Jaison's

National Labor Relations Board - Board Decisions

Jun 26, 1974

212 N.L.R.B. 1 (N.L.R.B. 1974)

JAISON'S
J. M. Batter Co., Inc. d/b/a Jaison's and Retail Clerks
International Association, Local 1407, AFL-CIO.
Case 6-CA-6892
June 26, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On February 22, 1974, Administrative Law Judge
John F. Corbley issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as herein modified.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified,
and hereby orders that Respondent, J. M. Balter Co.,
Inc. d/b/a Jaison's, Pleasant Hills, Pennsylvania, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
modified below:
1. Substitute the following for paragraph 2(a):
"(a) Offer Keith M. Puhl immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privi-
leges, and make him whole for any loss of pay he may
have suffered as the result of the discriminatory dis-
charge, in the manner set forth in The Remedy section
of the Administrative Law Judge's Decision."
2. Substitute the attached notice for that of the
Administrative Law Judge.
! The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to overrule
an Admmistrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces as that the
resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find
no basis for reversing his findings
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
1
After a trial at which all sides had the chance to give
evidence, it has been decided that we, J. M. Balter
Co., Inc. d/b/a Jaison's have violated the National
Labor Relations Act, and we have been ordered to
post this notice.
The National Labor Relations Act gives all em-
ployees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a represen-
tative of their own choosing
To act together for collective bargaining or
other aid or protection
To refrain from any or all these things.
Accordingly, we give you these assurances:
WE WILL NOT interrogate you concerning your
union membership, activities, or sympathies or
those of your fellow employees.
WE WILL NOT try to make you, our employees,
believe that we have ways of finding out whether,
you participated in union activities.
WE WILL NOT hold out to you the possibility
that you would receive improved benefits if the
Union were not seeking to organize you.
WE WILL NOT do anything which interferes with
any of your rights above.
WE WILL NOT discharge you, close down any
part of our business, or take any reprisal action
against any of you because you join, support, or
engage in organizational activities on behalf of
Retail Clerks International Association, Local
1407, AFL-CIO, or any other union.
WE WILL offer to reinstate Keith M. Puhl to his
former job or, if that job no longer exists, to a
substantially equivalent position, with full se-
niority and all other rights and privileges, as the
Board has found that he was discharged because
he supported the organizational campaign of the
above-named Union.
WE WILL also make up all pay Keith M. Puhl
lost because of his discharge, with 6-percent in-
terest.
J. M. BALTER CO., INC.
d/b/a JAISON'S
(Employer)
212 NLRB No. 2
2
Dated By
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1536 Federal Building, 1000 Liberty
Avenue, Pittsburgh, Pennsylvania 15222, Telephone
412-644-2977.
DECISION
STATEMENT OF THE CASE
JOHN F. CORBLEY, Administrative Law Judge: A hearing
was held in this case on December 12, 13, and 14, 1974, at
Pittsburgh, Pennsylvania, pursuant to a charge filed by Re-
tail Clerks International Association, Local 1407, AFL-
CIO (hereinafter referred to as the Union), and served on
Respondent on August 13, 1973, and on an amended charge
filed by the Union on October 29, 1973, and a complaint
and notice of hearing dated October 31, 1973, issued by the
Acting Regional Director for Region 6 of the National La-
bor Relations Board, which were likewise duly served on
Respondent. The complaint, which was amended at the
hearing, alleges that Respondent violated Section 8(a)(3)
and (1) of the Act by discharging Keith M. Puhl, because
he engaged in union activities, by interrogating employees
about their union activities, by creating the impression of
surveillance of union activities, and by withholding or
threatening to withhold benefits from its employees to in-
duce them to forego bargaining representation by the
Union. In its answer, which was also amended at the hear-
ing, Respondent denied the commission of any unfair labor
practices.
For reasons which will appear hereinafter, I find and
conclude that Respondent has violated, and is violating,
Section 8(a)(3) and (1) of the Act by discharging Puhl and
that it has also violated Section 8(a)(1) of the Act by creat-
ing the impression of surveillance of union activities, by
certain acts of interrogation by its supervisors, and by cer-
tain statements to its employees that Respondent was with-
holding certain benefits because of the Union. I further
conclude that Respondent has not violated Section 8(a)(3)
and (1) of the Act in respect to certain other allegations of
the complaint.
At the hearing all parties were represented by counsel
(except that counsel for the Charging Party was not present
each day). All parties were given full opportunity to exam-
ine and cross-examine witnesses, to introduce evidence, and
to file briefs. All parties waived oral argument at the conclu-
sion of the hearing. Briefs have subsequently been filed by
the General Counsel and Respondent and have been con-
sidered.
Upon the entire record I in this case, including the briefs,
and from my observation of the witnesses, I make the fol-
lowing:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
The Respondent is a Pennsylvania corporation with its
principal office located in Braddock , Allegheny County,
Pennsylvania . Respondent is engaged in the retail sale of
clothing . During the past 12 -month period immediately pre-
ceding the issuance of the complaint and notice of hearing,
Respondent's gross sales were in excess of $500 ,000 and,
during the same period , it received goods and materials
valued in excess of $50 ,000 directly from points outside the
Commonwealth of Pennsylvania for use at its stores located
within the Commonwealth of Pennsylvania.
The complaint alleges, the answer admits, and I find that
Respondent is now, and has been at all material times here-
in, an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits , and I find that
the Union is, and was at all times material herein , a labor
organization within the meaning of Section 2(5) of the Act.
III RESPONDENT'S HIERARCHY
William H. Balter is the secretary and treasurer of Re-
spondent- (he and his two brothers, Oscar and Henry, are
Respondent's owners), Edgar Novick is Respondent's shoe
buyer, and George C. Lee is its operations manager. Ms.
Louise Sharpe was the manager of Respondent's Southland
store in Pleasant Hills, Pennsylvania, here involved, until
late September 1973, when she was transferred to another
store.
The complaint alleges, the answer admits, and I find that
William H. Balter, Edgar Novick, and Louise Sharpe are
now, and have been, agents of Respondent acting on its
behalf, and supervisors within the meaning of Section 2(11)
of the Act. Based on his, admitted authority to hire and
discharge employees and the stipulation of the parties I
further find that George C. Lee is a supervisor within the
meaning of Section 2(11) of the Act.
IV THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
Respondent was founded under a somewhat different
name in 1909. It now has four stores in Allegheny County,
Pennsylvania. At the Southland store, here involved, Re-
spondent sells, inter alia, coats, dresses, and shoes.
Keith M. Puhl, the alleged discriminatee, was hired by
Respondent in March 1973 as a part-time shoe sales clerk
at the Southland store. About 4 weeks later he became a
The errors in the record have been noted and corrected
JAISON'S
full-time salesman in the shoe department at the same store.
Puhl is 20 years old.
On or about June 22,1973, Puhl met with Novick and Lee
at the Southland store. The purpose of this meeting was to
inform Puhl that he had just been promoted to be the head
of the shoe department. Novick outlined Puhl's new duties
to him at this time and advised him that he would receive
a salary increase. Puhl accepted the new position and con-
tinued in it until his termination on August 11, 19732
On July 9, 1973, Puhl called Sloan, a union organizer, to
inquire how the employees of Respondent's Southland store
might organize or join the Union. Sloan suggested that Puhl
come to his office.
On July 11, 1973, Puhl visited the Union' s office in Pitts-
burgh and met with Thomas Best, another union organizer,
who also represented the Union at the hearing herein. Best
and Puhl discussed the matter and Best gave Puhl a union
application which Puhl then signed and returned to Best.
Puhl was also given other applications and business cards
to take with him.
Puhl went directly to the Southland store from Best's
office, talked to various employees about the Union, and
passed out the union applications and union business cards.
Among the employees with whom Puhl spoke on this occa-
sion were Antoinette Comis, Monica Kapsha, Ken Clark,
Charles Hanchak, Dottie Dojuna, Donna Zawaraski, and
Doris Smith 3
Puhl continued his union organizing activities until the
time of his discharge, as will appear.
Also on or about July 11, 1973, Puhl had a disagreement
with Ms. Sharpe, the store manager, about Puhl's authority
to schedule an employee to work on a certain Saturday.
Puhl had gone ahead and arranged for an employee from
another department to work in the shoe department on that
day. Sharpe reprimanded him for this action and advised
him that this was her function and that it was beyond the
scope of his authority.
On July 14, 1973, Lee visited the Southland store and had
a meeting in the store office with Puhl and Sharpe. Lee also
advised Puhl at this time that he, Puhl, did not have authori-
ty to transfer an employee into his department because this
was Sharpe's responsibility.4
2 Novick and Lee testified-and Puhl denied-that Puhl advised Novick
and Lee at this same meeting that he, Puhl, had Job applications pending with
two other shoe stores, Kinney and Hanover. According to Novick and Lee,
Puhl also said that he was interested in Hanover and would take a job there
if one came through. I find it unnecessary to resolve this credibility conflict
because it bears no relation to the essential issues of the case. That is,
regardless of what was said, if anything, in this regard by Puhl, he became
the shoe department manager of Respondent and neither Lee nor Novick
claimed that they imposed any sanction upon him at that time because he
may have been seeking other employment. Novick testified, in fact , that he
told Puhl that "we would go along with him," although Novick further
testified that he asked Puhl to let him know if Puhl heard from Hanover.
I credit Novick and Lee as to the date of this meeting. Puhl stated he was
promoted "approximately on June 11, 1973."
3 Puhl credibly so testified. Comis confirmed that Puh] spoke to her con-
cerning the Union and gave her a union card to sign at this time.
a Lee further testified-and Puhl denied-that Lee warned Puhl on this
occasion that if Puhl's conduct was repeated it would be cause for dismissal.
I likewise find it unnecessary to decide this credibility question because it has
no bearing on the ultimate issues of the case . There is no indication that this
matter ever came up again and it did not relate to the reasons for, or circum-
stances surrounding, Puhl's termination.
3
On or about July 16 or 18, 1973, Puhl had a disagreement
with Sharpe and gave notice that he was going to quit his
employment with Respondent in a week unless he received
a raise in salary and a commission or discount.' Puhi admit-
ted that he had determined to resign at this time even if he
were unable to obtain another job (his applications else-
where will be discussed hereinafter).
Several days later Novick called Puhl and told Puhl that
he had heard that Puhl had given notice. Novick inquired
whether Puhl desired to remain with Respondent 6 After
Puhl answered in the affirmative, Novick stated he would
try to arrange a meeting to straighten the matter out.
A meeting was arranged and was held at the Southland
store on July 26, 1973. In attendance were Puhl and his
superiors, Lee, Novick, and Sharpe. Although Puhl's re-
quest to Sharpe for more money had, in part, triggered this
meeting, money was not discussed. The meeting instead
centered on two matters-the extent of Puhl's authority as
shoe department manager and Puhl's notice to the others in
attendance that he, Puhl, then had pending applications for
employment at Kinney's and Hanover's.
In testifying about this meeting Puhl stated that, after
thinking over the matter following his demand for greater
renumeration, he came to the conclusion that the real issue
was his authority. When he spoke to his superiors at this
meeting he therefore insisted on having authority to ap-
prove credit and due bills and Lee, or Lee and Sharpe, gave
him this authority.
After the question of his authority was settled Puhl an-
nounced to Novick, Lee, and Sharpe that he had applica-
tions pending with Kinney's and Hanover's, two shoe stores
in the area. Puhl told his superiors that he was particularly
interested in working for Hanover's if the latter made him
a suitable offer. Puhl then asked his superiors the question
whether, if he gave 2 weeks' notice, they would desire him
to step down as department head and be a shoe clerk in the
interim. This offer was declined. Puhl was rather asked by
Novick to remain with Respondent 7 and Puhl did remain.8
The events of the July 26 meeting as thus far described
are not in controversy.9
There is a sharp conflict, however, between the testimony
of Lee and Novick on the one hand, and Puhl, on the other,
in respect to the further reaction, if any, of Lee and Novick
at the meeting of July 26, to Puhl's statement that he would
resign to work for Hanover's if a suitable offer from that
company was forthcoming. Lee and Novick testified-and
Puhl denied-that Novick further told Puhl at this meeting
5 Puhl credibly testified that these were the conditions under which he
would remain . Novick admitted that Sharpe told him, Novick, several days
later; that Puhl had told Sharpe that Puhl would give notice if he did not get
a raise.
6 Novick had a high opinion of Puhl's performance, as Novick admitted
in his testimony.
7 Novick so admitted in his testimony.
8 Puhl had originally filed an application with Hanover in July 1972 which
he renewed, orally, to the manager of its store in Allegheny Center on some
date between July 18 and 26, 1973 Puhl had also filed an application with
Kinney's at the same time he had filed an application to work for Respondent
and he filed another application with Kinney's on or about July 18, 1973.
9 The foregoing findings as to the July 26 meeting are based on the credible
testimony of Puhl and these findings are either corroborated or not disputed
in the testimony of Sharpe, Lee, and Novick.
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Puhl must let Novick know by August 4, 1973, whether
Puhl had decided to take other employment. Novick ex-
plained in his testimony that in August Respondent's busi-
ness picked up based on "back to school" purchases and
that this busy season lasted into the holidays in December.
Novick further testified that with this expectation for in-
creased sales beginning in August and with the consequent
necessity to make certain that the store was adequately
covered by sales personnel, he, Novick, had to know in early
August whether Puhl was going to stay or leave.
In certain other places in his testimony Novick also stated
he spoke to Puhl several times between July 26 and August
4, 1973, to inquire whether Puhl had gotten in touch with
Hanover's. According to Novick, Puhl responded either
that he could not get in touch with the Hanover manager
or that the latter was out of town. Novick also testified that
in these conversations Puhl never told him, Novick, whether
or not he, Puhl, was going to stay with Respondent or go
to work with Hanover. Puhl admitted that he spoke to No-
vick several times in this period but denied that the subjects
of the August 4 deadline and Puhl's possible resignation to
work for another employer were discussed.
Finally, Lee and Novick testified that they had a conver-
sation on August 7, 1973. At that time Novick informed Lee
that Puhl had failed to tell Novick of Puhl's future plans by
August 4. It was then agreed between Novick and Lee,
according to their testimony, that Lee would discharge Puhl
on August 11, 1973.
Based on my resolutions of credibility I conclude that no
mention of any deadline of August 4 was made at the in-
stant meeting of Lee, Novick, Sharpe, and Puhl on July 26,
1973, and, further, that the matters of this purported dead-
line and of Puhl's future plans were not discussed in conver-
sations between Puhl and Lee between July 26 and August
4, 1973.101 do conclude, however, that during the course of
10 I found Puhl to be a well poised , candid , and precise witness He testified
in my Judgment in a forthright manner and , on several occasions , he insisted
that certain documents (his sales receipts) be carefully examined by him
before he would testify in respect to their contents He also refused to be led
by questions of the General Counsel and the representative of the Charging
Party, where he was uncertain of his answers Finally he corrected certain
questions by counsel for Respondent including the reading by the latter of
his, Puhl 's, affidavit
Novick created a less favorable impression At one point in his cross-
examination he confused the June 22, 1973, meeting with Puhl with their
meeting on July 23, 1973 Then, after testifying that the latter meeting dealt
with Puhl's demand for higher wages , he testified that money was not dis-
cussed at that gathering Nor did Novick recall that Puhl's authority to
approve due bills and credit was discussed at that meeting although the
testimony of Lee and Puhl make it clear that this matter was a very important
aspect of the instant confrontation On direct examination Novick at first
denied speaking to Puhl between July 26 and August 4, then , when pressed
by Respondent 's counsel , Novick stated that he spoke to Puhl by telephone
during this period and still later in his testimony he stated that he spoke to
Puhl in person as well as during this same time frame When testifying in
respect to these calls Novick , after insisting on the importance of his being
able to learn Puhl's plans by August 4, admitted that he did not tell Puhl,
when he spoke to Puhl on the latter date , that such date was Puhl's "dead-
line" In this same vein, despite his claimed desire to know Puhl 's plans by
August 4 , Novick did nothing about the matter until , according to Novick,
Lee called Novick on August 7 and Lee raised the matter of Puhl's future
plans. Novick had no explanation why there was a 4-day delay until August
I I before Puhl was discharged I also observed Novick during his cross-
examination by the General Counsel, darting glances in the direction of his
superior, William Baiter, who was seated at the counsel table
a conversation between Lee and Novick during the week
preceding August 11, 1973, they decided to discharge Puhl.
During the last 2 weeks of Puhl's employment with Re-
spondent his activities on behalf of the Union intensified.
Thus, during this period he decorated the hard cover of his
sales book.' On the front of this hard cover Puhl printed
his name and number and flowers were also drawn thereon.
On the back of this hard cover, Puhl attached a printed
exhortation for employees to sign authorization cards for
the Union and he also attached a drawing of a toilet seat on
which appeared the name "J. M. Balter Co." and language
in a bubble stating "look at me ... I hop out of bed every
morning rann' to go" and the printing "We're in the mon-
ey." Sharpe, the store manager, wrote up sales in Puhl's
book or approved discounts by initialing Puhl's book during
this period at least until August 6.12
On August 1, 1973, Puhl made arrangements to have an
employee meeting on August 7 at which employees could
ask questions and discuss benefits with union representa-
tives. This meeting was held on August 7 at a Howard
Johnson's on Route 51 in Pleasant Hills. Appearing at the
meeting were Thomas Best and other union representatives
as well as approximately nine employees of Respondent
including I'eith Lew, Antoinette Comis, Doris Smith, Nor-
man Norris, Ken Clark, Chuck Hanchak, and a lingerie
department store employee whose first name was Rita.
Between the day of this union meeting and August 11,
Puhl collected some eight union applications from his fellow
employees which he handed over to union representatives.
Lee also created a less favorable impression than Puhl Lee on direct
examination , stated that his conversation with Novick on August 7 was in
person On cross-examination Lee stated that the conversation took place in
a phone call Lee also testified that he could have been in the Southland store
on August 4 and through the week, but later he could not recall if he was
in the store that week
I also found Lee evasive in one important aspect of his testimony The
General Counsel asked him whether he had any conversations with Sharpe
in regard to the Union He responded that in a telephone conversation with
Sharpe on August 9, 1973, Sharpe told him she had heard of a "meeting"
Lee then claimed that Sharpe did not say it was a "union meeting ," yet he
had no explanation how he related his answer that Sharpe told him there was
a "meeting" to General Counsel's question whether he had spoken to Sharpe
about the "union "
Lee's testimony was also contrary to that of Baiter in respect to a conversa-
tion on August 13, 1973, between Lee and Baiter in which, according to
Baiter, Lee reported to Baiter that he, Lee, had heard that efforts were being
made to organize the Southland store Lee stated that in this conversation
he brought Baiter up to date on matters occurring while Baiter had been away
on vacation (According to Baiter, Baiter had been away on a buying trip
before August 13 and Baiter did not begin his vacation until August 15) Lee
said he told Baiter that there had been a " meeting" and that this was all Lee
told Baiter about the matter
Lee's testimony also disagreed with that of Novick Lee testified that
Novick, rather than he, instituted the telephone call of August 7 in which it
was decided that Puhl would be discharged Lee stated that it was he, Lee,
who, during the course of the meeting of July 26, gave Puhl the deadline of
August 4 to advise Respondent of Puhl's future plans Novick testified that
he, Novick, set his deadline
Unless I state otherwise , where the testimony of Puhl disagrees with that
of Lee and Novick, I credit Puhl
it This hard cover was maroon in color, appeared to be of heavy card-
board, and the sales book was inserted in it so that the sales book, in effect,
was like the pages of a book and the cover served the same purpose as a
book's hard binding, except that the sales book could be removed from the
cover and replaced with another sales book
12 Only three people have authority to approve discounts in the Southland
store . Of these only Sharpe has the initials "L S " which appear on sales slip
6492-7 dated August 6, 1973
JAISON'S 5
Also not long before his discharge Puhl tore two full pages
out of two of the union pamphlets he had and posted these
pages on the back bulletin board of the employees' lounge
and above the thermostat in the shoe department at the
Southland store.13
On August 8, 1973, Sharpe overheard employees in the
lunchroom talking about a meeting and the Union and
Sharpe reported what she overheard to Lee on August 9,
1973. Sharpe specifically told Lee that she had heard there
was a meeting the night before and, further, the word
"union" was mentioned in the conversation about the meet-
thg14
On Saturday, August 11, during the afternoon Lee dis-
charged Puhl.
The discharge took place in the following manner. Lee
visited the Southland store and he and Sharpe met with Puhl
in the back stockroom hallway. Lee told Puhl that Lee was
sorry but because Puhl was looking for jobs with other
companies Respondent could not rely on Puhl's staying
with Respondent for any length of time. To this Puhl re-
sponded that Lee could forget' about the other companies
since Puhl was staying with Respondent "definitely." Lee
rejoined that this could not be done since "plans are made."
Puhl asked why he could not stay but Lee said it "just"
could not be done. Lee then told Puhl he wanted Puhl to
resign as department head. To this Puhl asked if he could
become a shoe salesman but Lee insisted that Puhl resign
altogether whereupon Puhl could collect unemployment.
Puhl refused. Lee then said Respondent "had no work" for
Puhl. Puhl asked if he was being fired and, when Lee an-
swered in the affirmative, Puhl offered to stay for the re-
mainder of the day. Lee declined this offer and Puhl
punched Out. 15
On the morning of August 13, a Monday, William Baiter
spoke to employee Antoinette Comis at the Southland store.
After a brief exchange of pleasantries, Balter told Comis
that he understood there were some "goings on" in the
Southland store and that such could not have happened at
a better time because it helped him decide what to do, since,
he said, his lease would be up in May 1974.16 Balter contin-
ued that it made him feel bad that a 20-year-old boy could
influence a store full of women.17 Balter then asked Comis
whether she realized how many would then become unem-
ployed pointing out that he, Balter, felt particularly sorry for
Peggy Carmichael, a self-supporting divorcee.
Baiter told Comis that he, Balter, had been in business for
45 years, was set financially, and needed no one to come in
and tell him what to do. Comis responded that she did not
feel that this activity was "anything against" Baiter or
Balter's brothers but was due to management. Balter re-
13 The findings as to Puhl's union activities during this period are based
on the credible testimony of Puhl and Doris Smith in this regard.
14 Sharpe so admitted in her testimony. Lee, as previously mentioned,
denied that Sharpe told him anything about the Union.
15 These findings are based on the credible testimony of Puhl, which was
not essentially disputed in this regard in the testimony of Sharpe and Lee
16 The lease on the Southland store will not expire until March 1975
However, Batter may well have been confused on the point. For the 10-year
lease on its face had the commencement date of 1964 with the "4" in the year
stricken and the figure "5" written over it.
17 Puhl was the only 20-year-old male working in the Southland store at
that time.
joined that management would be retiring at the end of the
year.
Comis then asked Balter whether, if the girls had a change
of mind, would he continue in business. Balter replied that
he would not say because he would have to speak to all the
girls . Then, after mentioning something about playing more
golf, Baiter left.18
On August 13, 1973, the Union filed a petition in Case
6-RC-6578 for a Board-conducted election among the em-
ployees of the Respondent's Southland store.
On August 20, 1973, Sharpe spoke to employee Novak
about the Union. In this conversation which occurred at the
Southland store Novak volunteered to Sharpe that several
employees had approached her, Novak, to join the Union.
Sharpe then inquired whether Novak had joined the Union
to which Novak responded in the negative. Sharpe then
asked Novak which employees had approached her. Novak
told Sharpe that different ones had done so, but it does not
appear that Novak gave their names to Sharpe.19
On October 29, 1973, the Union filed an amended peti-
tion with the Board in Case 6-RC-6578 for an election
among the employees at Respondent's Southland store, al-
though there was apparently a later agreement to expand
that unit to all four of Respondent's stores.
On or about November 27, 1973, the petition in Case
6-RC-6578 was withdrawn by the Union.
On November 30, 1973, the Union again filed a petition
with the Board for an election among the employees of the
Southland store. This petition was denominated as Case
6-RC-6688.
On December 5, 1973, Respondent sent a letter to the
employees of all four of its stores including those at the
Southland store, which stated, in part, as follows:
A few weeks ago either Mr. O. M. or I spoke to you
about an election that had been scheduled to take place
on January 16, 1974, at which time you would have had
the opportunity to vote as to whether you wanted the
Retail Clerks Union to represent you or not to repre-
sent you.
Since that time, many things have happened which
are of great importance to you and to Jaison's.
The first thing that happened was that the Union
withdrew its Petition for the election which had been
scheduled for January 16th. The effect of this with-
drawal was to cancel out the election which had been
scheduled. The second thing which happened was that
11 These findings as to the incident involving Batter and Comis on August
13, 1973, are based on the credible testimony of Comis in this regard. Comis
I found to be a calm, well-poised witness who testified in a straightforward
manner Baiter, on the other hand, was a very anxious witness who frequently
opened and closed his hands and shifted positions while in the witness chair.
He also volunteered testimony on several occasions and gave answers before
the questions were completed. His testimony on another subject-the matter
of whether employees were told about a future fringe benefit program-
contains a number of inconsistencies , as will appear . His testimony as to
when the benefit program would be ready to go into effect is also somewhat
confusing
19 These findings are based on the testimony of Novak and Sharpe to the
extent that such testimony does not disagree . In view of Novak's admitted
failure of recollection as to the sequence of this conversation and Sharpe's
denial that she, Sharpe, initiated it, I do not conclude that Sharpe began the
conversation nor that Sharpe's first inquiry was whether Novak knew any-
thing about the Union.
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on November 30, 1973, this past Friday, the Union
filed a new Petition in which it requested representa-
tion of the employees at the Southland store only.
As you remember from what I or Mr. 0. M. told you
a few weeks ago, the original election was set up to
include the employees in the four stores rather than
only the employees in the Southland store.
I can't tell you how sorry I am that this confusion has
been created by the Union, since it will probably hold
up the plans which we had been working on to improve
your benefits and which we had hoped to be able to put
into effect by January 1, 1974.
I can tell you that even before the Union filed its first
Petition for an election back in August of 1973, we had
been discussing various plans to improve your fringe
benefits, such as Blue Cross, Blue Shield, paid holidays
and sick pay. However, when the Union filed the first
election petition in August, we had to discontinue at
that time the putting into effect of these plans which we
had been discussing for some time.
When the Union withdrew its petition sometime in
the latter part of November of this year, we again re-
vived our investigation of improvements for you with
the idea of getting them into effect as of January 1,
1974. Again, the Union has thrown a road block into
our ability to complete these plans for improved bene-
fits for you by the filing of the second Petition on
November 30, 1973.
I can tell you that we are sincerely sorry that we
cannot, at this time, carry through the plans that we
were working on for your benefit. The reason for this
is that it would be a violation of the law for Jaison's to
put into effect these increased benefits that we were
planning because of what the Union had done in filing
this second Petition for election.
The benefits mentioned in this letter were first discussed
among William Baiter and his brothers in March 1973. Ac-
cording to William Baiter the benefits program (or at least
those benefits which related to insurance) would have been
instituted in June 1973 but for "dilatory tactics" on the part
of Respondent's insurance brokers. With the filing of the
first election petition on August 13, 1973-on advice of
counsel-no further steps were taken by Respondent to
implement a benefit program at that time.
Following the withdrawal of the petition in Case 6-
RC-6578 on November 27, 1973, Respondent renewed its
interest in a benefit program and in fact discussed it with
at least one of its supervisory personnel, Lee. However, with
the filing of the petition in Case 6-RC-6688 a few days later,
again no benefits program was put into effect. Instead on
December 5, 1973, the letter which is quoted, supra, was sent
to all of Respondent's employees. As will be discussed more
fully hereinafter, this was the first indication by Respondent
to its employees that it was even considering such a benefit
program.
The benefit program referred to in the letter has not been
put into effect. Nor has this benefit program as yet been
finalized by Respondent.20
20 f so find based on the full testimony of William Batter in this regard
B. Concluding Findings
The extensive activities of Keith Puhl on behalf of the
Union have already been documented in this decision. It
was he who originally contacted the Union in July 1973. He
thereafter spoke to his fellow employees about the Union,
solicited them to sign union authorization cards, and passed
out union business cards to them. He also posted union
literature at the Southland store. His union activities
reached their peak in the last week or so of his employment
when he signed up some eight of his fellow employees in the
Union, arranged for a union meeting, and decorated his
sales book cover with an excerpt from certain union litera-
ture in which excerpt employees were exhorted to sign union
authorization cards.
I am satisfied that Respondent knew of these activities on
the part of Puhl before Puhl's discharge. Baiter admitted
that he had learned from Lee that the Union was organizing
the Southland store and that he, Baiter, had obtained this
information before speaking to Comis on Monday morning,
August 13, 1973. Baiter's expression of reaction against the
"goings on" at the Southland store and against someone
telling him, Baiter, what to do and his further comment that
he felt badly that a 20-year-old boy could walk in and
influence a store of women are obvious references to the
union organizational efforts of Puhl, the only 20-year-old
male in the store at that time. Also I consider it incredible
that Sharpe, who handled Puhl's sales book regularly during
this period did not notice the garish decorations and the
union message attached to it I conclude rather that she did.
Further in concluding that the Respondent knew of Puhl's
activities before his discharge, I rely on the circumstances
that his union activities were intensified in the last week of
his employment and that his discharge followed abruptly
and without plausible reason,21 as will be discussed, and the
fact that during all his union activities he contacted at least
20 of the some 33 to 35 employees in this single retail store 22
engaging in many such activities at the store itself. Finally,
since Lee was the Respondent official who discharged Puhl,
I deem significant Lee's evasiveness in answering questions
about information given to him about union activities at the
store and about information relayed by Lee to Baiter on the
same subject.
The opposition of Respondent to these union activities is
illustrated by Baiter's thinly veiled threat to Comis to close
the store for this reason, a threat I will analyze in greater
detail infra
Hence, I conclude that Puhl initiated and was the princi-
pal actor in the Union's campaign at the Southland store
and that Respondent knew of these activities and was op-
21 Wall-Afart Stores, Inc, 201 NLRB 250, enfd 488 F 2d 114(C A. 8, 1973).
22 This last holding is essentially an application of what is sometimes called
the Board's "small plant rule " See Wiese Plow Welding Co, inc, 123 NLRB
616 That this rule is a realistic appreciation of the probability that an
employer will learn of the union activities of its employees in circumstances
like the present case is well buttressed by direct evidence herein Thus, Sharpe
admitted that on August 8. 1973, she overheard two female employees talking
in the lunchroom about the union meeting and she reported this fact to Lee
the following morning Sharpe was standing outside the door of the lunch-
room when she overheard this conversation
The findings as to the employee complement at the Southland store is
based on the credible testimony of Sharpe in this regard
JAISON'S 7
posed to them.
The question then becomes whether Puhl was discharged
because of these activities or rather, as Respondent asserts,
because he did not inform Novick or Lee by the August 4,
1973, deadline of his, Puhl's, plans to stay with Respondent
or take employment elsewhere. Since I have concluded,
based on my credibility findings, that Respondent did not
give Puhl a deadline of\August 4, 1973, this defense neces-
sarily fails.
However, even if I were to credit all of the testimony of
Lee and Novick-which I have not done-in respect to
their claims that Puhl previously warned them he would
seek work elsewhere and that they established an August 4
deadline for Puhl to make up his mind-I would still reject
this defense.
To begin with, as I have already mentioned, Lee and
Novick testified that Puhl first told them of his intentions
to leave on June 22, 1973, yet they promoted him to shoe
department manager on that same date. If, in fact, Puhl did
so advise them at that time, their action in promoting him
demonstrated either their unconcern or their desire to keep
Puhl. Novick, in fact, admitted on the stand that he was
"very satisfied with Puhl's work" and that Puhl impressed
him "very much."
When the matter of Puhl's leaving was mentioned on July
26, 1973, as Puhl freely admitted, Puhl was nonetheless
asked to remain, according to Novick. The August 4 dead-
line, which Lee and Novick claimed was set at the July 26
meeting, came and went without any action on
Respondent's part. Novick even admitted that he spoke to
Puhl on August 4 and did not mention the word "deadline"
to Puhi.
What then caused Respondent's attitude toward Puhl to
change during the final week of Puhl's employment? The
only possible unusual activity of Puhl during that week
consisted of his union organizational efforts. And, as has
been found, the Union's campaign definitely came to
Respondent's attention during that week-if it had not be-
fore-when Sharpe overheard the conversation about the
union meeting in the lunchroom on August 8 and tele-
phoned Lee about it.
Finally, the manner of Lee's discharge of Puhl on August
11, raises a question that Puhl' s alleged failure to notify
Respondent of his plans was the real reason for his termina-
tion. For Lee got Puhl's answer about Puhl's plans in the
discharge interview before the discharge took place. That is,
before Lee told Puhi that Lee "had no work" for Puhl, Puhl
told Lee that Puhl was definitely staying with Respondent.
Yet Lee persisted and Puhl was discharged 23
I conclude from all the foregoing that the reason Respon-
dent discharged Puhl was Puhl's activities on behalf of the
Union. By discharging Puhl for this reason, Respondent
violated, and is violating, Section 8(a)(3) and (1) of the
Act 24,
Based on my credibility findings, I have also concluded
23 Since that time Puhl has not been replaced as shoe department manag-
er-however , a sales clerk from another store was transferred to Southland
sometime in the same month.
za E g., Wal-Mart Stores, Inc., supra Northwest Oil Equipment, Inc, 173
NLRB 534.
that William Baiter told employee Comis on August 13,
1973, at the Southland store that he, Baiter, understood
there were some "goings on" at that store and he felt bad
that a 20-year-old boy could walk in and influence a store
of women. Since this remark is an obvious reference to the
union activities of Puhl at the store, as has also been found,
it clearly created in the mind of Comis that Respondent had
engaged in surveillance of Puhl's activities. Balter's addi-
tional remarks in respect to the expiration of his lease and
how the "goings on" helped him make up his mind were an
unmistakable threat to close that store in reprisal to the
union campaign. I accordingly conclude that, in both the
foregoing respects, Balter's remarks to Comis on this occa-
sion violated Section 8(a)(1) of the Act 25
While I have found that Sharpe did not begin the conver-
sation between herself and Novak on August 20, 1973, it is
clear that during that conversation Sharpe asked Novak if
she, Novak, had joined the Union and also inquired of
Novak which of Novak's fellow employees had asked her to
join. I know of no license in the Act which permits a supervi-
sor to interrogate an employee about the employee's inten-
tions-or her fellow employees activities-in regard to a
union, merely because the employee broached the subject of
a union in a conversation.26 I, accordingly, conclude-par-
ticularly against the background of Respondent's prior un-
lawful discharge of Puhl-that Sharpe's questioning of
Novak on this occasion as to these matters was a coercive
interrogation in violation of Section 8(a)(1) of the Act.
This brings us then to the matter of the letter of December
5, 1973, in which Respondent informed its employees that
it could not inaugurate a benefit program on January 1,
1974, in view of the filing of the Union's latest election
petition.
Central to the analysis of this letter and its impact upon
the employees is the fact that this letter constituted the first
communication by the Respondent to its employees that a
benefit program was even being contemplated.27 This fact
coupled with the statement in the letter that the program
would not go into effect because the Union had filed a new
election petition impel me to the conclusion that the pur-
pose of the letter was to blame the Union for the employees'
loss of otherwise unexpected benefits and thereby unlawful-
ly interfere with the employees' support of the Union.
In evaluating the effect of such an announcement upon
employees during a union campaign, the Board's opinion in
American Paper and Supply Co., 159 NLRB 1243 (where the
unexpected benefit withheld was a wage increase), is in-
structive. There the Board after noting that the employer
25 Hatteras Yachts, AMFIncorporated, 207 NLRB No. 156; cf. Rust Sales
Company, 157 NLRB 681.
26 Cf Hotel Conquistador Inc, d/b/a Hotel Tropicana, 159 NLRB 1220,
1226, enfd. as modified, 398 F.2d 430 (C.A. 9, 1968).
27 William Baiter at first testified that he told certain "key employees" that
a benefit program was in the offing after November 27, 1973, when the
Union's earlier petition was withdrawn. Later, however, he testified that he
spoke to no employees except Geoge Lee, the operations manager and an
admitted supervisor within the meaning of the Act, with whom he spoke in
the period between the withdrawal of the earlier petition and the filing of the
later one on November 30, 1973. Still later he testified he told several supervi- -
sors of the possibility of a benefit program and was concerned that they
might have informed employees of his discussions with them. Finally, he
admitted that he was not aware that any supervisors had so informed any
employee and stated he strongly believed they had not.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had announced for the first time that it contemplated grant-
ing a wage increase but was prevented from so doing be-
cause of the Union's organizational campaign, went on to
hold, at p. 1244, as follows:
The natural effect of the announcement was to con-
vince the employees that they did not need a union in
order to obtain wage increases or other improvements
in their conditions of employment. Moreover, by shift-
ing to the union the onus for its not instituting the
purported planned wage increase, the Respondent
sought to disparage and undermine the union by car-
rying [sic] 28 the impression that the union stood in the
way of the employees getting a wage increase. Thus,
Respondent held out to the employees a benefit they
would be receiving but for the union. By the foregoing
conduct, we find that the Respondent interfered with,
restrained and coerced its employees in the exercise of
rights guaranteed in Section 7 of the Act, and thereby
violated Section 8(a)(1) of the Act. [Footnotes omitted.]
Substituting for the "wage increase," referred to by the
Board, the Employer's proposed benefit program of paid
holidays, sick pay, and Blue Cross and Blue Shield health
insurance benefits herein, I reach the same conclusion here
as did the Board in American Paper. I therefore find that in
sending the letter of December 5, 1973, to its employees at
the Southland store Respondent violated Section 8(a)(1) of
the Act 29
The General Counsel would also have me find that the
failure of the Respondent to institute these benefits on and
after August 13, 1973, constitutes an additional violation of
Section 8(a)(3) and (1) of the Act. I disagree.
To begin with, no program was formulated by August 13,
1973, nor has one been subsequently formulated, as I have
already found. Moreover, from the period August 13 to
December 5, 1973, I am at a loss to understand how the
employees' Section 7 rights could be interfered with, nor
their possible union loyalties discouraged, because they
were not accorded a benefits program which was nonexis-
tent and of whose potential existence they were unaware.
The matter was never even brought to their attention until
the letter of December 5.
Hence the examination of the question whether an addi-
tional violation of Section 8(a)(3) and (1) has occurred must
begin with that letter. But what does the letter say? Reason-
ably construed it says to me that the Respondent was inves-
tigating a benefits program with a view towards
implementing such a program by January 1, 1974. But-
upon the filing of the second petition-the investigation
stopped and the plans for the program will not be completed
and cannot be completed, implies Respondent, until the
election matter is disposed of 0
28 Apparently "conveying" was intended
29 In arguing that this announcement did not violate Section 8(a)(1), Re-
spondent relies in its brief upon Wassau Steel Corporation, 160 NLRB 635
Wassau is distinguished by the fact that in Wassau , unlike here , the "would
be" benefit was not being mentioned for the first time in the employer's
announcement-the employer's comment thereon rather being made in re-
sponse to union propaganda wherein the matter had already been raised
30 Batter's statement on the stand that the programs would go into effect
immediately but for the petitions-which is relied upon by the General
Counsel-must be read in the light of Batter's later testimony-which is
Other than Ballet's testimony and the letter there is no
evidence dealing with the possibility that Respondent might
have deprived employees of certain emoluments in order to
discourage their union activities. But that letter and Balter's
testimony, in my judgment, fall short of establishing that
Respondent has thereby discriminated in "regard to hire or
tenure of employment or any term or condition of employ-
ment to encourage or discourage membership in any labor
organization," as Section 8(a)(3) of the Act proscribes.
The terms or conditions of employment which the em-
ployees might have been deprived of were simply never ar-
rived at because the investigation into proposals for
improving employee benefits ceased. That the Respondent's
announcement to this effect violates Section 8(a)(1), I have
already found. That such announcement and the other evi-
dence suggest that the employees were in fact deprived of
some benefit program, I conclude, has not been proved by
the General Counsel. Accordingly, I shall recommend dis-
missal of this last allegation in the complaint.31
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth above, occurring in
connection with the operations described in section I,
above, have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V THE REMEDY
The recommended Order will contain the conventional
provisions for cases involving findings of interference, re-
straint, and coercion and unlawful discharge in violation of
Section 8(a)(l) and (3) of the Act. This will require Respon-
dent to cease and desist from the unfair labor practices
found and to post a notice to that effect which will also state
the affirmative action Respondent will be required to take
to remedy its discharge of Keith M. Puhl. Thus, Respondent
will be required to offer Puhl reinstatement to his former
position or, if that position no longer exists, to a substantial-
ly equivalent position, without prejudice to his seniority or
other rights and privileges. He will be made whole for any
loss of earnings he may have suffered by reason of the
discrimination against him by payment to him of a sum of
money equal to that which he would have earned from the
date of the offer of reinstatement, less net earnings, if any,
during such period, to be computed in the manner pre-
scribed in F W. Woolworth Company, 90 NLRB 289, with
6-percent interest thereon as prescribed by Isis Plumbing &
Heating Co., 138 NLRB 716.
consistent with the letter-that there is still no plan for that benefit program
I conclude in the light of this later testimony, which was adduced by the
General Counsel on cross-examination, that what Batter meant by his state-
ment that the plan could go into effect immediately upon the withdrawal of
the petition, was that such would have been the case if the plan had been
finalized by the time of the hearing
J1 Respondent's motion to dismiss the complaint, taken under advisement
by me at the conclusion of the hearing, is denied in part and granted in part
consistent with my Concluding Findings herein
JAISON'S 9
It will be recommended in view of the nature of the unfair
labor practices in which Respondent has engaged (see N.L.
R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536) that Respon-
dent be ordered to cease and desist from infringing in any
manner upon the rights guaranteed employees by Section 7
of the Act.
Finally, it will be recommended that the notice to em-
ployees shall be posted at all four stores. This recommenda-
tion rests on the fact that, as the Respondent's letter dated
December 5, 1973, to its employees indicates, it was agreed
between the Respondent and the Union sometime after
August 13, 1973, that the four-store unit was appropriate
and that the election would be held therein. It follows that,
although the petition on which that agreement was based
has subsequently been withdrawn, the continuing effects of
Respondent's unfair labor practices-at the Southland
store-among all the employees of the four-store unit of
which the Southland store had been agreed to be a part,
remain unremedied. Moreover, as Respondent advised all
its employees in its letter of December 5, 1973, it continues
to take the position that only the four-store unit is appropri-
ate. If Respondent prevails before the Board with this con-
tention or the Union again agrees to a four-store unit, this
is yet a further reason to insure dissipation of the effects of
Respondent's unfair labor practices in that unit in which the
Southland store, where the unfair labor practices occurred,
would again be a part.32
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce and the Union is
a labor organization all within the meaning of the Act.
2. By discharging Keith M. Puhl because of his activities
on behalf of the Union, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
3. By threatening to close its Southland store in reprisal
against the union activities of its employees, by creating the
impression of surveillance of employees' union activities, by
coercively interrogating an employee about her own or her
fellow employees' union activities, and by holding out the
possibility that employees would receive additional benefits
but for the Union, Respondent has violated and is violating
Section 8(a)(I) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
32 This recommendation is NOT to be construed as a finding as to the
appropriate unit-which is a question that is not before me.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c)-of the Act, I hereby issue the following recom-
mended:
ORDER33
Respondent, J. M. Balter Co., Inc. d/b/a Jaison's, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on behalf
of, Retail Clerks International Association, Local 1407,
AFL-CIO, or any other labor organization, by discriminat-
ing in regard to the hire and tenure of employment or in any
other manner in regard to any term or condition of employ-
ment of any of Respondent's employees in order to discour-
age union membership or union or other concerted
activities.
(b) Coercively interrogating employees concerning their
own or their fellow employees' union membership or activi-
ties; threatening to close a store if the employees organize
a union; creating the impression among employees that it
has ways or means of identifying employees who participate
in union activities; holding out to employees the possibility
that they would obtain additional benefits but for the Union
or in any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Offer Keith M. Puhl immediate and full reinstate-
ment to his former or substantially equivalent position,
without prejudice to his seniority or other rights and privi-
leges, and make him whole for any loss of pay he may have
suffered as the result of the discriminatory discharge, in the
manner set forth in The Remedy section of the Administra-
tive Law Judge's Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
33 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , recommendations , and recommended Order herein shall, as
provided in Sec. 102 48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions, and Order, and all objections
thereto shall be deemed waived for all purposes.
I0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at all its stores in Allegheny County, Pennsylva-
nia, copies of the attached notice marked "Appendix." 31
Copies of this notice, on forms provided by the Regional
Director for Region 6, after being duly signed by the
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
34 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words "Posted by Order of the National
Labor Relations Board" shall read "Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board "
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of the receipt of this Order,
what steps the Respondent has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges unfair labor prac-
tices not found herein.