Lemon Tree0

National Labor Relations Board - Board Decisions

Sep 7, 1977

231 N.L.R.B. 1168 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joseph Macaluso, Inc., d/b/a Lemon Tree and Retail
Store Employees Union Local 1001, Chartered by
Retail Clerks International Association, AFL-
CIO. Cases 19-CA-8852 and 19-CA-8959
September 7, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On May 23, 1977, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, to
modify his remedy,2 and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Joseph Macalu-
so, Inc., d/b/a Lemon Tree, Seattle, Washington, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order,
except that the attached notice is substituted for that
of the Administrative Law Judge.
i 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 Administrative Law Judge's resolutions with respect to
credihilit' unless the clear preponderance of all of the relevant evidence
c01ltn ices us that the resolutions are incorrect. Standard Dry Wall Products,
Ir' . 91 NLRB 544 (1950), enid. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
'In accordance with our decision in Florida Steel Corporation. 231
NL RB 651 (1977), we shall apply the current 7-percent rate for periods pnor
to August 25, 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to
give evidence, the National Labor Relations Board
231 NLRB No. 91
has found that we violated the National Labor
Relations Act, and has ordered us to post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all these things
except to the extent that membership in a
union may be required pursuant to a lawful
union-security clause.
WE WILL NOT discharge or otherwise discrimi-
nate against any employee for engaging in activity
on behalf of Retail Store Employees Union, Local
1001, Chartered by Retail Clerks International
Association, AFL-CIO.
WE WILL NOT threaten to close our stores if our
employees select that union to represent them.
WE WILL NOT coercively interrogate employees
concerning union activity.
WE WILL NOT fail and refuse to execute the
written contract incorporating the final and
binding agreement we negotiated with that
Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed by Section 7 of the Act.
WE WILL execute, honor, and abide by that
contract and make our employees whole for any
loss of wages and other benefits they may have
suffered by reason of our refusal to execute,
honor, and abide by that contract, plus interest.
WE WILL offer immediate and full reinstate-
ment to Mitzi Perkins to her former job or, if that
job no longer exists, to a substantially equivalent
job, without prejudice to her seniority or other
rights and privileges, and WE WILL make her
whole for all earnings she lost due to our
discrimination, plus interest.
JOSEPH MACALUSO, INC.,
D/B/A LEMON TREE
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge: This
case was heard at Seattle, Washington, on March 3 and 4,
1977. The charge in Case 19-CA-8852 was filed by Retail
Store Employees Union, Local 1001, Chartered by Retail
Clerks International Association, AFL-CIO, herein called
the Union, on August 27, 1976, and a complaint issued
thereon on October 5, 1976. The charge in Case 19-CA-
1168
LEMON TREE
8959 was filed by the same Charging Party on October 13,
1976, and a complaint issued thereon on November 26,
1976. By order dated November 26, 1976, the two cases
were consolidated. The complaints allege that Joseph
Macaluso, Inc., d/b/a Lemon Tree, herein called Respon-
dent, violated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended.
ISSUES
The primary issues are:
1. Whether Respondent through its president, Joseph
Macaluso, violated Section 8(a)(l) of the Act by threaten-
ing employees with closure and sale of its stores before he
would let the Union come in; and by coercively interrogat-
ing an employee about union activity.
2. Whether Respondent violated Section 8(aX3) of the
Act by discharging employee Mitzi Perkins because of her
union activity.
3. Whether Respondent violated Section 8(a)(5) of the
Act by refusing to execute an agreed-upon contract; and
by refusing to bargain with the Union about the effects of
its decision to sell two of its stores on the wages, hours, and
working conditions of the employees in the bargaining unit.
All parties were given full opportunity to participate, to
produce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.'
Upon the entire record of the case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Washington corporation with an office
and place of business in Tacoma, Washington, is engaged
in the retail sale of women's apparel at several locations in
the metropolitan Seattle and Tacoma. Washington, areas.
During the year immediately preceding issuance of the
complaints Respondent's gross sales were in excess of
$500,000 and Respondent purchased materials from points
outside of Washington valued at more than $50,000. The
complaints allege, the answers admit, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
I In its brief Respondent renewed its motion, which had been denied
during the hearing, to keep the hearing open pending receipt of the
deposition of a Federal mediator that was to be taken in connection with a
court case, The renewed motion is denied.
-' The stores were located at Tacoma Mall, Southcenter, Seattle. and the
L niversity District.
' Respondent admits and I find that Macaluso is an agent and supervisor
of Respondent within the meaning of Sec. 2(11 I ) of the Act.
This linding is based on the testimony of Holland. Macaluso averred
that he told emplo)ees he would close the stores down if he couldn't reach
ain agreemenl ilth the tnion that he could live with, hut he denied telling
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged 8(a)(1) Violations
1. Background
During the winter of 1976, the Union engaged in
organizational activity among Respondent's employees. At
that time Respondent operated four stores under the name
Lemon Tree.2 An election was conducted by the Regional
Office of the Board on March 12, 1976, and, on March 22,
the Union was certified as the collective-bargaining
representative of Respondent's employees.
The complaint in Case 19-CA-8852 alleges that on
March 11, 1976 (the day before the election), Respondent's
President Joseph Macaluso 3 threatened employees with
the closure and sale of the stores before he would let the
Union come in. The complaint in Case 19-CA-8959 alleges
that in early August 1976 Macaluso interrogated employ-
ees over the phone about their membership in and activities
on behalf of the Union and similar activities of other
employees.
2. The threat to close
Karen Holland was an employee of Respondent at its
Southcenter store. Shortly before the March 12, 1976,
election Macaluso had a conversation with Holland in the
store about the Union. He told her that if the Union came
in to the store, he would have to close it down because he
couldn't afford to keep it going. He also said that, if the
Union came in, the employees would be without jobs.4
As found above, shortly before the election, Macaluso
threatened to close the stores if the Union came in. In
substance, Macaluso was threatening to close the stores if
the employees selected the Union to represent them.
Macaluso's remark to Holland was not protected free
speech, but was an impermissible threat of economic
reprisal to be taken solely on the Company's own volition.
As such, it was in violation of Section 8(a)(l) of the Act.
N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 617-620
(1969); Boston Pet Supply, Inc., 227 NLRB 1891 (1977);
Jimmy-Richard Company, Inc., 210 NLRB 802 (1974), enfd.
527 F.2d 803 (C.A.D.C., 1975).
3. The interrogation
After the Union was certified, Respondent and the
Union met at a number of negotiating sessions. There was
a meeting on July 6 and another on July 19, 1976.5 About a
week before the July 19 meeting, Macaluso spoke to
Holland on the telephone. He told her that it was illegal for
her to use his phone to talk about union matters to other
his employees that he would close the stores down before he would let the
Union in. As is set forth in more detail in the section of this Decision
relating to the discharge of Mitzi Perkins. I was not impressed with the
candor or credibility of Macalus .In addition. the remarks concerning plant
closedown attributed to Macaluso are consistent with other remarks bh
Macaluso and other supervisors which are detailed below in a discussion of
Respondent's union animus. Holland was a fully credible witness and her
testimony is credited.
As is set forth below, there is a dispute as to whether a final agreement
was reached at those meetings.
1169
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees. Macaluso then asked her whether she had
talked to other employees and she replied that she had.
Macaluso asked who she had talked to and she replied that
it was none of his business. Macaluso told her that the
phone was only to be used for business purposes.6
Macaluso made it clear to Holland that she was not to use
his telephone on her working time in order to conduct
union business. 7
Macaluso may have had justification for seeing to it that
Holland used worktime for work and did not use the
company phone for personal business. However, he went
well beyond such matters when he asked her who she had
talked to about the Union. In the context of the previous
remark by Macaluso, that the stores would close if the
Union came in, Macaluso's questioning of Holland
concerning whom she had spoken to about the Union was
not an isolated incident s but was coercive interrogation
concerning union activity. Such interrogation is violative of
Section 8(a)(l) of the Act. Boston Pet Supply, Inc., supra.
B. The Alleged 8(a)(3) Violation: The Discharge of
Perkins
I. Perkins' union activity and Respondent's
knowledge thereof
Mitzi Perkins was employed by Respondent as a
salesperson at the Tacoma Mall store from July 6, 1975,
through May 27, 1976, when she was discharged. Perkins
was active on behalf of the Union. Though it is not clear
from her testimony, it appears that the activity took place
before the election of March 12, 1976. She credibly averred
that she went to union meetings, signed a card, and voted.
In addition, she credibly averred that she encouraged other
employees to support the Union and attend meetings.
Respondent knew that Perkins supported the Union.
Respondent's general manager, Maxine Donahoe,9 ac-
knowledged in her testimony that she knew, while Perkins
was still working for Respondent, that Perkins was
involved in union activities.
Theresa White, the manager of the Tacoma Mall store,
also knew that Perkins was active for the Union. In May
1976 she told Assistant Manager Shauna Walker that
Perkins was conceited, thought she knew everything, and
was making trouble for Macaluso through the Union.'0
Macaluso also knew of Perkins' union activity. In May
1976, Respondent's manager, Norma Roseth, t ' told Hol-
land of a conversation she had with Donahoe, Macaluso,
and Macaluso's wife. Roseth told Holland that the people
involved in that meeting said that Perkins would be
" Holland testified that before that time employees were allowed to use
the phone for personal reasons. However, she did not indicate in her
testimony whether her belief in that regard was based on something told her
by a supervisor or on her own personal opinion. Nor did she testify that
supervisors knew that the telephone had been used previously for personal
calls.
These findings are based on the credited testimony of Holland.
In this regard I have also considered the matters relating to the
discharge of Perkins as described below.
" The parties stipulated and I find that all of Respondent's managers
were supervisors within the meaning of the Act. There was no stipulation
concerning assistant managers.
"' This finding is based on the credited testimony of Walker. White did
not testify.
terminated because they believed that she was a ringleader
of the union movement. Roseth also told Holland that she
knew that Holland was a friend of Perkins, that she was
concerned because she knew that Holland was involved in
the Union, and that she didn't want Holland fired for the
same reason.2 Macaluso was not hesitant to tell people
about Perkins' union activity. In early June 1976, after
Perkins was discharged, she began to work at Bernie's
Store in Tacoma Mall under Brice Dudman. Macaluso
came into that store on a social visit and saw Perkins there.
Macaluso told Dudman that Perkins had been involved in
union activity in Respondent's organization and suggested
that Dudman pass that information on to the people he
worked for.13
2. Respondent's union animus and remarks by
supervisors indicating a causal connection between
Perkins' union activities and her discharge
Respondent harbored a virulent animosity against the
Union. As found above, that animus manifested itself in
Macaluso's threat on or about March 11, 1976, to close the
stores if the employees selected the Union to represent
them; in Macaluso's coercive interrogation of Holland
concerning union activities in mid-July 1976; in White's
statement to Walker in May 1976 that Perkins was making
trouble for Macaluso through the Union; in Roseth's
statement to Holland in May 1976 that Donahoe and the
Macalusos said they would terminate Perkins because they
believed that she was the ringleader of the union move-
ment; by Roseth's statement to Holland that she knew that
Holland was involved in the Union and didn't want
Holland fired for the same reason; and by Macaluso's
suggestion to Dudman in early June 1976 that Dudman
pass on to the people he worked for the information that
Perkins had been involved in union activity in Respon-
dent's organization.
In addition, there were other matters indicating Respon-
dent's hostility toward the Union. In mid-July 1976
Macaluso told Holland that if the Union came in he would
close the stores,' 4 and at one of the managers meetings
Macaluso again said that he would close the stores if the
Union came in.t 5 During the spring or summer of 1976
Manager Debbie Johnston told employee Kim Rogers that
Macaluso said there would not be a union in the store and
that if the stores went union they would be closed down.' 6
On another occasion Manager Sunny Rutherford told
" I find that Roseth was a supervisor within the meaning of the Act.
i2 The above findings are based on the credited testimony of Holland.
Roseth did not testify.
13 This finding is based on the credited testimony of Dudman. Macaluso
in his testimony acknowledged that he told Dudman that Perkins was
involved with union activities that were quite heavy in Respondent's store.
14 This finding is based on the credited testimony of Holland. I do not
credit Macaluso's testimony to the contrary.
15 This finding is based on the credited testimony of Lorraine Dawson,
who at the time was an assistant manager. I do not credit Macaluso's
testimony that he told them he would close if he couldn't reach a contract
that he would live with.
16 This finding is based on the credited testimony of Rogers. Johnston
did not testify.
1170
LEMON TREE
Rogers not to go to a union meeting because if Macaluso
found out who went that person would probably be fired.17
Sometime before the election General Manager Maxine
Donahoe told a number of employees that Macaluso was
going to do better things for them than the Union could
and that the stores were definitely not going union.18 In
November 1976 Macaluso had a conversation with Rogers
in which the Union was discussed. In the course of that
conversation Rogers asked for a reference and Macaluso
answered that he would not give a reference to the ones
who caused him a lot of problems and that they had black
marks by their names.' 9 Shortly before the union meeting
on July 19, 1976, Macaluso called his managers together
and asked them to find out what was discussed at the union
meetings and at a managers meeting in August 1976
Macaluso asked Assistant Manager Dawson to find out
what was discussed at the union meetings.20
3. Respondent's defense to the 8(aX3) allegation
a. Background
Respondent's General Manager Maxine Donahoe testi-
fied that she made the decision to discharge Perkins, that
she did terminate Perkins, and that she then told Macaluso
what she had done. Respondent's president, Macaluso,
testified that he was not involved in any way with Perkins'
discharge. He averred that Donahoe consulted him about
Perkins' discharge and told him that she was firing Perkins.
However, the Union's organizing director, Steve Gouras,
testified that he had a telephone conversation with
Donahoe on May 28, the day after Perkins was fired, in
which they discussed the discharge and Donahoe said that
she had checked with Macaluso and Macaluso had told her
to fire Perkins. Donahoe, in her testimony, acknowledged
that she had a conversation concerning Perkins' discharge
with Gouras but she averred that she did not remember
what was said. I credit Gouras' testimony to the effect that
Donahoe admitted to him that it was Macaluso who
decided to terminate Perkins, and I do not credit the
testimony of Donahoe and Macaluso to the contrary. 21
Donahoe testified that she, on her own authority,
discharged Perkins because Perkins took garments out of
the store without proper authorization. Donahoe averred
that additional reasons for the discharge were that Perkins
didn't get along well with White and that Perkins returned
to the store at unauthorized times.
b. Perkins' ability to get along with White
Donahoe testified that Perkins didn't get along well with
White, her immediate supervisor. However, Donahoe did
not give any details of that relationship on which an
evaluation could be based. It does appear that White felt
some hostility toward Perkins. In May 1976 White told
r1 This finding is based on the credited testimony of Rogers. Rutherford
did not testify.
L' This finding is based on the credited testimony of Rogers.
"' This finding is based on the credited testimony of Rogers.
2. These findings are based on the credited testimony of Dawson.
Macaluso's testimony to the contrary is not credited.
1' As found below. Donahoe admitted to Perkins that Macaluso felt the
matter was so important that she (Perkins) had to be fired.
Assistant Manager Walker that Perkins was conceited,
thought she knew everything, and was making trouble for
Macaluso through the Union. It thus appears that one of
the reasons for White's hostility toward Perkins was her
belief that Perkins was engaging in union activity.
c. Perkins' return to the store at unauthorized times
Donahoe testified that White reported to her that Perkins
returned to the store at unauthorized hours. Donahoe gave
no further details, and White did not testify.
In mid-May 1976 Assistant Manager Walker called
Perkins on the telephone one evening and asked for her
help with certain procedures on the cash register. Perkins
said that she would come in the next morning. The next
morning, Perkins came into the store at a time when she
was not scheduled to work and helped on the register. She
was there 15 or 20 minutes and while in the store she
cashed a personal check.22 As she was walking out,
Supervisor White saw Perkins and asked her what she was
doing there. Perkins told her and White replied that
Perkins was not to do it again.23 Donahoe acknowledged in
her testimony that Perkins was not given a warning for
returning to the store at unauthorized times. She also
testified that White did not tell her why Perkins had
returned to the store.
d. The removal of garments from the store
Perkins went on vacation from about May 19 through
May 24, 1976. On May 18, Perkins' last workday before her
vacation, she asked Assistant Manager Walker for permis-
sion to take a pair of shorts and a dress with her on her
vacation and to pay for them on the first payday after she
got back. Store Manager White was not in the store at the
time. Walker told Perkins that it would be all right. Perkins
expressed concern that she would get in trouble with
White, and Walker replied that she would explain it to
White. Perkins took both garments and tore off part of the
sales tag on each. She wrote her name on the back of the
parts of the tags she removed and placed them behind the
register area in a closet where employees' purses and other
important things were kept. Later that day, Perkins
returned to the store and asked Walker whether Walker
had been able to reach White. Walker replied that she had
not, but that she would take full responsibility.24
Later that evening, White came into the store and
Walker told her that she had given permission for Perkins
to take the two garments and pay for them when she got
back from her vacation in California. White replied that
Walker had no right to give Perkins that authorization and
that Perkins would hear about it when she got back.
Perkins returned from vacation on or about May 25,
1976. She told White that the dress had a stain on it and
had not been worn. Part of the price tag was still on the
22 Respondent permitted employees to cash personal checks.
21 These findings are based on the credited testimony of Perkins.
24 The above findings are based on the credited testimony of Walker and
Perkins. Though there was some discrepancy between their testimony. the)y
agree that Perkins was very concerned about White's reaction and that
Walker either told Perkins not to worry about it or told her that she
(Walker) would take full responsibility.
1171
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dress. Perkins said she wanted to return the dress and pay
for the shorts on the following payday. White said that she
would talk to Perkins later.
On May 27, 1976, White gave a written warning about
the incident to Walker and told Walker that Perkins was
going to get a written warning and was also going to be
fired that evening. On the same date, White told Perkins
that she was fired because she did not write up her receipt
or pay for the merchandise before leaving the store. Perkins
replied that she had authorization from Walker. White said
that it was not good enough and that Perkins should have
known the store policy. White also said that Donahoe and
Macaluso felt there was nothing they could do about it.
Perkins asked why she was being fired for talking
merchandise out of the store when it was all right for
Walker and White to do the same thing. White replied that
it was because she (White) was manager.
On May 28, 1976, the day after the discharge, Perkins
called Donahoe on the telephone and asked why she was
fired for such an inadequate reason. Donahoe replied that
Perkins had been there the longest and should have known
store policy. Perkins complained that she was being fired
for doing the same thing that the manager and assistant
manager did. Donahoe then said that Macaluso felt that it
was too important a matter to let go and that she was to be
fired. Perkins asked about the store policy which required
three warnings before discharge, and Donahoe replied that
it was too important and there was nothing she could do
about it.25
Donahoe testified that there was an outstanding store
policy to discharge anyone who took garments out of the
store without authorization from her or from Macaluso.
She averred that she did not know whether or not that
policy was in writing. Both Perkins and Walker testified
that they were unaware of any such policy.
On May 28, 1976, the day after the discharge, Union
Organizing Director Gouras spoke to Donahoe on the
telephone about Perkins' discharge. Gouras asked Dona-
hoe why Donahoe terminated Perkins. Donahoe replied
that Perkins had violated store policy by taking some
clothing out of the store without permission. Gouras asked
whether Donahoe knew that Walker had given Perkins
permission. Donahoe replied that it was immaterial and
that she had checked with Macaluso and he said to fire her.
However, in a written statement of position dated Septem-
ber 10, 1976, which was given by Respondent's counsel to
the Regional Office, the following statement appears:
Upon her return, Perkin was discovered wearing
apparel which she had taken with her to California. She
was discovered by store manager Teresa White. White
asked her to explain why the merchandise was being
returned and Perkin claimed that she had been given
permission to take the merchandise with her on
vacation by an assistant store manager. Perkin had
admittedly not written up any purchase record or sales
slip of any kind. This was in violation of an employer
rule that no merchandise was to leave the store without
23 Donahoe acknowledged in her testimony that store policy did call for
three warnings before discharge. She averred that that policy applied to such
matters as coming to work late, taking overlong breaks, and not doing
being written up in some form. A check with the
assistant manager concerned did not establish that she
had permission to take the merchandise from the store
or with her on vacation.
e. Conclusions with regard to the discharge
As is set forth in detail above, Perkins was active on
behalf of the Union and Respondent knew of that activity.
Indeed, Supervisor Roseth's admission to Holland that she
(Roseth) overheard Donahoe and the Macalusos' conversa-
tion about terminating Perkins because they believed that
she was the ringleader of the union movement, indicated
that they were under the impression that Perkins was even
more active on behalf of the Union than she had in fact
been. Respondent harbored a virulent animosity against
the Union. That animus manifested itself in numerous
threats to close the stores if the employees selected the
Union, in coercive interrogation, and in the many other
ways described above. Perkins' name often came up in
connection with Respondent's expression of hostility
against the Union. Thus, White told Walker in May 1976,
the month in which Perkins was discharged, that Perkins
was making trouble for Macaluso through the Union;
Roseth told Holland that Donahoe and the Macalusos said
they would terminate Perkins because they believed she
was the ringleader of the union movement; and Macaluso
attempted to cause difficulties for Perkins in her new
employment after her discharge by telling her supervisor
that Perkins had been involved in union activity. Some of
Respondent's expressions of hostility against Perkins for
her union activity occurred shortly before and others
shortly after her discharge. The remark of Supervisor
Roseth to Holland, to the effect that Donahoe and the
Macalusos said that they would terminate Perkins because
they believed that she was the ringleader of the union
movement, not only established Respondent's union
animus but also was an admission that Respondent's top
management decided to discharge Perkins because of her
union activity.
When viewed in the light of the matters set forth above,
Respondent's defenses are totally unconvincing. Perkins
did return to the store when she was not scheduled to work.
However, she did so for a legitimate reason and at the
request of the assistant manager. In addition she was never
reprimanded for that matter.
Supervisor White did not get along well with Perkins.
However, as White explained the situation to Walker,
Perkins was making trouble for Macaluso through the
Union.
Perkins did take two garments from the store without
prior approval from Macaluso or Donahoe. However, she
did so with the permission of Assistant Manager Walker.
There was no attempt to take the garments surreptitiously.
Perkins put her name on the halves of the sales tags that
were removed and placed them in a safe place in the store.
Assistant Manager Walker explained the situation to
Manager White on the same day and it was clearly
understood that Perkins, with the permission of Walker,
proper housekeeping duties. She further averred that unauthorized removal
of merchandise was not among the things covered by the three-warning
policy.
1172
LEMON TREE
was to pay for the garments on the first payday after her
return from vacation. Respondent's initial position, as
reflected in the statement to the Regional Director, was
that the assistant manager did not authorize the removal of
the garments. Respondent abandoned that claim at the
hearing and the shift in position indicates a groping for
excuses to validate the discharge. After Perkins was
discharged, Macaluso warned her new employer about her.
He did not mention anything about Perkins' unauthorized
return to the store, about her inability to get along with her
supervisor, or about her taking garments without proper
authorization. All he spoke about was the fact that she was
a union activist.
I find that the reasons advanced by Respondent to
explain the discharge were simply pretexts. I further find
that Respondent discharged Perkins because of her union
activity.
C. The Alleged Refusal To Execute an Agreed-
Upon Contract
I. Background
On March 22, 1976, the Union was certified as the
collective-bargaining representative of Respondent's em-
ployees in the following unit:
All employees of the Employer employed at its Lemon
Tree stores located at 1046 Tacoma Mall, Tacoma,
Washington; 870 Southcenter Mall; 4507 University
Way N.E.; and 1018 Pike Street, Seattle, Washington;
excluding all office clerical employees, guards, and
supervisors as defined in the Act.
Representatives of Respondent and the Union met for
their first negotiating session on May 5, 1976. One of the
Union's initial proposals at that meeting called for a health
and welfare plan under the Retail Clerks welfare trust. A
number of meetings were held between then and June 30,
1976. At a meeting on June 11, 1976, the Union offered a
different health and welfare program under the Seattle
Department Stores health and welfare plan. There was
further discussion of the plan at a meeting on June 16,
1976. The parties had their first meeting at the office of
Federal Mediator Hammond on June 30, 1976. On that
date, Union Vice President John Rickard and Union
Secretary-Treasurer Edgar Hardy represented the Union.
Macaluso was there for Respondent. Hardy had not
previously attended any of the bargaining sessions but he
was there on June 30 and on subsequent dates. Respon-
dent's accountant, Atle Foss, was not present at the June
:, This finding is based on the credited testimony of Rickard and Hardy.
In his initial testimony Macaluso averred that health and welfare and other
minor items were left open. However, later in his testimony he answered
"yes" to the question. "The only thing you were hung up on as ofJuly 6 and
July 19 was health and welfare?"
!7 The findings with regard to that remark are based on the credited
testimony of Rickard. Hard) did not mention that remark in his testimony
hut he did credibly aver that after agreement was reached on each of the
issues he told Macaluso that he would present the agreement to the
employees for ratification and that he would send a contract to Macaluso
with the language they had agreed to tie also averred that Macaluso said
"fine."
2~ All ot the findings relating to the July 6 meeting are based on the
30 or July 6 meeting but he was a representative of
Respondent at previous meetings and at a meeting on July
19, 1976. By the end of the June 30, 1976, meeting the
parties had reached agreement on a number of items. They
had been working from a proposed contract and had
reached agreement on all but six of the contract items.
Those six involved a health and welfare plan; a dental
plan; an incentive program; a provision for managers' pay;
wages; and a cost of living formula. As that meeting
concluded, Union Secretary-Treasurer Hardy offered
Macaluso a package proposal to settle all six unresolved
issues. Macaluso was to consider those proposals before
the next meeting.
2. The July 6 and 19, 1976, meetings and the
refusal to sign the contract
On July 6, 1976, Union Representatives Rickard and
Hardy met with Respondent's representative Macaluso at
Federal Mediator Hammond's office. They discussed each
of the six items contained in the Union's package proposal
to settle all the unresolved contract issues. As to each of the
items, except health and welfare, Macaluso indicated that
it looked all right to him and that he would be able to live
with it. As of that point, the only unresolved item related to
the health and welfare program. 26 As to the health and
welfare plan, the Union's proposal called for an effective
date of September I. Macaluso took the position that a
September I effective date would require him to make
contributions for extra employees who were hired for the
busy "back-to-school" period. Hardy replied that the
Union had originally proposed a June I date and had
moved that to September 1, but that the Union was willing
to go to October I to get over the last stumbling block.
Hardy also said that an October I date would get
Respondent beyond the back-to-school period. Macaluso
replied that that would be okay. That was the last topic
discussed. As they were leaving the room, Hardy said,
"Well, I think that wraps it up" and Macaluso replied,
"Yes, I guess it does."2 7 Hardy told Macaluso that he
would get copies of the contract to him and that the Union
was going to take it to the membership for a ratification
vote. No future negotiation sessions were scheduled. 28
On July 7 or 8, 1976, Federal Mediator Hammond called
Hardy on the telephone and told him that Macaluso
wanted a meeting so that his accountant could go over and
understand the contract and could ask questions about it.
A meeting was scheduled for July 19, 1976.
Hardy sent two copies of the contract to Macaluso with
the following covering letter dated July 9, 1976:
credited testimony of Rickard and Hardy. Macaluso testified that a number
of issues including health and welfare were left unresolved at the July 6
meeting. In further testimony he acknowledged that the only thing the' were
"hung up" on was health and welfare. Macaluso testified that at the end of
the July 6 meeting he could not understand the scribbling on the working
draft on the contract and he asked that a new draft be mailed to him; that
they agreed to meet again on July 19 to go over the clean draft with
Respondent's accountant: that nothing was said about an agreement being
wrapped up; and that there was no agreement. As indicated by the findings
above which relate to the 8(aX3) violation. I was not impressed with
Macaluso's candor. I do not credit his assertions with regard to the July 6.
1976, meeting.
1173
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Enclosed are two copies of the Lemon Tree contract we
have drafted with the language that has been agreed to
in the various meetings of negotiations.
We will talk with you on Monday, July 19, 1976, at the
Federal Mediation office, to go over any question you
might have concerning the draft contract.
On July 19, 1976, Union Representatives Rickard and
Hardy met with Respondent's representative, Macaluso,
and Respondent's accountant, Atle Foss, at Federal
Mediator Hammond's office. Union Organizing Director
Steve Gouras was also present. During the meeting Foss
asked for clarification of a number of items in the contract.
Hardy explained the holiday pay clause and a number of
other clauses. Foss said that he saw that the effective date
on the health and welfare clause was October I based on
September hours. Hardy replied that that was a compro-
mise they had reached with Macaluso at the last meeting.
Foss turned to Macaluso and asked if that was correct and
Macaluso indicated that it was. At no time during the
meeting did Foss or Macaluso deny that a full agreement
had been reached. As Macaluso and Foss were leaving the
meeting Hardy told them that he had scheduled a meeting
of the employees that evening to ratify the contract and
that the day after the ratification he would sign and send
contracts to Respondent for Macaluso's signature.
The findings relating to the July 19 meeting are based on
the testimony of Hardy and Rickard. Respondent argues
that Rickard should not be credited because his notes of
the meetings show only areas of disagreement and his notes
for July 6 list health and welfare benefits. It is true that
Rickard's notes for June 30 do list the six areas of
disagreement. However, his notes for July 19 show
clarifications and not disagreements. In any event the
limited and sketchy notes available do not establish any
uniform pattern upon which Respondent's argument can
be premised. Macaluso testified that Foss went over such
items as wages, cost of living, and health and welfare; that
after discussing those issues Foss said he couldn't accept
the health and welfare; that Hardy went into a rage; that
Gouras said he was going to file charges; that the Federal
mediator took Macaluso and Foss into another room; and
that the parties did not meet again that day. Respondent's
accountant, Foss, corroborated the substance of Macalu-
so's testimony. According to Foss, he told the union
representatives that the health and welfare was not
acceptable and Macaluso added that they could not handle
it; Hardy became very inflamed and said, "Hell, everything
has been finalized and agreed upon here and you are here
to sign"; Gouras threatened to bring unfair labor practice
charges unless Macaluso signed the contract that day; the
mediator took Foss and Macaluso to another room; and
there was no further meeting that day. I do not believe that
Macaluso was a credible witness and I therefore cannot
place much reliance on his testimony. With regard to the
July 19 meeting, much of Macaluso's testimony is corrobo-
rated by Foss. However, Foss' demeanor on the witness
stand did not inspire confidence. In addition Foss'
2N These findings are based on the credited testimony of Hardy.
Macaluso in his testimony acknowledged that Hardy told him to sign the
contracts and mail them back, and that he told Hardy to go jump in the
river.
assertions, that Hardy told the company representatives
"you are here to sign" and that Gouras demanded that the
contract be signed that day, are difficult to believe in light
of the Union's July 9 letter setting up the meeting which
made no mention of signing, and the fact that the
employees had not yet ratified the contract. I credit Hardy
and Rickard and do not credit Macaluso and Foss.
On the evening of July 19, 1976, Respondent's employees
met at a ratification meeting and voted to accept the
contract. On the following day, July 20, 1976, Hardy called
Macaluso on the telephone and told him that the contract
had been ratified. Hardy said that he was sending
Macaluso five copies of the signed contract and he asked
that Macaluso sign and send back three of them. Macaluso
then replied, "Well, I know that we bargained in good faith
but I don't know if I have the bucks to pay the people."
Hardy answered that they had a contract and that it would
be in the mail for his signature. Macaluso responded by
going into details of his financial problems. Hardy said that
he did not have any control over Macaluso's problems with
his bankers, but that he represented the people and he was
sending the contract to him for signature. 29 Also on July
20, 1976, Hardy sent five copies of the contract, 30 which he
had already signed, to Macaluso with a covering letter that
asked Macaluso to sign and return three copies.
Hardy was on vacation during the first few weeks of
August. When he returned he was told by Gouras that the
contract had not been implemented and the employees
were not receiving the benefits. Hardy checked the file and
saw that he did not have a copy of the contract signed by
Macaluso.
On August 23, 1976, Hardy called Macaluso on the
telephone and Macaluso said that he was not going to sign
the contract.
3. Conclusions with regard to the agreed-upon
contract
As found above, Respondent and the Union reached full
agreement on all contract terms at the collective-bargain-
ing session of July 6, 1976. At the meeting on July 19 the
Union answered Respondent's questions regarding the
working of the contract and that evening Respondent's
employees voted to accept the contract. As of that
ratification, Respondent and the Union had a complete
and binding agreement. The following day, July 20, 1976,
in a conversation about the contract, Macaluso told Hardy
that he didn't have the "bucks" to pay the people.
Macaluso was implying that he would not sign the
contract.31 On August 23, 1976, Macaluso explicitly told
Hardy that he would not sign the contract. (The terms of
the agreement are set out in G.C. Exh. 4-B.)
Under Section 8(d) of the Act, the duty to bargain
collectively includes "the execution of a written contract
incorporating any agreement reached if requested by either
party." As found above, the parties had reached a full
agreement, and, as of July 20, 1976, Respondent had an
obligation to execute a written contract incorporating that
agreement. Respondent failed and refused to do so.
30 That contract is in evidence as G.C. Exh. 4-B.
a3 Indeed, Macaluso testified that he told Hardy tojump in the river.
1174
LEMON TREE
I find that Respondent violated Section 8(a)(5) and (1) of
the Act by refusing to execute an agreed-upon contract.
D. The Alleged Refusal To Bargain About the
Effects of the Decision to Sell the Stores
I. The facts
The bargaining unit consisted of four stores. Those stores
were located at Tacoma Mall, Southcenter, downtown
Seattle, and the University district. During the third week
in September 1976, Respondent closed the Tacoma Mall
store and near the end of September it closed the
Southcenter store.32 The store closures followed the sale of
the stores (or the store leases) to a company that was not
involved in this proceeding.
At the first negotiating session, which was held on May
5, 1976, Respondent's representatives told the Union that
the stores were losing money and that Respondent was
trying to sell the stores. At a meeting on or about June II1,
1976, Respondent's representatives told the Union that
Respondent had a buyer looking at the stores at that time
and that the buyer had a lot of money. At that time
Macaluso said, "He's got a lot of bucks. Why don't you
wait until we have sold the stores and then negotiate with
him?" The union representative replied in the negative.
Macaluso then said, "Look, we almost have them sold.
Give us a break. We are using bank money now to meet the
payroll. The stores are going to be sold. It isjust a matter of
time." :3 At a number of meetings Macaluso spoke of
selling the stores but the union representatives never
requested to discuss such matters as severance pay with
Respondent.
On August 23, 1976, Hardy asked Macaluso to sign the
contract and Macaluso refused. In that conversation
Macaluso said that he was talking to some people from
California about the possibility of selling some of the
stores. Hardy asked for the name of those people and
Macaluso said that he wouldn't tell him. Hardy said that
even if Macaluso sold the stores, Macaluso would have the
obligation to sign the contract and abide by it from its
effective date. Hardy also said that Macaluso had an
obligation to notify the Union if he decided to sell and to
bargain concerning the effects that the sale would have on
wages, hours, and working conditions of employees.
Macaluso repeated that he was not going to sign the
contract and that he was going to get rid of the stores. He
said that the stores were not profitable. Hardy then said
that if Macaluso refused to sign the Union would file
charges.:34
As set forth above Respondent did sell the Tacoma Mall
and the Southcenter stores. They were both closed in the
latter part of September 1976. A few weeks later, Hardy
learned from employees that the two stores had been
closed. On October 13, 1976, he filed the unfair labor
practice charge in Case 19-CA-8959.
Macaluso sent the Union a letter dated October 22, 1976,
which read:
A, Shortli before the date of the hearing. Respondent closed the
University store. However, there is no contention that Respondent violated
the Act with regard to the closing of that store.
T" hese findings are based on the uncontradicted testimony of Foss.
In July 1976, I learned from the representative of
Allied Stores Corporation that my Southcenter lease
would not be renewed when it came up in approximate-
ly one and one-half years. Prior to that time, I had been
approached by a representative of Wilson's House of
Suede and Leather about the purchase of my Tacoma
Mall and Southcenter locations. I had told them I was
not interested unless I could sell all four stores.
However, when I learned that the Southcenter lease
would not be renewed, I was forced to reconsider my
situation.
In August of 1976, 1 participated in negotiations with
Wilson's and, late in August, we reached agreement for
the sale of my leasehold interests at the Tacoma Mall
and Southcenter stores. The agreement provided that I
was to vacate by September 30.
I was unaware of any obligation to notify your
organization as to the final decision to sell and close
these stores. I am willing to meet with you and bargain
concerning the effects of these closures upon the
bargaining unit employees, upon your request.
Counsel for the Union responded with a letter dated
October 28, 1976, which read:
This will acknowledge receipt of your letter dated
October 22, 1976, in which you notify us that you have
reached an agreement for the sale of your leasehold
interests at the Tacoma Mall and Southcenter. Your
notification to us occurs some two months after your
agreement was consummated, a month after the stores
were closed, and after we had filed unfair labor practice
charges against you with the National Labor Relations
Board with respect to your unilateral determination to
close and the store closures.
Also pending at the National Labor Relations Board
are charges relating to your failure to execute the
agreement reached by us covering employees in the
unit recently certified by the Board. In connection with
those charges, the Regional Director has issued a
complaint which alleges threats of store closure in the
event Union organization was successful. In view of
these threats, our successful organization of your stores,
your repudiation of the agreement reached in negotia-
tions, and your failure to notify us of your decision to
sell the leasehold interests, you leave us no alternative
but to conclude that you desire to continue your course
of unlawful conduct with respect to your collective
bargaining obligations and employees rights.
In your letter you state that you were unaware of any
obligation to notify us as to the final decision to sell
and close the affected stores. We believe that this
belated statement is self-serving, somewhat doubtful,
and in any event irrelevant. We believe under the law
that you must restore the status quo prior to the
closure, compensate employees for all pay lost, and
continue to operate those stores until such time as your
:14 These Findings are based on the credited testimony of Hardy.
Macaluso testified that he might have had a conversation on August 23 with
Hardy about the closing of the stores. but that he did not recall such a
conversation.
1175
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining obligation has been satisfied, and we insist
that you now do so.
In the meantime, we would be pleased to meet and
discuss all aspects of our relationship with you,
including the status of these store closures and your
bargaining obligations with respect to them. Please
contact me at your early convenience to arrange such a
meeting.
Macaluso sent the Union a letter dated November 16,
1976, which read:
In your letter of October 28, 1976, you state that the
union insists that I restore the status quo prior to the
closure of the Southcenter and Tacoma Mall stores,
compensate the employees for all pay lost and continue
to operate those stores until my bargaining obligation
has been satisfied. I must reject your demand that I
reopen the stores since it is impractical. With respect to
compensation of the employees who were not trans-
ferred to our other stores, I am willing to meet and
bargain with you concerning the effects of the closure
upon them, including any proposals you make for
severance pay or other compensation.
In response to your indication of a willingness to
meet and negotiate with respect to the store closures, I
have contacted Commissioner Douglas Hammond of
the FMCS, and arranged to meet with representatives
of your organization on Tuesday, November 23, 1976,
at his office at 1:30 p.m. If this date is not agreeable, I
ask that you contact Commissioner Hammond and
have him set up a meeting time and date which is
acceptable to all. I am available on any afternoon next
week.
Representatives of Respondent and the Union arranged
to meet on November 23, but because of a mixup in the
scheduling, the meeting was actually held about a week
later. At the meeting the parties discussed the effect the
store closings had on the employees. Hardy, on behalf of
the Union, asked for remuneration for some of the
employees. Macaluso, on behalf of Respondent, refused.
Nothing was agreed to at that meeting. The Union did not
ask for any further meetings and none were held.
:15 In The lange Company, A Division of Garcia Corporation, 222 NLRB
558. 563 (1976), the Board affirmed the Decision of Administrative Law
Judge Pannier. which held in part as follows:
Counsel for the General Counsel, however, argues that Respon-
dent's conduct is tainted by virtue of the fact that it had already made
the decision to transfer and lay off employees before advising the
Union. Yet, in no case has the Board held that an employer must defer
making a decision concerning terms and conditions of employment
until it has first conferred with the representative of its employees. The
requirement is that, after reaching the decision, the employer must then
notify the representative and afford the opportunity to discuss that
decision and to consider alternative proposals. Thus, in Ozark Trailers,
Incorporated, 161 NLRB 561 (1966), the Board made it clear that the
illegality lay not in the fact that the employer had first made the
decision before consulting with its employees' representative. The
illegality lay in the implementation of that decision prior to affording
2. Conclusions
The issue raised by the complaint is a narrow one. There
is no contention that Respondent closed his stores to chill
unionism at the remaining stores. The complaint alleges
that in late August 1976 Respondent decided to sell the
stores; that the Union requested to meet and bargain about
the effects of that decision on wages, hours, and working
conditions of unit employees; and that Respondent has
failed and refused to meet and bargain with the Union as
requested.
An employer does have the duty to bargain about a
decision 35 to close part of a bargaining unit and the effects
thereof. As part of that duty the employer must give the
Union advance notice of its intention to close and provide
the Union with a fair opportunity to bargain. P. B. Mutrie
Motor Transportation, Inc., 226 NLRB 1325 (1976). How-
ever, once such notice is given, the Union has to demand
bargaining over the issue in question before a violation of
Section 8(a)(5) can be found. Globe-Union, Inc., 222 NLRB
1081 (1976); The Lange Company, a Division of Garcia
Corporation, supra; American Buslines, Inc., 164 NLRB
1055 (1967). An employer has not met its duty where,
during negotiations, it merely makes a limited reference to
the possibility of a close. Stagg Zipper Corp., et al., 222
NLRB 1249 (1976).
In the instant case Respondent informed the Union in
rather dramatic terms that it intended to sell the stores. At
the very first negotiating session, Respondent informed the
Union that it was losing money and that it was trying to
sell the stores. At a meeting on or about June lI the Union
was told, "Look, we almost have them sold. Give us a
break. We are using bank money now to meet the payroll.
The stores are going to be sold. It is just a matter of time."
Thus from the very first day of negotiations the Union
knew of Respondent's intent. The Union was in a position
to demand that Respondent bargain about severance pay
or any other matter relating to the effects of the closedown.
However, the Union chose not to do so. Negotiations
continued from May 5 through July 6, 1976, when a final
agreement was reached. That agreement did not contain
any provisions for severance pay or other such matters.
The Union had not asked to talk about such things even
though it had been advised by Respondent that the sale of
the stores was just a matter of time. The Union's first
mention of that subject was on August 23, 1976. On that
date Hardy demanded that Macaluso sign the contract and
the representative an opportunity to advance and discuss alternative
courses of action. Id at 568.
This is also illustrated in Moffitt Building Materials Company, et al.,
214 NLRB 655 (1974), where the Board found that the employer had
not violated the Act even though it had made a decision to liquidate its
business without so much as a fare-thee-well to the bargaining
representative, and where the latter then learned of that decision, but
made no effort to bargain with the employer. Id. Similarly. in
Association of Motion Picture and Television Producers, Inc., 204 NLRB
807 (1973), the representative first learned of the decision when it was
announced by the employer. Nonetheless. no violation was found as no
bargaining was thereafter requested by the representative. If, as is
contended in the instant case, it were the making of the decision prior
to consulting with the representative that constituted the violation. then
violations would have been found in both of these cases. See also: A-V
Corporation, 209 NLRB 451, 453454 (1974).
1176
LEMON TREE
Macaluso pled poverty. In the course of that discussion
Macaluso once again talked about selling the stores. Then,
for the first time, Hardy said that Respondent had an
obligation to notify the Union if it decided to sell and to
bargain concerning the effects of the sale on the employees.
Even at that late date, however, Hardy was speaking of
bargaining at some indefinite future time as if a notice of
intention to sell had not already been given. There was no
demand to meet at a particular time and place to discuss
the matter. About a month later Respondent, just as it had
predicted to the Union, sold and closed two of its stores.
Within a few weeks the Union obtained knowledge of that
closure. Instead of demanding bargaining it filed an unfair
labor practice charge. A short time later, Respondent wrote
to the Union stating its willingness to meet and bargain
concerning the effects of the closures upon the bargaining
unit employees. Subsequently, Respondent and the Union
did meet and bargain on that issue. No agreement was
reached and the Union did not ask to meet again.
Viewing these circumstances as a whole I find that
Respondent has not failed and refused to bargain with the
Union about matters related to the store closures as alleged
in the complaint. I shall therefore recommend that that
allegation of the complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with the operations of
Respondent described in section 1, 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 obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discharged Mitzi Perkins
in violation of Section 8(a)(3) and (1) of the Act, I shall
recommend that Respondent be ordered to offer her
reinstatement and to make her whole for any loss of pay
resulting from her discharge by payment to her of a sum of
money equal to the amount she normally would have
earned as wages from the date of her discharge to the date
on which reinstatement is offered, less net earnings during
that period.36 Such backpay shall be computed on a
quarterly basis in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and shall
include interest at 6 percent per annum, as provided in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
:'" Perkins worked in the Tacoma Mall store, which was one of the four
stores in the bargaining unit. That store was closed during the third week in
September 1976. There is insufficient evidence in the record to determine
whether Perkins would or would not have been transferred to another part
of the bargaining unit absent the discrimination against her. If it is
determined in a backpay proceeding that Perkins would have been
ulnconditionally discharged for nondiscnminatory reasons upon the closure
of the Tacoma Mall store, then Respondent's backpay liabilit) is to end on
Having found that Respondent and the Union negotiat-
ed a final and binding agreement and that Respondent
violated Section 8(a)(5) of the Act on and after July 20,
1976, by failing and refusing to execute the written contract
(set forth in G.C. Exh. 4-B) which incorporates that
agreement, I shall recommend that Respondent be ordered
to execute, honor, and abide by that contract.37 I shall
further recommend that Respondent be ordered to give
retroactive effect to that contract to its effective date and
make its employees whole, with 6-percent interest, for any
loss of wages and other benefits3 8 they may have suffered
by reason of Respondent's refusal to execute, honor, and
abide by that contract.
In view of the seriousness of Respondent's violations,
which strike at the very heart of the Act and constitute
conduct from which a likelihood of recurrence of similar
violations may be inferred, I shall recommend that
Respondent be ordered to cease and desist from in any
manner interfering with, restraining, or coercing employees
in the exercise of rights guaranteed to them in Section 7 of
the Act.3 9
It is further recommended that Respondent be ordered
to preserve and, upon request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to analyze the amount of backpay due.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Mitzi Perkins because of her union
activity, Respondent violated Section 8(aX3) of the Act.
4. All employees of Respondent employed at its Lemon
Tree stores located at 1046 Tacoma Mall, Tacoma,
Washington; 870 Southcenter Mall; 4507 University Way
N.E.; and 1018 Pike Street, Seattle, Washington; excluding
all office clerical employees, guards, and supervisors as
defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining.
5. The Union is the duly certified exclusive collective-
bargaining representative of the employees in the above-
described unit.
6. By failing and refusing on and after July 20, 1976,
upon the request of the Union, to execute the written
contract incorporating the final and binding agreement
negotiated with the Union, Respondent violated Section
8(aX5) of the Act.
7. By the above contract, by threatening to close its
stores if its employees selected the Union to represent
them, and by coercively interrogating an employee con-
cerning union activities, Respondent has interfered with,
the date of that store closure and Resp6ndent need not offer her
reinstatement.
37 Cf. H. J. Heinz Compony v. N.LR.B., 311 U.S. 514 (1941).
-3 Included in these benefits are payments to the Health and Welfare
Plan as provided for in the contract. VLR B v. Joseph T Strong, d b a
Strong Roofing and Insulating Co., 393 NLRB 357 (1969).
39 N.L. RB. v. Entwistle Manufacturing Companr. 120 F 2d 532. 536 (C.A.
4, 1941): Boston Pet Supply, Inc., 227 NLRB 1891 (1977).
1177
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restrained, and coerced employees in the exercise of rights
guaranteed to them by Section 7 of the Act, in violation of
Section 8(a)( ) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
9. Except as set forth above, the General Counsel has
not established by a preponderance of the credible
evidence that Respondent has violated the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 40
The Respondent, Joseph Macaluso, Inc., d/b/a Lemon
Tree, Seattle, Washington, its officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for engaging in activity on behalf of Retail Store
Employees Union, Local 1001, Chartered by Retail Clerks
International Association, AFL-CIO.
(b) Threatening to close its stores if its employees select
that union to represent them.
(c) Coercively interrogating employees concerning union
activity.
(d) Failing and refusing to execute the written contract
incorporating the final and binding agreement negotiated
with that union.
(e) In any manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed to
them in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
"' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions. and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
(a) Offer Mitzi Perkins immediate and full reinstatement
to her former job, or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges, and make her whole
for her loss of earnings in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Execute, honor, and abide by the written contract
incorporating the final and binding agreement negotiated
with the Union and make its employees whole for any loss
of wages and other benefits they may have suffered by
reason of its refusal to execute, honor, and abide by said
contract, as is provided in the section of this Decision
entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due.
(d) Post at its stores copies of the attached notice marked
"Appendix."4 1 Copies of the notice on forms provided by
the Regional Director for Region 19, after being duly
signed by Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
41 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
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