Gibson Discount Center

National Labor Relations Board - Board Decisions

Jun 28, 1971

191 N.L.R.B. 622 (N.L.R.B. 1971)

622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Henriksen, Inc., d/b/a Gibson Discount Center and
Retail, Wholesale and Department Store Union,
AFL-CIO. Cases 23-CA-3528 and 23-RC-3374
findings ,2 conclusions, and recommendations of the
Trial Examiner as modified herein.3
ORDER
June 28, 1971
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
By CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On October 14, 1970, Trial Examiner George Turitz
issued his Decision in the above-entitled consolidated
proceeding finding that the Respondent had engaged
in, and was engaging in, certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease and
desist therefrom and take certain affirmative action, as
set forth in the attached Trial Examiner's Decision. He
further found that Respondent had not engaged in cer-
tain other unfair labor practices alleged in the com-
plaint and recommended that these allegations be dis-
missed. The Trial Examiner also found merit in certain
objections to the election filed in Case 23-RC-3374 and
recommended that the election be set aside and a new
election be directed. Thereafter, Respondent filed ex-
ceptions to the Trial Examiner's Decision and a sup-
porting 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 powers
in connection with these cases to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the
entire record in these cases,' and hereby adopts the
' Respondent has requested oral argument before the Board Upon con-
sideration of Respondent's motion and supporting brief, we hereby deny the
request because the record, the exceptions, and the brief adequately present
the issues and positions of the parties.
On June 17, 1971, the Respondent filed with the Board a motion to reopen
the record to permit an application for subpoena duces tecum and an ap-
plication for such a subpena to be served on the "Texas Unemployment
Commission" for the production of records relating to Violet Smith's claims
arismg out of (1) her discharge in issue here and (2) her subsequent dis-
charge by another employer. As to (1), no justification has been advanced
for this belated request, and, as to (2), there is an insufficient showing of
relevancy and materiality. Accordingly, the motion is denied
191 NLRB No. 80
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order of
the Trial Examiner as modified below and hereby or-
ders that the Respondent, Henriksen, Inc., d/b/a Gib-
son Discount Center, Port Arthur, Texas, its officers,
agents, successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order, as
so modified.'
1. Delete subparagraph 1(f) therefrom and reletter
the remaining subparagraphs accordingly.
2. Substitute the attached notice for the Trial Ex-
aminer's notice.
IT IS FURTHER ORDERED that the election held on
December 23, 1969, among Respondent's employees
be, and it hereby is, set aside, and that Case 23-RC-
3374 be remanded to the Regional Director for Region
23 for the purpose of conducting a new election at such
time as he deems that circumstances permit the free
choice of a bargaining representative.
[Direction of Second Elections omitted from publica-
tion.]
In adopting the Trial Examiner's findings that Respondent violated
Section 8(a)(1) by its November 14 and December 4 speeches, we have not,
as might appear from Chairman Miller's opinion, isolated out as an inde-
pendent violation President Henriksen's "hurts me deeply" statement;
rather, we have considered that expression in conjunction with other state-
ments of Henriksen to the effect that she would bear a grudge against union
supporters and this would react adversely to their economic interests. Fur-
ther, unlike Chairman Miller, we cannot dismiss as "intemperate or emo-
tional outbursts" statements read from prepared speeches which were dehv-
ered on several occasions In any event, and apart from the calculated
coercive effect these prepared speeches, which, incidentally, involved
threats only, were intended to have, we see no justification for concluding
that statements delivered in anger are unlikely to have a discernible effect
on employees who hear them.
' We do not adopt the Trial Examiner's finding of a violation based on
statements allegedly made by Assistant Manager Lamb to Combs in that
this incident was not alleged in the complaint nor, as Lamb did not testify
with respect to this incident, was it litigated at the hearing. Nor do we adopt
the Trial Examiner's finding of a violation based on the statements attributed
to Lamb by employee Ehrhardt We note that in treating other portions of
this same conversation, the Trial Examiner stated Ehrhardt impressed him
as an "unreliable witness." Consistent with this characterization of Ehr-
hardt, the Trial Examiner discredited her and refused to find violations as
to three other incidents as to which Ehrhardt testified. In light of this
appraisal by the Trial Examiner of Ehrhardt, we must conclude that the
General Counsel has failed to establish that Lamb, in fact, made the remarks
testified to by Ehrhardt.
In footnote 29 of the Trial Examiner's Decision, substitute "20" for
"10" days.
5 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their ad-
dresses which may be used to communicate with them Excelsior Underwear
Inc., 156 NLRB 1236; N.L.R B. v. Wyman-Gordon Co., 394 US 759.
Accordingly, it is hereby directed that an election eligibility list, containing
the names and addresses of all the eligible voters, must be filed by the
Employer with the Regional Director for Region 23 within 7 days after the
date of issuance of the Notice of Second Election by the Regional Director.
GIBSON DISCOUNT CENTER
CHAIRMAN MILLER, dissenting in part:
Contrary to my colleagues, I find no violation of
Section 8(a)(1) in the following incidents:
(1) President Henriksen's statement that this union
activity "hurts me deeply."
(2) Henriksen's comments that " ... I am disap-
pointed, I worked hard in this store, every bit as hard
and probably harder than anyone else. I don't have to
work here-I could take off every day and just travel
or have a good time somewhere else. But I don't want
to do that. I want to be here in the store with my people.
I want to be here with you in case any of you need me."
(3) Henriksen's statement that she would "bargain
with them in good faith-but I would bargain cold with
them, and I would bargain tough . . . ."
(4) Assistant Manager Lamb's expression of un-
friendliness towards employee Combs.
(5) Richard Henriksen's calling one union supporter
"a Communist like all the others."
I am as eager as my colleagues to protect employees
from promises of benefit, threats of reprisals, and other
expressions which materially interfere with employees'
union activities. Yet I think sometimes the Board
strains overly hard to find threats or promises in merely
intemperate or emotional outbursts such as those re-
ferred to above. I find it exceedingly unlikely that such
statements are construed by the employees as threats or
promises or, indeed, that such statements have any
discernible effect on any employees who hear them.
Though the remaining incidents found violative are not
overwhelming in number, they are sufficient so that I
would not disagree with my colleagues' conclusion that
the election should be set aside.
As for the challenges, I do not view the head check-
er's authority to approve customers' checks as indica-
tive of supervisory authority nor do I find that any of
her duties provide any alternative indicia of supervisory
status. Consequently, I would find her eligible to vote
in the rerun election.
I concur in all other findings and conclusions of the
majority.
The Regional Director shall make the list available to all parties to the
election. No extension of time to file this list shall be granted by the Regional
Director except in extraordinary circumstances. Failure to comply with this
requirement shall be grounds for setting aside the election whenever proper
objections are filed.
APPENDIX
623
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the opportunity to
present their evidence, a decision has been issued
finding that we violated the law and ordering us to post
this notice. We intend to carry out the order of the
Board and abide by the following:
WE WILL offer Violet Smith immediate and full
reinstatement to her former job, without prejudice
to her seniority or other rights and privileges, and
WE WILL pay her for any loss of wages she suff-
ered as a result of the discrimination which it has
been found we practiced against her.
WE WILL inform Maggie McDaniel that we will
not impose more onerous conditions of work upon
her because she joined and assisted the Union than
we would have imposed normally.
WE WILL NOT discharge or otherwise discrimi-
nate against you because of membership in Retail,
Wholesale and Department Store Union, AFL-
CIO, or any other labor organization, or because
of activities on behalf of such labor organization.
WE WILL NOT cause any special investigation
to be made of your work because you join or assist
the Union or any other labor organization or for
purpose of finding a pretextual ground to dis-
charge you discriminatorily.
WE WILL NOT threaten to bear grudges against
you if you do not renounce the Union.
WE WILL NOT withhold from employees who
do not renounce the Union assistance with respect
to working conditions or tenure of employment or
any other privileges which we would normally
give.
WE WILL NOT threaten to cut your hours, to
deny you time off or other privileges, to close our
store or otherwise cause you to lose your jobs, or
to visit any other reprisals upon you if you persist
in adhering to or assisting the Union or any other
labor organization, or if you choose the Union or
any other labor organization as your representa-
tive for collective bargaining.
WE WILL NOT tell you that if you select the
Union or any other labor organization as your
bargaining representative we would not bargain in
good faith or that we would then dictate terms of
employment without such good-faith bargaining.
WE WILL NOT put you in fear of retaliatory ac-
tion by informing you that we are seeking to ascer-
tain the identity of union supporters.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT vilify you because you support
the Union or any other labor organization.
WE WILL NOT in any other manner interfere
with , restrain , or coerce you in the exercise of your
rights to self-organization , to form labor organiza-
tions, to join or assist Retail , Wholesale and De-
partment Store Union , AFL-CIO, or any other
labor organization , to bargain collectively through
representatives of your own choosing , and to en-
gage 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.
HENRIKSEN, INC.,
D/B/A
GIBSON
DISCOUNT CENTER
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Dallas-Brazos Building, Fourth Floor, 1125
Brazos Street, Houston, Texas 77002, Telephone 713-
226-4296.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE TURITZ, Trial Examiner: Upon a petition filed by
Retail, Wholesale and Department Store Union, AFL-CIO
(the Union), on November 19, 1969,' in Case 23-RC-3374,
and pursuant to a Stipulation for Certification Upon Consent
Election, the Regional Director for Region 23 of the National
Labor Relations Board (the Board), on December 23 con-
ducted an election by secret ballot among employees of Hen-
riksen, Inc., d/b/a Gibson Discount Center (Respondent), to
determine whether or not the employees desired to be repre-
sented in collective bargaining by the Union. The results of
the election were indeterminate because of challenged ballots.
On December 26 the Union filed timely objections to the
election. On January 29, 1970, the Union filed a charge in
Case 23-CA-3528, which was served that day on Respond-
ent. On April 3, 1970, the Regional Director issued and
served on the parties an order directing a hearing on the
objections and challenges, and an order consolidating the two
cases. On April 6, 1970, the General Counsel of the Board,
on behalf of the Board, through the Regional Director, issued
and served a complaint and notice of hearing against Re-
spondent in Case 23-CA-3528. Respondent filed its answer
' Unless the contrary is stated, all dates referred to in this Decision were
in 1969.
in which it denied all allegations of unfair labor practices
contained in the complaint. The hearing was held at Port
Arthur, Texas, before the Trial Examiner named above on
May 13 and 14 and June 2, 3, 4, and 16, 1970. All parties were
represented at the hearing by their respective counsel, and the
General Counsel and Respondent have filed briefs with the
Trial Examiner.
Upon the entire record and from his observation of the
witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT-EMPLOYER
Respondent is a Texas corporation having its principal
office and place of business in Port Arthur, Texas, where it
is engaged in operating a retail variety store under a franchise.
The franchiser has no participation in the labor relations or
in the management of the store. In the course of its retail
operations Respondent annually purchases goods valued at in
excess of $50,000 which are shipped to it directly from points
outside the State of Texas, and annually has gross receipts in
excess of $500,000. It is found that Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the National Labor Relations Act, as
amended (the Act).
II. THE LABOR ORGANIZATION INVOLVED
Retail, Wholesale and Department Store Union, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
III. THE CHALLENGED BALLOTS
The description of the appropriate collective-bargaining
unit in the stipulation was as follows:
INCLUDED: Regular full-time and regular part-time
employees employed at the store located at 3835 Gulf-
way Drive, Port Arthur, Texas.
EXCLUDED: Office clerical employees, professional
employees, guards, watchmen and supervisors as defined
in the Act.
The tally of ballots disclosed that, with approximately 94
eligible voters, 29 valid ballots were cast for, and 38 against,
the Union, and there were 24 challenged ballots. At the open-
ing of the hearing all parties entered into stipulations dispos-
ing of some of the challenged ballots. It was stipulated that
the following challenged voters were temporary employees,
ineligible to vote: Rosie Brown, Geraldine Bergeron, Enoch
Cole, Dolores King, Judy Rosendale, and Mary Henriksen.
It was further stipulated that the following challenged voters
each responsibly directed employees in their work and were
supervisors within the meaning of the Act, not eligible to
vote: L.W. Foster2 and Wayne Cooley.' Finally, it was stipu-
lated that the following challenged voters were employees
within the unit, eligible to vote: Frank Thomas, R. G. Rodg-
ers, and Rita Combs. The 13 voters remaining in dispute were
all challenged as supervisors.
C. D. Gravenmier: At the time of the election Gravenmier,
a former display man, had recently returned from the mili-
tary service and had no definite position in the store. He was
under consideration by Respondent for eventual promotion
to a management position and was being trained, or at least
tried out, with that end in view. He was used in various
departments of the store, especially during sales, where he
Foster was head of the warehouse department.
Cooley was a management trainee. At the time of the hearing he was
an assistant manager.
GIBSON DISCOUNT CENTER 625
helped keep the shelves properly stocked . He did not direct
other employees in their work . Gravenmier received a salary
of $125 for a 48-hour week , computed on a "sliding scale,"
which was the same wage basis used for a number of the
department heads, found below to have been supervisors. He
did not punch the timeclock . His status as a kind of manage-
ment trainee was apparently recognized in the store : checkers
requested him to approve customers ' checks for sums in ex-
cess of $20 , a function reserved to assistant managers and the
head checker , and Gravenmier did approve such checks until
a few days prior to the election . Gravenmier had no authority
to do anything affecting employees ' employment status, or
even to make effective recommendations to that end. It is
plain that Gravenmier was not a supervisor , the basis on
which he was challenged , and his approving of checks for
more than $20 was not, standing alone, enough to make him
a managerial employee. It is true that his interests were sub-
stantially different from those of the rank-and-file employees,
and he might well have been excluded from the present unit
if it had been determined by the Board . However, in this case
the unit was agreed upon by the parties, and it included
"regular full-time ... employees," a description which fit
Gravenmier , and it did not exclude individuals in his cate-
gory. It is found that Gravenmier was an employee within the
unit, eligible to vote in the election . It will be recommended
that the challenge to his ballot be overruled . See Montgomery
Ward & Co., Incorporated, 123 NLRB 135, 136.
J. L. Winsey: Winsey was in charge of Respondent's
maintenance crew , which numbered three including Winsey.
Many months prior to the election the store was divided into
three separate areas by Winsey 's superiors , who gave each of
the three maintenance employees responsibility for a particu-
lar area. Winsey worked from 9 to 6 Monday through Friday,
and from 9 to 1 on Saturday . The other two alternated on
Saturdays , and on Mondays through Fridays alternated each
week between the 9-to-6 and 1-to-10 shifts. Those schedules
were fixed by Winsey's superiors . Winsey had authority to
direct the other maintenance employees in their work, but
this did not involve any exercise of judgement or of discre-
tion . He had no authority to hire, discharge, or give pay
increases to the other employees , and his recommendations
in those areas did not carry weight with Respondent. It is
found that Winsey was not a supervisor , and that he was an
eligible employee included in the unit. It will be recom-
mended that the challenge to his ballot be overruled.
Diane L. Rogers: Rogers was the only individual in the
advertising department . She worked in the advertising room,
where Respondent kept its advertising mats, sorted by store
departments . Respondent apparently ran advertisements for
items which were to be reduced in price. An assistant
manager would bring any item he wanted to advertise to
Rogers, who would note the model number , obtain the stock
card and note therefrom the cost, and take out the appropri-
ate mats. When she had all the information accumulated she
would give the assistant manager the necessary information
and find out from him what the sale price of each article
would be. She then wrote out the appropriate information on
a writeup sheet which she handed over to a messenger from
the newspaper , together with the mats. Rogers received
proofs from the newspaper and submitted them to the assis-
tant manager for approval . Rogers punched the timeclock;
she received $ 1.80 per hour, the same wage as was paid to the
head checker. Approximately once a month , when she was
caught up with her work , Rogers would help customers in
"The Captain 's Walk," a men's shop in one corner of the
store, and would help dust the merchandise there. She did not
stock shelves, which constituted the bulk of the work of the
rank-and-file employees in the various merchandising depart-
ments. It is found that Diane Rogers was not a supervisor.
However , Rogers' work was basically clerical in nature. She
worked in an office separate from the other employees and her
work, excluding the insubstantial amount of time spent in
The Captain 's Walk, was in no degree integrated with that of
the employees in the unit. It is found that Rogers was an office
clerical employee , excluded from the unit and therefore not
eligible to vote. It will be recommended that the challenge to
her ballot be sustained.
Betty Hughes: Hughes was the head checker. She had ap-
proximately 12 checkers under her, including 2 assistant head
checkers. The checkers were paid $ 1.60 per hour , the assis-
tant head checkers $ 1.70, and Hughes $ 1.80 per hour. She
punched a timeclock . Hughes gave various instructions to the
checkers but for the most part these normally originated with
the assistant manager . She corrected checkers' mistakes and
explained how various transactions were to be handled on the
registers . Along with the assistant managers she had au-
thority to approve the acceptance of customers' checks in
amounts exceeding $20. The head checker also attended de-
partment head meetings called by the assistant manager.
From time to time the heads of the various merchandising
departments requested help from Hughes. If the checkers
were not busy, Hughes would then have those who could be
spared close their registers and help on the selling floor.
While Hughes had an instruction to "rotate " the checkers in
assigning them to floor work , there is no evidence that this
was anything more than a general instruction not to send the
same individuals out all the time. Moreover , there is no evi-
dence that anyone but Hughes participated in the decision
that one or more checkers could be spared on such occasions.
In view of this authority to assign her staff to other duties
temporarily, her authority to accept customers ' checks above
$20, and her attendance at meetings of the department heads,
and as she was the person immediately responsible for the
proper performance of a dozen employees, it is found that the
head checker was a supervisor and not eligible to vote in the
election. It will be recommended that the challenge to Betty
Hughes' ballot be sustained.
The merchandising department heads: Respondent had 12
departments directly engaged in merchandising, plus an auto
shop, each with a department head." One department, the
Captain 's Walk, was headed by Richard Henriksen, an ad-
mitted supervisor . The other departments had the following
number of employees in addition to their respective depart-
ment heads: auto shop, one; flower and gift shop , one; shoe
department , three; soft goods department , six; automotive
and hardware department , eight; sporting goods , toys, drugs,
and housewares, five each; and lay-away , jewelry, and gro-
cery, four each . The respective heads of the following depart-
ments were on a weekly salary of $125, based on a "sliding
scale" for 48 hours: drugs, automotive and hardware, ware-
house, sporting goods, and auto shop . The head of the
housewares department had a similar arrangement, but was
paid $ 100 for a 44-hour week. The other department heads
were hourly paid and punched the timeclock . Their pay was
in most cases 20 cents per hour more than that of the em-
ployees under them.
With few exceptions Respondent 's store was run on a self-
service basis. Customers took merchandise from shelves and
placed it in carts and, after completing all their shopping,
paid for everything at 1 of the 11 checkout counters. "The
Captain 's Walk" and the jewelry department had their own
There are no challenged ballots for the heads of the following depart-
ments: toys (Beverly Fontenot); jewelry (Judy Romer), auto shop (Joe Ar-
bie); and Captain 's Walk (Richard Henriksen). The record does not disclose
whether or not they voted.
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
registers. The employees in the various departments helped
customers find articles, advised them as to quality and, espe-
cially in case of sale goods, as to price,' and to some extent
"pushed" sales. Each department was assigned one or more
aisles to display and shelf its merchandise, as well as a section
in the warehouse to stock additional supplies. An important,
if not the main, function of the clerks in each department was
to see to it that all merchandise in stock was available on the
shelves; and each employee was assigned an aisle or a section
to be responsible for in this regard. Assistant Manager Brown
testified that all the department heads had substantially the
same responsibility, whether hourly paid or on salary. He
stated, "But there may be one or two that overstep, go a little
further in their authority." The clerks received their orders
from their respective department heads. It was the depart-
ment heads who gave the necessary orders for the proper
shelfing and display of merchandise and for the efficient
working of the clerks. They had authority to tell them what
had to be done, which shelves to stock and when, where to
place merchandise, and how to display it. They also repri-
manded employees for joking or talking excessively, and
would tell them to get to work. They had authority to require
their clerks to help out in other parts of their departments,
and, where a department had different types of merchandise,
to shift employees from one type to another. When employees
wanted to trade shifts, they requested permission from the
department heads.' The department heads worked on the
selling floor stocking shelves and helping customers as did the
other employees, but they also had clerical duties, which they
performed in their respective assigned sections of the ware-
house. The employees at Respondent's information desk re-
ferred salesmen to the department heads as the buyers for
their respective departments. Department heads wrote up
orders for merchandise. Some had authority to give at least
some orders for merchandise directly to the salesmen without
consulting a superior; others were required to obtain approval
from the assistant manager. Getting employees to keep
shelves properly stocked and goods effectively displayed, at
the same time seeing to it that they attended promptly' and
courteously to customers' needs, required the exercise of dis-
cretion and judgement on the part of the department heads.
Respondent recognized this quite plainly in approximately
helf the departments by placing the department heads on
salaries; and it recognized this fact in all the departments by
calling meetings of the department heads under each assistant
manager. In view of the foregoing, and as the department
heads had clerical and buying duties which the rank-and-file
employees did not have, it is found that the department heads
of all the merchandising departments were supervisory em-
ployees, not eligible to vote. It will be recommended that the
challenges to their ballots be sustained.
Recommendations as to Challenged Ballots
Pursuant to the stipulation of the parties, approved by the
Trial Examiner, it is recommended that the challenges to the.
ballots of the following individuals be sustained: Geraldine--
Bergeron, Rosie Brown, Enoch Cole, Wayne Cooley, L. W.
Foster, Mary', Henriksen DoloresKing, and Judy Rosendale.
On the basis of the Trial Exalmirer's,findings, it is recom-
mended that the: challenges to the ballots of the following
voters also be sustained: Tommy G. Belk, B. E. Bigler, Betty
Hughes, Arthur N: Jensen, M. L. Jones, Diane L. Rogers,
Harry Sanders, J. D. Schexenider, Ann M. Solis, Ruby Tou-
chette, and L. A. Woodrome.
Pursuant to the stipulation of the parties, approved by the
Trial Examiner, it is recommended that the challenges to the
ballots of the following voters be overruled: Rita Combs, R.
T. Rodgers, and Frank Thomas. Pursuant to the findings of
the Trial Examiner, it is recommended that the challenges to
the ballots of the following voters also be overruled: C. D.
Gravenmier and J. L. Winsey.
The ballots of the five voters herein determined to have
been eligible are insufficient in number to affect the results of
the election.
IV THE UNFAIR LABOR PRACTICES
A. Introduction
Organizational activities among Respondent's employees
began in the first half of 1969. Respondent was aware of these
activities but did nothing to oppose the Union until Novem-
ber, when, it is inferred, it became aware that the Union had
gained substantial support among the employees. On Novem-
ber 19 the Union filed the petition, which had to be accom-
panied by the Union's showing of substantial interest. Re-
spondent made a number of speeches to the employees
opposing the Union, and also issued written propaganda. The
General Counsel and the Union have conceded, respectively,
that Respondent's written propaganda material did not con-
stitute unfair labor practices or interfere with the results of
the election.
The issues litigated in the unfair labor practice case' were
whether Respondent's speeches were coercive, whether cer-
tain coercive actions or statements were made to employees
by various supervisors, and whether Respondent dis-
criminated against Violet Smith. The last issue involved,
among other things, the question of whether Respondent
suspected that a certain shopper attempted to steal merchan-
dise with Smith's cooperation, and this question was the most
extensively litigated one in the case.
B. The Speeches
Respondent made speeches to the employees on four occa-
sions; namely, on or about November 14 and December 4, 18,
and 23. Except for the last, each speech was delivered several
times, so that business would not be interrupted. All em-
ployees were required to hear the first speech. For the second
and third speeches, those of December 4 and 18, only those
employees were invited whom Respondent did not consider
prounion. The December 23 speech was given on the occasion
of a 7:30 a.m. "Christmas breakfast," to which all the em-
ployees were invited. There is no evidence that the speech was
given during working hours or that any employees were paid
for their time when attending.
Henriksen, a half-owner of Respondent and its active head,
testified that all the speeches were drafted by her and her
attorneys, and that when she read them, she adhered care-
fully to•the prepared. texts,' Henriksen admitted that some
questions-were-asked and answered.. Several employees-tes
tified that Henriksen made certain statements-notihclud.ed'in,
the two texts which she testified constitutecLthe-first and,
second speeches. They did not claim that those statements,
had been made in answer. to questions. The Trial Examiner-
finds that the first two speeches, were delivered as set forth in
' Several of the issues were also relevant to the Union's objections in the
When an article was reduced in price during a "sale," the price tag was representation case.
not altered. 8 She testified that during the December 4 speeches she deviated to the, Shortly before the election Brown announced that trading of shifts extent that she promised the employees protection against vandalism that
would no longer be permitted. she said had occurred and threats that she said had been made.
GIBSON DISCOUNT CENTER 627
the texts in evidence, except for the deviation with respect to
alleged vandalism.'
In the first speech, after saying that she held no grudge
against employees who had made the mistake of signing a
union card, Henriksen said , "But now you know the facts.
... it is mighty unfortunate if a person makes a mistake, does
not take some action to correct that mistake when they find
out what the true facts are." Henriksen thereby pointedly
implied that she would hold a grudge against employees who
failed to take action to cancel union cards they had signed.
Her threat to hold a grudge plainly tended to coerce and
restrain the employees in the exercise of their Section 7 rights
not only not to cancel their union cards, but also, their right
to engage in any union activities. Lest some employees not
fully comprehend the import of her holding a grudge against
them, Henriksen became more explicit as to what might flow
from one of her grudges. She related how she made conces-
sions with respect to employees' work schedules so as to
minimize interference with their family duties, and how she
had held employees' jobs open during their illnesses. She then
said:
Now, I understand that some of the people that I have
helped out through some very difficult times are running
around behind my back working against me and against
the store-and worse [sic] of all, this person or these
people are working against their fellow employees. This
hurts me deeply....
An employee whose work schedule had been adjusted by
Henriksen or whose job had been held open during an illness
could not fail to have some apprehension that such favors
would not be forthcoming if Henriksen bore a grudge against
her for adhering to the Union. At the beginning of her speech
Henriksen had been at pains to lay the groundwork for sus-
ceptible employees to fear the consequences, in their own
individual cases, of joining or assisting the Union. Explaining
the reason for her talk, she said:
I don't want anyone coming to me later and saying,
"Mrs, Henriksen, I just didn't understand how you felt
about the union or I wouldn't have made that mistake."
I am going to .tell you right now in clear and unmistaka-
ble terms exactly how I feel-so if any of you go ahead
and make a mistake despite what I tell you, then I won't
have it on my conscience.
This language was not directed at any potential majority of
the employees, it was directed to individual employees' action
in support of the Union, no matter how few, and ensured that
each employee would pierce through her veiled language and
fully comprehend the threats of reprisal that Respondent was
about to convey.
Toward the close of her speech Henriksen said:
I don't have to work here-I could take off every day
and just travel or have a good time somewhere else. But
I don't want to do that. I want to be here in the store
with my people. I want to be here with you in case any
of you need me. I thought this was what you wanted, and
I thought I was doing some good. But it really makes me
think twice when I learn of someone literally running
behind my back and working totear-down all of the good
that I have worked so hard to b'nildhipa
Plainly, what made_Henriksen^"think:twice" was the union
activity of some employees;,and'what shewas-thinking, twice.
' This,findi'ng