Hills Department Store

National Labor Relations Board - Board Decisions

Nov 24, 1965

155 N.L.R.B. 1163 (N.L.R.B. 1965)

HILLS DEPARTMENT STORE 1163
C. R. Hills Division of Shoe Corporation of America , d/b/a Hills
Department Store and Retail Store Employees Union Local 954,
Retail Clerks International Association , AFL-CIO. Cases Nos.
8-CA-3516 and 8-CA-3664. November 24, 1965
DECISION AND ORDER
On August 6, 1965, Trial Examiner A. Norman Somers issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that the Respondent had not engaged in other
unfair labor practices alleged in the complaint and recommended dis-
missal of those allegations. Thereafter, the General Counsel, the
Respondent, and the Charging Party flied exceptions to the Trial
Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and -Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and firl.ds that no prejudica.l error was committed. The
rulilics are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended- Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
These cases (consolidated by Board order on January 15, 1965) were heard
before Trial Examiner A. Norman Somers in Sandusky, Ohio, between September 29
and October 14, 1964 on the complaint in Case No. 8-CA-3516, and from March 9
to 11, 1965 on the complaint in Case No. 8-CA-3664. The earlier complaint
(issued July 27 on charges filed May 21, 1964) alleged that Respondent, at its store
in Sandusky, Ohio, violated Section 8(a)(1), (3), and (5) of the Act, as a result
of which certain employees in that store struck on June 1, 1964. The complaint in
Case No. 8-CA-3664 (issued December 11, on charges filed October 26 and Decem-
ber 7. 1964) restated the allegations of the earlier complaint and alleged further that
in violation of Section 8(a) (3) and (1), Respondent discharged and refused to rein-
state upon application the 17-named employees who struck on June 1, 1964.1
The parties at the end of each hearing waived oral argument and they have filed
separate briefs in respect to each complaint, which have been duly considered. Upon
1 Unless the sense requires otherwise the two complaints will be referred to collectively
as "the complaint ." The source of reference will be the later complaint , since it includes
what is in the earlier one, as well as its own new matter.
155 NLRB No. 109.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tie entire record (as corrected by order issued to the parties on notice and consented
to by them) and my observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
1. TIIE BUSINESS OF THE EMPLOYER
Respondent, Shoe Corporation of America, is an Ohio corporation, having its
principal office in Columbus, Ohio. Its C. R. Hills Division (doing business and
known to the public as Hills Department Store) is comprised of seven "self-service"
department stores, where goods are sold at discount prices? Six of these stores are
located in Ohio. The one with which the complaint here is specifically concerned
is in Sandusky. (The other five are in Ashtabula, Lorain, Youngstown, Warren, and
Boardman. )
Until February 22, 1964, the Hills chain was owned and operated by C. R. Hills,
Inc., a corporation having its principal office in Roxbury, Massachusetts. On that
date, that corporation sold its assets to Respondent, Shoe Corporation, including the
stores of the Hills chain. However, the principals of C. R. Hills, Inc., have continued
to manage and operate the chain as before out of the same central office in Roxbury
but as a division of Shoe Corporation (and subject, of course, to such ultimate con-
trol in Respondent as inheres in ownership). Accordingly, the employer or manage-
ment interest during both ownerships will be referred to as "Hills" unless the sense
requires otherwise.
The gross annual income of the Hills chain is over $1 million. The income of the
store in Sandusky exceeds $500,000 a year, and it receives at least $50,000 worth
of merchandise a year from outside the State of Ohio. It is not disputed and I find
that Respondent is engaged in interstate commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, Retail Store Employees Union Local 954, Retail Clerks
International_ Association , AFL-CIO, is a labor organization within the meaning of
the Act. The "background" narrative will include some reference to two other
locals of the Retail Clerks , Locals 880 and 298. All three are affiliates of the Ohio
State Council of District 22 of the Retail Clerks. In that Union's parlance , the locals
are identified and their "jurisdictional areas" are determined by the cities in which
they are respectively located. Thus, the Charging Party has its office in Toledo, and
the Sandusky store is in its "jurisdictional area ." Local 880 , which is in Cleveland,
encompasses Ashtabula and Lorain ; and Local 298, which is in Youngstown, has
jurisdiction over Youngstown and Warren ( and, presumably, Boardman).
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background of union and employer communication relating
to the Ohio stores of Hills
As stated earlier, the complaint here specifically concerns the store in Sandusky.
(It involves a strike by employees of that store on June 1, 1964, after a refusal to
recognize the Charging Local, and other alleged employer misconduct, followed by
Respondent's refusal to reinstate the strikers on application.) However, the events
concerning it arise out of a broader-based venture by the Retail Clerks Union. In
late 1963, Harry Belinky, president of Local 298 of Youngstown (see supra, part II),
made contact over the telephone with Herbert Goldberger, general manager of the-
Hills chain, through a "mutual friend" with whom Belinsky had enjoyed "cordial"
dealings. In the early part of 1964, Belinsky asked Goldberger to come to Ohio for
a meeting with him to "work out" a contract. The evidence is clear that he spoke
for all three locals whose respective "jurisdictional areas" include the Hills stores
in Ohio and that he did not limit himself to any particular store. Whether he was
talking of the Ohio stores as one bargaining unit or separately in accordance with
2 Each store in the Hills chain has departments owned outright by Respondent which
are termed "Hills" departments , and departments owned by concessionaires , where the
premises are occupied under lease from Respondent , which are termed "leased" depart-
ments. These are held out as part of the Hills establishment to the public, which draws
no distinction between the two classes of departments ; and though the "Hills"' employees
are on Respondent 's payroll and the `leased" department employees are on those of the
respective concessionaires , the manner in which all departments are run reflects on the
reputation of Hills with the public.
HILLS DEPARTMENT STORE 116
the "jurisdictional areas" of the Ohio locals as described in section II, above, is no
longer of particular importance. On his own admission, Belinky told Goldberger-
before any employees, so far as appears, had yet been signed up, that the contract
would not be "too hard" on him, and indeed as Goldberger testified (credibly as
against Belinky's mere failure to "recall" saying so), that Goldberger could "write
his own terms."
Goldberger, in his testimony, attributed to himself high-minded pronouncements
during these early conversations that there was no point to a meeting unless a major-
ity of the employees wanted a union. On this matter, the scales of credibility tip
in favor of Belinky's averment that during the old ownership of the Hills chain at
least, the matter of a majority was not even mentioned, and that Goldberger simply
said he would be in Youngstown in "a week or ten days." Belinky testified that this
last was the expression by which Goldberger dangled before him the hopes of a
meeting throughout their talks (the quest for which Belinky gave up in disillusion-
spent in May). The fair sense of these talks, as gleaned from the hopes with which
Belinky is shown to have been infused and the first-name basis into which the rela-
tionship of these two phone mates blossomed, is that Goldberger, a man of disarm-
ing ease and casualness of manner, was then either receptive or leading Belinky to
believe he was receptive to Belinky's proposal, and that it was only a matter of Gold-
berger's finding the time to come to Ohio before they had that meeting.
Several days after the public announcement,-made February 24, of the sale of the
Hills chain to Shoe Corporation, Belinky called Goldberger and said he was "con-
cerned" because he "understood" from the International of the Retail Clerks Union
that Shoe Corporation, the new owner, had once made a deal with a rival union.
Goldberger assured him that he would not "countenance a deal" with any union at
Belinky's "expense," and fairly conveyed (as Respondent's counsel indeed suggested
during his cross-examination of Belinky) that any "deal" he would make would be
with Belinky. In that conversation, Belinky informed Goldberger that organizers
were now speaking to the employees at the store and (mentioning no local or any
particular store) again asked Goldberger for -that meeting. Goldberger said they
would have it after he cleared up the details of the sale and had a chance to take up
Belirky's proposal with the "operating head" of Shoe Corporation in Columbus.
On March 11, Belinky called Goldberger and had with him the only conversation
that concerned a particular store. Belinky told Goldberger that Eldon Leedy,
secretary-treasurer of the Charging Local (which was organizing the store in San-
dusky) informed him that a "girl" had been discharged there the day before by
Bernard Shamesman, the store manager. (The reference was to Sharon Cradic, who
had signed a union card on March 5, and whose discharge is alleged as among the
unfair labor practices contributing to the ,strike at the Sandusky store on June 1.)
Belinky observed that it was not "smart to fire ... a very active girl during an orga-
nizing -campaign," and that "if [Goldberger] would take [his] advice he would bring
her back." Goldberger said he would have the matter looked into. The next day,
March. 12, District Manager McMillan, who is superior in authority to Shamesman,
reinstated Cradic, and ordered that she be given the same raise that had recently been
;given to other girls in the store (Cradic's earlier failure to receive it having led to
her asking Shamesman the reason, which culminated in his discharging her). Belinky
never brought no that subject with Goldberger again.
Between March 3 and 24, the Charging Local procured signed authorizations from
34 of the personnel at the Sandusky store in the various departments (supra, footnote
2), and on April 3, Leedy, its secretary-treasurer, wired Goldberger claiming a
majority of the employees there had designated it as bargaining agent and asking for
an immediate meeting to - negotiate a contract for the employees at the Sandusky
store. On April 3 also, Goldberger received a letter from Belinsky, as president of
Local 298, dated April 1 , claiming that his local had signed up a majority of the
employees of the stores in Youngstown and Warren. In his letter, Belinky com-
plained that more than 2 weeks had now elapsed since Goldberger told him he would
be in Youngstown "in a week or -ten `days," without his having heard from him, and
he wanted to know when he could expect that meeting. Goldberger testified (credibly
as against Belinky'sdenial) that this time he called Belinky, and that he said he had
thought Belinky "was handling this whole thing for all of the stores" and had
promised to be "patient" until he, Goldberger, could come to Columbus to see how
the new owner "felt" about Belinky's proposal. Belinky then, according to Gold-
berger, explained that both communications were the result of his not having heard
from Goldberger, and that he had merely wanted to be sure Goldberger had not
"forgotten" him. Sometime later in April, in a call made by Belinky, the two finally
made an appointment to meet. It was to be on April 28, not in Youngstown but (on
Goldberger's insistence on a "central" point) in New York, where Hills has a sales
1166 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
office. Belinky's -call came in 'iininediately . after Goldberger had finished -talking o
the phone with Herbert Schiff, the operating head of Shoe Corporation. Goldberger
told Belinky that Schiff had put a damperon any "deal" and that Belinky would have
to prove a majority=. There is a conflict over Belinky's response. Goldberger tes+Wsed
Belinky still .avoided specifics and simply pressed for a meeting anyway on the same
all-inclusive basis as in the other talks. Belinky testified he told Godberoer the
Charging Local informed him it "had signed- considerable cards r_ the Sandusky store
up to a majority" -• (explaining, on interrogation by me, that he meant an-honest-to-
goodness majority), and that he would produce the cards of the "Toledo local" at that
meeting. i need not resolve that convict either. The meeting was never held. On
April 27, Belin'_^y received a call from secretary calling of, the meeting
because her boss was "down with some kind of a virus." Belinky called Goldberger
on Apri 30 and asked about his health, and Goldberger replied he was .still under
the weather. He again called Goldberger several days later, and the latter replied he
was feeling better and "would be in ihi the near future." However, Belinky upon being
informed of anttiunion propaganda being promulgated by management among the
employees at .the Sandusky store in May, abandoned all ° -- urther contacts with
Goldberger .S
B. Synopsis of ensuing developments at the Sanditsicy store
_a A,4 of ultimate legal conclusion
As to what came of it a11, the record informs us only o "what happened in Sandusky.
(Of the various proceedings initiated by Retail Clerks, the one evolving the Sandusky
store is the only one which advanced to the stage of a hearing.) While Beli ,_y v; as
conducting his dialogue wraith, Goldberger, the management of the Sandusky store, by
inquiries from some employees and by receipt of volunteered i formation + om otheis
was keeping itself informed of the contacts mad: by the Union's organizer with
employees at their homes. Goldberger (as he had told Belinky) was "ill in *. e near-
future," all right, but not to see Betin-y: On the night of May 6, ac o=r, .niedby
Respondent's attorney , he held a me tiing of his store managers at the airport in
Cleveland. From the next day on there occurred at the Sandusky store th e most
overt of the manifestations of antiunion hostility, claimed to have contributed to the
strike of Jane 1, in addition to the refusal to bargain. ° The employees who struck on
June-1 were 17 in number, and they are specifically named- in the second- complaint
(supra, footnote 1). After 7 weeks, in a letter signedby all of them andreceived by
Hills on July 19 64, the strikers applied unconditionally for reinstatement. mitts
never plied. In February 1965, they sent i vidual letters to Hills again as- king
to be taken back . 'Hills never replied to that either.::
The Genera's Counsel (-oined in al respects by the Charging Party except here
otherwise indicated ) clai=ms the refusall, to „instate the strikers on application was a
violation of Section 8(a)(3)and- (l) of the Act. One of his grounds is tha_ the
refusal to bargain was a .:elation of:Section 8(a):(5)-and the other conduct violated
a Picking up the residual strands of the ill-fated venture : from then on the Retail
Clerks, avoiding Goldberger. communicated its various demands. directly to the Shoe Cor-
poration inColumbus. However the answer in each instance came from Goldberger out
of Roxbury. On April 30, Dan Lee, an official of the Ohio State Council (section II, above)
wrote the Shoe Corporation "on behalf of Retail Clerks Union Local 880-Cleveland,
298-Youngstown and 954-Toledo" claiming that "we represent a majority of the .em-
ployees in the C. R. Hills Department stores in these areas,";and that "the Employees by
signing for the Retail Clerks Union have designated the Union as their bargaining repre-
sentative ." The letter asked for a meeting "to work . out a contract covering the stores
outlined above." On May. 8, Goldberger replied by letter rejecting the request because of
lack of majority in "an appropriate unit," and demanding a Board election . On June 8
(a week after the strike commenced at the Sandusky store), Lee wrote Shoe Corporation
explaining that his majority claim of April 30 and the bargaining demand therein con-
cerned each "individual" store in accordance with "each Local's geographical jurisdiction,"
and on that same day, June 8, "Local- 880-Cleveland" sent two separate wires to Shoe
Corporation , claiming a majority and demanding bargaining for the employees , separately,
in the stores in Ashtabula and Lorain. Goldberger on June 10 .replied by letter rejecting
these demands on the same grounds as .his earlier rejection of the demand made by Lee
on April 30 . And on June 29, 'counsel for Respondent wrote Lee disputing the latter's
explanation of the demandsent April 30, and saying he construed it as a- demand for a
statewide unit, which he rejected on the grounds as stated in Goldberger 's letter of
May 10.
HILLS DEPARTMENT STORE 116
'ection 8(e)(3) and (1), both of which, he claims, caused the employees to strike on
June 1, 1964, and since the strike was thus caused by unfair labor practices, strikers
were entitled to reinstatement upon application without regard to whether meanwhile
they were permanently replaced. As I later find, the refusal to bargain with he
Charging Party was not unlawful because even if a sle-store unit be deemed appro-
priate and even if every authorization card procured was a genuinely intended desig-
nation of the Charging Party as bargaining agent, these who signed were not a
majority of the eligible employees in the Sandusky store. As to we conduct other than
the refusal to bargain, some of it was indeed outside the pale, but the preponderance
of_the credible evidence, later detailed, -is:to the effect that the strike was caused by
the refusal to bargain and by the employees' dissatisfaction with working conditions,
and that the alleged violations other than the refusal to bargain were not a contributing
cause of the strike. This brings us to the alternative basis on which the General
Counsel contends that the denial of reinstatement was a violation of Section 8(a) (3)
and (1) . Even though the strike was purely "economic" in character, the strikers
were entitled to reinstatement on application, unless prior to such application, they
were permanently replaced. N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S.
333. As is well established and as recently restated in Plastilite Corporation, 153
NLRB 180, the claim that such replacement has taken place "is an `affirmative
defense,' which the employer has the burden of establishing." See New Orleans
Roosevelt Corporation, 132 NLRB 248. 250 and court cases cited in footnote 3; Titan
Metal Manufacturing Co., 135 NLRB 196, 211. Respondent has neither explained the
failure to respond to the applications for reinstatement nor is there any other showing
that-the strikers were permanently replaced prior to applying for reinstatement. The
sole exception came out quite tangentially. Brenda Bullion, an: employee in al-eased"
department and the only striker who was other than a "Hills" employee (supra, foot-
note 2), is shown by the record of her concessionaire-employer (Cosmetics and
Pharmacy) to have been replaced before the date she applied for reinstatement. No
such showing-was made in respect to any of .the-other-strikers, all 1 6 of whom were
employees of Hills. Indeed, such evidence as `there is tends affirmatively to show
they were not replaced. The failure to reinstate the Hills employees who struck was
thus-a discrimination against them in violation of Section 8(a)Q) and (1) of the Act.
C. The validity of the refusal to bargain: absence of majority
1. Continent concerningother contested phases of that question
I have previously -stated that personnel- of the Sandusky store who signed union
authorization cards were not a majority of the eligible employees at that store. This
conclusion is reached despite my assumption of the affirmative on two items that were
sharply disputed at the hearing,-namely, that a single-store unit is appropriate, how-
ever we characterize the BelinkX Goldberger dialogue, . and that the authorizations
were genuine designations of the Charging Party as bargaining representative, unsul-
lied by representations made by union agents to the signersthat the "only" puraose in
signing was to have an election or that a majority -ofthe, employees had already
signed cards. Concerning the alleged representations, Iwould in any event find the
union agents to be in the clear. The testimony imputing such representations to the
Union's agents came from employees who had-since severed theirtie with the. Union
and in response to leading and suggestive questions on the part of company counsel.
In all but two instances, those responding affirmatively to'company counsell's sugges-
tions. were employees still working for Respondent,- who, before testifying, had been
called from their, work places :for an interview with company counsel at the store
premises in anticipation of their being called by the General Counsel t-6--authenticate
their signatures. In each interview, company counsel introduced the subject of these
alleged representations by handing them a written questionnaire specihca iy asking
whether such representations were made by the union agents. During these prepara-
tory sessions, so far as appears, these employees were not asked for the whole con-
versation, and at the hearing, after- counsel elicited affirmative answers to his s igges-
tions, he objected to these employees being asked to give the whole conversation.
When they gave it nevertheless, it became manifest, in total context, that the union
agents- appealed- to the signer on the basis of the claimed economic "advantages of
union representation. And in the one -instance where an employee,- though- - still
working-for Respondent, was asked-by company counsel (pursuant to a ruling by me
requiring him to do so) for the whole conversation without suggesting to her in
-advance what the union- agent said, that employee (Loretta Crum) testified --to a
straight economic appeal made to her by- the union representative. After Crum gave
her own version, though company counsel now asked her whether the `union agent
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made representations to her of the kind he elicited from- the others through leading
questions, she did not enlarge upon the version she had given on her own without
prior implanting of suggestions .4
2. The number of union cards as compared with
the number of eligible employees
a. The persons claimed by the General Counsel to be ineligible
Pitted against the 34 signed authorization cards is the eligibility list produced by
Respondent as of April. 3, the day of the bargaining demand. That list (General
Counsel's Exhibit Iso. 2) names 85 persons. Pursuant to a stipulation that an appro-
priate unit should include all employees in that store, the list names persons working
in the "leased" departments, who, as previously stated (supra, footnote 2), are
employed by the concessionaires, as well as those in the "Hills" departments,. who are
employed by Respondent. If his majority claim is to be sustained, the General
Counsel must bring that list down to no more than 67. The General Counsel contends
that he has done even better, that from this list,-24 should be eliminate Id, thereby
paring it down to 61. The particulars of the eliminations contended forare as
follows:
Total on eligibility list as produced by Respondent___________________ -85
A. Eliminated on consent because .not employed April 3 (Elaine
Martin) ------------- ----------------------------------------- 1
B. Additional persons claimed byGeneral Counsel to be ineligible
(1) Professionals (pharmacists ) --------------------------- 2
(2) Alleged "casual employees (Ruby Dunfee, Clara Grant,
and Jeanetta Webster)- ------------------------- ---------- --3
(3) Alleged supervisors
(a) In "leased" departments
(i)Department heads--- ---------------------------- 6
(ii ) Assistant Department heads________________________ 2
' (b) - In "Hills" departments
(i) Department heads-- ----------------------- ------ 8
(ii) -Head cashier------- ------- -----=-----=-------- 1
(iii) Head - office girl---------------------------------- I
Total claimed by General Counsel to.be ineligible =____-_--_- 24
Net as contended by GeneralCounsel--- ------ --------------- --------- 61
The 34 union cards produced by the General Counsel. include 2 (Bonnie:Pitsen-
barger and.Rozene Augustus) who were, from among the 8 heads of "Hills" denart-
ments that he claims are ineligible as supervisors. .The General Counsel accordingly
concedes that under his own contention concerning eligibility this would bring his
6 The Charging Party has filed a motion to amend the complaint to allege, as additional
specification of 8(a) (1), among other items, the manner in which companycounsel-. inter-
viewed the employees at the store concerning this subject. The General Counsel and
Respondent oppose the motion in its entirety because the Charging Party cannot expand
upon the General Counsel's complaint, and Respondent on the additional ground that its
counsel's interviews did not trench upon the employees ' statutory rights. As to this part
of the motion,- it would seem to me dispositive that during the hearing no one,_ not-even
the Charging Party, sought to putthe Respondent on notice that the manner in which
its counsel interviewed the witnesses boreon other than the reliability of their testimony
in impugnment of the validity of their designations. Whatever ones judgment as to
whether the mode of interviewing is calculated to elicit all the relevant facts, an accusa-
tionimputing illegal, conduct to an attorney in his trial preparations, much moreso a
finding to that effect, is not lightly to be made. The interviews by counsel here are not
to be equated with -those of counsel in Joy Silk Mills, Inc. v. N.L.R.B., 185 F.- 2d 132
(C.A.D.C.) cert. denied 341 U.S. 914. And in any event, unlike Joy Silk Mills, Respondent
here was at no time put on notice that- there was any claim that the interviews' were -a
-violation of the Act, even though the evidence on which -the Charging Party now relies
was adduced as far back as- the first. hearing., That portion of the motion is-denied. (The
other additions to the complaint proposed -by the Charging Party are dealt withn their
appropriate contexts . See footnote 13, infra.)
HILLS. DEPARTMENT STORE 1169
card total down to 32, but it would still be a majority if the eligibility list is subject
to the extensive reduction that he proposes. I do not think he can validly bring it
down to less than 71. This is because the "Hills" personnel sought to be eliminated
as supervisors; i.e. the 8 department heads and the head cashier and office girl, are not
supervisors within the meaning of the Act. So the cards of the two "Hills" depart-
ment heads are included in the count, bringing the total back to 34. But that number
is, of course, short of a majority of the rock-bottom net of 71.
b. The exclusion of the persons other than the
10 alleged "Hills" supervisors
The premise that the net is 71 assumes that the General Counsel has sustained his
contention in respect to the 14 other than the 10 "Hills" personnel challenged as
supervisors. This can be said to be so in respect to 10 of the 14, namely, Elaine
Martin, the employee who has been eliminated on consent, the 2 pharmacists, the 6
heads of the "leased" departments, and Ruby Dunfee, 1 of the 3 alleged "casual"
employees. I do have reservations, however, concerning 4 of the 14, namely the 2
persons the General Counsel claims to be "assistant heads" in 2 of the "leased"
departments (Hardware and Shoe) and also 2 of the 3 employees he seeks to eli.nii-
nate as . `casual" employees. Concerning the "assistant heads," while it does appear
that the heads of all 6 of the "leased" departments, have a distinct supervisory resuon-
sibility over the employees in their departments, the only evidence concerning the
two claimed to be "assistant heads" is general testimony that each acts for the top dog
during the latter's absence. There are no specifics concerning how often and in what
manner. How wide of the mark an assumption concerning all understudy can be
without the requisite particulars is suggested by the testimony of Jacqueline (Jackie)
Burr, an. employee- of Cosmetics.and Pharmacy, a leased department, -who signed a
union card. Besides authenticating her signature on the card, Burr testified concern-
rig other matters, including the supervisory functions of Stanley Mills, the head or
"manager" of-her department. It developed that she too - takes overfor Mills during
his absence, and yet in a manner short of actual supervisory authority, so much so that
the General Counsel does not propose that her card-be- excluded from the count. For
all we know, the other two sought to be excluded as assistants to their respective
managers may well, perform no differently from Burr. As to the three "casual"
employees, while it is clear that Ruby Dunfee fits that description, the same cannot
be definitively said -of-the other two. But, as stated even if the list should be reduced
by every one of these 14, the Charging Party's majority falls because none-of the 10
"Hills" Personnel challenged as supervisory-the 8 department heads and the other
2 heads-have genuine supervisory responsibility:
c. The status of 10 "Hills" personnel claimed to be supervisors
The General Counsel seeks to equate the heads of the eight "Hills" departments
with their opposite numbers in the six " leased" departments. The record Ain-ply
demonstrates, the supervisory authority of the heads of the "leased" departments.
They are," in essence , the representatives of the concessionaires who employ them.
The various employees of "leased" departments who testified (Bullion and Burr of
Cosmetics and Pharmacy, and Richard Harrington of Domestic) indicated they
receive their orders and assignments from their department head or manager, who
also passes on requests for time off and (in the first. instance at least) their entitlement
to a raise . Shamesman, the store manager, as representative of Hills, is interested in
5All three are shown to have either quit or been laid off months before the week which
includes Friday.. April S. Ruby Dunfee is shown by the records of-her department (Cos-
metics & Pharmacy ) and by testimony of fellow employees to have returned the week
ending April 4 merely to fill in during an employee 's absence of 1 day. This appears to
be so, at least , until she resumed on a regular basis in July. The other two, Clara Grant
and Jeanette Webster ( who are "Hills" employees ) are shown to have returned some time
in March. Though the number of hours they put in a week from then on was limited
(Clara Grant not having resumed on a 30-hour-a-week basis until sometime in May and
Jeanette Webster, as it happens , not having put in any time at all-during the week ending
April 4) their records as a whole are as consistent with a conclusion that they were
regular part-time employees as that they were "sporadic" or "casual" employees. .(The
Charging Party, not joined by the General Counsel, claims still a fourth as a "casual"
employee, Betty Muehling. There - is no support for this: her card shows her to have re-
turned the early part of the week ending April 4, on a regular basis of at least 30 hours
a week.)
3.
yg gg
1
'9 ^
.'^7
O 'p
d J DECISIONS OF t\TA^^1L1Ya^L LAlJO^l PE^-^^-i^^1V BOARD
the kind of service rendered by the `leased" departments, since, as stated -(s;spFO,
footnote 2), the public identifies them too as a part of Hills. But if he feels -here is
cause for complaint Sha^riesman speaks not to the employed but the leased department
head as the representative of the concessionaire, who is her employer. Indeed;-the
leased department employees testified they have no contract concerning their work
other than with the department manager and that they rarely see Sha"°resinan in their
department at all.
The preponderance of the evidence militates against the contention that the "Hills"
personnel here sought to be excluded have supervisory authority over personnel cor-
responding to that of the managers oi'rhe leased departments.6 This applies to all 10
sought to be excluded, the heads of the 8 Hills departments and the head cashier and
head office girl of Hills. The persons who have supervisory authority over the employ-
ees of Hills are Shamesman, the store manager, and Ernest Fannin and Tom
Dougherty, the two assistant store managers. (The only other supervisor, during the
times here material and until his departure some time after the strike begat?, was
Howard Spoon, in charge of the stockroom and of "receivings.") They are the ones
with whom the "Hills" employees take up any problems, who assign them their work,
give them their orders, comment to them concerning the quality of their work, and
with whom Shamesman reviews the performance of Hills employees for purpose of
deciding whether they should receive a raise. The difference between a department
head and a supervisor was highlighted on the direct examination of a witness called
by the General ;ounsei, who- had the strongest motive to establish that her department
head was a supervisor. This was Sharon Cradic, the employee-whose brief discharge
on March 10 is alleged as part of the misconduct contributing to the strike of June 1.
Shortly after Cradle signed a union card and before she was discharged by Shames-
man, Louise Roth, head of the girls department, in which Cradic worked, asked her if
she had been contacted by union organizers, and berated her as "stupid for signing."
Cradic testified Roth did the same work as she except that Roth showed her where
and how to put up racks.: In her pretrial affidavit, Cradic said she did not regard Roth
as her "boss," and during the hearing, she testified Roth never spoke to her concern-
ing the quality of her work. The indication of whom Cradic regarded as her immedi-
ate supervisor appeared in her answers to the question I put to her of how she inter-
preted Shamesman's statement, when be discharged her, that he and the "other
supervisors" expressed a low opinion of her work. Cradic testified that she understood
Shamesman was referring to Assistant Manager Fannin, who, among other things, is
in charge of the girls department. Indeed, though Shamesman-named no specific
supervisor, it was to Fannin that Cradic went to. verify whetl er he had. spoken ill of
her work to Shamesman.
Richard Harrington, another witness called by the General Counsel (with no
interest in the case, however, because although he signed a card, he left Respondent's
employ well before the strike)', testified substantially to the same effect as Cradic
concerning the "Hills" department in which he had worked. Whenhe was employed
by Respondent, he worked. in the men's department which too has a head but which
(along with the boys' department) is supervised by Assistant Manager. Dougherty.
When he was asked who his "immediate boss" was there, Harrington, did not mention
the department head, and replied, "Tom [Dougherty] was actually in charge." In
contrast with this wasHarrington's answer when asked who gave him his orders after
he went over to a leased department. He testified that in the Sandusky store, it was
"Mrs. [Ruth] Hughes," head of the domestic department. The anomaly if the heads of
the "Hills" departments were to be regarded as supervisors, is that there would be a
Mexican army of managerial topheaviness. In no instance, so far as - appears, does
any department head have more than one. person working with him durina shift,
and in some instances none. Illustrative are Louise Roth and Mary Bright,-who are
the two highest paid department heads. On April 3, besides "Cradicthere was one
other employeein the girls department, Joyce Strohm, a. part-time employee (who
apparently worked on another shift than (fradic). The sportswear department,. of
which Bright 'is the head, has but one other employee then herself, and she is on the
night shift. The same is true of the lingerie department and infants, the head of the
latter on April 3 being Pitsenbarger, one of the two department heads who 'sighed a
6 At the outset of his testimony , Shamesman in answer to-my inquiry , testified :that
heads of all departments, "Fulls" and "leased" alike,. have similar responsibility.. 3otic-
ever the specifics, corroboratedin large part by the General Counsel's witnesses, show this
broad statement to be subject to. the limitations hereafter recited. -
HILLS DEPARTMENT STORE, 1171
union card. The other .card signer, Augustus, until she quit on May 2, was head of
accessories , and no one is employed in the department other than the "head." Indeed,
the only department other than girls that have as many as two employees besides the
head (one on the day shift and the other on the night shift) are men's, boys, and
ready-to-wear.
To be sure, the hourly wage of a department head is higher than that of the outright
rank-and-filers in the department. - The spread is most marked in the cases of Roth and
Bright of girls and sportswear, who receive 30 cents more an hour than the others in
their respective departments. (Roth, in addition, received an annual bonus at Christ-
mas 1963 equal to that of Assistant Manager Dougherty.) There is not that much
difference in the other departments, the heads of which receive less per hour than
Roth and Bright. In infans, tithe hourly rate of the department head is the same as
that of the other employee in it, and in accessories, the head is the only employee and
is paid an hourly wage exceeded by other employees whose rank-and-file status is not
disputed. But whatever the emolument received by these department heads, it would
seem to be in consideration of their capacity, by virtue of their experience, to arrange
the merchandise and to show the less experienced employee how to do it, and not in
consideration of any responsibilities of supervision.
The same can be said of the head cashier, who is Mary Weyer, and of the head office
girl, who is Betty Zolman. Weyer receives 5 cents more an hour than the other 17
cashiers. Also, she has certain other responsibilities, including her being the only
cashier who can open and close a register and who looks out for errors, which she
reports to Shamesman. Yet Weyer has no authority over the other cashiers. Illus-
trative of how the latter do not regard Weyer as having such authority was the testi-
mony of Janet Waterfield, a union supporter and one of the strikers. Waterfield, who
had been a cashier, testified, on direct examination, that if-she had any problem, she
took it up with Shamesman or either of the two assistant managers. Asked (still on
direct) to whom she took any "problem concerning some conditions of [her] work,"
she replied, "the supervisor." Asked whether that "would ... include Miss Weyer,"
she answered, "No." Waterfield testified further, that Weyer, besides working on the
cash register the same as she, also worked on the popcorn machine and occasionally
at the service desk.
- Betty Zolman, the head office girl, -receives a -substantially higher pay rate than the
other two girls in the office, but there is no evidence that she has any responsibility for
the performance of others. To the contrary, corroborating Shamesman that Zolman
has no such authority was Edith Overton, an ex-employee, who was one of the other
two girls in the office besides Zolman. She said the work among them was divided,
Zolman doing the payroll and the cash reports on the daily business, Marjorie Cullen
the "concession [presumably leased department] reports," and she, Overton, "receiving
and invoices" (her supervisor being Howard Spoon, in charge of the stockroom and
"receivings"). A colorable claim concerning Zolman could be that she has a close
relationship to management which gives her no community of interest with the rank-
and-file. But, so far as appears, this is no more so than the other two girls in the
office, who are not thus challenged. Indeed, all three of them are subject to call on
the sales floor as checkers.
In considering the status of the challenged 10, I am mindful of the fact that during
the second hearing, evidence developed to contradict the testimony of Shamesman at
the first hearing that the 10 here challenged receive the same insurance benefits as the
undisputed -rank-and-file. It now appears that in the group insurance policy, these 10,
including Augustus and Pitsenbarger, were bracketed with the 2 assistant managers in
"Schedule No. 3," which has a broader- insurance coverage than "Schedule No. 4," the
code term' for the coverage of the outright rank-and-file -employees under the policy.
Taken with other evidence, it could colorably support a claim that management does
not identify them with rank-and-file and that they do not have a community of interest
with the latter. But such other evidence is lacking in this record. Their duties give
no indication of any tie with management , albeit the--higher emolument and more
advantageous insurance coverage attest to the value management places on their serv-
ices. (Further, the hourly rates of Augustus ,and Pitsenbarger were low enough
to account for the appeal that union representation had to them. ) Issues of that
character-can be exceedingly close, and were there some evidence that these rersons
gave orders or assignments to undisputed rank-and-file employees and- that the
employees thought or spoke of them as their. supervisors, the added:- emolument would
tipthe scales infavor of a conclusion that they have authority responsibly to direct
the performance of others, which is the minimal basis on which they can be held
212-809-66-'co1. 155-75
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ineligible for inclusion in the unit on the ground here advanced. Compare Keener
Rubber, Inc. v. N.L.R.B., 326 F. 2d 968 (C.A. 6), cert. denied 377 U.S. 934. In the
absence of such evidence, the higher emolument and their mere title as "'heads" are
insufficient to establish them as supervisors.
3. Conclusion as to majority and validity of refusal to bargain
The challenged 10 "Hills" personnel are thus validly on the eligibility list, and the
lowest number to which that number is reducible is 71. Since the 34 cards are less
than a majority of the eligible employees in the Sandusky store on April 3, the date
of the demand, it was not an unfair labor practice for the employer to refuse to bar-
gain with the Charging Party. Hence, assuming other conduct, whether legal or not,
Was not a contributing cause of the strike of June 1, the conclusion would be that
whatever else its cause, the strike was not the result of unfair labor practices.
D. The conduct other than the refusal to bargain and the contention
that it contributed to the strike
1. Nature of conduct
a. Requests made in February and 1l-arch to be informed
of visits or calls by Union
As stated, the matter of the discharge of Cradic on March 10 aside, the main items
of the claimed misconduct here under attack occurred in May, after Goldberger's
session at the airport with his store managers. Alf else occurred in late January or
early February, during the early stages of the Belinky-Goldberger discourses, and in
March, after the employees began to be signed up. Some employees (including
persons who later supported the Union and joined the strike) were, from late Janu-
ary or early February on, volunteering information to Manager Shamesman- and
Assistant Manager Dougherty concerning visits or calls by union organizers to their
homes, and one employee delivered to Shamesman blank forms of duthorization cards
left by the organizers, which Shamesman sent on to Goldberger. Others were asked
by management to give information. Thus, about that time Shamesman, as he testi-
fied, asked Roth and Bright, his two highest paid department heads, to let him know
if they heard anything about the Union, and employee Susan Murphy was asked by
Spoon, her supervisor (who began by telling her a union was trying to get into the
store and that it would not benefit the employees) to inform him if she should be so
contacted.? As to what happened in March, on the 3d of that month, when employees
first signed union cards, Assistant Manager Dougherty called Janet Waterfield at her
home from the store, asked her if she had been contacted by the Union and on her
parrying the question (though she had in fact signed a card that day), asked that as a
"favor" to him, she let the union representatives talk to her and inform him of what
they said.8 On March 10, 5 days after she signed a union card, and a few days after
Roth, her department head, spoke to her about it, Cradic was discharged by Shames-
man, an action which was reversed 2 days later by District Manager McMillan, after
Belinky's previously described call to Goldberger on March 11. And at the end of
that month, Shamesman asked Margarette Bryant McBee,,a cashier, if she had been
contacted by union representatives, and when she answered she had, he said he was
"disappointed" that she had not told him about it and asked that she inform him if
she was contacted. In that conversation he also asked her if she had signed a union
card and she said she had not made up her mind (though she had in fact signed one).
Shamesman had initiated this conversation by closing the cash register where McBee
had been working and asking whether she had a "problem." She replied she had one
because of the recent reduction in her workweek. He explained it was because of
7 On company counsel's objection that Spoon was 'not named in the complaint, the Gen-
eral Counsel stated he was introducing this item not as a violation but as evidence of
management 's interest in organization at the time.
8 Respondent explains this as a socially motivated call, which Dougherty felt free to
make because he and Waterfield (both still in their early 20's) used to encounter each
other at dances and parties. The call was hardly social in either content or purpose.
Dougherty admitted that such information as he received he passed on to Shamesman, and
Dougherty's can to Waterfeld was manifestly in advancement of the purpose `inhering in
management's quest for information concerning the extent and effectiveness of the Union's
campaign. -
HILLS DEPARTMENT STORE 1173
business conditions and promised to make it up to her partially by letting her work on
Sundays, when the pay was higher. He then steered the conversation to the subject
of the Union, as above described.9
The above is all there is, and I doubt whether the General Counsel would claim
very much for it, except the discharge of Cradic, as furnishing a context for appraising
these approaches of management and those initiated by it in May.la
b. The discharge of Cradic
Sharon Cradic, as previously told, signed a union card on March 5. A few days
later, Roth, her department head (not a supervisor, as found, but who, along with
Bright, the other of the two highest paid department heads, had been asked by
Shamesman to inform him of what they heard concerning the Union), asked Cradic
whether she had been contacted by the Union. Cradic gave Roth a "maybe" answer
which Roth apparently took as an affirmation. Roth-a positive-man :ered woman,
who had been a store manager for a subsidiary of Hills when Goldberger was a buyer
for it upbraided Cradic as "stupid for signing," and (as Roth admitted she did, but
claiming she did no more in that conversation) gave vent to a tirade against unions,
to which Cradic expressed her disbelief.
A few days later, on March 10, Cradic learned that other girls had just been given a
10 cent raise. She went to Shamesman and asked him why she had been left out.
Shamesman replied that he and the "other supervisors" thought she did not deserve
one, and that in fact, they thought she should be discharged, so he was accordingly
terminating her as of the coming Saturday. (The conversation was on Tuesday.)
Totally upset, she left in a half hour, and went to the Union's representative. The
next day, Belinky, at the Charging Party's request, made the call to Goldberger, which
was followed by District Manager McMillan, on March 12, reversing Shamesman's
action, and ordering Cradic reinstated, with the same raise given the others.
Respondent unreeled a catalogue of Cradle's vocational shortcomings calculated to
paint Shamesman as a modem-day Job for having endured them in silence that long.
And McMillan's reversal of Shamesman was explained as being on flat orders from
Goldberger after Belinky's call, with no inquiry into the merits. It was so explained
by Goldberger, but not by McMillan, who, according to Cradic's undenied testimony,
on reinstating her, expressed himself in no uncertain terms concerning the merits.
McMillan then, in Fannin's presence, told Cradic Shamesman "acted too hastily" and
he did not "know why the others got a raise and [she] didn't." Underscoring the sig-
nificance of McMillan's observation was that Fannin, on that day, was acting as store
manager in Shamesman's absence. Such a statement by McMillan would reasonably
be based on an inquiry of Fannin, whose comments carried the dual authority of his
being supervisor of Cradic's department and, as of that time, also acting manager
of the store. Cradic testified that the day after she was discharged and the one before
McMillan reinstated her, she asked Fannin whether he had spoken ill of her work to
Shamesman, and that he disclaimed having done so, saying that "everyone goofed off
once in a while but [her] work was just the same as anybody's in that store." Fannin
denied having put it that way. His palpable absence of conviction was underscored
by Cradic's account, undenied by either him or McMillan (who did not testify), of
McMillan's statement to her in Fannin's presence, which would expectably be based
on Fannin's telling McMillan on March 12 substantially what Cradic testified Fannin
had told her on March 11. Heightening that probability further were Fannin's admis-
sions at the hearing that the shortcomings attributed to Cradic were shared by others,
and Shamesman's admission that no employee had theretofore been discharged for
incompetence and that management ordinarily knows in a month whether an employee
warrants being retained. (Cradic had been employed there nearly 5 months.)
° Shamesman testified the conversation concerned only McBee's complaint over the reduc-
tion in hours and his promise to let her work on Sundays. While neither Shamesman nor
McBee, as witnesses, were beacon lights of reliability, and as later appears, I have dis-
counted portions of McBee's testimony concerning later incidents (see footnotes 12 and
13, iar¢re) McBee's version of the March conversation as above credited was entirely ilk
keeping with Shamesman's total actions and purpose at the time, and carried more per-
suasiveness than Shamesman's version. (Even here, I have discounted McBee's testimony
that in this conversation he asked her whether she wanted laofa at her home. That
gambit he used toward employees in May, after the session with General Manager Gold-
berger the night of May 6.)
7° Madeline Russell testified that during Easter week, Assistant Manager Dougherty put
her under a new stricture against "mingling" with any of the other girls on the floor, and,
gave as his reason that "there is something in the wind." The details are too indefinite-
to endow the incident with significance.
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On that- score also, there was no contradiction of Cradic s testimony that she was
never warned about her- performance, and Fannin, indeed, on direct, would not go
along with a suggestion that any of his dealings with her added up to as much as even
a "reprimand." Also to be taken into account is the fact, developed by General
Manager Goldberger in another context, that McMillan, as district manager, is no
stranger to the stores' operations. His duties entail visiting each store at regular
intervals and on occasions spending the entire day at a single store, familiarizing him-
self with what is going on. The conclusion is that the judgment McMillan expressed
to Cradic in Fannin's presence concerning the merits was based on observations made
to him by Fannin, in line with those Cradic testified Fannin had made to her and
consistent with McMillan's own knowledge derived from his visits to the store over
the nearly 5 months Cradic had worked there.
What, then, should have impelled Shamesman to action thus repudiated on its
merits by his first assistant and immediate supervisor? Assuming it was an aberration
of judgment, there would be no liability under the Act, since the statute permits a
discharge of an employee even out of sheer caprice, as long as it is not motivated by
antiunion considerations. While, as would appear from the opinion seemingly held
of him by some employees, including his assistants, the handling of personnel is not
Shamesman's long suit as manager, there is also nothing to indicate that he would
respond so punitively to a mere inquiry by a girl of why she had not been given a
raise, even if he was not enamored of her work. Most particularly in view of his
admission that he had not theretofore discharged any employee for incompetence,
and also the fact that whatever the misdoings attributed to Cradic, they were not so
recent in vintage as to have triggered off that kind of anger and so punitive a step.
The most recent action on Cradic's part was signing a union card and her being
spoken to by Roth, her department head, on the premise, not disputed by Cradic, that
she signed one. Shamesman and Roth denied that Roth reported her conversation
with Cradic to Shamesman. The denial does not stand un against the high probability
that a woman of Roth's background and strength of conviction would hardly keep that
kind of intelligence concerning a girl in her department from Shamesman in the face
of his explicit instructions to her to communicate to him what she learned concerning
the Union. As to whether the knowledge thus acquired concerning Cradic contributed
to Shamesman's action, it is a fair inference that however else Shamesman's quest for
information concerning the Union is to be interpreted, it was not born of any hospi-
tality toward the prospect of the Union succeeding in organizing the store of which he
was the manager. This serves to explain his telling another employee that he was
"disappointed" that she had not informed him that the union organizers had been
over to see her. His testimony and that of Assistant Manager Dougherty concerning
employees who volunteered such information rather suggests that he expected that
information from employees. Also, as appears from Shamesman's talks to employees
in May, he regarded an employee's affiliating with a union as indicative of a lack of
confidence in him. The fair inference is that Cradic's recent affiliation with the
Union contributed to Shamesman's punitive action toward Cradic, even if his opinion
of her work, however-unshared this was by his first assistant and his immediate
superior , also contributed to it. Since Cradic's union affiliation was thus at least a
contributing cause of her discharge, it was a violation of Section 8 (a) (3) and (1) .
See N.L.R.B. v. Electric Stearn Radiator Corporation, 321 F. 2d 733, 738 (C.A. 6).
c. The overt manifestations of Respondent against the Union in May
Its Three Phases: Respondent's approaches to the employees in Sandusky after
Goldberger's-meeting with the store managers -the evening of May 6. can be discussed
in three stages, first. Shamesman's talks with individual employees beginning May 7;
second, the letter sent to the employees over his signature on May 19; and finally,
Shamesman's approaches to the employees the next day concerning his letter.
Conversations before May 19: Beginning May 7, Shamesman, as he admitted, com-
plained to various employees that he was "hurt that [they] didn't have enough con-
fidence to come to [him] if they had any [problems]." The employees who testified
they were thus spoken to had all signed union cards. Under their versions, he
-prefaced his complaint by either asking them whether they had heard a union was
trying to get into the store, or telling them he had heard it. Shamesman denied men-
tioning the Union, but he made clear- the meaning he sought to convey by his reply
to the question put to him at the hearing of how that "lack of confidence" was "mani-
fest[ed]." He answered that "there had been contacts with the Union-at-this time."
McCoy and Brickey: The disputed versions of-Shamesman's conversations during
this earlier round came from Judy McCoy and Bonnie Brickey.
Judy McCoy: Testified that Shamesman opened the discussion while she was on the
selling floor by asking whether she had a "problem," and when she told him what it
HILLS DEPARTMENT STORE - 1170'
was (a week's vacation ) he explained the company policy in regard thereto, and
then, saying there were "rumors of the Union trying to come into the store," he asked
McCoy if she signed a union card . She testified she denied having done so out of
fear, so she claimed, over what had happened to Sharon Cradic ,-but that when he said
"he knew who signed ,"- she "broke down" and admitted she had done so. McCoy
further testified that Shamesman "compare[d] the Union with the Teamsters, being
gangsters and money suckers," and said that if the Union came in , she would "lose
some benefits that the company was offering at that time ," including "freedom of
speech," for she would then be unable to take up any grievances , except through a
steward and that Shamesman concluded by asking whether she "would ... like for him
to see if the girls could get out of the signing of the card ." Shamesman's version was
that he told McCoy he was "hurt " because she did not have "confidence" enough to
come to him with her "problem ." This corroborates McCoy, first , on whether he used
the "problem" as the opening .gambit, and secondly , on whether he elicited from her
an admission that she signed a card, which is what his complaint about her not having
brought her "problem" to him fairly connoted . McCoy, a rather impressionable
young woman , does have a penchant for dramatizing her subjective reactions , but, as
would appear from Shamesman 's partial corroboration of her and the probabilities
considered as a whole , it was not at the expense of a faithful rendition of the external
aspects of the encounter . She is credited. -
Bonnie Brickey: - Testified that Shamesman talked to her about the union on
May 8 and 16 . The earlier conversation was essentially the same as with the others,
except that in addition to saying he was "hurt because the girls wouldn't confide in
him and come to -him with their problems," Shamesman asked Brickey if she wanted
"Jimmy Hoffa sitting in [her] living room" and also told her that Shoe Corporation
"had benefits to offer" which it could not yet put into effect because it had only
recently "taken over."
On the night of May 15, a meeting was held at Brickey 's home , which was attended
by Pete Palmison, the main organizer for the Union in the campaign at Sandusky,
and 7 or 8 employees who had signed union cards. The next day Shamesman called
Brickey away from her work . Brickey testified Shamesman opened by saying that
he "heard that [she] had a meeting," and that she replied that what she did away
from the store and at her home was her "business ." Then he brought up her
demeanor toward some fellow employees , that she would send some of them for
change without. a please or a thank you (concerning which Brickey offered a different
version) and her attitude toward one of the cashiers (which Brickey then and there
confirmed to Shamesman with a disapproving , if not also a self-righteous , comment
concerning the seemingly eyefilling posture of that cashier at the - paying counter).
Shamesman denied that he remarked about the meeting at Brickey 's home and testi-
fied that he spoke only of her demeanor toward some of the other girls. Shedding
light on this item was the discussion Assistant Manager Dougherty had with Brickey
about 15 minutes after Shamesman spoke to her. -
Dougherty summoned Brickey to another part of the sales floor and asked her
what happened between her and Shamesman . She told him and he then took her
to one of the stockrooms . He asked the others there to leave , and then as Brickey
related it, Dougherty asked her about the meeting at her home the night before,
whereupon Brickey told him of her reply to Shamesman , that what she did in the
store was the "employer 's business" and what she did at home was hers . Further
according to Brickey , Dougherty then told her, "Well , - Bonnie, if you think Mr.
Shamesman is nasty now just wait until we get a union in here," and that after this
she expressed an interest in "petition[ing]" Shamesman "out of the store," -which
Dougherty said could not be done.
Dougherty testified that on seeing that Brickey was "upset ," he received permission
from Shamesman to speak to her; that he then called her aside and told her "not to
let it bother her work or anything of this nature because often in a store of our size,
groups of our employees will pick on other groups or other persons " and that the
next week "they would be complaining about someone else ." Dougherty later
admitted that the Union entered into the discussion to the extent that Brickey said
that "if the Union got in the store that hey would get rid of Mr. Shamesman and
make Mr . Fannin the manager and [Dougherty] the assistant ," to which Dougherty
answered that this was a management prerogative . We consider the probabilities:
as assistant manager, with the authority, indeed the responsibility , to discuss with
an employee her working relationship with her fellow employees , Dougherty would
hardly have felt called upon to come to Shamesman for permission to take up such
an item with Brickey , rather than first to find out from Shamesman what had been
said between him and the employee so that Dougherty would not be talking to the
employee at cross purposes with his superior . The statement Dougherty attributed
176 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
to himself, that Brickey could write off Shaniesman's remarks as -merely a transient
iphase of the habit of some groups of employees to "pick" on others is hardly con-
sistent with the serious view that Shamesman professed to take of what the claimed
was the sole subject of his talk with Brickey. More significantly, Dougherty's self-
attributed statement was -hardly in advancement of the claimed purpose of Shames-
man in talking to Brickey. The statements of Dougherty which fit the natural pre-
sumption that a lesser supervisor Will act to advance his superior's purpose in talking
to an employee were those Brickey attributed to Dougherty, his opening the conver-
sation, after he brought her to the stockroom, by asking Brickey concerning the
meeting and then telling Brickey, howsoever he put it, that Shamesman took a most
baleful view toward the store becoming organized. This last was a subject which
the record shows"Shamesman to have viewed with deepest concern on his own, and
regarding Which from the time of the session at the airport with Goldberger the night
of May 6, he was under heavy pressure from higher management . Also considered is
that Dougherty is known to have been acting in advancement of management's anti-
union purpose on other occasions.
In the resolution of the issue, I have given due consideration to,Brickey's natural
bias, since she is a complainant, and also her resentment of Shamesman. I have also
considered certain other qualities, such as her egotism and, indeed her vanity. (It
can be said that this little redheaded matron, with all her pugnacity, has an air and
a presence which seemingly commanded the respect of her fellows and her superiors,
and in Dougherty's case, even a modicum of personal goodwill). First, Brickey's
version is more in accord with the probabilities. Secondly, on the issue of credibility
as such there is this factor: in contrast with the infirmities in the testimony of
Shamesman and Dougherty on other matters, there was- Brickey's testimony on the
vital matter of the cause of the strike on June 1. Brickey was-in the hearing room
during earlier testimony concerned with that subject. After the complainants who
were. first asked about it testified to no other cause than Respondent's refusal' to
bargain, some complainants attributed it also to Respondent's other conduct now
'under review. Yet Brickey, the undoubted leader of the union supporters and one
of the two employees who had been consulted about the decision to strike before-
hand, testified to no other reason than the refusal to bargain. (Judy McCoy,
although not' in a leadership role, similarly did not pick up the suggestion that it
had any other-cau`se.) Brickey is credited.'
The letter of May 19: On May 19, -a letter signed by Shamesman_was sent to each
,employee addressing her by her first name. _ (Shamesman testified- it came to him
ready for distribution, his sole contribution being his writing the salutation 'and his
.signature.) Whatever its legal posture under Section 8(c), there is no mistaking
its antiunion character. The union organizers are called "professional money col-
lectors" and in aid of the admonition to the employee to distinguish fact from fiction,
Respondent posed some questions to which it also supplied the answers, as follows:
Here are-some questions that you should ask yourself: -
1. If my store becomes a "union shop," will I have to pay dues to keep my job?
Answer: Yes! The only way to prevent this is to VOTE NO and keep the
union out. - in addition, you will pay an initiation fee and regular monthly dues
which may be deducted from your paycheck before you even see it. -
2. Can the union guarantee increases in wages or fringe benefits? -
Answer: Absolutely not! If the union were to get into your store, the law
requires only that the parties bargain in good faith. - The law does not require
that concessions be made.
You should understand also that at the Bargaining Table we are not required
to bargain from your present-level of wages and benefits. For the purpose of
negotiations, we would- start from "scratch," as though we had no wages and
no benefits. This means that you-might- get more than you have now, you
might end up with the same, or. you might get less. [Emphasis supplied.] -
* * * *
4. What have I got to lose if my store- becomes a "union shop?"
Answer: You would lose your freedom to speak for yourself, you would be
subject to union fines and assessments (in addition to your monthly dues) and
you could lose youf right to keep your job without paying dues.
5. What happens if, after bargaining, no agreement is reached?
'Answer: The union could pull you out on strike. If the union pulls out on
strike, here are the things that would happen.
. HILLS DEPARTMENT STORE 1177
-Your wages stop during a strike.
-You get no unemployment compensation.
You could be replaced and in such an event, you would then no longer have
your job.
Question No. 2 and its answer , in which the employees are told the selection of
a union would mean that they "would start -from `scratch' as hough we had no, wages
and no benefits" and could "end up with [e;-en] less than they have is a threat of
reprisal in the event of the employees ' selection of a union, within the condemnation
of the doctrine of Surprenant Mfg. Co.-v. N.L.R.B., 341 F. 2d 736, 760 (C.A. 6),
and the numerous cases from that and_other circuits there cited and followed. More-
over, - rather intriguing for a document in which the employer purports to give his
employees -fact as distinguished from fiction is the emphasis laid in the answer to
question No. 2 that "the law does not require that concessions be made" in = respect
to "wages or fringe benefits ," at the same time that it omits saying that neither-is the
employer required to- agree to a "union shop ." It is clear that the expression , totally
unexplained , is being represented to the employees as the equivalent of an- organized
shop, and they are, in effect, being told that upon the mere designation of a union
as their bargaining representative , they have automatically subjected themselves to
all the compulsions- of a ""union shop," without regard to whether the employer has
agreed to such a provision . Further, the reference to strikes , with- the emphasis that
the- ben_efits - and indeed even wages would have to be negotiated "from scratch," and
that the-employees - could "end up with ... less" than what they have now, conveys
that if the employees designated a union to represent them, Respondent would be
"hard . . . to bargain with - (Suprenaant lllfg. Co. v. N.L.R.B., supra, at 761) thereby
forcing the employees into strikes , which could mean the loss of their jobs. Ibid.
The threat -that the company would -pervert its freedom under the law not to make
"concessions" into a refusal to continue even the existing wages and benefits, and
the false implication that the mere selection of a union ' to represent them would place
them under all the obligations of a "union shop," including the necessity -of striking
as the only means of avoiding management's giving them "less" than what they have,
far from being within the shelter of Section 8 (c) for the "expressing of views, argu-
ments or opinions" is a threat of economic reprisal , which is expressly excluded from
that section's protection. Thereby, -Respondent interfered with, restrained and
coerced its employees in the exercise of their protected rights, in violation of Section
8(a)(i) of the Act. - -
Shamesman 's approaches to employees concerning the May 19 letter: On May 20
Shamesman, as he admitted , approached each employee and asked if she understood
his letter or had any questions concerning it. When Janet Waterfield told him he
-had made himself "perfectly clear," Shamesman asked that she come - to him with
,.any problem" because if she went to the Union instead, "it presented him with a
problem." He asked Waterfield if she "would like to be mixed up with Hoffa and
a bunch of gangsters," and- said that "all [she] would be- to the Union would be a
parasite." In his approach to Shirley Thomas, Shamesman -asked whether she knew
,"why Philco left town," and when she answered in the negative , he told her "it was
over union business ." In speaking to Elthea Krick, Shamesman said "the Union
wasn't interested in [her, but] only interested in [her] money," that "they wouldn't
do [her] any good," and observing that she "wouldn 't want to walk a picket line and
carry a sign," he told her that "if [she] needed any help [she] should come- to him."
Shamesman- called out to Margarette Bryant McBee as she was leaving for home and
asked if she had gotten the letter and what she thought of it. She answered "it was
all right;" whereupon he inquired if she "understood it quite well." When she
replied she did, he asked her if the Union "had contacted [her] again , and she said
it -had not, whereupon he again asked her if she had any "problem " to take up
With him.ii - -
"I do not credit Melee's further testimony that in that conversation Shamesman told
her that if he "found out" which employees joined the Union, they "would be dismissed."
The witness so testified after she had failed to mention-it in her original account of the
conversation and after she was asked whether Shamesman mentioned the "action he would
take if he found out which employees signed." That bald kind of threat is out of line
with the general nature of Shamesman's approaches to- the employees. Further, had
-Shamesman uttered such a threat, it would have impressed the witness more strongly
than anything else in that conversation, and she would accordingly have mentioned it in
her original version without any prodding. -
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The respects in which the above violated the Act
The legal tally is as follows:
Respondent violated Section 8(a)(3) and (1) by discriminatorily discharging
Sharon Cradic on March 10. It further violated Section 8(a) (1) by the previously
described interrogations-which had a coercive thrust in the total circumstances here
considered-of Janet Waterfield by Assistant Manager Dougherty on March 3, of
Cradic by Department Head Roth (she acting as agent for Respondent in the specific
circumstances), of Margarette Bryant McBee by Shamesman at the end of March
and on May 20; of Judy McCoy and Bonnie Brickey by Shamesman on May 7 and S,
respectively; by Shamesman's soliciting McCoy on May 7 to withdraw from the
Union and volunteering management's assistance in doing so; by creating an impres-
sion that employees' union activities are under surveillance in telling - McCoy - he
knew who signed and conveying to Brickey on May 16 that management was
informed of a meeting of the Union's supporters at her home the previous evening;
by Assistant Manager Dougherty's threat to Brickey on May 16 that the advent of
a union would result in Manager Shamesman's aggravating his harshness toward
her; by threatening employees that if they select a union to represent them they will
have to negotiate "from scratch" concerning wage rates and fringe benefits as if
none now exist and that they could "end up" with less than they now have and that
to avoid such a consequence, they would have to engage-in a strike that could result
in the -loss of their jobs; by falsely conveying that the selection of a union as bargain
ing representative automatically places them under the- compulsions of a "union
shop," by soliciting employees' withdrawal from the Union, and portraying such
affiliation as a personal affront to their store manager in that it denotes that they do
"not have the "confidence" to come to him with their "problems."
3. Whether the above conduct was a contributing cause of the strike
As stated earlier, the preponderance of the credible evidence precludes a determi-
nation that the strike of June 1 had any other cause than the refusal of Respondent
to bargain with the Charging Party and the desire of the various strikers to improve
aspects of their working conditions with which they were dissatisfied. The only evi-
dence that Respondents other conduct contributed to the strike was the testimony
of Leedy, secretary-treasurer of the Charging Party, who made the decision to call
the strike, that Respondent's other conduct contributed to it. Leedy also testified
that at a meeting of the strikers in a local restaurant the night of June 1, after the
strike-was already in process, he told them the strike was because of the refusal to
bargain and Respondent's other conduct.
Had this been so, one would have expected that the strikers themselves would
know that the other conduct too was a cause of the strike. Indications to the con-
trary came from the very witnesses who testified to incidents involving such other
conduct. The first three strikers called to the stand by the General Counsel were,
in that order, Janet Waterfield, Susan Murphy and Sharon Hunter. The first knowl-
edge each received there was a strike was when they appeared in front of the store
for work the morning of June 1 and saw several fellow employees, including Brickey,
picket the store. They testified the only reason talked about by the girls and of which
they knew was that the company would not negotiate with the Union. The testimony
of the first two witnesses was particularly significant because of the sources they
cited. Waterfield testified that Palmison, the main organizer for the Charging Party
in the Sandusky campaign, and who was -at the picket line, -said it was "because the
Company had violated the Federal law and refused to bargain with our Union,"
which, she testified, conveyed to her the understanding that the employees "were
seeking recognition" for the Union. Murphy cited as her first source Bonnie Brickey,
the leader of the union supporters among the employees. Brickey simply- told
Murphy that the company had refused to bargain. Murphy testified she struck
because of this and her discontentment with working conditions.
The first effort to establish that the other conduct was a contributing cause of the
strike was through questions put to the strikers concerning Secretary-Treasurer
Leedy's statements to them the night of June 1 at the restaurant. The first witness
asked about it was Sharon Hunter. She could recall nothing being said- other than
that "Hills wouldn't negotiate with our Union," and though she recalled something
said about charges having been- filed, she could recall no mention -of their content or
of the discharge of Sharon Cradic. Geraldine Capucini, who was in the hearing
room when Hunter testified, and who followed Hunter to the stand, testified that
Leedy, at the restaurant, gave as the reason for the- strike "that the Company
wouldn't bargain with the Union," and that "while they were trying to have their
HILLS DEPARTMENT STORE 1179
meeting, the Company was spying on the girls." -If this second item were a con-
tributing cause of the strike, the one most likely to have known it would be Bonnie
Brickey; at whose home the meeting was held and -to whom Shamesman mentioned
it the following morning. She, in fact, was one of only two. employees who were-
informed in advance of the decision to strike. - This was in a meeting with Organizer"
Palmison about May 29 at that same restaurant. Brickey testified that the strike was
in answer to the company's counter-publicity to the picket line placed at the store
by the Charging Party on May 22, which consisted-of other than employees of the
store. Brickey testified: - - -
The people had to know the employees themselves wanted a union, because the
people in the store, other than ourselves, were telling them that we did not want
a union . . . and we knew that we had :to stand up for what we-believed in.
Otherwise we would get no place. -
Also,- if the conduct other than the company's refusal to bargain had been -carried
home tothe strikers, on the night of June 1 at the restaurant; as a reason for the
strike, Judy McCoy, the one striker who did- not attend- that meeting, -would- have
learned about it. Yet she testified that the only reason she knew for the strike was
that the company refused to recognize the Union and also because of the wages and
working conditions.12 Finally, the publicity released by the Union, during the first"
month of the strike at least, attributed the walkout to the refusal to bargain.
The conclusion is that the conduct of the Respondent other than the refusal to
bargain, although some of it was illegal in the respects indicated, was not a con-
tributing cause of the strike-of June 1. -
E. The failure to grant the "Hills" strikers reinstatement on application as a
violation-of Section 8(a) (3) and (1) of the Act
As stated earlier in section B, althoughthe strikers, in a letter received by Respond-
ent on July 27, unconditionally offered to return to work, Respondent did not reply
thereto and has advanced-no explanation for its refusal totake the strikers back in
the face of such an unconditional offer. Nor does- any reason therefor appear in the
record. The lone exception,-as stated previously, is Brenda Bullion, the only striker-
who was not a "Hills" employee, and who as such was on the payroll not of Hills
but of the concessionaire of the leased department in which she was employed,
Cosmetics and Pharmacy. The concessionaire of that department maintains different
personnel -records from those of ]Tills. Its manager, at the end of each week, fills
out and sends on to the concessionaire a-weekly payroll time report, which names
the employees and states the numbers of hours each worked that week. The report
on its face includes a printed instruction to the manager to "report anyone absent
from work" and to give the "cause." The report for the week ending June 6,-1964,-
has the entry : "Brenda Bullion is striking against Hills. Replaced by Christina."
The reference is to Christina Kleber, shown on that same report to have worked
47 hours that week, beginning June 1, the day of the strike. This entry, made in the
regular course of business, is evidence that Bullion was replaced prior to her appli-
cation for reinstatement received July 27. - -
There is no comparable evidence that prior to application for reinstatement-the
strikers employed by Hills were thus replaced. The personnel records kept by Hills
for its employees consist of a weekly time card for each employee, showing the num-
ber-of hours worked that week, and also a "personal history card" of each employee,
which records every personnel action in respect to that employee from the time of
hiring, including date of hiring, raises, layoffs, rehiring, discharges, etc. The card
of one such striker was introduced as typical of what appears for all of them. No-
personnel action is recorded in respect to any of them except such as occurred before
June 1. There is no entry that Respondent affirmatively -terminated any of them
on June -1 or thereafter. Neither is there-. any- entry, comparable to that appearing,
for Brenda Bullion, that the -employment of the 16 Hills strikers was- terminated by
reason of.replacement or otherwise. -
Also as stated, there was no other showing made-to that effect. At a stage of the
hearing not concerned with this issue, -evidence entered into the record that some
employees were newly hired on June 4. It arose in connection with the General
'aMargarette Bryant 11ieBee testified that at the meeting at Bonnie Brickey's home- on
May 15, the girls spoke about every item of company misconduct alleged in the complaint.
McBee, as observed, has a high suggestibility with a memory above and-beyond the call
of actuality,. Ultimately; she- admitted that s'her real"- reason" in -striking was that she-
was "not getting as many hours as [shel wanted." --
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel's seeking to establish that one of these newly hired girls, when interviewed
on June 4 by Shamesman, was asked by him whether she or her husband ever
belonged to a union. The witness who testified that Shamesman asked -her that
question was MaryRuth Kuhns, who was hired June 4 and discharged December 23.
Although it became manifest from her answers on cross-examination that Shames-
man asked no more than whether there "would be any embarrassment" to her if
she crossed a picket line, nevertheless, to nail that point down, Respondent called as
its own witness another employee hired on June 4, who testified that was all Shames-
man asked of her when he hired her, and it was stipulated that five other employees
hired June 4, who were brought to the hearing room would, if called, testify to like
effect 13 No other information concerning- newly hired employees appears in the
record, nor is there any indication whether Kuhns or the other six_ who were newly
hired on June 4 were replacements for any of the Hills strikers, and, if so, whom
they replaced.
In respect to the strikers who during their employment were covered by the group
insurance policy-and the record shows 14 of 16 Hill strikers to have been thus
covered-there is affirmative indication that they were not replaced at any time
preceding their application for reinstatement, received July 27. By way of explana-
tion, all Hills employees whose jobs entail working 30 hours or more- a week are
covered by the group insurance policy. The master policy provides that an employ-
ee's insurance "shall terminate": -
(a) when active employment with the Employer is terminated, except that:
(1) The Employer may elect to consider Employees temporarily laid off,
given leave of absence for any reason other than pregnancy, or temporarily
disabled as remaining in active employment for purposes of this insurance,
but not for a longer period than two months from the date of termination
of active work.
The reports filed by Respondent with the carrier for June and July, 1964, show
that during these months: Hills, pursuant to that option, "elected to consider [the 14
strikers theretofore covered by-the policy] in active employment for purpose of this
insurance." It paid their premiums for both these months, and in the June report,
it specifically named these 14, stating:
The following people are not receiving salaries due to a labor dispute.
In the middle of August, after Margarette Bryant (later McBee), one of the
strikers, filed a claim for hospitalization expenses incurred in July, when she was
thus covered, Respondent, on asking and being told by the insurance carrier that it
could do so, canceled McBee's insurance retroactively to June 1. As a result of the
action thus taken by Respondent in August, McBee -was not compensated for her
hospitalization expense incurred in July, during the- period for which the-premium
for her coverage had previously been paid by Respondent- under the election stated
in the policy. In the report filed with the carrier in mid-August, Respondent also
terminated retroactively to June 1 the insurance coverage of the rest of the 14
strikers, and in that report, Respondent credited itself for a refund of the amount
of the premiums it had paid for them in the two preceding months. The August
report shows that with these 14 eliminated, the number of employees in their insur-
ance bracket (the one applicable to outright rank-and-file employees, as previously
13 That disposes of the second portion of the Charging Party's motion to add additional
8(a) (1) specificatsons to the complaint. See supra, footnote 9. In this instance the mo-
tion seeks to add Shamesman's inquiry of Kuhns on June 4, to which that witness testified.
I do not credit Kuhn's testimony even for the limited evidentiary purpose for which the
General Counsel introduced it.
It would be appropriate here to dispose of the third and last additional 8(a) (1) specifi-
cation proposed in the Charging Party's motion. In support of a contention that Respond-
ent had decided upon the fate of these strikers from the outset, the General Counsel
introduced the testimony of McBee that while she was on the picket line on June 1, she
heard Supervisor Spoon, who went to the curb where employee Katherine Martin was sitting
in a car with her husband, tell Mrs. Martin that the pickets had been "dismissed." With-
out elaborating upon the details, it is enough to say that McBee's testimony does not stand
up against the testimony of Mrs. Martin, her husband (who is himself a member of a
craft union in an industrial plant), and Spoon (now no longer working for- Respondent)
denying that Spoon made such a statement.
All of which moots the question of whether the complaint could be expanded as thus
proposed by the 'Charging Party, without the General Counsel's consent, and, indeed in
this instance , over his opposition.
HILLS DEPARTMENT STORE 1181
stated, being denoted as "Schedule No. 4") dropped from 41, which is the number
shown to be covered in the July report, to 27-there being no additions to that
category which indicate that any employees were newly hired on a 30-hour-or-more-
a-week basis in replacement of-the 14 in question.14
The above concerns the is Hills strikers, who had qualified- for group insurance
coverage as employees working 30 hours or more a week. The two Hills strikers
who are not named in the reports just described are Joyce Strohm and Janet Water-
field. The record specifically -indicates -that Strohm worked less than 30 hours a
week and the inference derived from the omission also of Waterfield's name is that
she too was part time like Strohm. But as to them too, there was no showing that
any employees were hired as permanent replacements for them. See Plastilite Cor-
poration, supra, footnote 14. , Respondent-has thus failed to meet its burden of
establishing that the 16 Hills strikers, although "economic" strikers, had been perma-
nently replaced prior to its receipt on July 27 of their unconditional applications for
reinstatement. The failure to do so was thus a discrimination against them in viola-
tion of Section 8(a)(3) and (1) of the Act. N.L.R.B. v. Mackay Radio & Tele-
graph Co. 304 U.S. 333 .15
IV. THE REMEDY
Respondent has been found to have engaged in unfair labor practices. An order
will be recommended directing that it cease therefrom (on a broad basis, in view of
the pervasive union animus motivating that conduct) and requiring it to take requisite
measures to redress the injury done. This latter item will include offers of immediate
and full reinstatement. to the 16 striking- Hills employees found to have been unlaw-
fully denied reinstatement on and after July 27, 1964, to their former or substantially
equivalent positions, without prejudice to their seniority and other rights and
privileges, and make them whole with interest at 6 percent per annum, for all pay
they lost and any benefits of which they were deprived by reason of the discrimination.
(Sharon Cradic is similarly to be made whole for such pay as she lost by reason
of the discrimination against her on March 10, 1964.)
Upon the foregoing findings and the entire record, I hereby make the following:
CONCLUSIONS OF LAW
1. By refusing and continuing to refuse to reinstate the 16 striking Hills employees
on and after July 27, 1964, despite unconditional application therefor and by dis-
charging Sharon Cradic on March 10, 1964, because of her union affiliation, Respond-
ent discriminated in respect to the hire and tenure of said employees, thereby dis-
couraging membership in the Union and engaging and being engaged in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
2. Thereby and by interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act in the additional respects
heretofore-found,- Respondent engaged-in and is engaged in unfair labor-practices
within the meaning of Section 8 (a) (1) of the Act.
3. The foregoing unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
4. Respondent did not engage in an unfair labor practice within the meaning of
Section 8(a) (5) of the Act or in any unfair labor practice alleged in the complaint
other than as heretofore found.
74 The reports to the insurance carrier for June, July , and August , read together, show
that from June- 1, when the strike began, until the time, in August, when Respondent
retroactively reversed its original election to regard the strikers as "remaining in active
employment," the number of employees in the "Schedule No. 4," or rank-and-file, coverage
had increased by only 2, from 39 to 41. This would indicate that the number of persons
newly hired on a 30-hour-or-more-a-week basis from the start of the strike to the date the
strikers applied for rein-statement , did not exceed two. But even they -were not necessarily
replacements for any of the strikers . Apart from whether they, or any other newly hired
persons , were taken on a permanent basis, there is the fact, as observed in Plasti-IU.te Cor-
poration, 153 NLRB 180, that even "a `permanent' new employee is not necessarily a
`replacement ' He may well -be an addition to the force [due to increased business]."
ss The names of the 16 strikers thus found to have been discriminated against on and
after July 27, 1964 are, Bonnie Brickey, Geraldine Capucint, Nancy Dise, Sharon Hunter,
Helen Hyatt, Elthea Krick, Margarette Bryant McBee, Judy Ann McCoy, Beth McKind,
Susan Murphy, Ila Richter, Barbara Welch Rohrbaugh , Madeline Russell , Shirley Thomas,
Joyce Strohm , and Janet Waterfield.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER- -
On the -basis of the foregoing.iindings and conclusions, and -on the entire record,
-and pursuant to Section 10(c) of the-Act, I recommend that Respondent, C. R.
Hills Division of Shoe Corporation of America d/b/a Hills Department Store, at
its store in Sandusky , Ohio, shall:
- 1. Cease and desist from:
(a) Interrogating employees concerning contacts made with them or any other
employees by union representatives, or concerning their own or any other employee's
union affiliations, sympathies, or activities, for the purpose of or with the reasonably
foreseeable consequence of interfering with, restraining, or- coercing them in the
exercise of their rights guaranteed in Section 7 of the Act.
(b) Requesting or instructing employees to report to management concerning
contacts made by union representatives with them or with other employees, or con-
cerning their own or other employees' union activity, support, affiliation, or
sympathies.
(c) Making claims to possession of knowledge or other information concerning
employees' union activity, support, or sympathy for the purpose of or with the
reasonably foreseeable consequence of creating an impression among the employees
that such activities are the objects of surveillance by or on behalf-of the management.
(d) Threatening that the selection by the employees of a union as their bargaining
representatives will cause Respondent to discontinue existing wages or benefits or
will cause it to take an intransigent position in bargaining so as to force employees
into strikes, which would lead to their losing their jobs, or threatening that their
selection of a union would cause Respondent to deal more harshly with them than
otherwise.
(e) Soliciting -employees to abandon or withdraw from their union affiliation, or
offering management's assistance in withdrawing therefrom.
(f) Conveying to employees that affiliation with a union demonstrates a lack of
confidence in their store manager and is a -consequent personal affront to him.
(g) Discharging, denying reinstatement to, or otherwise discriminating against
any employee by reason of her union affiliation, support or sympathy or for engaging
or participating in any lawful strike or other lawful concerted activity.
(h) In any other manner interfering with, restraining, or coercing employees in the
exercise of their rights as guaranteed in Section 7 of the Act. -
2. Take the following- affirmative action, which it is - found, will effectuate the
policies of the Act:
(a) Offer to the following employees immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to seniority and other
rights and privileges, and make them whole, with interest, for all pay they lost or
benefits of which they were deprived by reason of the discrimination against them on
and after July 27, 1964:
Bonnie Brickey Elthea Krick Barbara Welch Rohrbaugh
Geraldine Capucini Margarette Bryant McBee Madeline Russell
Nancy Dise Judy Ann McCoy Shirley Thomas
Sharon Hunter Beth McKind Joyce Strohm
Helen Hyatt Susan Murphy Janet Waterfield
Ila Richter
(b) Make Sharon Cradic whole, with interest, for any pay she lost by-reason of
her discharge on March 10, 1964.- -
(c) Preserve and, upon request, made available to the Board, the General Counsel,
or their agents, for examination and copying, all payroll records, social security
payment records, timecards, personnel records -and reports, and all other records -or
writings relevant to or assisting in a determination of compliance with (a) and (b),
above. - -
(d) Post at its store in Sandusky; `Ohio, the attached notice marked "Appendix." 16
Copies of the notice, to be furnished by the -Regional Director for Region 8, shall,
after being duly signed by the authorized representative of the Respondent, be posted
by it immediately upon receipt thereof, and be maintained by it for a period of 60
consecutive days thereafter, in conspicuous places, including all places where notices
"Should the Board adopt this Recommended Order, then =the words "a Decision and
Order" will replace the words "'the Decision and Recommended Order of a Trial Exam-
iner." Should the Board's Order, in turn, be enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing-
an Order" shall be substituted for the words "a Decision and Order."
HILLS DEPARTMENT STORE 1183
to employees are customarily posted. Reasonable steps shall be taken by said
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the said Regional Director, in writing, within 20 days from the date
of this Decision, what steps the Respondent has taken to comply herewith.17
IT Is FURTHER ORDERED that the complaint be dismissed insofar as it alleges that
Respondent violated Section 8(a) (5) of the Act or engaged in unfair labor practices
other than as heretofore found.
17 Should this Recommended Order be adopted by the Board, the notification period
will be 10 days from the date of the Order; and in the event of court enforcement,
10 days from the Decree.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Recommended Order of a Trial Examiner of the
National Labor Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, as amended, we hereby notify our employees that:
WE WILL do the following:
(a) Offer to the employees named below immediate and full reinstatement
to their former or substantially equivalent positions without prejudice to their
seniority and other rights and privileges, and make good to them, with interest,
all pay they lost or benefits of which they were deprived by reason of their
having been refused reinstatement on application made by them on July 27, 1964:
Bonnie Brickey
Geraldine Capucini
Nancy Dise
Sharon Hunter
Helen Hyatt
Elthea Krick
Margarette Bryant McBee
Judy Ann McCoy
Beth McKind
Susan Murphy
Ila Richter
Barbara Welch Rohrbaugh
Madeline Russell
Shirley Thomas
Joyce Strohm
Janet Waterfield
(b) Make Sharon Cradic whole with interest for any pay she lost by reason
of her discharge on March 10, 1964.
WE WILL NOT do any of the following:
(a) Discharge , deny reinstatement to, or otherwise discriminate against any
employee because of union activity, support, or affiliation , or for engaging in a
strike or other lawful concertetd activity.
(b) Ask any employees about their contacts or contacts of any fellow
employees by or with the Union or about their or any employees' union activity
or support ; or request or instruct any employees to bring us information con-
cerning these matters , or create or try to create an impression among employees
that their union activities are being watched by or reported to the management.
(c) Threaten that the selection by the employees of a union to represent them
will cause us to discontinue existing wages or benefits or cause us to engage
in the kind of bargaining that will force the employees to a strike and to lose
their jobs; or cause us to deal more harshly with them.
(d) Tell employees that affiliation with a union demonstrates they do not
have confidence in the management or any particular member of management;
or solicit them to withdraw or offer assistance to withdraw from the Union.
(e) In any other manner interfere with, restrain or coerce any employees
in the exercise or enjoyment of any of the rights guaranteed by the National
Labor Relations Act.
All employees are free to join , or remain members of Retail Store Employees
Union Local 954, Retail Clerks Association, AFL-CIO , or any other labor orga-
nization , or to assist or support it, or refrain from doing so, without fear of discharge
or other discrimination by reason of their choice either way.
C. R. HILL DIVISION OF SHOE CORPORATION OF AMERICA
D/B/A HILLS DEPARTMENT STORE,
F Employer.
Dated------------------- By-------------------------------------------(Representative ) (Title)
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.
1184 DECISIONS OF N?_TIO11 AL LABOR RELATIONS BOXED
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board 's Regional Office, 720
Bulkley Building, 1501 Euclid Avenue , Cleveland, Ohio, Telephone No. Main 1-4465.
Building and Construction Trades Council of Reading and Berks
County and General Plumbing & Heating Company , Inc. Case
No. If-CC-3444. November 24,1965
DECISION AND ORDER
On September 27, 1965, Tria__ l_ Examiner Harry H. Buskin issued his
Decision in the above-entitled proceeding , finding that the Respond-
ent had engaged in and was engaging in certain unfair 'labor practices,
and recoi - -ending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, the Respondent -led exceptions to the Trial Exam-
iner's- Decision and the General Counsel filed cross-exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this cas-e to a three-member
panel ['Members Fanning, Brown, and Zagoria ].
The Board has considered the Trial Examiiner's Decision, and the
entire record in this case, including the stipulation of facts, and the
exceptions, cross-exceptions, and brief, and hereby adopts the find-
ings, conclusions. and recommendations of the Trial Examiner, except
as modified herein.1
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations -Board hereby a-dopes as its
Order the Recommended Order of the Trial Examiner, as modified
herein and orders that Respondent Building and Construction Trades
Council of Reading and Berks Cotmty, its officers, agents, and rep-
resentatives, shall take the action set forth in the Trial Exa-milier's
Recommended Order, as so modified :
1. Modify the provisions of paragraphs 1(a) and 1(b) of the Trial
Examiner's Recommended Order by deleting therefrom the terms
'"airy other employer," wherever they appear, and substituting there-
for the terms "any other person."
3 We agree with the General Counsel that the Order herein should be corrected to bar
the use of proscribed means against the secondary employers named in the complaint or
any other "person," and we shall revise the remedy to conform with statutory terminology.
However, contrary to the General Counsel's contention , in doing so we find it unnecessary
-t- modify the- Order - to name the General State Authority therein, -as such action will not
affect the scope of our remedy herein.
155 NLRB No. 115. -