Naum Bros., Inc.

National Labor Relations Board - Board Decisions

Jan 26, 1979

240 N.L.R.B. 311 (N.L.R.B. 1979)

NAUM BROS., INC. 311
Naum Bros., Inc. and Retail and Department Store
Employees, Amalgamated Clothing and Textile
Workers Union, AFL-CIO. Cases 7-CA-14007, 7-
CA-14078, and 7-RC 14237
January 26. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On September 14, 1978, Administrative Law Judge
Josephine H. Klein issued the attached Decision in
this proceeding. Thereafter, the Respondent and the
Charging Party filed exceptions and supporting
briefs, and the Charging Party also filed an answer-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision' in light of the exceptions and briefs
and has decided to affirm the rulings, findings, 2 and
conclusions of the Administrative Law Judge and to
adopt her recommended Order, as herein modified.
As more fully set forth in the attached Decision,
the Administrative Law Judge found that the Re-
spondent committed several violations of Section
8(a)(1) by posting unlawful no-solicitation rules, in-
terrogating employees, soliciting grievances and
promising to correct them, granting increased wages
and benefits, threatening to close its store, and creat-
ing an impression of surveillance. The Administra-
tive Law Judge also found a violation of Section
8(a)(3) in the discharge of a union adherent. The
Union has excepted, inter alia, to the Administrative
Law Judge's failure to find an additional violation of
Section 8(a)(1) when the Respondent interrogated
employee Olson concerning her union sympathies.
We find merit in this exception. Olson's uncontra-
dicted testimony establishes that on two occasions
Store Manager Zipf, in the privacy of his office,
asked if she was for the Union. These interrogations
took place when Olson was applying for a leave of
absence, and Zipf gave no assurances against repri-
On i. 23, sec. 11, of the Decision, Charles Mazola is incorrectly identi-
fied as sales manager for the Pennsylvania area. It should be the Michigan
area. Likewise . 5I sec. C. should read "Martin" rather than "Marvin."
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc. 91
240 NLRB No. 50
sals or explanation for his questions. This interroga-
tion was clearly coercive and a violation of Section
8(a)(1) and we so find. Huttig Sash & Door Company,
239 NLRB No. 79 (1978).
The Respondent excepts, inter alia, to the Admin-
istrative Law Judge's finding of a violation of Section
8(a)(5) based on unilateral changes in conditions of
employment on the grounds that it was not alleged in
the complaint and that the Union never made a de-
mand for bargaining. When the Union filed a peti-
tion for an election on March 30, 1977, 3 it had valid
authorization cards from a majority of the employees
in the unit. However, at no time did it demand bar-
gaining or recognition. As we stated in Production
Plating Company, 233 NLRB 116 (1977):
The Board has long held that the mere filing of a
representation petition does not constitute a re-
quest for recognition or bargaining such as to
make an employer's failure to bargain, without
more, a violation of Section 8(a)(5). As the
Union made no demand as such on Respondent
for recognition and/or bargaining, we find that
the evidence fails to establish that Respondent
violated Section 8(a)(5) of the Act. However, the
absence of a specific 8(a)(5) violation does not
affect the propriety of the bargaining Order
herein required to remedy Respondent's exten-
sive unfair labor practices that have made un-
likely the holding of a fair election.
Accordingly, we do not find a violation of Section
8(a)(5). We do find, in agreement with the Adminis-
trative Law Judge, that a bargaining order is neces-
sary to remedy the Respondent's extensive unfair la-
bor practices. However, in doing so, we do not adopt
the Administrative Law Judge's recommendation
that the duty to bargain should extend for a period of
at least a year after compliance with our Decision
and Order.4
The Respondent has also excepted to the date of
the bargaining obligation. The Administrative Law
Judge used March 30, the date of the petition, as an
approximation of the date the Respondent com-
menced its unfair labor practices by posting unlawful
no-solicitation rules on the doors to its store. How-
ever, Glennis Farmer, union organizer and national
representative, testified that the no-solicitation rules
had not been posted April 5 but were present on
April 14. We therefore find that, at the latest, the
Respondent commenced its unfair labor practices
NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing her findings.
' All dates herein are 1977.
4Glomac Plastics. Inc.. 234 NLRB 1309 (1978). relied upon by the Admin-
istrative Law Judge. is inapposite. In that case, the union had been certified
as the employees' bargaining representative and the respondent did not
bargain with it in good faith, factors which are absent here.
NAUM BROS., INC~~~~~~~.31
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 14, and accordingly we find the bargaining
obligation arose on that date.5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent,
Naum Bros., Inc., Drayton Plains, Michigan, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
I. Delete paragraph (g) and reletter the following
paragraphs accordingly.
2. Insert the following as paragraph 2(a):
"(a) Offer Dean A. Martin immediate and full
reinstatement to his former job or, if that job no lon-
ger exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights
or privileges he previously enjoyed, and make him
whole for any loss of earnings in the manner set forth
in the section herein entitled 'The Remedy';"
3. Insert the following as paragraph 2(c):
"(c) Upon request, recognize and bargain with the
Union as the exclusive representative of all the em-
ployees in the below described bargaining unit,
found appropriate under Section 9(b) of the Act, and
if an understanding is reached, upon request embody
such understanding in a signed agreement:
All full-time and regular part-time selling and
non-selling employees employed by Naum
Bros., Inc., at its 5000 Dixie Highway, Drayton
Plains, Michigan, store; but excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act."
4. Substitute the attached notice for that of the
Administrative Law Judge.
Chairman Fanning, because there was no demand by the Union. would
make the bargaining order prospective. See Production Plating Company.
supra at In. 5, and cases cited therein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the chance
to give evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act and has ordered us to post this notice.
We intend to abide by the following:
WE WILL NOT question employees concerning
their union activities or sympathies.
WE WILL NOT tell employees that choosing to
be represented by the Retail and Department
Store Employees, Amalgamated Clothing and
Textile Workers Union, AFL-CIO, will be a fu-
tile act and will or might result in closure of our
store in Drayton Plains, Michigan.
WE WILL NOT take any action or make any
statements that give the impression that the
union activities of our employees are under our
surveillance.
WE WILL NOT solicit employees to voice their
grievances and complaints with the promise, ex-
press or implied, that such complaints or griev-
ances will be remedied if the employees choose
not to be represented by the above-named
Union.
WE WILL NOT issue or maintain any rule which
prevents employees from soliciting on behalf of
a labor organization in nonselling areas of our
premises during the employees' nonworking
time or which imposes any greater restriction on
employees' solicitation on behalf of a labor or-
ganization than is imposed on solicitation for
any other purpose.
WE WILL NOT promise or grant to our employ-
ees improved employee benefits and/or wage in-
creases without first advising the above-named
Union and, upon request, bargaining with said
Union.
WE WILL NOT discriminatorily discharge, lay
off, or otherwise discipline employees in order to
discourage membership in the above-named
Union or any other labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them in Section 7 of
the Act.
WE WILL, upon request, recognize and bargain
with the above-named Union as the exclusive
representative of the employees in the below-de-
scribed bargaining unit with respect to rates of
pay, hours, and conditions of employment; and,
if an understanding is reached, WE WILL embody
such understanding in a signed written agree-
ment:
All full-time and regular part-time selling and
non-selling employees employed by Naum
Bros., Inc., at its 5000 Dixie Highway, Drayton
Plains, Michigan, store; but excluding all of-
fice clerical employees, professional employ-
NAUM BROS., INC. 313
ees, guards and supervisors as defined in the
Act.
WE W.I. offer Dean A. Martin immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent po-
sition, without prejudice to his seniority or any
other rights or privileges he previously enjoyed,
and make him whole, with interest, for any loss
of earnings suffered by him as a result of our
having discharged him on April 23, 1977.
NAUM BROS. INC.
DECISION
JOSEPHINE H. KLEIN. Administrative Law Judge: On
March 30, 1977,1 Retail and Department Store Employees,
Amalgamated Clothing and Textile Workers Union, AFL-
CIO (the Union), filed a petition for certification as the
exclusive bargaining representative of the employees at the
Drayton Plains facility of Naum Bros., Inc. (Respondent).
On April 25, the Regional Director of the Board approved
a Stipulation for Certification Upon Consent Election and
scheduled a hearing on May 19. On May 2, the Union filed
a charge alleging that on April 25 Respondent had discrim-
inatorily discharged employee Dean A. Martin, in contra-
vention of Section 8(a)(3) of the Act.2
Despite the pendency of the charge, the election was
held on May 19. Having lost the election,3 the Union on
May 26 filed objections to the conduct of the election and
a second unfair labor practice charge, alleging various acts
of coercion and/or interference with employees' protected
rights in violation of Section 8(a)( ) of the Act.
On June 30, the Regional Director issued a Report on
Objections to the elections and a complaint. In his report
he referred for hearing five of the Union's six objections
and overruled one objection, which alleged that Respon-
dent had promulgated and maintained an unlawful no-so-
licitation rule. On exceptions, the Board reversed the latter
action of the Regional Director and ordered that the pro-
priety of the alleged unlawful no-solicitation rule be sent to
hearing. Thereupon the complaint was amended to add a
corresponding allegation.
The complaint also alleges that the Union represents a
majority of the employees in an agreed bargaining unit,
that Respondent violated Section 8(a)(5) of the Act by re-
fusing to bargain with the Union, and that Respondent's
unfair labor practices dissipated the Union's majority and
rendered a fair election impossible, so that a bargaining
order should be issued in accordance with N. L.R.B. v. Gis-
sel Packing Co., Inc., 395 U.S. 575 (1969), and Trading Portr,
Inc., 219 NLRB 298 (1975).
Unless otherwise specified, all dates referred to herein are in 1977.
2 National Labor Relations Act, as amended. 29 U.S.C.. § 151. et seq.
The vote was 9 for the Union. 22 against the Union, and 7 challenged
ballots. Because the challenged ballots were not sufficient to affect the re-
sults of the election, they have not been and need not be resolved
Pursuant to due notice, a consolidated hearing was held
before me in Detroit, Michigan. on January 30 and 31 and
February , 1978. All parties were represented by counsel
and were afforded full opportunity to present oral and
written evidence and to examine and cross-examine wit-
nesses. The parties waived oral argument. Competent and
helpful post-trial briefs have been filed by the Charging
Party and the Respondent. The General Counsel filed no
brief.
Upon the entire record, together with careful observa-
tion of the witnesses and consideration of the briefs, I
make the following:
FINDIN;S ()I FA(i
I PREL.IMINARN FINDINGS
A. Respondent, a New York corporation with its princi-
pal office and place of business in Rochester, New York, is
engaged in the retail sale and distribution of consumer
goods and related products in stores located in the States
of New York and Michigan, including one in Drayton
Plains, Michigan, the facility involved herein. During the
year ending December 31, 1976. a representative period,
Respondent received gross revenue in excess of $500,000
from its retail sales. During the same year, Respondent, in
the course and conduct of its business operations, pur-
chased and caused to be transported and delivered furni-
ture, household electrical appliances, and other goods and
materials valued in excess of $50,000, which were trans-
ported and delivered to its stores in Michigan directly from
points outside Michigan. Respondent is now, and has been
at all times material herein, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
B. The Union is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
I1 THE ALIEGED NFAIR LABOR PRA(C-ICES
A. Section 8(a)(l)
The Drayton Plains store was formerly owned by Feder-
al Department stores (Federal). At that time the employees
were represented by the Union. However, the store appar-
ently fell upon hard times 4 and was then acquired by E. L.
4 The testimony refers to "bankruptcy," and Respondent's brief states
that "Federal's had ceased operation of the store because of bankruptcy."
However, the evidence does not disclose whether the "bankruptcy" was that
of Federal as a chain or was specifically directed toward and based upon
the operations of the Draytion Plains facItsl
NAUM BROS.. INC. 313
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rice Company.5 Around October 1976, Respondent ac-
quired the Drayton Plains store from Rice. William Zipf,
who had been store manager in Federal's and Rice's re-
gimes, continued in that position under Respondent
through the period involved in this proceeding. At the
time here involved, John Tabb was operations manager or
assistant store manager. Charles Mazola was Respondent's
appliance sales manager for the Pennsylvania area. Joseph
loele was director of employee relations. All the persons
named above were admitted to be supervisors. Of them,
only Mazola testified at the hearing.7
I. No-solicitation rule
Early in 1977, the Union began its campaign to organize
Respondent's employees in the Drayton Plains store, with
Glennis Farmer, national representative of the Union, as
the primary organizer. In the early part of the campaign he
visited the store frequently, where he talked to employees.
He apparently also distributed material, including union
authorization cards, just outside the store.
Shortly after the Union demanded recognition and filed
a representation petition, a sign was posted on each of two
doors to the store used by customers and employees. The
signs read simply: "No soliciting" or "No solicitation."
Farmer testified that on one occasion when he was in the
store loele, in the presence of an employee, informed
Farmer that there was to be "no soliciting in the store." On
another occasion Tabb also informed Farmer, in the pres-
ence of an employee, that there was to be no soliciting in
the store. It: pears, however, that at no time did any man-
agement representative order Farmer off the premises.
The evidence further establishes that previously there
had been no restriction on solicitation and that employees
had freely solicited anywhere in the store. For example,
employee Joy Montgomery solicited orders for Avon cos-
metics, and collections were conducted for gifts to employ-
ees for items such as flowers for weddings or funerals and
gifts to employees who were ill or leaving,8 etc. There is no
evidence that any restrictions were actually imposed on
employee solicitation either before or after the signs were
posted on the doors.
Respondent argues that there is no evidence that Re-
spondent posted the notices. Absent any explanatory testi-
mony, it is reasonable to assume that nobody other than
Ihe date of the transfer from Federal to Rice does not appear.
Hie had left Respondents employ before the present hearing. lie did niot
testify.
Although the record does not so disclose, the Union's brief states that
loele was present throughout the hearing.
Store Manager Zipf was the beneficiary of such action when he left
Respondent's employ.
Respondent's agents would post such signs. In any event,
although it was obviously within Respondent's power to
remove the signs, they remained posted until after the elec-
tion on May 19.
There is no doubt that a blanket prohibition of solicita-
tion by employees at any time on the employer's premises
is at least presumptively invalid. Essex International. Inc.,
211 NLRB 749 (1974). Adoption of a no-solicitation rule
for the first time during a union campaign evidences an
improper attempt by the employer to interfere with his em-
ployees' rights to organize. Mangurian's, Inc., 227 NLRB
113 (1976), enfd. 566 F.2d 463, 465 (5th Cir. 1978).
Respondent apparently contends that the no-solicitation
signs posted on the doors of the store were directed only to
customers and other nonemployees and that thus the pro-
hibition was valid. However, no such limitation appeared
on the signs or was orally communicated to the employees.
Cf. C & E Stores, Inc., 221 NLRB 1321, 1324-25 (1976);
Medley Distilling Co., Inc., 187 NLRB 84, 87 (1970), enfd.
453 F.2d 374 (6th Cir. 1971); WIPO, Inc., 199 NLRB 649
(1972); Hyland Machine Comparn. 210 NLRB 1063, 1072
(1974).
Whatever may have been Respondent's intention, the
fact is that the broad prohibition was posted on the door
primarily used by employees. As previously shown, the
blanket prohibition was repeated orally by Tabb and loele
in the presence of employees. Although tbese supervisors
were speaking to an outside union organizer on the occa-
sions referred to, nothing was said to indicate that the pro-
hibition was limited to solicitation by outsiders.
The most that can be said for Respondent's contention is
that the signs were ambiguous. The unremedied effects of
such ambiguity must be borne by Respondent. McBride's
of Naylor Road 229 NLRB 795 (1977). The vice in the no-
solicitation rule is not cured by the absence of proof that it
was ever enforced. The Dezurik Division, General Signal
Corporation, 234 NLRB 914, 918 (1978). Respondent made
no attempt to present evidence of business needs to over-
come the presumptive invalidity of its announced total ban
on solicitation. Cf. Albert's, Inc., 213 NLRB 686 (1974),
enfd., order withheld sub nom. Retail & Department Store
Employvees, Amalgamated Clothing Workers v. N.L.R.B., 93
LRRM 2450, 79 LC ¶ 11,675 (D.C. Cir. 1976).
On all the evidence, I find and conclude that Respon-
dent violated Section 8(a)(1) of the Act by promulgating
and maintaining an ambiguous and overly broad no-solici-
tation rule during the period preceding the Board-conduct-
ed election.
2. Solicitation of grievances, promises of correction, and
grant of benefits
Shortly after Respondent took over the Drayton Plains
store, around July 1976, an employee meeting was held at
which management representatives were introduced and
the employees were informed of the benefits provided by
Respondent. At about the same time, all employees were
granted wage increases of from 10 to 20 cents per hour. No
further employee meetings were held until after the
NAUM BROS., INC. 315
Union's representation petition was filed. Then loele con-
ducted meetings of all employees on April 15 and May I.
At the April meeting, loele spoke of the benefits granted by
Respondent and expressed his "disappointment" in the
employees. Since he did not specify the nature or cause of
his "disappointment," in the context of the meeting, it is
clear that his "disappointment" arose from the union cam-
paign.
loele invited questions and comments by the employees.
Employee Margaret Bentley credibly testified that she then
stated that the employees were even more disappointed in
Respondent, because it had not granted wage increases, as
the employees had expected. When the employees indi-
cated that their chief complaint concerned the wage sched-
ule at the store, loele stated that "things could probably be
made better." According to employee Susan Adkins, loele
said that Respondent's main office in New York was work-
ing on "better benefits, pay raises, more days off, that type
of thing" but that loele could not then provide any details
"because it had not been worked out yet, but it was prom-
ises of better things in the future." loele expressed surprise
at the amount of employee dissatisfaction and said that if
"he had known [the employees] were all so dissatisfied with
[their] wages he would have worked on that right away at
first."
loele also invited employees to discuss their problems
and complaints individually with the store management or
with loele, by long-distance telephone if necessary.
Pursuant to loele's invitation, employees Margaret Bent-
ley and Penny Dougherty 9 met with loele. When they indi-
cated that, generally speaking, the employees' main com-
plaint concerned wages, loele offered to see what he could
do about the matter.
At the second employee meeting, held shortly before the
election, Respondent distributed a special edition of
"Naum's Naum News," normally a much smaller mimeo-
graphed typewritten house organ distributed with pay-
checks. The special edition, dated May 9 and distributed to
the Drayton Plains employees at loele's second group
meeting, was very large and professionally printed in an
eye-catching format. It was devoted virtually exclusively to
wage increases and increased benefits then being put into
effect. The headlines, format, and typography of this spe-
cial edition were such that nobody could miss the message
that Naum's was granting very substantial increases in
wages and benefits. Among the benefits announced were
more holidays, increased vacations,jury duty pay, Respon-
dent's assuming a larger portion of Blue Cross/Blue Shield
premiums, and increases for employees receiving $2.55 per
hour or less.
Respondent's promises were exceeded by its conduct just
before the election. As of May 9, a "general increase" was
granted to some 39 employees at the Drayton Plains store.
These increases were not limited to low-paid employees but
included virtually all members of the bargaining unit. They
ranged from 10 to 70 cents per hour and were in addition
to merit and periodic raises otherwise given. It also appears
' As elsewhere noted. the parties disaglee a.i to hether Do)ughert w*, I,
supervisor 11 is unnccssar forr the purpo,es if this case to resolve that
dispute
that the general raise was first reflected in the paychecks
distributed about an hour or so before the balloting com-
menced in the Board-conducted election. The increases
generally exceeded the amounts promised in the "Naum
News" of May 9. There is no probative evidence that the
raises followed any previously established pattern or prac-
tice.
In its brief Respondent openly concedes that on May 9 it
adopted a plan which increased employee benefits "and
led to an across-the-board wage increase." Then it asserts:
"It is obvious that the company wanted to reap the maxi-
mum of publicity and good will from the good news and
was not shy in calling attention to it." The "maximum"
good will would be reflected in defeat of the Union, which
was ardently desired by Respondent.
In its brief, Respondent argues that "lilt is well settled
that implementation of a company-wide benefit package
does not violate the Act. Nalco Chemical Compan, 163
NLRB 68 (1967). Furthermore, in the case of Phillips-Van
Heusen Corp., 165 NLRB I (1967), the Employer did not
violate the Act by granting wage increases and other bene-
fits since the benefits applied to nine (9) other plants and
the decision to grant the increases and other benefits was
made at company headquarters in another state." The cit-
ed decisions do not establish any per se rule but stand on
their own particular facts.
In Nalco consideration of the improvement in vacation
benefits involved had begun a month before the Union's
demand for recognition and would not have affected any
bargaining-unit employees for the ensuing 2 years. Because
of this fact, the Trial Examiner found that its effect would
be "minimal." 163 NLRB at 70. He credited the testimony
of the Respondent's vice president to the effect that the
improved vacation program had been adopted "to bring
Respondent into a better competitive position vis-a-vis"
other companies with which it competed for employment
of recent college graduates. In the present case Respondent
offered no satisfactory business explanation of the an-
nouncement and effectuation of the substantial increases
in wages and benefits. Nor was there any evidence that
Respondent had considered any such action before the
Union demanded recognition. Indeed. loele was credibly
quoted as having said that if he had known of the employ-
ees' dissatisfaction with wages steps would have been taken
earlier. The employee dissatisfaction was revealed only
through the union campaign.
In Phillips-Van Heusen the granting of wage increases
and improved benefits was but one of some 30 alleged vio-
lations of Section 8(a)( ), and the finding in that connec-
tion was of little practical effect. In finding that "[u]nder all
the circumstances" the granting of such benefits "was un-
related to union activity," the Trial Examiner did note that
the benefits had been determined at the home office and
covered several plants in which there was no union activity.
165 NLRB at 11. However, he was at pains to note that
"the findings that in certain respects the Company has not
violated Section 8(a)/ 1) establish only a failure of proof on
this record, so that if in the future the Company should (for
example) grant a wage increase to discourage unionism, the
conduct would violate the order against interference, re-
straint, and coercion." In the present case, however. it is
NAUM BROS., INC.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clear on the record that Respondent was concerned not
only about unionization of the Drayton Plains store but
also about its effect on its other stores. Employee Adkins
credibly quoted loele as having said at one of the employee
meetings "that he would not allow a union to come into
[the] Drayton Plains store; that if it was in one store it
would have to be in all the rest of the stores."
Accordingly, it is found that at the employee meetings of
April 15 and May II loele unlawfully solicited employee
grievances while at least impliedly promising to have them
remedied. This conduct violated Section 8(a)(l) of the Act.
Reliance Electric Company, Madison Plant Mechanical
Drives Division, 191 NLRB 44, 46 (1971), enfd. 457 F.2d
503 (6th Cir. 1972); Freedom Dodge, Inc., 236 NLRB 1188
(1978); Raley's Inc., 236 NLRB 971 (1978). The unprece-
dented grant of substantial wage increases and improved
benefits just before the election was violative of Section
8(a)(l) of the Act. N.L.R.B. v. Exchange Parts Company,
375 U.S. 405 (1964); Broadmoore Lumber Company, 227
NLRB 1123, 1131 (1977), enfd. 578 F.2d 238 (9th Cir.
1978).
3. Interrogation
Employee Jimmie Goodman testified that in April and
May, before the election, Store Manager Zipf and Assis-
tant Manager Tabb on several occasions asked Goodman
whether he "was for the union or for the company."
Goodman's reply generally was: "I'm not for either one,
I'm for myself." 'o Since neither Tabb nor Zipf testified,
Goodman's testimony in this regard is undisputed and is
credited. Since there is no apparent valid reason for Re-
spondent's curiosity and, so far as appears, no assurances
against reprisals were given, the interrogations clearly vio-
lated Section 8(a)(l) of the Act. F M. Broadcasting Corp.,
211 NLRB 560, 562 (1974), and cases cited; Knight Electri-
cal Displays, Inc., 234 NLRB 975 (1978).
Employee Gail Olson testified that the morning after the
first union meeting Charles Martin asked her how many
people had attended the meeting. While Martin apparently
did not press his inquiry after Olson said that a majority of
the employees had been present, Martin's question was im-
proper and violative of the Act if Martin was a supervisor
or agent of Respondent. Cagle's Inc., 234 NLRB 1148
(1978).
Charles Martin's title is "Receiving Manager." He di-
rects the work of the stockboys. Uncontradicted evidence
establishes that he has on occasion at least effectively rec-
ommended hiring and firing of employees. He is salaried
and considered exempt under the Fair Labor Standards
Act. Additionally, Respondent did not include his name in
the Excelsior list it provided for the election. On the other
hand, it appears that Martin spends most of his working
time at physical labor. Such labor includes operation of a
forklift, a function which only he performs.
While the evidence on this question is somewhat sparse,
I find, on balance, that Charles Martin was a supervisor
and agent of Respondent within the meaning of the Act.
10 So far as the record discloses, Goodman did not execute a union au-
thorization card or engage in any union activities.
Cf. Jays Foods, Inc. v. N.L.R.B., 573 F.2d 438, 444-445 (7th
Cir. 19 78).Ii In reaching this conclusion, I have taken into
consideration Martin's failure to testify, despite the fact
that the complaint and answer clearly put his status in is-
sue.
It is no defense to the allegations of unlawful interroga-
tion that the supervisors put their questions in a friendly
manner. Quemetco, Inc., a subsidiary of RSR Corporation,
223 NLRB 470 (1976).
4. Impression of.surveillance
As stated above, employee Olson testified, without con-
tradiction, that Charles Martin asked her about a union
meeting held the previous evening. The question shows
knowledge of union matters and thus gives the impression
of surveillance.
Similarly, Tabb created the impression of surveillance of
employee union activities when he said he had heard that
Dean Martin was "throwing his weight around" on behalf
of the Union. And employee Montgomery credibly testi-
fied that during the campaign Store Manager Zipf dis-
closed his knowledge that Montgomery was involved in
union activity and the Respondent's disappointment.
Dean Martin also testified, without contradiction, that
Kay Ruelle stated to a small group of employees that Zipf
knew about a scheduled union committee meeting. Re-
spondent contends that Ruelle was not a supervisor and
therefore that Respondent is not responsible for her con-
duct. Ruelle's title is that of personnel manager. She shares
an office with Assistant Store Manager Tabb. Employee
Susan Adkins testified that she had been "hired" by
Ruelle. There was no evidence indicating whether Ruelle
had made the decision to hire Adkins or, on the other
hand, had merely transmitted a message from higher man-
agement. Respondent adduced no evidence as to Ruelle's
legal status.l2
Whether or not Ruelle was actually a "supervisor" with-
in the statutory definition, the evidence does clearly indi-
cate that, in the minds of the employees, she was closely
identified with management. Respondent thus is responsi-
ble for Ruelle's conduct. Samuel Liefer and Harry, Ostreich-
er, a copartnership d/b/a River Manor Health Related Facil-
ity, 224 NLRB 227, 235 (1976); American Lumber Sales,
Inc., 229 NLRB 414, 418-420 (1977).
Accordingly, on all the evidence, I find and conclude
that, as alleged, Respondent, through Zipf, Tabb, Charles
Martin, and Ruelle, violated Section 8(a)(1) of the Act by
I Respondent's argument in favor of holding Dougherty to be a supervis-
or reads: "She is the Department Heat of the Return to Vendor Department
: receives a salary not an hour wage ... she is described by employee
witnesses as a 'supervisor' . and 'boss' . : she assigned work . . ;
told employees when to take their rest period . . Adkins contacted
Dougherty several times to discuss when to return to work ... " Very
similar statements could be made concerning Charles Martin. In addition.
however. it appears that Martin as salaried and exempt under the Fair
Labor Standards Act at all relevant times, whereas Dougherty did not attain
that status until April 18 And, unlike Martin, )Dougherty was included in
Resx)ndent's Excelsior list.
'Her name was not included in Respondent's Ekielivior list, but this fact
might be attributable to the exclusion of office clerical and/ or confidential
eniplo.yees from the bargaining unit
NAUM BROS., INC. 317
creating the impression that employees' union activities
were being kept under surveillance."
5. Threats
There is no dispute that in the employee meetings on
April 15 and May II loele made clear his opposition to
having the store unionized. He emphasized the alleged
"fact" that the Union's presence had caused the failure (or
bankruptcy) of the Drayton Plains store when it had been
operated by Federal.
Employee Adkins testified that oele "reminded" the
employees of stores in which there had been layoffs or
which ceased functioning because unions came in and
"made too many demands on the companies." According
to Adkins' uncontradicted testimony, loele "did say that he
would not allow a union to come into [the] Drayton Plains
store." As previously noted, loele did not testify. Neither
did any of the other management representatives present at
the meetings, including Zipf, Tabb, and Regional Manager
Larry Allan.
While it does not appear that loele expressly stated that
Respondent would close down the store if the Union were
to come in, there is little doubt that the gist of his remarks
was that unionization would result in closure and that
unionization would be futile since Respondent in effect
had the last word and would decide by itself what wages,
benefits, and working conditions would be granted. Ioele's
statements at the meetings were apparently calculated to
put over the foregoing message while avoiding direct state-
ments.
Related letters to the employees by Zipf underscored
loele's message. For example, as the Union points out in its
brief, on May 1l, the date of the second employee meeting,
Zipf wrote to each employee saying, inter alia, that union-
ization would not necessarily mean wage increases. He
wrote, in part:
. . .The Union doesn't pay you anything, they COL-
LECT money from you and use your money to pay
their own officers and organizers.... What comes
out of a contract depends entirely on what the compa-
ny can afford and agrees on during negotiations with
the Union, not on what the Union promises.
In the same letter, after assuring the employees that
"lalnyone who does his or her job well" would have no
reason to fear a loss of the job, "Union or no Union," Zipf
immediately added: "The ex-employees of Topps, Yankee,
Federals, Spartan-Atlantic did not find job security in their
union contracts when their stores closed and they were per-
manently discharged." And in a letter dated May 16, Zipf
warned the employees that "the Union promises are worth
just what they cost the Union to make-very little, but
those promises may cost you a great deal more than you
ever dreamed they could."
Dean Martin testified that:
i There also was evidence that Zipf. while in the store, had appeared to
photograph union representative Farmer distributing literature in front of
the store. Since this conduct was not specifically alleged in the complaint
and Respondent duly objected to evidence concerning it. no finding is made
in this connection.
Mr. Tabb said if the union was to get into Naum's that
they would close the doors or that no retail operation
could operate or pay the wages that the union would
want them to pay without . . . closing up or some-
thing like that.
Employee Olson testified that she heard Charles Martin
telling two of the stockboys whom he supervised that "it
would be no good to have a union in here; that eventually
the store would close." However, on cross-examination she
weakened her testimony, saying that Martin had referred
to the "possibility" of store closure if the Union came in.14
But the threat was still present. Respondent's argument in
this connection is representative of its failure to present
any substantial defense to the complaint. Respondent says:
"Most importantly, the stockboys themselves were not
called to corroborate Olson's testimony." But "corrobora-
tion" of uncontradicted testimony is unnecessary. On the
other hand, Respondent conjectures that:
Martin could have been legitimately expressing an
opinion that it would be no good to have a union in
the store. He probably was referring to business condi-
tions when he said "eventually the store would close."
But there was no evidence to support Respondent's conjec-
ture as to the context of Martin's statement. In the circum-
stances of this case, the importance of Martin's statement
is not lessened by the fact that he was a relatively minor
supervisor. C & T Manufacturing Company, 233 NLRB
1430 (1977).
Taken together, and in the context of other unfair labor
practices, the oral and written statements of Respondent's
representatives could convey no message other than that
unionization would be futile or would result in closure of
the Drayton Plains store. At no time did Respondent at-
tempt to support this bleak view as a factual prediction
"carefully phrased on the basis of objective fact to convey
[Respondent's] belief as to demonstrably probable conse-
quences beyond his control." N.L.R.B. v. Gissel Packing
Co., Inc., 395 U.S. 575, 618 (1969). So far as appears, in
communicating with the employees, loele made no attempt
to support his statements that Federal's operation of the
Drayton Plains store was shipwrecked by the Union. Mar-
athon Le Tourneau Company, etc., 208 NLRB 213 (1974),
enfd. 498 F.2d 1400 (5th Cir.).
The true message and effect of Respondent's prediction
of futile bargaining or store closure must be viewed against
the background of Respondent's total course of conduct,
which, as hereafter found, contained a discriminatory dis-
charge, the unlawful promise and grant of increased wages
and benefits, interrogation, and creating the impression of
surveillance. In such context, it would have been virtually
impossible for employees to avoid the conclusion that they
were being threatened with dire consequences if they voted
the Union in. Accordingly, on all the evidence, I find and
conclude that, as alleged, Respondent violated Section
14 Her testimony was: "A. He was saying that if the union did come into
Naum's that it would be a possibility that the store would be closed and you
guys would be without a job. Q. Did he mention that Federal's had closed
or anything like that? A. No. I can't remember .. Q. Is it correct to say at
this time you don't recall Mr. Martin's exact words in his conversation with
the two stock people? A. Not the exact conversation. no."
NAUM BROS., INC.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(1) of the Act by impressing upon the employees the
futility of unionization and/or threatening to close if the
employees chose to be represented by the Union. Little
Lake Industries, Inc., 233 NLRB 1049 (1977); C & T Manu-
facturing Company. 233 NLRB 1430, 1431 (1977).
B. Section 8(a)(3)- Discharge of Dean Martin
Dean Martin was hired as a major appliance salesman
by Mazola on March 14, 1976, after having previously
been interviewed by Zipf, manager of the Drayton Plains
store. Shortly after being hired, Martin signed a union au-
thorization card and accepted membership on the Union's
organizing committee. He spoke to employees about the
Union in the store.
Upon being hired in March, Martin was a "probationary
employee" for 90 days. However, after an initial 2 weeks at
a straight weekly salary of $150 Martin started to receive
his permanent compensation, which was a guarantee of
$125 per week against commissions earned, the same com-
pensation received by Jimmie Goodman, the other major
appliance salesman at Drayton Plains.
Mazola discharged Martin on Friday, April 23. Mazola
testified that in the discharge interview he spoke about
Martin's failure to file "traffic sheets," his tardiness and
failure to punch timecards, his working less than full time
in the final weeks of his employment, and his "completely
negative attitude as to receiving any type of criticism."
The credited evidence establishes that Respondent was
aware of Martin's union activities and sympathies. As pre-
viously found, around April 7, Assistant Manager Tabb
said he had heard that Martin was "throwing [his] weight
around for the union." Since Tabb did not testify, Martin's
testimony was uncontradicted. In addition, Kay Ruelle,
personnel manager, who also failed to testify, told a group
of employees that Store Manager "Zipf [knew] about the
[union] committee meeting" then scheduled for April 14.
Even absent such direct evidence of Respondent's
knowledge, I should find such knowledge on the basis of
circumstantial evidence, principally the timing of the sud-
den discharge. It is by now a truism that employer knowl-
edge of employees' union activities may be proved by cir-
cumstantial as well as by more direct evidence. N.L. R.B. v.
Link-Belt Company, 311 U.S. 584, 602 (1941); F. W. Wool-
worth Company v. N.L.R.B., 121 F.2d 658, 660 (2d Cir.
1941); Syracuse Tank & Manufacturing Company, Inc., 133
NLRB 513, 539 (1961). And an express denial of knowl-
edge by the employer is not conclusive. See, e.g., Shattuck
Denn Mining Corporation (Iron King Branch) v. N.L.R.B.,
362 F.2d 466, 470 (9th Cir. 1966); N.L.R.B. v. Edward P.
Tepper, d/b/a Shoenherg Farms, 297 F.2d 280, 284 (0th
Cir. 1961). The question of Respondent's knowledge must
be determined from all the surrounding circumstances.
A. J. Krajewski Manufacturing Company, Inc., v. N.L.R.B.,
413 F.2d 673, 676 (Ist Cir. 1969); Sterling Aluminum Co.. a
Division of Federal-Mogul v. N.L.R.B., 391 F.2d 713, 722
(8th Cir. 1968); N.L.R.B. v. Melrose Processing Co., 351
F.2d 693, 698 (8th Cir. 1965).
The timing of an unheralded discharge is itself sufficient
to raise a presumption of knowledge N.L.R.B. v. Montgom-
ery Ward & Co., Inc., 242 F.2d 497, 502 (2d Cir. 1957), cert.
denied 355 U.S. 829; N.L.R.B. v. Mid State Sportswear,
Inc., 412 F.2d 537, 539 (5th Cir. 1969); N.L.R.B. v. Tennes-
see Packers, Inc., Frosty Morn Division, 390 F.2d 782, 784
(6th Cir. 1968).
As to the traffic sheets, the evidence establishes that,
while traffic sheets had been used on occasions in the past,
they were not being used when Martin was hired. On April
1, Fletcher Brothers, regional sales manager, issued a mem-
orandum requiring that copies of traffic sheets be forward-
ed to the regional office in Mt. Clemens, Michigan, on a
daily basis. The memorandum stated that failure to comply
could result in termination. The traffic sheets called for the
listing of customers' names, addresses, and telephone num-
bers, the merchandise desired, and the reason for each
customer's failure to make a purchase. Martin conceded
that on some occasions he had failed to execute traffic
sheets. This occurred when there were no qualified custom-
ers to report. He further testified that many customers were
reluctant to provide the information requested, and Good-
man, the other salesman, testified that trying to get the
necessary information was often embarrassing. Goodman
also frequently failed to submit traffic sheets. While Mazo-
la indicated that Martin failed to file traffic sheets more
often than Goodman, he provided no specifics and failed
to produce the traffic sheets of the two men or any other
company records which might reflect Martin's inferior
conduct on this score.'5 Mazola eventually disclosed that
he had destroyed the relevant traffic sheets some months
ago, but after the present complaint had been issued. Ma-
zola also conceded that after Martin was fired traffic sheets
were sent in only about half the time until September,
when they were essentially abandoned because of the
Christmas selling season. In view of all the circumstances, I
find totally incredible Mazola's testimony that he was un-
aware of the present proceeding when he destroyed the
traffic sheets. Obviously, the possible unionization of one
store of Respondent's hitherto nonunion chain would be of
immediate interest to all high ranking officials, particularly
those working within the same region.
As to Mazola's second claimed reason for discharging
Martin, namely tardiness and failure to punch his timecard
regularly, the evidence establishes that employees frequent-
ly failed to punch timecards without any disciplinary con-
sequences. Mazola did not expatiate on the alleged "tardi-
ness"; there is no evidence clearly showing tardiness; and
Mazola conceded that in the exit interview he had not
mentioned Martin's poor attendance. In this connection it
should be noted that Goodman and Martin made out their
schedules together, with Goodman, as the senior employee.
having major responsibility. The schedules were so ar-
ranged that at least one of the two salesmen would be pres-
ent during all times the store was open; namely, 10 a.m. to
9 p.m. Mondays through Saturdays and 10 a.m.'6 to 5 p.m.
on Sundays. There is no evidence that the major appliance
department had been left unattended at any time.
Mazola testified that in his preemployment interview
Martin was told that he would be expected to work an
In its brief, the Union states that the traffic sheets had been subpenaed.
It is not clear whether the store opened at 10 a.nm. or at noon on Sun-
days. he two major appliance salesmen alternated on Sunday work.
NAUM BROS., INC. 319
average of 42 hours a week. However, this testimony was
uncorroborated, and Respondent's personnel manual pro-
vides for a regular workweek of 36 hours. 17
In its brief Respondent states that "Goodman had also
called Mazola to complain about Martin's tardiness which
was causing him extra work." However, Mazola's testi-
mony does not fully support this contention. Mazola actu-
ally testified that Goodman complained "that he was not
getting any help from any of the people, including Martin."
Goodman's primary concern was that the stockroom em-
ployees were not helping him get merchandise to the cus-
tomer adequately. To remedy the matter, Mazola spoke to
Zipf "about the inadequacy of the system in which we got
major appliances to customers." In testifying, Goodman
corroborated Mazola's testimony concerning complaints
about the delivery system but expressly disclaimed any rec-
ollection of baving complained about Martin's alleged
"short work schedule."
In order to establish Martin's alleged short hours, Re-
spondent introduced his timecards for the duration of his
employment. However, the timecards are not entirely reli-
able, since Martin frequently failed to punch the clock, and
the cards themselves contain some obvious errors. So far as
appears, Martin was not reprimanded for his allegedly de-
clining hours of work. It is also significant that Respondent
did not offer Goodman's timecards in evidence to refute
the General Counsel's claim of disparate treatment of the
two major appliance salesmen.
Mazola also complained of Martin's "negative" attitude,
evidenced by his alleged refusal to gracefully accept con-
structive criticism. Mazola's testimony in this connection
was unpersuasive. He spoke of a prescribed 5-point sales
technique but failed to specify the manner in which Martin
departed therefrom or how any departures were harmful.
Nor did Respondent attempt to establish Goodman's
adherence to the alleged technique.
At the hearing, Mazola placed some emphasis on
Martin's alleged poor salesmanship, as evidenced by his
failure at any time to earn more in commissions than his
guaranteed $125 per week. However, Goodman testified,
without contradiction, that he had not exceeded his guar-
anteed $125 per week at any time other than during the
Christmas shopping period. Martin, of course, was not em-
ployed by Respondent during that season. Mazola main-
tained that Martin sold many low-profit advertised items,
whereas Goodman concentrated on regularly priced, high-
er profit merchandise. However, here, as in most phases of
the case, Respondent adduced no supporting documentary
evidence. Presumably Respondent had, or could readily
compile, a comparison of the two men's sales records. Ad-
ditionally, the evidence establishes that Goodman had
been given a considerably longer trial period than Martin
had in order to learn the business. Indeed, Martin testified,
without contradiction, that as late as April 7 Tabb told him
that Mazola was pleased with Martin's work "and the re-
cent improvement in sales" in the major appliance depart-
17"Regular employee" is defined as follows: "One employed to work a
regular schedule on a year round basis . . with the Company's intent to
provide active employment for thirty-six (36) hours or more per week." For
salaried employees, overtime is computed on the basis of 40 hours per week.
ment. Tabb also said that Martin "had a great future with
Naum's" and that Tabb would speak with Mazola about
the possibility of Martin's moving "up into management in
the Appliance field."
Here, as in all other aspects of the case, Respondent has
failed to adduce any documentary evidence of Mazola's
contention.
After the conclusion of both direct and cross-examina-
tion, in answer to my questions, Mazola for the first time
testified that relatively early in his employment Martin had
made an error which caused Respondent some inconve-
nience and expense. The time of this revelation clearly es-
tablishes that the error played no part in Martin's dis-
charge. On the contrary, Mazola's belated reference to the
matter strengthens the inference that he was looking for
possible rationalizations for a discriminatorily motivated
discharge. See, N.L.R.B. v. Teknor-Apex Company, 468
F.2d 692 (Ist Cir. 1972); Daniel Construction Company, etc.,
229 NLRB 93 (1977).
It is also significant that Mazola discharged Martin with-
out prior discussion with or notice to Zipf, the store man-
ager. This conduct is particularly notewvorthy in view of
Mazola's testimony that he had made no arrangements for
a replacement and expected that Zipf and/or Tabb would
have to fill in as salesmen of major appliances. It would
appear only reasonable that if Martin's discharge had been
based on business considerations the store manager and
assistant manager would have been consulted as to the fea-
sibility of their taking on new duties. This consideration is
reinforced by Mazola's testimony that Goodman was al-
ready complaining of overwork.
A note is in order concerning Respondent's contention
that its failure to fire the union ringleaders (notably Ida
Lane) disproves any discriminatory motivation in Martin's
discharge. It is well established that discharges need not be
made on a wholesale basis in order to violate the Act.
N.L.R.B. v. W. C. Nabors Company, 196 F.2d 276 (5th Cir.
1952), cert. denied 344 U.S. 865; N.L.R.B. v. Puerto Rico
Telephone Compan,. 357 F.2d 919 (Ist Cir. 1966); Nachman
Corp. v. N.L.R.B., 337 F.2d 421, 424 (7th Cir. 1964). The
discharge of a single union sympathizer during an organiz-
ing campaign can easily put over the employer's message to
the other employees.
It may be that Martin was chosen as a warning to other
employees because of a belief that his probationary status
made him more vulnerable and left Respondent with less
chance of being found in violation of Section 8(a)3). But it
is clear that so-called "probationary" employees are fully
entitled to the protection of Section 7 of the Act. Georgia-
Pacific Corporation, 204 NLRB 47, 56 (1973).
Mazola's testimony contained several significant incon-
sistencies. For example, he initially testified that he tele-
phoned the Drayton Plains store a day or two in advance
to insure that on the morning of Friday, April 23, both
Martin and Goodman would be present so that Mazola
"could talk to both of them and continue the training pro-
gram." There was no corroboration of this testimony.
When Mazola arrived at the store on Friday morning,
Goodman was present but Martin was not, in line with the
usual practice of having one man arrive for the morning
opening at 10 a.m., the other arriving at I p.m. and remain-
NAUM BROS., INC.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing through the 9 p.m. closing. Although he initially
claimed that Martin was scheduled to work that morning,
Mazola eventually, in effect, conceded that he had read
the
wrong schedule. Martin was summoned to the store
from
his home. When he arrived, around noontime, he
was sum-
marily discharged, with Mazola making no overtures
to-
ward conducting the "training" for which he originally
said
he had gone to the store. At a later point, Mazola
testified
that he had visited the Drayton Plains store "that
morning
to discharge Mr. Martin." Still later Mazola reverted
to his
contention that he had gone to the store to "train"
both
salesmen.
Similarly, Mazola first testified that in the discharge
in-
terview he spoke to Martin about his alleged short working
hours, among other things. However, Mazola also testified
that in the exit interview he had merely "told Martin
[that
Respondent] would not be able to use him in the position
he filled at the present time" and that Mazola
"could see
no future in his continuing service." Mazola then testified
that at that time he "didn't say anything else" and
even
later testified specifically that he believed he had not
men-
tioned Martin's attendance in the separation interview.
The timing and abruptness of the discharge constitute
a
prima facie showing of a causal relationship between
the
grievance and the assignment. Thereupon "a very
definite
burden [was] imposed on the employer to prove
existence
of a reason, not within the Act's provisions" for the
assign-
ment. N.L.R.B. v. Okla-lnn d/b/a Holiday Inn of Henryetta,
488 F.2d 498, 507 (10th Cir. 1973); N.L.R.B. v.
Standard
Container Co., 428 F.2d 793, 794 (5th Cir. 1970). Respon-
dent has presented no substantial credible evidence
war-
ranting a finding that Martin was discharged for cause.
In
the absence of any such evidence, it is found that,
as al-
leged in the complaint, Martin was discharged for the
pur-
pose of discouraging unionization of Respondent's
Dray-
ton Plains employees.
C. Section 8(a)(5)
The Union filed a representation petition on March
30.
It was stipulated at the trial that in the period March
30
through April 10 there were 39 employees in the
appropri-
ate bargaining unit. In addition, there was one employee,
Penny Dougherty, who Respondent maintains was a
super-
visor, contrary to the General Counsel's and the Union's
position. In addition, there were three employees (Marvin
Dale Cooper, Marvin Joseph Mero, and Diane Tersigni)
whose last day of employment with Respondent
was
March 30. The parties appear to be in agreement
that the
three employees whose last day of employment was
March
30 should not be included in the unit in determining major-
ity status. Is Additionally, the Excelsior list did not include
the name of Dean Martin, the alleged discriminatee
in this
case. Manifestly, since it has been found that Marvin was
unlawfully discharged, his name should be added to
the list
of unit employees. Under these circumstances, and
on the
assumption, arguendo, that Dougherty was a supervisor,
as
Respondent maintains, the record shows that by March
30,
Is Two of the three had executed union authorization cards.
24 1' employees in a unit of 40 20 had executed union au-
thorization cards. Ida C. Lane 21 and Steve Lane signed
cards on April 5 and Jeffrey D. Metheny on April 6. Thus,
by April 6, the Union had authorizations from 27 employ-
ees in a unit of 40, a clear majority.
Respondent attacks the showing of majority status on
the grounds that all but eight of the cards were authenticat-
ed only by testimony of Mr. Richard Bowen, presented
by
the General Counsel as a handwriting expert. Mr. Bowen's
qualifications were fully established by his uncontradicted
testimony concerning his career for the past 47 years,
of
which some 41 or 42 have been spent as a handwriting
expert, first with the Detroit Police Department from
around 1936 to 1953 and thereafter on an independent full-
time basis in civil cases, including Board proceedings.
22 In
objecting to Bowen's testimony as an expert, Respondent's
counsel took the untenable position that nobody other
than an FBI agent could be considered a qualified hand-
writing expert.
It is established Board law that signatures on authoriza-
tion cards may be duly authenticated by handwriting
ex-
perts. Aero Corporation, 149 NLRB 1283, 1287 88 and
fn.
I (1964), enfd. sub nom. International Union, United A
uto-
mobile, Aerospace and Agricultural Implement Workers
of
America, AFL-CIO v. N.L.R.B., 363 F.2d 702 (D.C. Cir.
1966); Snyder Tank Corporation, 177 NLRB 724,
740
(1969), enfd. 428 F.2d 1348 (2d Cir. 1970), cert. denied
401
U.S. 1021. And, contrary to Respondent's contention, such
authentication has been accepted where, as here, it appears
that the signatures on the authorization cards were com-
pared only to W-4 forms in the employer's records. Triggs-
Miner Corporation, 180 NLRB 206, 211 (1969).
As the
Union argues, that ruling should be deemed afortiori appli-
cable in the present case, where Respondent apparently
refused to make available employment applications for use
by Bowen in his comparisons.
23 That Bowen was unable to
authenticate two of the cards submitted to him certainly
does not cast any doubt on the cards he did authenticate.
The cards are entirely unambiguous, reading: "I .
..
19 Including Martin's card but excluding those of Dougherty. Mero. and
Tersigni.
Adding Martin to and removing Dougherty from the agreed list.
21 The lateness of Ida C. Lane's card is interesting, in view of the fact that
she appears to have been the employee most active in the Union's
cam-
palin.
Cf. Triggs-Miner Corporation. 180 NLRB 206 211 (1969). referring to
Richard Bowen, "whose qualifications as a handwriting expert
are shown by
the record and were conceded by the Respondent."
23 In its brief Respondent states that "it is common knowledge that man)
times secretaries or office clericals actually fill out the W4 forms
when
preparing personnel jackets for new employees." The Board has
met such
argument as follows(Aero Corporation, 149 NLRB 1283, 1287 (1964)
) "Both
the source of the handwriting specimens and the nature of the
documents
involved are strong evidence of the genuineness of the handwriting thereon.
Thus, in every case the handwriting sample included [a] Form
W4. The
employee himself is required by statute to sign this certificate.
If Respon-
dent wishes to attack the genuineness of the signatures on these forms,
it
could have come forward with some evidence indicating that they were
not
genuine. Respondent has not done this."
24 One could not be erified because it as unsigned. the employee's
name appearing only in printed form. As to the other, although
Bowen at
one point testified that the named employee had not signed
the W4 form,
the tenor of his testimony was simply that the authorization
card and the
W-4 form had not been signed by the same person. The name of the
em-
ployee involved had been added to the Excelsior list on the
day of the
election.
-
HA
NAUM BROS., INC. 321
have voluntarily designated [the Union] as my bargaining
agent in all matters pertaining to wages, hours, and other
conditions of employment." Respondent adduced no evi-
dence which would suggest that they were obtained by mis-
representation or were otherwise open to any doubt as to
their validity.
Thus, on all the evidence, it is found that the Union
represented a majority of the employees in an appropriate
bargaining unit on March 30, when it demanded recogni-
tion and filed a representation petition.
The Union's demand for recognition did not in itself
obligate Respondent to commence bargaining. So long as
Respondent did not engage in unfair labor practices de-
signed to undermine employee support of the Union, it was
entitled to have the question of representation decided by a
Board-conducted election. However, by committing such
unfair labor practices, Respondent forfeited its right to an
election and came into violation of Section 8(a)(5) of the
Act. The evidence establishes that early in April, very
shortly after the Union's demand, Respondent posted the
"No Solicitation" notices which have been found violative
of the Act. Numerous additional unfair labor practices en-
sued. Accordingly, it is concluded that Respondent vio-
lated Section 8(a)(5) and (1) of the Act by refusing to rec-
ognize the Union as the exclusive representative of
Drayton Plains employees. Trading Port, Inc., 219 NLRB
298, 301 (1975).
Since Respondent was legally bound to recognize the
Union at least early in May, it was not free to make
changes in the terms and conditions of employment with-
out consultation with the Union. Accordingly, Respondent
violated Section 8(a)(5) and (I) of the Act when it an-
nounced and instituted changes in benefits and a general
wage increase in May.25 Although these changes were not
specifically alleged as violative of Section 8(a)(5), they were
alleged as violative of Section 8(a)(1) and were fully litigat-
ed. That the admitted increases were violative of Section
8(a)(5) follows as a matter of law from the finding that
Respondent was legally obligated to recognize the Union.
Trading Port, Inc., supra at 314-315.
CONCLUSIONS OF LAW
I. Naum Bros., Inc., is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Retail and Department Store Employees, Amalga-
mated Clothing and Textile Workers Union, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent has violated Section 8(a)(l) of the Act
by: (a) interrogating employees about their union activities
and desires; (b) creating the impression that its employees'
union activities are being kept under surveillance; (c) soli-
citing employees' complaints and grievances and expressly
or impliedly promising to provide remedies; (d) indicating
to employees that unionization would be futile and might
2 Other individual wage increases granted appear to have followed an
established pattern and thus are not found violative of the Act.
lead to closure of Respondent's store in Drayton Plains,
Michigan; (e) promising and granting improved employee
benefits and wage increases to discourage adherence to the
Union; and (f) promulgating and maintaining an unlawful
prohibition of solicitation.
4. Respondent has violated Section 8(a)(3) and () of the
Act by discharging Dean A. Martin on April 23, 1977, and
thereafter failing and refusing to reinstate him in order to
discourage union activities.
5. All full-time and regular part-time selling and non-
selling employees employed by Naum Bros., Inc., at its
5000 Dixie Highway, Drayton Plains, Michigan, store, but
excluding all office clerical employees, professional em-
ployees, guards and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
6. Since March 30, 1977, the Union has been the exclu-
sive collective-bargaining representative of the Respon-
dent's employees in the unit herein found appropriate with-
in the meaning of Section 9(a) of the Act.
7. Respondent has violated Section 8(a)(5) and (1) of the
Act by: (a) refusing to bargain with the Union as the col-
lective-bargaining representative of the Respondent's em-
ployees in an appropriate unit on and after March 30,
1977; (b) unilaterally announcing and then granting im-
proved employee benefits and general wage increases to
employees in the appropriate unit in April and May 1977.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has committed and is
committing unfair labor practices, I shall recommend that
it be ordered to cease and desist therefrom and to take
certain affirmative action, as is customary in such cases.
Since Respondent's unfair labor practices go to the heart of
the Act, I shall recommend a broad cease and desist order.
And, having found that Dean A. Martin was discharged in
violation of Section 8(a)(3) and (1) of the Act, I shall rec-
ommend that Respondent be ordered to offer Martin rein-
statement to his former job or, if such job no longer exists,
to a substantially equivalent job, without prejudice to his
seniority and other rights and privileges, and to make him
whole for any loss of earnings he may have suffered by
reason of the discrimination against him by paying to him
a sum of money equal to that which he normally would
have earned absent the discrimination, less net earnings
during such period, with interest thereon, to be computed
in the manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977). 26
There can be little question on the present record that
Respondent's unfair labor practices have been so pervasive
and egregious that they have undermined the Union's posi-
tion, and their effects are and will be so lasting as to render
it most unlikely that a fair election can be held, and that
the employees' wishes as reflected in their authorization
2' See, generally. Isis Plumbing & Heating Co. 138 NLRB 716 (1962).
NAUM BROS., INC.
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards are a more reliable indication of their true wishes.
Among the unfair labor practices committed were the
promise and grant of substantial wage increases and im-
proved benefits to virtually all of the members of the bar-
gaining unit. The Board has held that such conduct by
itself is sufficient to render it unlikely that a free election
could be held. See, e.g., C & G Electric, Inc., 180 NLRB 427
(1969):
. . . where, as here, the Employer grants substantial
wage increases to a high percentage of his employees
in violation of Section 8(a)(l) the employees are not
likely to miss the inference that "the source of benefits
now conferred is also the source from which future
benefits must flow and which may dry up if it is not
obliged." N.L.R.B. v. Exchange Parts, 375 U.S. 405.
We find that this unlawful conduct was of such a na-
ture as to have a lingering effect and the use of tradi-
tional remedies was unlikely to insure a fair or free
rerun election. Thus, even in the absence of the unlaw-
ful interrogation we would conclude that the viola-
tions of Section 8(a)(l) require the bargaining order
issued herein ....
Finally, we are persuaded that the unambiguous
cards validly executed by a majority of employees in
the unit represent a more reliable measure of employ-
ee desire on the issue of representation in this case,
and that the policies of the Act will be effectuated by
the imposition of a bargaining order.
See also, e.g., Bookland, Inc., 221 NLRB 35 (1975); Lang
Feed Company, Incorporated, 227 NLRB 1588, 1591 (1977);
Idaho Candy Company, 218 NLRB 352 (1975); Viele &
Sons, Inc., 227 NLRB 1940, 1949 (1977); Teledyne Dental
Products Corp., 210 NI.RB 435 (1974), quoted in Doces
Sixth Ave. Inc., 225 NLRB 806, fn. 1 (1976).
Similarly, it has been found that in general communica-
tions with all the unit employees, as well as with individual
employees, Respondent has strongly, if somewhat subtly,
threatened to close the Drayton Plains store in the event of
unionization. The Board has recently repeated its long-
standing view that "such threats [are] one of the most fla-
grant means by which an employer may interfere with the
exercise of employee rights under Section 7 of the Act." C
& T Manufacturing Compan, 233 NLRB 1430. See also
N.L.R.B. v. Gissel Packing Co., 395 U.S. at 589.
Additionally, the discriminatory discharge of Dean A.
Martin during the crucial preelection ca:npaign strikes at
the heart of the Act and serves as an eloquent warning to
the employees of the potential high cost of supporting the
Union.
The overall combination of Respondent's unfair labor
practices thus is more than an adequate basis for setting
aside the results of the election and clearly requires the
issuance of a bargaining order, which I should recommend
even in the absence of a proven violation of Section 8(a)(5).
Medley Distilling Co., 187 NLRB at 84-85.
It appears that in situations like the present one the
Board dates the bargaining order from the time the em-
ployer first embarked on his course of unlawful conduct
designed to undermine the Union's position. In the present
case, the first unfair labor practice committed was the post-
ing of the invalid no-solicitation rule at a time not specifi-
cally identified early in April. Under these circumstances,
and for the sake of precision, it appears advisable to date
the bargaining obligation from March 30, 1977, when the
Union demanded recognition. Because of the lapse of time
since the Union's demand, it will be recommended that
Respondent's duty to bargain continue for a reasonable
time-at least 1 year from the date on which Respondent
commences compliance herewith. Cf. Glomac Plastics, Inc.,
234 NLRB 1309 (1978).
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and in accordance with
Section 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER 27
The Respondent, Naum Bros., Inc., Drayton Plains,
Michigan, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating any employees concerning
their union activities and sympathies or the union activities
and sympathies of any other employees.
(b) Taking any action which would create the impres-
sion that employees' union activities are being subjected to
surveillance.
(c) Soliciting employee grievances and complaints and
promising, either expressly or impliedly, to take remedial
action.
(d) Threatening any employees with closure of its Dray-
ton Plains, Michigan, store if the employees choose to be
represented by a union.
(e) Promising and/or granting any improvements in
benefits and/or wage increases to discourage employee
adherence to Retail and Department Store Employees,
Amalgamated Clothing and Textile Workers Union, AFL-
CIO (provided that Respondent is not required to discon-
tinue any such benefits and wage increases it may have
granted, unless the aforesaid Union shall so request).
(f) Promulgating or maintaining any rule which prevents
employees from soliciting on behalf of the Union in non-
selling areas of Respondent's premises during the employ-
ees' nonworking time or which imposes any greater re-
striction on employees' slicitation on behalf of the Union
than is imposed on solicitation for any other purpose.
(g) Refusing to bargain collectively with the aforesaid
Union as the exclusive bargaining representative of its em-
ployees in the appropriate bargaining unit at its store in
Drayton Plains, Michigan.
(h) Discharging or otherwise discriminating against its
employees because of their union activities or sympathies.
(i) In any other manner interfering with, restraining, or
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National l.ahor Relations Board. the findings,
conclusionis, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, he adopted b, the Board and become
its findings, conclusions. and Order, and all objections thereto shall he
deemed waived for all purposes.
NAUM BROS., INC. 323
coercing its employees in the exercise of rights guaranteed
to them under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Dean A. Martin immediate and full reinstate-
ment to his former position at Respondent's store in Dray-
ton Plains, Michigan or, if such position no longer exists, to
a substantially equivalent job, without prejudice to his se-
niority or other rights and privileges, and make him whole
for any loss of earnings in the manner set forth in the
section herein entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or any of its agents all records necessary to analyze
the amount of backpay due Dean A. Martin under the
terms hereof.
(c) Upon request, recognize and bargain with the above-
named Union as the exclusive representative of all the em-
ployees in the bargaining unit described herein, and if an
understanding is reached, upon request embody such un-
derstanding in a signed agreement.
(d) Post at its store in Drayton Plains, Michigan, copies
of the attached notice marked "Appendix." 28 Copies of
said notices on forms provided by the Regional Director
for Region 7, after being duly signed by an authorized rep-
resentative of Respondent, 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 cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 7. in writ-
ing, within 20 days of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the election held pur-
suant to Case 7-RC 14237 be set aside and the petition for
election in said case be dismissed.
2R In the event that this Order is enforced hb a judgent of a Uniled
States Court of Appeals. the words in the notice reading "Posted h Order
of the National Labor Relations Board" shall read "Posled Pursuant to a
Judgment of the tinted States ( ourt of Appeals Enforcing an Order of the
National Labor Relations Board