 530 F.2d 137 (C. A. 8.
1976): George Washington U'niversit Hospital., 227 NI.RB
1362. 1375 (1977), enfd. in this respect 580 F.2d 701.
(C.A.D.C., 1978). Moreover. the alleged existence of other
reasons, with which this was conjoined in the discharge let-
ter. would not save the discharge from constituting a viola-
tion of Section 8(a)(3) of the Act. Dotn Luca.i International.
Inc., vupra, especially in light of the contrived nature of
such reasons. Cf. N.L.R.B.v. ' Machitin ,itchine Il',r/A', 204
F.2d 883, 885 (C.A. 1).
I credit Frampton's uncontradicted testimony that he ful-
ly explained to Woods in July or August why he wanted to
switch from working Thursdays and Fridays. I also deem it
a fair inference that Woods acquainted Peter with Framp-
ton's reason2' and hence that Peter was quite familiar not
only with the importance of the matter to Frampton but
also with the fact that Frampton's needs transcended the
single week's grace Respondent says Frampton requested
on November 6. And I credit Frampton that he did not
limit his protest on that occasion to that week, as against his
firm testimony, supported by the logic of the case. was the
uncertainty with which both Peter and Etheridge concluded
their testimony on the subject.
The question then arises whether Peter would have in-
sisted on effecting the change in hours but for Frampton's
2' Peter admitted knowing at least that the SaturdaN-Sundas schedule was
"more conenent" ihr F:rampton.
1151
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
known activity as leader of the organizational drive, and I
find that he would not, this being one phase in the entire
pattern of conduct, including Frampton's subsequent dis-
charge, aimed at defeating that movement. Essential to the
framework of Respondent's defense in this respect is its
contention that the change was necessary to guarantee
Frampton's observance of the alleged ban on clocking in
more than 5 minutes before the start of work.
To begin with, although there seems to have been some
concern on Respondent's part to avoid having to pay wages
under New Hamsphire law for time not worked, Respon-
dent's written rules do not advert to the specific point. In-
deed the only reference in the policy manual to 5 minutes is
that contained in the rule relied on by the General Counsel,
requiring employees to report to work 5 15 minutes prior to
the start of their shift. While Respondent claims a distinc-
tion between reporting time and punch-in time, Emma was
somewhat vague about it, and the employees generally were
aware of no prohibition against punching in more than 5
minutes before they started work but only that they would
not be paid for such time. The testimony of Gerry himself.
quoted supra, only adds to the confusion.
In any event, as Peter admitted, he had never before fired
anyone for punching in early. Moreover, his testimony that
no warning or other discipline had been necessary in the
past because the culprits corrected their behavior after it
was called to their attention does not fit his testimony that
the bakery manager punched in more than 15 minutes early
"a lot of times." Assuming the existence of a proscriptive
rule in this respect, however, Frampton also shared in the
laxity of its enforcement prior to his union activity. I do not
credit Peter that he had cautioned Frampton about this the
previous February when Frampton's starting time was ad-
vanced 15 minutes, and I draw the usual adverse inference
from Respondent's failure to call Meat Manager Woods,
who was present on that occasion, to corroborate this.28
Furthermore, Peter's testimony that Frampton had there-
after refrained from punching in early until October 30 was
in clear conflict with Frampton's timecards in evidence, all
of which Peter himself had seen and initialed. Finally, the
reason advanced by Peter for changing Frampton's sched-
ule, i.e., so that either Peter or Assistant Manager DeCoff
would be there to ensure Frampton's adherence to his
schedule, does not stand up in the face of Frampton's un-
contradicted testimony that neither Peter nor DeCoff was
present on Saturdays when he was supposed to punch in.
All of the facts inexorably point to a classic case of' con-
duct either approved or condoned in an employee just until
he commences to engage in union activity opposed by the
employer. The subsequent punishment for the same type of
conduct, particularly in the midst of other violations of the
Act, constituted prohibited discrimination within the mean-
ing of Section 8(a)(3).
4. Withholding of benefits
Peter admitted that only the pendency of the election
prevented the Keene employees from sharing in the No-
vember 23 grant of preplanned benefits to the employees at
i' See Whiirn Machine Works, 100 NLRB 279, 285 (1952), enfd. 204 F.2d
883 (C.A. 1, 1953); Calip Dairies. Inc. 204 NLRB 257. 263. fn. 21 (1973).
Claremont and Bellows Falls. The General Counsel urges
this as a per se violation of Section 8(a)(3). There is no per
se violation in this area of the law. "each case turnling] on
its own particular facts and circumstances." Pacific South-
west Airlines, 201 NLRB 647 (1973). There are certain con-
trolling principles, however. (Generally, during an organiza-
tional campaign, an employer must act as he would it no
union were involved, so that either bestowing or withhold-
ing benefits just because of the union's presence violates the
Act. Great Atlantic & Pacific Tea Co., 166 NLRB 27, 29, fn.
I (1967): McCormick Longmeadow Stone Co., 158 NLRB
1237, 1242 (1966). Thus, the mere effectuation, during the
pendency of a representation petition, of a decision to grant
benefits made prior to the union's appearance does not vio-
late the Act. Hughes & Hatcher. Inc,h v. N.,l.R.B.. 393 F.2d
557. 564 565 (C.A. 6, 1968); International Union 0/ Electri-
cal, Radio and Machine UWorkers /SNC MIfg. Co.] v.
N.L.R.B., 434 F.2d 473. 476 477 (C.A.D.C.. 1970). By the
same token, the failure to effectuate such a determination
does violate the Act unlessjustified by a good-faith showing
that the employer was motivated by purely business consid-
erations untainted by a purpose to discourage union sup-
port. GA F Corporation v. N. L. R. B.. 488 F.2d 306. 309 (C.A.
2, 1973): Otis Hospital. 222 NLRB 402. enfd. 545 F.2d 252
(C.A. I, 1976): Pacific Southwe'st Airine.s, supra. Shifting the
burden to the employer in this context merely conforms to
the general requirement w here an employer is shown to
have "engaged in discriminatory conduct which could have
adversely affected employee rights to some extent."
N.L.R.B v. Great Dane Trailers, Inc., 388 U.S. 26, 34
(1967).29 Respondent acknowledges this, contending, how-
ever (br. at 12), that it carned its burden by showing that
the benefits in question were granted in the normal course
of business and withheld at Keene only because it "had no
choice" and that there is no evidence that the Keene em-
ployees knew of the grant. I disagree.
This is not a case like Great Atlantic & Pacific Tea Co.,
192 NLRB 645 (1971), where the employer has simply with-
held a benefit not promised and with no past practice to
give it or evidence that it sought to capitalize on the ab-
sence of the benefit by connecting it with the union. This
case is more like N.L.R.B. v. Agawarm nFood Mart, Inc., 86
F.2d 192 (C.A. 1. 1967). and N.L.R.B. v. Otis Hospital, 545
F.2d 252 (C.A. 1. 1976). Here, despite the absence of any
definitive formulation of the benefits, it is clear that all
three stores were to get them when any did. And while
there was no public announcement to the Keene employees,
there was such announcement to the employees of the other
two stores which, by virtue of being addressed "TO: All
Employees-Bellows Falls and Claremont IGC,"30 "clearly
indicat[ed] that those employees who were represented, or
sought to be represented, by the union were disadvantaged
thereby." Agawam, supra. Since the letters were addressed
to each individual employee, there was no need to specify
his location or to indicate the one other location receiving
12 If "the danger inherent in iwell-timed increases in benefits is the sugges-
tion of a fist inside the velvet glove" (, L.R.B. v. Exchange Parts Co.. 375
U.S. 405, 409 (1964)), the danger inherent in a well-timed withholding of
benefits is the realit) of the bare first
° Repeated at the top of the second page was "Bellows Falls and Clare-
mont Employees."
1152
made "long before the union." that had been unfulfilled
only because of considerations entirely unrelated to union
organization, and Gerry's statement in substance amounted
to nothing more than an assurance to continue his past
efforts to remedy the situation.
I do find, however. that Respondent violated Section
8(a)(I) by new promises of benefits the day before the elec-
tion.
Thus. while Kennette's statements to Coates on January
12 in respect to full-time employment also concerned a
prior promise, Kennette (unlike Gerrv on January 6) did
not respond by merely assuring her that he would continue
to try to fulfill the promise. Rather, he said he could not do
anything about it at the time but that "hopefully" she
would start full time on the Monday after the election.
Since he had earlier promised her full-time work, however.
there was no legal obstacle to carrying out that promise.
despite the imminent election. By deferring its execution to
the following Monday, Kennette was in effect telling Coates
that he would be free to fulfill his word when the Unions no
longer were in position to interfere, i.e., after then had been
defeated in the election." In this contexture. moreover. by
providing no explanation for his failure to have honored his
promise prior to the union activity, he was not only demon-
strating that the emplosees "would not need a union to
obtain redress of their grievances" ( House ofM.losaics, Inc.,
215 NLRB 704 (1974)) but also reminding them that "the
employer is the ultimate source of all benefits ... and fur-
ther remindlingl them of the necessity for not incurring the
displeasure of the dispenser of such benefits. N.L R.B. v.
Ft.lichange Parts Co., 375 lU.S. 405." (Tomrv's Spanish
Foods, supra.)
Similarly with Gerry's admitted promise of a hot-water
faucet absent assurance that it did not depend on the out-
come of the election and the subsequent fulfillment of the
promise while the objections to the election were pending.
Ibid. But I do not find the noncommittal statement of Ken-
nette that he was "trying" to get new uniforms attained the
stature of a promise rather than a kind of generalization.
normally protected by Section 8(c). that the employees
would have good working conditions even without a union.
Finally. I conclude that Respondent violated Section
8(a)(1) by Gerry's statement regarding negotiability of the
PSE test. First came his admitted statement on December
27 that the PSE test was "[no] more negotiable than the
locks on the doors." Even if; as Gerry testified, he added
that the Unions had a right to raise the subject for discus-
sion, any discussion had on it could only be pointless, be-
cause the clear import of the entire context was that just as
Respondent could never be persuaded to forgo the locks on
the doors it would never agree to give up the test. Such a
position in respect to a mandatory subject of bargaining
"tends to convey to employees a sense of futility about the
value of prospective collective bargaining and, in conse-
quence. improperly restrains their freedom of choice in re-
gard to collective representation," especially in light of the
'3 This rationale may assume some expertise on the part of Kennette, but
I do not deem it unfair He was in the process, at the time. of accompanying
Gerrs and Peter in a last-minute search fior antiunrion votes. and he did not
halve to break unfamiliar ground
the benefits and thus making clear that the omission was
that of the single location at which organizing activity was
going on. 3' Not only was this message directly brought
home to the recipients of the benefits. but from the proxim-
ity of the stores'2 and their common ownership and control
it could fairly be expected at least that delivery personnel
would communicate the information to the Keene employ-
ees, and the fact is, of course, that thev did learn of it at
least by December 3, when it became the subject of the
Clerks' initial charge herein. Yet even after Respondent
thus became aware that the Keene employees knew of their
failure to receive the benefits given the other employees, it
never attempted to assure them that they would get the
benefits after the election and regardless of its outcome. See
Grede Foundries. Inc., 205 Nl RB 39, 42, fn. 12 (1973).
Moreover, no reason appears for bestowing the benefits
at Claremont and Bellows Falls at that particular time. De-
spite Respondent's argument that "the benefits in question
were discussed from time to time in 1974 and 1975" (br. at
12), there was no evidence that any of the employees had
ever been informed of the plans or had other reasons to
anticipate the benefits or that the plans had ever crystal-
lized in any way, especially as to timing. Indeed, as the
contention acknowledges. and as Peter testified, his last
conversation with Gerry about the benefits had occurred
prior to his becoming manager at Keene, i.e., almost a year
before the public announcement. Thus, there is a complete
absence of evidence of any reason why. after having hung
so long in limbo, they should suddenly emerge in the midst
of the organizing campaign and the upcoming election. ('f.
Gold Circlc Departmenr Stores, 207 NLRB 1005 (1973).
Again, as in 4.gawrram, "that this was not mere thoughtless-
ness on respondent's part is evidenced by its subsequent
conduct" as well as its prior conduct. It was just one part
of an overall pattern to interfere in the campaign and dis-
courage union membership or support in violation of Sec-
tion 8(a)( 1) and (3)."
5. The additional allegations
The General Counsel's argument for a violation in Re-
spondent's memorandum of December 22 is confined to its
fifth paragraph. It is urged that this constituted an implied
promise of benefits if the Unions lost the election. The short
answer is that the challenged language merely stated in ef-
fect that the employees would be at least as well off without
a union as with one. If an employer were not free to express
such an opinion, the guarantee in Section 8(c) would be
meaningless.)
Nor do I find a violation in Gerry's statements to Forest
on January 6 concerning the improvement of the laundry
service. This was a standing promise, admittedly originally
11 It is noted, by way of contrast. that Respondent's memorandum of' De-
cember 22 to the Keene employees nowhere mentioned Keene hut was ad-
dressed oInly "TO: It(A FMPI.OYE''S."
I: Keene is some 38 miles from C laremont and less than half that distance
from Bellows Falls
" Contrary to the implication in Respondent's brief Peter did not testifs
to Respondent's having been advised by legal counsel to follow this course
But heeding such advice would not have avoided a violation in any event
Ortis Hospital. 222 Nl.RB 402. 404 (1976), enfd 545 F.2d 252 ((A 1. 1976)
34 Cfi Trrnl 's Spanish Fbod. 187 Nl.RB 235. 236h t1970), especially last
paragraph
(;ERRY'S I.(;.A I 1153
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other violations herein. Tommy's Spanish Foods. 187 NLRB
235, point 1. I question, moreover, whether Gerry did in
fact say on December 27 that the Unions could raise the
matter for discussion. In the first place, it may safely be
inferred that the prepared statement from which he read
said no such thing, for it would otherwise have been pro-
duced as evidence. Secondly, I found Gerry generally unim-
pressive on the witness stand. On the other hand, Forest
credibly testified that in the same conversation on January
6 in which she had discussed free laundry service with Ger-
ry he had stated that "he would not, under any circum-
stances, consider discussing giving [the PSE test] up." This
statement, quite consonant with his admitted analogy to the
locks on the doors, belies his asserted addition on Decem-
ber 27.16
The Election Objections
On the basis of the unfair labor practices found that pre-
ceded the election herein, I recommend that the election be
set aside and a new election held.
CON(CI.USIONS oi LAW'
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Clerks and the Meatcutters are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act by
interfering with, restraining, and coercing its employees in
the exercise of their union activities as found above.
4. Respondent has violated Section 8(a)(3) of the Act by
changing David Frampton's hours on November 6 and dis-
charging him on November 19 and by withholding from the
Keene employees until after the election the benefits
granted to the Claremont and Bellows Falls employees on
November 23, 1976.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent did not violate the Act except as specifi-
cally found above.
REMEDY
In order to remedy the unfair labor practices found
herein, my recommended Order will require Respondent to
cease and desist therefrom and, in view of their serious na-
ture and variety, to cease and desist from infringing upon
the Section 7 rights of its employees in any other manner,
and to post the usual notices. Moreover, in order to effectu-
ate the policies of the Act, my recommended Order will
require Respondent to grant forthwith to all employees at
its Keene store the benefits instituted at its Claremont and
Bellows Falls stores on November 23, 1976, and not yet
granted at Keene; to reimburse all employees at its Keene
store, including those terminated since November 23, 1976,
for all losses suffered as a result of the withholding of such
benefits by paying each of them a sum of money equal to
36 Such an adamant attitude in respect to this subject is particularly note-
worthy in view of the increasingly heavy criticism of the uses of polygraph lie
detector devices for testing employees and the almost universal rejection of
such test results as unreliable.
that which he would have earned since November 23 but
for the failure to grant such benefits on that date, together
with interest thereon to be computed in the manner pre-
scribed in Florida Steel Corporation, 231 NLRB 651 (1977);
and to offer David Frampton and Robert MacKenzie full
reinstatement with backpay. In accordance with customary
requirements, reinstatement shall be to their former jobs,
or, if those jobs no longer exist. to substantially equivalent
positions without prejudice to their seniority or other rights
and privileges, and in Frampton's case to his regular hours
of work prior to the change on November 6, 1976. They
shall be made whole for any loss of earnings they may have
suffered by reason of the discrimination against them by
payment to each of them of a sum of money equal to that
which he would have earned from the date of discrimina-
tion against him to the date of a valid offer of reinstate-
ment, but in Frampton's case less net earnings during such
period, and interest thereon, to be computed in the manner
prescribed in F. W. Woolworth CompanL, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977)?'7
Upon the foregoing findings of fact and conclusions of
law, and the entire record herein, and pursuant to Section
10(c) of the Act, I hereby recommend the following:
ORDER3"
The Respondent, Gerry's Cash Market, Inc., d/b/a
Gerry's I.G.A., Claremont, New Hampshire, its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging, changing the working conditions of, or
otherwise discriminating against any employee because of
his union or other protected concerted activity.
(b) Demoting, changing the working conditions of, or
otherwise discriminating against any supervisor because of
his failure or refusal to engage in the commission of an
unfair labor practice.
(c) Delaying or withholding or threatening to delay or
withhold any benefit from its employees to interfere in a
union campaign or discourage support for union activity.
(d) Promising or granting any benefits to its employees
to interfere in a union campaign or discourage support for
union activity.
(e) Promulgating, maintaining, or enforcing any rule or
regulation prohibiting its employees from engaging in union
solicitation during their nonwork time in nonselling areas of
the store.
(f) Anticipating refusing to bargain about requiring em-
ployees to take a psychological stress test or about any
other mandatory subject of collective bargaining.
(g) In any other manner interfering with, restraining, or
coercing any of its employees in the exercise of their rights
guaranteed by Section 7 of the National Labor Relations
Act.
)7See, generally, Isis Plumbhing & Heating Co., 138 NLRB 716 (1962).
is In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections therto shall be deemed
waived for all purposes.
1154
GERRY'S I.G.A.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer David Frampton and Robert Mackenzie full
reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent jobs. without prejudice to
seniority or other rights and privileges, and in Frampton's
case to his regular hours of work prior to November 6,
1976, and make them whole for any loss of pay suffered by
reason of the discrimination against them in the manner set
forth in the section of this decision entitled "Remedy."
(b) Make whole all employees at its Keene store for all
loss of benefits suffered as a result of the withholding on
November 23, 1976, of the benefits instituted that date at its
Claremont and Bellows Falls stores in the manner set forth
in the section of this decision entitled "Remedy" and grant
forthwith to all employees at its Keene store any benefits
instituted at the Claremont and Bellows Falls stores on said
date and not yet granted at Keene.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security records, timecards, personnel
records and reports, as well as all other records necessary to
analyze and compute the amount of backpay and other
benefits due hereunder.
(d) Post at its stores at Keene and Claremont, New
Hampshire, and at Bellows Falls. Vermont, copies of the
attached notice marked "Appendix."' Copies of said no-
tice. on forms provided by the Regional Director of Region
1. after being duly signed by an authorized representative of
Respondent. shall be posted by Respondent immediatelt
upon receipt thereof. and be maintained by it for 60 days
thereafter. in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced. or covered by any other mate-
rial.
(e) Notift' the Regional Director, in writing. within 20
days of this Order. what steps Respondent has taken to
comply herewith.
IT IS FURrHiER ORDFREI) that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
11 Is FURIHER ORDERED that the election held at Keene
on January 13. 1977. in Cases 1 RC-14786 and 14827 be.
and the same hereby is, set aside and that a new election be
held at a time to be fixed by the Regional Director of Re-
gion 1.
'9 In the event that this Order is enforced by a judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order orf the Na-
tional Labor Relations Board."
1155