Mademoiselle Shoppe, Inc.

National Labor Relations Board - Board Decisions

Oct 24, 1972

199 N.L.R.B. 983 (N.L.R.B. 1972)

MADEMOLSELLE SHOPPE, INC.
Mademoiselle Shoppe, Inc. and Retail Clerks Union,
Local 1460, Retail Clerks International Association,
AFL-CIO
Mademoiselle Shoppe , Inc., Mason Shoe Company,
and Retail Clerks Union, Local 1460, Retail Clerks
International Association, AFL-CIO, Petitioner.
Cases 13-CA-10929 and 13-RC-12488
October 24, 1972
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On June 6, 1972, and June 28, 1972, respectively,
Administrative Law Judge' John F. Funke issued the
attached Decision and the attached Supplemental
Decision and Report on Challenged Ballots in this
proceeding. Thereafter, Respondent Mademoiselle
Shoppe, Inc., Respondent Mason Shoe Company,
and the General Counsel filed exceptions and sup-
porting briefs, and Respondent Mademoiselle
Shoppe, Inc., also filed a brief in answer to the Gener-
al Counsel's exceptions.
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
attached Decision and Supplemental Decision and
Report on Challenged Ballots in light of the excep-
tions and briefs and has decided to affirm the rulings,
findings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order and Sup-
plemental Recommended Order2 with the following
modifications.
1. The Administrative Law Judge failed to make
any findings with regard to allegations of unlawful
employee interrogation and the creation of an impres-
sion of surveillance contained in paragraph 7(i) of the
complaint. He erroneously assumed that these allega-
tions related to the testimony of either Katie Abrams
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 The Administrative Law Judge made certain inadvertent errors in his
Decision and Supplemental Recommended Order, which are corrected as
follows-
In the Administrative Law Judge's Decision p. 3,1.33, change "13-CA-
12488" to "13-RC- 12488", p. 5, I. 15, change "8(f)" to "7(f)"; p 13, 1. 2,
change "April" to "December 1970 "
983
or Dorothy Foster, upon which he had already made
findings, and apparently concluded that further find-
ings based upon the same testimony would be cumu-
lative. The record indicates, however, that paragraph
7(i) actually relates to testimony presented by Bea-
trice Shreve wherein she recalled being approached by
President Alfred Kovach and being asked, in appar-
ent reference to her execution of a union authoriza-
tion card, "Why did you sign?" 3 In our view,
Kovach's inquiry, in light of all the surrounding cir-
cumstances, constitutes employee interrogation and
the creation of an impression of surveillance in viola-
tion of Section 8(a)(1) of the Act. In all other respects,
we affirm the findings of the Administrative Law
Judge with respect to the 8(a)(1) allegations in the
complaint.
2. While we agree with the Administrative Law
Judge that Emily Ortega was discriminatorily dis-
charged in violation of Section 8(a)(3), we find his
suggested remedy, which includes an unqualified of-
fer of reinstatement to any part-time position in the
store, to be excessively broad. The record does not
indicate that Ortega worked anywhere other than in
the downstairs office during her tenure with Respon-
dent, nor does it indicate that Respondent had a prac-
tice of permitting former full-time employees to work
on a part-time basis in departments other than the
departments in which they had previously been em-
ployed.
In our view, Ortega's reinstatement privileges
should be limited to any part-time clerical position
available in the downstairs office. Therefore, para-
graph (2) of the section of the Administrative Law
Judge's Decision entitled "The Remedy" is revised to
read as follows:
(2) Offer Emily Ortega full and immediate rein-
statement to her former job in the downstairs office
or, if that job is not available, to a substantially equiv-
alent job in the downstairs office, without prejudice to
her seniority or other rights and privileges. If Ortega
is not available for full-time work, she shall be offered
employment to a part-time clerical job in the down-
stairs office if any such part-time clerical job is avail-
able. Ortega shall be made whole for loss of pay as a
full-time employee from August 14 to August 28,
1971. She shall be made whole for any loss of earnings
thereafter as a part-time clerical employee for any
part-time clerical job in the downstairs office to which
she would have been appointed except for the dis-
crimination practiced against her. Her losses shall be
3 This event was noted by the Administrative Law Judge in the sentence
referenced by fn. 9 of his Decision, and he concluded in the footnote, as we
do, that Kovach 's question could only have been directed toward Shreve's
execution of an authorization card
199 NLRB No. 147
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
computed on a quarterly basis with interest at 6 per-
cent per annum.
3. In view of the defacement of an official NLRB
"Notice of Election," apparently by the Mason Shoe
Company's President Sol Mason, we agree with the
Administrative Law Judge' s recommendation that the
election held among the employees of the Mason Shoe
Company be set aside and a second election directed.
As set forth more completely in footnote 17 of the
Administrative Law Judge' s Decision , Mr. Mason
himself represented the Mason Shoe Company at the
hearing. At the commencement of the hearing, Mr.
Mason was excused from further attendance with the
assurance that he would be notified prior to any dis-
cussion of the Union's objection relating to his alleged
defacement of the NLRB notice. Through inadver-
tence, such notice was never given and limited testi-
mony by a union official relating to the objection was
received. However, in view of Mr. Mason's absence,
the Administrative Law Judge refused to receive into
evidence a copy of the defaced notice offered by the
Union.
Mr. Mason was nevertheless subsequently given
an opportunity to present his defense. Three weeks
after the close of the hearing, the Administrative Law
Judge issued an Order To Show Cause why the hear-
ing should not be reopened for the purpose of recon-
sidering the rejection of the proffered exhibit and in
order to receive further testimony respecting the ob-
jection. Mr. Mason objected to a reopening of the
hearing apparently because he had reached the inde-
pendent conclusion that due process would not be
forthcoming therein. In view of Mr. Mason's opposi-
tion to a reopening, the Administrative Law Judge
received the formerly rejected exhibit and closed the
hearing.
In our view, the Administrative Law Judge acted
properly and satisfied all due process requirements.
Mr. Mason was given an opportunity to fully litigate
his case before the Administrative Law Judge but
declined to accept the offer for personal reasons. We
also note that, in his brief to the Board, Mr. Mason
does not deny authorship of the handwriting appear-
ing on the notice.
Since we find merit to the Union's objection re-
lating to the defacement of the official NLRB notice,
we shall adopt the Administrative Law Judge's rec-
ommended Order that the election conducted among
the Mason Shoe Company employees be set aside and
a second election directed.
4. In his Supplemental Decision and Report on
Challenged Ballots, the Administrative Law Judge
sustained the challenges to the ballots cast by two
"call-in" employees, Evelyn B. Mazurkiewicz and
Pauline Vuksinic. In the Administrative Law Judge's
view , our decision in Davison -Paxon Company, A Divi-
sion of R. H. Macy & Co., 185 NLRB No. 5, specifical-
ly excludes such employees from the bargaining unit.
In Davison -Paxon, supra, we held that any "call
in" employee , "[w]ho regularly averages 4 hours or
more per week for the last quarter prior to the eligibili-
ty date has a sufficient community of interest for in-
clusion in the unit and may vote in the election ." Since
both Mazurkiewicz and Vuksinic satisfy this criterion,
we shall reverse the Administrative Law Judge, over-
rule the challenges to their ballots , and direct that
their ballots be opened and counted.
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 in Case 13-
CA-10929, as modified below, and hereby orders that
Respondent, Mademoiselle Shoppe, Inc., East Chica-
go, Indiana, its officers, agents, successors, and as-
signs, shall take the action set forth in the said
recommended Order:
1. In view of our modification of "The Remedy"
section of the Administrative Law Judge's Decision,
paragraph 2(b) of his recommended Order is revised
to read as follows:
"(b) Offer Emily Ortega full and immediate rein-
statement to her former full-time clerical job in the
downstairs office or, if such job no longer exists, offer
her full-time employment in a substantially equiva-
lent job in the downstairs office, without prejudice to
her seniority and other rights and privileges. If Emily
Ortega is not available for full-time employment, of-
fer her part-time employment in any clerical job in the
downstairs office operated by a part-time employee if
any such part-time clerical job is available. Make her
whole for loss of earnings or other monetary loss in
the manner set forth in `The Remedy."'
2. Substitute the attached notice marked "Ap-
pendix A" for the notice attached to the Administra-
tive Law Judge's Decision.
UNIT B
IT IS FURTHER ORDERED that the election conduct-
ed in Case 13-RC-12488 on July 22, 1971, in Unit B
be, and it hereby is, set aside, and that said case be,
and it hereby is, served and remanded to the Regional
Director for Region 13 to conduct a new election
when he deems the circumstances permit a free choice
of a bargaining representative.
MADEMOISELLE SHOPPE, INC. 985
[Direction of Second Election and Excelsior
footnote omitted from publication.]
UNIT A
It is hereby directed that as part of his investiga-
tion to ascertain representatives for the purposes of
collective bargaining in Unit A, the Regional Director
for Region 13 shall, pursuant to the Board's Rules and
Regulations, Series 8, as amended, within 10 days
from the date of this Direction, open and count the
ballots of Danette Garza, Mary Ann Pilipovich,
Joanne Robert Britske, Janice Snow, Jackie Cebulski
Rokosz, Marilyn Turich, Emily Ortega, Evelyn B.
Mazurkiewicz, and Pauline Vuksinic, and thereafter
prepare and cause to be served on the parties a revised
tally of ballots, including therein the count of said
ballots. If the Petitioner receives a majority of the
valid ballots cast, according to the revised tally, the
Regional Director shall certify it as the exclusive bar-
gaining representative of the employees in the appro-
priate unit. If the Petitioner does not receive a
majority, the following shall become applicable:
IT IS FURTHER ORDERED that the election conduct-
ed in Case 13-RC-12488 on July 22, 1971, in Unit A
be, and it hereby is, remanded to the Regional Direc-
tor for Region 13 to conduct a new election when he
deems the circumstances permit a free choice of a
bargaining representative.
[Direction of Second Election and Excelsior
footnote omitted from publication.]
as saleslady and we will pay her for any wages
she may have lost because we terminated her
employment to discourage membership in the
Union.
WE WILL offer Emily Ortega her job back as
full-time clerk in the downstairs office or, if that
job no longer exists, we will offer her full-time
employment in a substantially equivalent job in
the downstairs office, without prejudice to her
seniority and other rights and privileges. But, if
she is not available for full-time employment, we
will offer her part-time employment in any
clerical job in the downstairs office operated by
a part-time employee if any such part-time
clerical job is available. We will pay her for any
wages she may have lost because we terminated
her employment to discourage membership in
the Union.
All our employees are free to become or remain
or refrain from becoming or remaining members of
the Retail Clerks Union, Local 1460, Retail Clerks
International Association, AFL-CIO, or any other
labor organization, except to the extent such rights
may be affected by a contract with a labor
organization requiring union membership pursuant to
and lawful under Section 8(a)(3) of the
Labor-Management Relations Act, as amended.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT grant wage increases or other
benefits to our employees to get them to vote
against the Retail Clerks Union, Local 1460, Re-
tail Clerks International Association , AFL-CIO.
WE WILL NOT ask our employees whether
they are for or against a union or about their
membership in or activity on behalf of any union.
WE WILL NOT tell our employees we are re-
ceiving information about their union activity or
that we have a list of employees who signed un-
ion cards.
WE WILL NOT tell our employees that there
would be a layoff or that the store might go bank-
rupt if the Union won the election.
WE WILL NOT call prounion employees trou-
blemakers.
WE WILL offer Beatrice Shreve her job back
Dated By
MADEMOISELLE SHOPPE, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60
consecutive days from the date of posting and must
not be altered, defaced, or covered by any other
material.
Any questions concerning this notice or
compliance with its provisions may be directed to the
Board's Office, Everett McKinley Dirksen Building,
Room 881, 219 South Dearborn Street, Chicago,
Illinois 60604, Telephone 312-353-7572.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner: These proceedings
were brought before the National Labor Relations Board,
herein the Board, upon:
1. A charge and an amended charge in Case 13-CA-10
929 against Madamoiselle Shoppe, Inc., herein the Respon-
dent, by Retail Clerks Union, Local 1460, Retail Clerks
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association, AFL-CIO, herein the Union,
filed October 5 and December 8, 1971, respectively.
2. Complaint by the General Counsel in Case 13-
CA-10929 alleging Respondent violated Section 8(a)(1) and
(3) of the Act issued February 14, 1972.
3. An answer of Respondent denying the commission
of any unfair labor practices dated February 23, 1972.
4. Amendment to the complaint and answer thereto
received at the hearing.
5. Petition for an election filed by the Union in Case
13-RC-12488 on June 8, 1971.
6. Stipulation for certification upon consent election,
dated July 9, and an election held July 22, 1971.
7. Union's objections to election filed July 26, 1971.
8. Report on objections to the election and challenges
and order consolidating cases dated February 17, 1972.
9. Hearing held before me at Chicago, Illinois, on
March 22, 23, and 24, 1972.
10. Briefs received by me from the General Counsel,
Respondent and the Union on May 22, 1972.
Upon the entire record in this case I and from my
observation of the witnesses while testifying, I make the
following:
FINDINGS
I THE BUSINESS OF RESPONDENT
Respondent is an Indiana corporation maintaining
places of business in East Chicago, Indiana, where it is
engaged in the retail sale of women's and children's apparel.
Its gross revenues for a representative year are in excess of
$500,000 and its purchases of goods from places outside the
State of Indiana are in excess of $5,000.
Respondent is engaged in commerce within the
meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Issues
The issues presented in Case 13 -CA-10929 are wheth-
er:
1. Respondent engaged in speech and conduct which
interfered with, restrained , and coerced its employees in the
exercise of the rights guaranteed by Section 7 as set forth in
paragraph 7(a) through (v) of the complaint .2
2. Whether Respondent discharged Emily Ortega and
Beatrice Shreve in violation of Section 8(a)(3) and (1) of the
Act.
The issues presented in Case 13-CA-12488 are wheth-
i The motion of the General Counsel and of counsel for Respondent to
correct the record is hereby granted.
2 At the close of the heanng subparagraphs (a) and (n) were withdrawn
er:
1. Respondent engaged in conduct which prevented the
holding of a free election as set forth in the objections to
election.
2. The resolution of the challenged ballots which are
determinative of the results of the election.
B. Violations of Section 8(a)(1)
Paragraphs 7(b) and 7(c), identical, promising and
granting a wage increase : Katie Abrams, employed in
markup and layaway, testified that on or about June 11,
1971,3 she had a conversation with Alfred Kovach,
Respondent's president, in his office in the presence of Dor-
othy Foster. Kovach told them that he was going to make
them supervisors of their departments with an increase of
about $25 per week. When she told Kovach she had no one
to supervise he told her he would hire a schoolgirl to help
Foster, and, when the girl was not helping Foster, she would
help Abrams. Abrams was also told not to say anything
about it. Some 2 weeks later she received an increase of
about 21 cents per hour although her duties had not
changed and no one came in to help her. (It was stipulated
that the raise was made effective for the pay period ending
June 26.) She had not received a increase in 3 years, al-
though she testified that Foster had asked for an increase
for the two of them in April.
Foster, employed in the main floor marking room, tes-
tified that on June 11 Kovach told her he was going to make
her manager of the marking room (she worked in the down-
stairs marking room) and Abrams a supervisor and they
would receive $100 per week. She too was receiving $2.25
per hour but it is not clear whether the $100 would be gross
or take home pay. She also testified that the schoolgirl was
never brought in, that she received the raise in her check for
June 26, and that she had not received an increase in 3 years.
Neither testified to any mention of the Union by Ko-
vach at this meeting on June 11, although Abrams testified
that on June 14 Kovach told her someone had informed on
her and that he knew union meetings were being held.
Kovach testified that Abrams and Foster requested a
pay raise in April but were refused because of the threat of
a steel strike .4 (East Chicago is in steel territory.) Kovach
said they seemed unhappy about it so he granted the in-
crease in June in the hope it would improve their productiv-
ity. He fixed the raises as $10 per week.
Kovach further testified that at the same time he grant-
ed pay raises to Dona Karek and Alicia Raya in the same
amount. Kovach offered no reason why these pay raises
could not have been postponed until after the election when
the raises could not have influenced the recipients.
I find these increases granted by Respondent a few
days after notification of the Union's petition, without any
evidence that it had been contemplated by the Respondent
or was part of a pattern of overall wage increase , were in
violation of Section 8(a)(1).5
3 The Union's election petition was filed June 8 , 1971 Unless otherwise
noted all dates refer to 1971
° It was stipulated at the hearing that notice that there would be no steel
stake was issued on August 2, 1971. Kovach' s reasons for not granting a wage
increase to Abrams and Foster were as valid on June 11 as in April.
5 N L.R B v Exchange Parts Co, 375 U S 405, 409; McCormick Longmea-
MADEMOISELLE SHOPPE, INC. 987
Paragraph 7(d), changing the method of calculating an
employees' commissions to increase her earnings : Kovach
testified that during the period of June and July he changed
the commission rate of Bertha Tumbas so that she received
a commission on all sales of coats in her department instead
of on her own sales only . I find this a violation for the same
reason set forth supra, concerning paragraphs 7(b) and (c).
Paragraph 8(f), creating the impression of surveillance:
Dorothy Foster, above, testified that late in June she asked
Kovach what he though of the Union and was told that he
knew that some of the girls had signed cards but that they
were nothing but troublemakers . Since Kovach had re-
ceived the Union's petition he obviously knew that some of
the girls had signed cards and there is nothing in this state-
ment to indicate that he knew the identity of the card-
signers. No violation is found in this statement and why it
was alleged is inexplicable.
Paragraph 7(g), telling an employee that the employees
who signed cards were troublemakers : This refers to
Foster's testimony , supra. I find this a clear expression of
hostility toward the employees who signed cards and, in the
context of other unfair labor practices found , an implied
threat of reprisal . This finding is admittedly tenuous but
sufficient to meet the meagre criteria required to find a
violation of Section 8(a)(1). Although this is denied by Ko-
vach I do not , for reasons stated later , credit his denial.
Paragraph 7(h), creating the impression of surveillance
by telling an employee it knew union meetings were being
conducted at employees' homes : Abrams , supra, testified
that on June 14 in her conversation with Kovach he told her
that someone had informed on her and that he knew the
employees were having meetings at the home of Sue Reed,
Moselle Blank , and Madaline Jones , all employees of Re-
spondent . I think this testimony clearly suffices to support
the allegation of the complaint and to establish a violation
of Section 8(a)(1). Hendrix Mfg., Co., 321 F.2d 100 (C.A. 5),
footnote 7. Kovach's denial that he ever made such state-
ments is not credited.
Paragraph 7(i), creating the impression of surveillance
and asking an employee why she had signed a union card:
If this subparagraph relates to the testimony of either
Abrams or Foster , as would appear to be the case, it has
been fully resolved.6
Paragraph 7(j), telling an employee that no employees
or union sympathizers would ever take over the store: I find
the allegation insufficient to establish a violation . The most
that can be read into it is an expression of hostility and the
implication that the Respondent might engage in hard bar-
gaining . An employer is entitled to hostility toward a union
and to engage in hard bargaining within lawful limits and
I doubt that even the General Counsel would contend that
Respondent is obligated to surrender its management pre-
rogatives in bargaining negotiations . I find this statement
protected by Section 8(c), the most neglected subsection of
Section 8.
Paragraph 7(k) is merely an iteration of the allega-
tions already disposed of under 7 (h). Any finding would
dow Stone Co, Inc, 158 NLRB 1237, 1241, 1242.
6 Why the 8(a)(1) allegations could not have been coordinated and concise-
ly set forth in the interest of having a clear and coherent complaint is beyond
explanation
therefore be merely cumulative.
Paragraph 7(1), telling an employee that she must re-
strict all her nonworking activities to outside the store: The
language employed is confusing since , construed literally, it
would mean the employees could not use the Respondent's
restrooms . Ortega testified that in the conversation with
Kovach referred to above she was told by Kovach to restrict
her activities to outside the store. Since the entire conversa-
tion, as related by Ortega, was directed to her union activi-
ties them could be no doubt in Ortega's mind that the
restriction was directed to those activities. The prohibition
was therefore unlawfully broad and constituted a violation
of Section 8(a)(1). Assuming, which I do not, that Kovach
told her to restrict her activities to nonworking areas, I
would find the proscription still too broad since it would still
include nonworking time. Ortega was employed in the of-
fice, a nonselling area, where activities on her nonworking
time would not disturb sales.
Paragraph 7(m) has been disposed of by paragraph
7(k) Paragraph 7(o), telling an employee she must restrict all
nonworking activity to outside the store: Ampan Ochoa,
employed in sales on the ready-to-wear floor, testified that
in late June she was talking to Josephine Menchaca, another
employee, when Kovach came up and told them they were
hired to sell, not to talk, and that the store was not a conven-
tion hall for the discussion of their business. He then told
them no one was going to tell him what to do and to do their
talking outside the store. Apart from the ambiguity of the
reference to union activity I find it merely cumulative to the
finding of subparagraph 7(1). No separate finding of viola-
tion is made.
Paragraph 7(p), asking an employee what part she had
played in the Union's organizational drive: No finding on
the ground the allegation is merely cumulative.
Paragraph 7(q), creating the impression of surveillance
by telling an employee she would be visited at her home by
a union spokesman because all employees were being vis-
ited: No finding on the ground the allegation is merely
cumulative.
Paragraph 7(r), telling an employee Respondent knew
everything about the Union and which employees were be-
hind it: No finding on the ground the allegation is merely
cumulative.
Paragraphs 7(s), (t), and (u) of the amendment to the
complaint all refer to the single conversation between Ko-
vach and an employee set forth below: Alicia Raya, for-
merly employed in the credit department, testified that on
or about June 16 or 17 she had a conversation with Kovach
in the office of Evelyn Mazurkiewicz, store manager, in
which he told her he knew she was having expenses with her
new home and asked her how she would like to make $100
a week (she was making approximately $90-95). Raya told
him she would love it and she was then asked if she knew
what was going on about the Union. She told him she had
not been approached and Kovach told her he was receiving
information as to those who signed, that he had a list of the
girls who had signed, that the Spanish-speaking people were
sticking together and that he hoped they were not getting
her to join. Later Raya received the pay increase proposed.
Kovach testified that he gave Raya a raise because she
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was Spanish-speaking (East Chicago apparently had a large
Spanish-speaking community) and because he had given the
other cashier, Zarek, a raise and wished to avoid dissension.
It was Raya who, according to Kovach, brought up the
subject of the Union by telling him she would go along with
him because he had been lenient in giving her time off.
Kovach denied that he told her he had been receiving infor-
mation concerning the Union or that he had a list of girls
who had signed, a denial which he applied to the testimony
of the other witnesses who testified to such statements. On
this I credit Raya. Kovach's testimony included blanket
denials of each and every allegation of coercive statements
as set forth by the employees but I find his denials do not
overcome what I have found to be the specific and frank
testimony of thos employees, four of whom were still in his
employ. Credibility findings has not been made with respect
to each and every witness whose testimony have been sum-
marized herein but I find the testimony of the General
Counsel's witnesses credible unless a specific finding has
been made to the contrary. It is impossible for me to believe,
having observed the witnesses, that they joined to contrive
their testimony to set aside the election.
I find the interrogation of Raya,1 Kovach's statement
that he had knowledge of union activity and the identity of
the union cardsigners obtained through an informant, and
the promise and subsequent grant of a wage increase viola-
ted Section 8(a)(1).
Paragraph 7(v), telling an employee that many employ-
ees would be let go and the store might go bankrupt if the
Union came into the store: Irene Escabedo, employed in the
coat department, testified that in July (about 1 week before
the election) Mazurkiewicz came to her and said "this busi-
ness about the union coming into the store" was "terrible"
and that they would have to let a lot of people go and the
store might go bankrupt.8 I find this a clear threat of possi-
ble harmful consequences to the employees based not on
any objective evidence, but merely on the advent of the
Union. Accordingly, it violates Section 8(a)(1).
C. The Discharge of Shreve
Shreve was employed as a saleslady in the cotton de-
partment from April until June 14. On June 2 she signed a
union authorization card and she later attended a union
meeting. She testified that on June 14, the date of her termi-
nation, Kovach approached her in the cotton department
and asked why she had signed? (June 14 was a Monday and
r I find the interrogation of Raya unlawful only because it occurred in a
conversation embracing other coercive statements and in a context of wide-
spread violations of Sec 8(a)(I). Specifically I do not hold interrogation
unlawful per se, a doctrine discarded by the Board and discredited by the
courts. Cf., however, Tarrant Manufacturing Company, 196 NLRB No. 119,
where the Board found two isolated and casual instances of interrogation by
a supervisor , one of which was characterized by the employee as "shop talk,"
violated Sec . 8(a)(I) although no other violations of that Section were found
and the interrogation was totally unrelated to the single instance of a viola-
tion Sec 8(a)(3) found . One of the interrogations occurred after conduct on
the part of the Employer, not found an unfair labor practice by the Board,
had effectively terminated union activity at the plant.
$ Mazurkiewicz testified that she had no recollection of such a conversa-
tion . I accept the testimony of Escabedo who was still in the employ of the
Respondent and who had an apparently clear recollection of what was said.
Escabedo , in a sense , was testifying against her own interests.
Shreve stated the conversation took place in the afternoon.)
She then waited on a customer and when she had finished
Kovach asked her if she was working the next day and
Shreve told him it was her day off. Kovach then told her in
what she described as an angry voice that she need not come
back at all-that she could take the rest of the summer off
to take care of her children. (In the earlier conversation she
had told Kovach she was worried about her children.) She
told him she needed the money and could not take the
summer off and later that same day Kovach told her to be
sure and check with him in September. She had a fourth
conversation in which Kovach asked her it was all right to,
be off during the summer and she again told him she needed
the money. That was her last day of employment. In Sep-
tember she telephoned Kovach and was told he would not
hire her again for anything. She then charged him with
having reported to the Indiana Unemployment Commis-
sion that she had quit and that this had cost her $125. When
Kovach told her to see Bobm she told him he had hired and
fired her. Kovach then hung up.
The testimony of Kovach presents a different version.
According to Kovach he was walking through the store on
June 14, passed Shreve, and asked her how she was getting
along . She told him she would not be able to work during
the summer since her mother, who baby-sat for her, was
returning to Mexico. Kovach assumed she would return
when she could and then told Bobin she was leaving and to
make out a report to the Indiana Unemployment (or Em-
ployment) office. Kovach's testimony was corroborated by
Bobin to the extent that she was told by Kovach that Shreve
was leaving to take care of her children and to notify the
State Unemployment office when Shreve left.10
As to Shreve's testimony with respect to the telephone
call made to Kovach in September, Kovach denied that any
tsuch conversation took place."
Mazurkiewicz testified that on June 14 Shreve came to
her about 8 p.m. and told her she was leaving because her
mother was going to Mexico and there was no one to take
care of her children. She reported this to Kovach who told
her he already knew" it and had told Shreve to report to
Mazurkiewicz.
Shreve testified that on June 14 Ortega told her she had
heard Kovach state in the office that Shreve was leaving
because her mother was going to Mexico.
Shreve was questioned at some length about her alleged
problem with her children. She had three children aged 12,
10, and 7, and she told Kovach on June 14 that she was
concerned about them because she had been to her doctor
for examination of a lump on her chest (a sister had had a
cancer operation). Her children attended school and, ac-
cording to Shreve, needed no one to look after them when
they came home. Her mother, Teresa Mesa, did not return
to Mexico in 1971 and was still living at an apartment which
In the context of other unfair labor practices committed by Kovach on
that day I find the reference could only have been to her signing a union card.
10 The State of Indiana Employment Security Division found that Shreve
was a voluntary quit and was not discharged.
"CounselCouns for Respondent alleges in his brief that Shreve did not offer
such testimony until called on rebuttal To the contrary Shreve was asked by
the Trial Examiner at the close of direct whether she called the store in
September and she answered that she had another conversation with Kovach
in September Counsel did not pursue interrogation on this until he called
Shreve on rebuttal.
MADEMOISELLE SHOPPE , INC. 989
Shreve had found for her. Mesa, called as a corroborating
witness, testified that she had been in Mexico from Septem-
ber 8, 1970, until January 3, 1971, and that she never re-
turned to Mexico and never told anyone she was returning
to Mexico.
CONCLUSIONS
The issue is purely one of credibility. It is highly im-
probable to believe that Shreve, who testified credibly that
she needed her employment, would tell Kovach that she was
quitting because her mother was going to Mexico when her
mother was not going to Mexico, did not act as a regular
babysitter, and never went to Mexico. The difficulty then
presented is how Kovach obtained the information on
which to base such a story. I must believe that Kovach told
other employees that that was the reason Shreve was leav-
ing-Shreve admitted that Ortega told her that was the
reason given by Kovach-but what other source of mfor-
mation did he have as to Shreve's family affairs other than
Shreve? Shreve had been employed only a short time (since
April) and in a store of over 60 full-time and part-time
employees it is unlikely that Kovach would acquire such
knowledge through gossip. It is unlikely but not impossible.
On the other hand, there is testimony which I have credited
that Kovach stated he knew who were cardsigners and there
is his question directed to Shreve on that day, "Why did you
sign?" It is also true that on June 14 Kovach committed
other unfair labor practices in an effort to frustrate organi-
zation, as has been found, and that the discharge of Shreve,
although alleged to be for other reasons , would have impact
on other employees. Although , as counsel for Respondent
points out, Shreve was neither a particularly active or ardent
adherent of the Union that fact would not prevent her dis-
charge acting as a deterent . I credit Shreve that she was told
not to come back at all when she told Kovach the next day
was her day off. June 14 was a Monday, it was not the end
of a pay period, and there seemed to be no reason why she
could not have continued her employment for a time at
least. ,This is answered, but only in part, by Kovach's testi-
mony that she said she could not work through the summer.
I cannot read into this, however, any implication that she
intended to quit that day. Shreve was not reporting her
intentions to Kovach; Kovach had approached her and
asked her how she was doing . Under ordinary circum-
stances even notification that she could not work the sum-
mer would not have effected such an abrupt termination. A
reasonable accommodation would have permitted Shreve to
work until it became necessary for her to quit. Respondent
suggested no inconvenience that would be caused by such
an arrangement . Looking for the circumstance which pre-
cluded ordinary procedure or a reasonable accommodation
I find only Shreve's union activity. I therefore find the dis-
charge of Shreve violated Section 8(a)(1) and (3) of the
Act.12
12 In making this finding I have given little consideration to Respondent's
argument that the fact that Shreve did not file a charge until December as
an indication that the filing was an afterthought or prompted by the Union.
Employees are not always aware of their rights under the statute nor do they
have an Archibald Cox at hand to advise them.
D. The Discharge of Ortega
Emily Ortega was employed in Respondent's down-
stairs office from December 1970 until August 14, 1971. She
performed general clerical services, typing form letters,
working the switchboard, making out checks, mailing, etc.
She was not a confidential employee in the sense that she
had access to files or other information relating to the for-
mulation of labor policy or labor relations in the store.
Respondent's contention that all employees who had access
to company records should be classified as confidential
would deprive all clerical employees of the right to repre-
sentation and is too absurd to warrant comment.
Ortega first attended a union meeting at the home of
Ampan Ochoa on May 25 and signed a card at that meet-
ing. Thereafter she attended other meetings, including one
held at her home, and "promoted the Union." By this she
meant that she solicited cards from other employees inside
the store. Her first conversation with Kovach in which the
Union was mentioned occurred on June 14. On that day he
called her into his office after asking Bobin to come as a
witness. It was then that Kovach told her that people were
trying to take over the store and that he had a list of the
employees who had signed cards. Ortega told him she did
not know what he was talking about and was warned to
confine her activities to outside the store. Later that day she
and Mary Turich were asked by Bobin if they had signed
cards and both denied signing. Again in July, according to
Ortega, she and Tunch were asked about their union activi-
ty by Bobin when an argument occurred at the switchboard.
This testimony was corroborated by Turich.
The next incident occurred on July 22 when Kovach
came into the office, slammed the door, and told them
(Ortega, Cebulski, and Bobm) that he learned who was
behind the union and that "everyone of the son-of-a-bitches
upstairs finally had the courage to tell me." This testimony
was also corroborated by Turich except as to the use of the
expression "son-of-a-bitches."
Bobin testified that, as to the discussion in Kovach's
office on June 14, she had previously spoken to Kovach
about Ortega's attitude toward her job as manifested during
recent days when "it was almost impossible to work." In this
interview Kovach asked Ortega if there was something
wrong about the working conditions and Ortega said they
could be improved. Kovach told her he had tailored her
hours so she could go to school 13 and that he was not going
to let the kids run the store. Bobin also testified that she
asked Ortega, "Why the change?"
Kovach testified that prior to June 9 his relations with
the girls in the office, Ortega and Turich, were friendly but
that after that date they no longer considered Bobin as their
supervisor. It was as a result of this change in attitude that
he called Ortega into his office on June 14 to find out what
was wrong. When Ortega did not seem responsive he told
her the kids would not run the store.
As to the incident on July 22 when Kovach allegedly
slammed into the office, Kovach denied that he ever used
the phrase "sons-of-a-bitches" in the store and denied that
13 Ortega was working as a full-time employee at this time so this testimony
makes little sense
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he ever told an employee that he was receiving information
about the Union or had a list of cardsigners.
Concerning her employment and discharge Ortega tes-
tified that she was hired by Kovach in April and did general
clerical work in the office under Bobin until she was either
discharged or laid off on August 14. She worked 9:30 to 9
p.m. on Monday and Thursday, and from 9:30 to 5 p.m. on
Tuesday, Wednesday, and Saturday. When she was hired
she was asked about college by Kovach and she told him she
had run out of money and was not returning. In May,
however, she told Bobin that she had decided to return to
school full time in the fall. She was told by Bobin that she
would be able to work the same hours that Ivy Canimar, a
part-time employee, worked.14 On August 14 Oretga told
Bobin that August 28 would be the last day she would be
working full time because she would be returning to school.
Bobin then told her that August 14 was her last day of
employment; that Respondent was not going to employ any
more part-time employees in the office. Ortega was replaced
by Ann Martinak, a full-time employee who was transfered
from the credit department. Ortega was not offered reem-
ployment as a part-time employee at any time thereafter.
Respondent's defense is that the layoff of Ortega was
purely economic. Kovich and Bobin both admitted that she
was an intelligent and competent worker. Knowledge of
Ortega's union activity had been established by the testimo-
ny, credited, that Kovach had told Ortega and other em-
ployees that he had a list of all the girls who had signed
cards and by the testimony, also credited, of Escabedo that
Kovach told her after the termination of Ortega that she
(Ortega) was one of the troublemakers. I find the economic
defense rather porous. Significant is the fact that on August
10 and 11 Respondent placed newspaper advertisements for
an office employee.15
Equally significant is the fact that Ortega, characteriz-
ed by both Kovach and Bobm as a good worker, was termi-
nated without notice and replaced by an employee from
another department, inexperienced in Ortega's job. 16 It is
true that Respondent' s statements of monthly earnings for
the years of 1970 and 1971 show a sharp decline for the
month of August, 1971 as against August 1970, but they also
show an increase for each of the 5 months from February
1971 through July as against the same months of 1970. In
any event I do not see that the termination of one clerical
employee 2 weeks before she was returning to school would
effectuate any substantial alleviation of Respondent's tem-
porary economic distress. Since Respondent's only alleged
motive was economic and since I do not find that motive
supported by evidence sufficient to overcome the inference
which I must draw from Respondent's knowledge of union
card signers and its willingness to oppose union organiza-
tion with unfair labor practices, I find the termination viola-
ted Section 8(a)(1) and (3) of the Act.
14 Cammar quit on June 14.
15 Respondent stipulated that such advertisements were placed
16 Ortega testified that Martinak , after taking her job, called her at home
for advice on certain problems
Case 13-CA-10929
Unit A
Based upon the foregoing findings of unfair labor
practices committed by Respondent between June 8 and
July 26 which must inevitably had a substantial impact
upon the employees and considering the closeness of the
vote it is held that the election in this unit must be set aside.
Unit B
The unit stipulated to be appropriate for the Mason
Shoe Company, the Employer of Unit B, was:
All regular fulltime and regular part time employees
working at the Mason Shoe Company shoe department
located at the Madamoiselle Shoppe, Inc., East Chica-
go, Indiana stores located at 3730 Main Street and 3733
Main Street; but excluding guards and supervisors as
defined by the Act.
The tally of ballots showed three eligible employees of
who two voted against and one for the Petitioner.
The only objection directed to this election reads:
Mr. Mason, President of Mason Shoe Company de-
faced the official NLRB "Notice of Election" which
was posted in the shoe department.
The defacement of this notice, attached hereto as Ap-
pendix "B" [omitted from publication] and offered as
Petitioner's Exhibit 6-b 11 consisted of printing thereon the
words "You are voting to decide whether the shoe depart-
ment wishes to become members of the union." In view of
Mason's opposition to a reopening of the hearing , see be-
low, I accept the testimony of Sonny Aimes that the printing
was done by Mason. Certainly the language is neither coer-
cive nor does it tend to influence the voters; it merely suc-
cinctly although not quite accurately states the purpose of
the election. That does not settle the issue since we are not
dealing with an unfair labor practice but with conduct af-
fecting the results of the election. Foreseeing the difficulty
and the pangs of determining in each case where an election
notice has been altered or defaced whether the alternation
or defacement was permissible I would hold that any de-
facement or comment written on the notice by an employer
or his agent or by a union representative warrants setting
aside the election. The rule may seem harsh, particularly
when the writing is as inoffensive as it is here, but an elec-
tion notice is not appropriate for an exercise in creative
writing. It is simple matter to leave the notice alone and the
warning on the notice is clear.
The election must be set aside.
Upon the foregoing findings I make the following:
17 This notice was rejected by the Examiner at the hearing since no repre-
sentative of Mason Shoe was present when it was offered. Mason , attorney
for and president of Mason Shoe Company, had been excused at the begin-
ning of the hearing with the assurance of the General Counsel that he would
be called when the hearing on this objection was reached . At the close of the
hearing on Friday afternoon, March 24, the objections were reached but,
through inadvertence, Mason had not been notified . The Examiner therefore
rejected the exhibit solely on that ground and subsequently on April 14, 1972,
issued an order to show cause why the hearing should not be reopened for
reconsideration of his rejection of the exhibit and for the taking of further
testimony. Attorney Mason opposed the reopening of the hearing and the
Examiner , on April 25 issued his order receiving Petitioner's Exh . 6-a and -b
and closing the hearing
MADEMOISELLE SHOPPE, INC. 991
CONCLUSIONS OF LAW
1. By granting wage increases to induce its employees
to reject the Union; by telling its employees it was receiving
information as to their union activity and had lists of the
employees who had signed union cards; by interrogating
employees in circumstances which were coercive; by telling
an employee that there would be layoffs and that the store
might go bankrupt if the Union won the election; by telling
employees that the union employees were troublemakers;
and by telling an employee to confine her (union) activity
to outside the store, Respondent violated Section 8(a)(1) of
the Act.
2. By terminating the employment of Beatrice Shreve
and Emily Ortega to discourage membership in the Union,
Respondent violated Section 8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of the Act.
THE REMEDY
Having found the Respondent engaged in certain un-
fair labor practices it will be recommended that it cease and
desist therefrom.
Having found Respondent terminated the employment
of Beatrice Shreve and Emily Ortega in violation of Section
8(a)(3) of the Act it will be recommended:
(1) That Shreve be offered full and immediate rein-
statement to her former job as saleslady in the cotton de-
partment or, if that job is not available, to any other sales
job in any other department and make her whole for any
loss of pay or other monetary loss she may have suffered by
reason of the discrimination found herein, said losses to be
computed on a quarterly basis with interest at 6 percent per
annum.
(2) Offer Emily Ortega full and immediate rein-
statement to her former job in the downstairs office or, if
that job is not available, to any clerical job. If Ortega is not
available for full time work she shall be offered employment
to a part-time clerical job. Ortega shall be made whole for
pay as a full time employee from August 14 to August 28,
1971, with interest at 6 percent per annum. She shall be
made whole for any loss of earnings thereafter as a part-time
clerical employee (20 hours a week) if any part-time clerical
jobs were available from the period when they were or
became available. Her losses shall be computed on a quar-
terly basis with interest at 6 percent per annum.
Upon the foregoing findings of fact and conclusions of
law and upon the entire record and pursuant to Section
10(c) of the Act, I make the following recommended:
ORDER I8
Respondent, Madamoiselle Shoppe, Inc., its officers,
agents , successors , and assigns , shall:
18 In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall , as provided in Section
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.
1. Cease and desist from:
(a) Granting wage increases or other benefits to induce
its employees to reject Retail Clerks Union, Local 1460, or
any other labor organization as their representative for the
purposes of collective bargaining.
(b) Interrogating its employees concerning their union
membership.
(c) Telling its employees it is receiving information con-
cerning their union activity and that it has lists of the names
of the employees who have signed cards.
(d) Telling any employee there will be layoffs and that
it might go bankrupt if the Union won the election.
(e) Telling any employee that the prounion employees
are troublemakers.
(f) Telling any employee to confine her activities to
outside the store under circumstances indicating union ac-
tivity is intended to be included.
(g) Discharging, terminating, or otherwise affecting the
hire, tenure, or other terms and conditions of employment
of any employee to discourage membership in Retail Clerks
Union, Local 1460, or any other labor organization.
(h) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action:
(a) Offer Beatrice Shreve full and immediate rein-
statement to her former job as saleslady in the cotton de-
partment, or if such job no longer exists, to any job as
saleslady in the store, without prejudice to her seniority or
other rights and privileges and make her whole for any loss
of pay or other monetary loss she may have suffered by
reason of the discrimination practices against her as set
forth in "The Remedy."
(b) Offer Emily Ortega full and immediate rein-
statement to her former full-time clerical job in the down-
stairs office or, if such job no longer exists, offer her full time
employment in any clerical job in the store, without preju-
dice to her seniority and other rights and privileges. If Emily
Ortega is not available for full-time employment offer her
part-time employment in any job in the downstairs office
operated by a part-time employee and if no such job as
part-time clerical exists offer her employment in any part-
time clerical job in the store. Make her whole for loss of
earnings or other monetary loss in the manner set forth in
"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, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
Order.
(d) Post at its places of business at 3733 Main Street
and 3732 Main Street, East Chicago, Illinois, copies of the
notice attached hereto and marked "Appendix A."19 Copies
of said notice, on forms provided by the Regional Director
for Region 13, shall after being duly signed by Respondent's
representatives, be posted by it immediately upon receipt
19 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereof, and maintained by it for 60 consecutive days there-
after in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that such notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 13, within
20 days from the date of this Decision, what steps have been
taken to comply herewith 20
IT IS FURTHER RECOMMENDED that the election in Case
13-RC-12488 be set aside as to both Units A and B and that
the case be remanded to the Regional Director of Region
13 for such action as he may deem appropriate.
IT IS FURTHER RECOMMENDED that the complaint, as to all
allegations not specifically found to have been in violation
of the Act, be dismissed.
SUPPLEMENTAL DECISION AND REPORT ON
CHALLENGED BALLOTS
JOHN F. FUNICE, Trial Examiner: On June 6, 1972, the
Trial Examiner issued his Decision in the above-entitled
cases finding, inter alia, that the objections to the election
in Case 13-RC-12488 should be sustained and recom-
mending that the election be set aside as to both Units A
and B. Thereafter the Union and the General Counsel filed
motions that the Trial Examiner supplement his Decision
by ruling on the challenged ballots as to Unit A.
On June 21, 1972, the Board issued its Order Remand-
ing Proceeding to the Trial Examiner and ordering the Trial
Examiner to prepare a supplemental decision containing
findings, conclusions , and recommendations with respect to
the challenged ballots and modifying his Decision as might
be necessary.
Upon the entire record in this case I make the follow-
ing:
SUPPLEMENTAL FINDINGS AND RULING ON
CHALLENGED BALLOTS
On July 22, 1971, an election was conducted among
the employees of Madamoiselle Shoppe, Inc., in Unit A
pursuant to a stipulation for a consent election2l The tally
of ballots for Unit A issued by the Regional Director for
Region 13 showed 23 votes cast for the Retail Clerks Union,
Local 1460, Retail Clerks International Association, AFL-
CIO, herein the Petitioner, and 23 votes cast against the
Petitioner. The votes of 10 persons were challenged, a num-
ber sufficient to affect the results of the election.
The Stipulation as to Challenges
Of the 10 challenges those directed to Danette Garza,
Oda Haluska, and Mary Ann Pilipovich were resolved by
stipulation at the hearing. Pursuant to said stipulation it is
recommended that the challenges to the votes of Danette
20 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read - "Notify
the Regional Director for Region 13, in writing, within 20 days from the date
of this Order what steps Respondent has taken to comply herewith."
21 Unit B , the only other unit, included the employees of Mason Shoe
Company where no ballots were challenged.
Garza and Mary Ann Pilipovich be overruled and that these
ballots be opened and counted. It is likewise recommended
that the challenge to the vote of Oda Halusak be sustained
and that her ballot be not opened or counted.
The "Call-m" Employees
Lois Bobm, controller for the Employer, testified that
the Employer maintained a "call-in" list of persons who
were available for duty during sales or periods of heavy
work. These employees were not employed on any regular
schedule nor did they have regular periods of employment.
The ballots of Evelyn B. Mazurkiewicz and Pauline
Vuksinic were challenged by the Petitioner on the ground
that as call-in employees their employment was sporadic
and intermittent and that they therefore had an insufficient
community of interest with the other employees to warrant
inclusion in the bargaining unit. Petitioner's Exhibits 1 and
2, a compilation of the hours worked by these employees
during 1971, support this conclusion. Such employees were
specifically excluded by the Board in R. H. Macy & Co., 185
NLRB No. 5. In accordance with that decision I sustain the
challenge to the ballots of Evelyn B. Mazurkiewicz and Paul
Vuksinie and recommend that their ballots be neither
opened nor counted.
The Ballot of Joanne Roberts Britske
Britske had been regularly employed by the Employer,
with periods off for illness, since 1959. In September, 1970,
she became a victim of tuberculosis but worked until the
end of January, 1971, when her doctor advised a complete
rest. She advised Kovach of this and the Employer contends
she was on extended sick leave until her return to work.
Britske worked 1 day during an April sale. Thereafter she
worked 19.5 hours for the pay period ending July 2; 29
hours for the period ending July 16; and 74 hours for the
period ending July 30. On July she received ( Petitioner's
Exh. 5) a statement from her doctor that she could work 32
hours per week.
In view of her long period of employment with the
Employer and the fact that she had returned to work after
other substantial periods of sick leave I find Britske eligible.
It is recommended that the challenge to her vote be over-
ruled and that her ballot be opened and counted.
The Ballot of Janice Snow
Snow was challenged by the Petitioner on the ground
she was a supervisor. She testified that she was supervisor
of the sportswear department which consisted of herself and
two other full-time employees. (Part-time employees were
hired during busy periods.) She received $75 per week plus
a commission on sales made in her department. On her
testimony the extent of her supervisory authority was negli-
gible since she stated the other two employees knew what
to do: sell sportswear. I refuse to hold that one of three
salesgirls in a sportswear department exercises supervisory
authority over the others as that authority is defined in the
Act.22
22 No other department supervisors were challenged . The penchant of the
MADEMOISELLE SHOPPE, INC. 993
It is recommended that the challenge to the vote
of Snow be overruled and that her ballot be opened and
counted.
The Ballots of Jackie Cebulski Rokosz , Marilyn Tunch,
and Emily Ortega
The vote of Jackie Cebulski Rokosz (referred to
throughout the hearing as Cebulski) was challenged by the
Board agent because her name did not appear on the eligi-
bility list.
The employer contends that Cebulski was a confiden-
tial employee and the Petitioner claims she was a supervisor.
Nevertheless there was no agreement that her challenge be
sustained.
Cebulski was employed as a clerk in the Employer's
office under the direction of Bobin. The two other clerical
employees in that office were Marilyn Turich and Emily
Ortega. The testimony establishes that Cebulski was next to
Bobm in the line of authority and that when Bobin was not
present she acted in her place. Cebulski testified, however,
that she performed the same work in her department as did
Ortega, admittedly not a supervisor, and that when Bobin
was absent she left with Cebulski a list of the work to be
done. Cebulski, I find, acted as no more than a conduit for
the transmission of orders. She denied specifically that she
exercised or had authority to exercise any of the supervisory
responsibilities set forth in Section 2(11) of the Act. Again
I would not find that operation of a clerical force of four
employees, three of whom performed identical duties, re-
quired two supervisors.
The names of Turich and Ortega did not appear on the
eligibility list and their votes were also challenged by the
Board agent for that reason. The Employer contends that
Cebulski, Turich, and Ortega were confidential employees.
All three did participate in the keeping of time and pay
Employer for creating supervisory titles without supervisory authority was
established by the testimony of Katie Abrams that Kovach told her he was
making her a supervisor although she had no one to supervise , and Dorothy
Foster that she was to be made manager of the marking room although her
duties were not changed.
records and the computation of commissions but there is
not a scintilla of evidence to establish that any had access
to confidential records relating to labor policy or negotia-
tions with labor organizations. There is, in fact, no evidence
that the Employer had any labor policy and the only evi-
dence respecting labor negotiations is that the Employer
unlawfully sought to evade such an obligations by prevent-
ing a free election. To hold that these employees were confi-
dential would preclude all payroll employees from
representation.
It is recommended that the challenges to the votes of
Jackie Cebulski Rokosz, Marilyn Turich, and Emily Ortega
be overruled and their ballots counted.
SUPPLEMENTAL RECOMMENDED ORDER
It is hereby recommended that the paragraph on page
992 of the Trial Examiner's Decision reading:
IT IS FURTHER RECOMMENDED that the election in
Case 13-RC-12488 be set aside as to both Units A and
B and that the case be remanded to the Regional Direc-
tor of Region 13 for such action as he may deem appro-
priate.
be striken and that there be substituted the following para-
graphs:
IT IS FURTHER RECOMMENDED that in Case 13-RC-12488
the challenges to the votes of Oda Haluska, Evelyn B. Ma-
zurkiewicz, and Pauline' Vuksinic be sustained; that the
challenges to the votes of Danette Garza, Mary Ann Pilipo-
vich, Joanne Roberts Britske, Janice Snow, Jackie Cebulski
Rokosz, Marily Turich, and Emily Ortega be overruled; and
that the said Regional Director open and count said ballots
and issue a revised tally of ballots accordingly.
IT IS FURTHER RECOMMENDED that should said revised tally
of ballots show that a majonty of the employees in Unit A
have been cast for the Petitioner, then the Regional Director
shall certify the Petitioner as the exclusive bargaining agent
for the employees in Unit A; but that if the revised tally of
ballots does not show such a majonty has been cast for the
Petitioner, then the election in Unit A be set aside.
IT IS FURTHER RECOMMENDED that the election in Unit B
in Case 13-RC-12488 be set aside.