Rainbow Shops

National Labor Relations Board - Board Decisions

May 24, 1991

303 N.L.R.B. 78 (N.L.R.B. 1991)

78
303 NLRB No. 17
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent and the Union have excepted to some of the judge’s
credibility findings. The General Counsel also put credibility in issue by rely-
ing on testimony the judge did not credit. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
2 We agree with the judge that the Respondent violated Sec. 8(a)(3) both
by discouraging former Associated employees Qualls, Sims, Walker, Sullivan,
and Marilyn Campbell from applying for work, and by unlawfully refusing to
hire or consider for employment other former Associated employees who ap-
plied for part-time work. In adopting the judge on the applicant issue, we find
that the General Counsel established a prima facie case of unlawful discrimi-
nation which the Respondent failed successfully to rebut. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982). Thus, the applicants had been represented by the Union during
their previous employment, a fact well known by the Respondent, and they
applied for rank-and-file positions which the Respondent was actively engaged
in filling. Furthermore, the Respondent demonstrated considerable animus
against the Union as shown by the repeated unlawful statements of its man-
agers Baughn, Carrillo, Ringo, and Gardner that union-represented Associated
employees would not be hired. In these circumstances, and given the Respond-
ent’s failure to establish that the applicants would have been denied employ-
ment for reasons unrelated to their union membership, we agree that the Re-
spondent violated Sec. 8(a)(3).
3 The complaint alleged that the Respondent violated Sec. 8(a)(5) by refus-
ing to recognize and bargain with the Union as the exclusive representative
of Rainbow employees, and by unilaterally changing employees’ terms and
conditions of employment. After exceptions were filed with the Board, the
Union moved to withdraw its 8(a)(5) charges. The Board granted the Union’s
unopposed motion on May 1, 1991, and dismissed the 8(a)(5) complaint alle-
gations. Accordingly, the 8(a)(5) issues are not before us.
1 By means of Respondent’s answer and stipulations entered into at the hear-
ing, Respondent admits that the Board has jurisdiction and that the Union is
a labor organization within the meaning of the Act.
Rainbow Shops, Inc. and United Food and Com-
mercial Workers Union Local 1550, chartered
by the United Food and Commercial Workers
International Union, AFL–CIO, CLC. Case 13–
CA–28141
May 24, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On June 29, 1990, Administrative Law Judge Wil-
liam F. Jacobs issued the attached decision. The Gen-
eral Counsel, the Respondent, and the Union each filed
exceptions and supporting briefs; the Respondent filed
an answering brief to the General Counsel’s and the
Union’s exceptions, and the General Counsel filed a
brief in reply to the Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Rainbow Shops, Inc., Chi-
cago, Illinois, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Richard S. Andrews, Esq. and Ann Crane, Esq., for the Gen-
eral Counsel.
Adin Goldberg. Esq. (Spengler & Carlson), of New York,
New York, and Jonathan D. Karmel, Esq. (Rosenfeld &
Karmel), for the Respondent.
Jairus M. Gilden, Esq. and Jerry Gesiakowski, of Chicago,
Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge. This case
was tried before me on June 12–16 and July 6, 1989, at Chi-
cago, Illinois. The charge was filed on November 7, 1989,
by United Food and Commercial Workers Union Local 1550,
Chartered by the United Food and Commercial Workers
International Union AFL–CIO, CLC (the Union). The com-
plaint issued December 30, 1988, and was amended March
30 and May 26, 1989. The complaint, as amended, alleges
that Rainbow Shops, Inc. (Rainbow or Respondent), violated
Section 8(a)(1), (3), and (5) of the Act. More particularly, the
complaint, as amended, alleges that Respondent violated Sec-
tion 8(a)(1) of the Act by telling applicants for employment
that it as not hiring union members. The complaint further
alleges that Respondent violated Section 8(a)(1) and (3) of
the Act by discouraging the filing of job applications, failing
to consider for employment and failing and refusing to em-
ploy any of the approximately 77 individuals who were em-
ployees of the predecessor employer and who were rep-
resented by the Union for collective-bargaining purposes
with the predecessor employer where the reasons for Re-
spondent’s actions were based on the fact that said employ-
ees were members of or supported the Union and were rep-
resented by the Union. Finally, the complaint alleges that Re-
spondent violated Section 8(a)(1) and (5) by failing and re-
fusing to recognize the Union as the exclusive collective-
bargaining representative of its employees and by using cer-
tain unilateral changes in the working conditions of said em-
ployees. In its answer, Respondent denies the commission of
any unfair labor practices.
All parties appeared at the hearing and were afforded full
opportunity to be heard and present evidence and argument.
All parties filed briefs. On the entire record, including my
observation of the demeanor of the witnesses and after giving
due consideration to the briefs, I make the following
FINDINGS OF FACT1
I. CHRONOLOGY
Associated Retail Stores, for many years, owned and oper-
ated stores in the city of Chicago selling Women’s and chil-
dren’s clothing. These stores did business under the names
of York, Goodwin and Just Kids. The rank-and-file employ-
ees, the cashiers, salesclerks, and stock personnel of some 42
79RAINBOW SHOPS
2 Hereafter all dates are in 1988 unless otherwise noted.
of these stores had been represented for purposes of collec-
tive bargaining by the Union for at least 19 years as of
1988.2 The most recent contract covering these employees
was scheduled to expire on December 31 of that year, fol-
lowing the execution of a 1-year extension.
In 1987 Associated suffered some financial setbacks and
late in that year began to lay off certain of its employees pre-
paratory to the closing of some of its stores. The following
March, Associated advised the Union that it was closing a
number of stores because they were no longer profitable. The
Union requested a list of stores which Associated intended
to close.
In April, Associated complied with the Union’s request
and supplied it with a list of stores that it intended to close.
By this time, five to seven stores had already closed. Stores
in addition to those on Associate’s list also were closing. Fi-
nally, the Union was advised that Associated intended to
close all of its stores. As each store prepared for closing, As-
sociated cut the hours of certain employees and terminated
others. Managers and assistant managers performed the du-
ties of laid off rand-and-file employees. Merchandise from
closed establishments was consolidated for sale at locations
still operating.
Throughout May Associated continued to close stores, ad-
vising the Union as it did so. Finally, on May 31 Associated
informed the Union that it was filing for bankruptcy.
In June, Associated continued to close stores. One morn-
ing in June, Associated called a meeting which was held in
the basement office of its State Street store. This meeting
was attended by Associated’s district managers. The object
of the meeting was to tell those present that was happening
in light of the fact that the Company was going out of busi-
ness. Those present were advised that Associated could re-
main in business for about a month and that during that time
most of the district managers present would each be reas-
signed to a particular store while it still remained open.
On June 29, Respondent Rainbow entered into an assign-
ment and assumption agreement whereby it acquired the
leasehold interest in a large number of stores previously op-
erated by Associated’s parent company, Joe Norban, Inc., in-
cluding 13 stores in the Chicago area, operated or previously
operated by Associated. The June 29 agreement was ap-
proved by the United States Bankruptcy Court, Southern Dis-
trict of New York on July 18, and on July 28 the leasehold
interest was actually transferred to Rainbow. By separate
agreement, however, the purchaser permitted the seller to re-
main in possession of some stores, including the one located
at 240 S. State Street in Chicago, until August 6 so as to
enable it to liquidate its merchandise. To succeed in doing
so Associated continued to employ some sales personnel
until August 6 when finally the State Street store closed, its
last one in the Chicago area.
In the first week of July, Kevin L. Cohen, Respondent’s
director of operations and real estate, accompanied by two
other officials, visited and inspected the 13 Associated stores
in Chicago which it had purchased. Of the 13 stores, 8 were
still operating and were in the process of liquidating. The
Rainbow officials were chauffeured from store to store by
Carl Wyant, previously a member of Associated’s manage-
ment, but then employed by the liquidating firm.
Following his trip to Chicago, Cohen began to make ar-
rangements to open the 13 newly acquired stores as Rainbow
shops. He requested that Wyant supply a list of managers
who were then or who had previously been employed by As-
sociated whom he could recommend for employment with
Rainbow. He also made arrangements to have certain mem-
bers of Rainbow management, located elsewhere, come to
Chicago to assist in the opening of the stores.
In compliance with Cohen’s request, Wyant compiled the
list of prospective Rainbow management employees. He then
had Cora Clay, a Rainbow secretary, call each of the people
on the list and advise them to attend a meeting scheduled for
the evening of July 26 at the State Street store in Chicago.
Meanwhile, Cohen had contacted John Leutheuser, a Re-
gional Manager for Rainbow based in Miami, and instructed
him to attend the July 26 meeting, address the assembled As-
sociated managers and assistant managers, and offer them
jobs with Rainbow.
Leutheuser arrived in Chicago the last week in July. On
July 26 he met with Richard Bogan, Rainbow’s director of
security and, accompanied by Harold Schy, a district man-
ager for Associated, they visited the 13 stores, only two of
which were still open and operating under Associated. The
closed stores were empty of all merchandise.
On the evening of July 26 the meeting took place, as
scheduled, in the basement of the State Street store, about
6:30 or 7 p.m., after it closed. All of Associated’s rank-and-
file sales employees had gone home. In attendance were be-
tween 16 and 18 of the Associated managers and assistant
managers who had been recommended by Wyant. This was
the first meeting called by Rainbow management and at-
tended by Associated’s managers and assistant managers.
Leutheuser conducted the meeting on behalf of Rainbow.
Bogan spoke briefly about security and left early. Leutheuser
then explained to those in attendance the benefits of working
for the Respondent and invited them to apply for employ-
ment. He distributed applications to those present. A few
filled out applications at the meeting and returned them to
him immediately. Most of those who eventually obtained em-
ployment with Rainbow, however, sent in their applications
late the following week.
Of those managers and assistant managers who attended
the July 26 meeting, a few never went to work for Rainbow.
On the other hand, not all of the employees hired to be man-
agers or assistant managers at the 13 newly acquired stores
had previous experience with Associated.
On Sunday July 31, two members of Rainbow’s manage-
ment arrived in Chicago, at Cohen’s direction, to initiate the
process of opening the 13 stores recently acquired from As-
sociated. Judy Fink from Tavarack, Florida, and Mike
Brower from Respondent’s southern operations had been re-
quested by Cohen to report to Chicago for a period of 2 to
4 weeks to set up the new locations, train personnel, and get
the stores open and running.
To obtain rank-and-file employee applicants, Rainbow
placed an advertisement in one or more Chicago newspapers
containing the telephone number of the State Street store.
Then, on August 1, Fink and Brower first arrived at the State
Street store, which was still open and being operated by As-
sociated, they placed a sign in the window indicating that ap-
plications for employment with Rainbow were being accept-
ed within, at the lower level.
80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Testimony of General Counsel’s witnesses to the contrary is not credited.
4 The date was credibly supplied by Dora Baughn.
5 Lachtara testified that this meeting occurred the third week of July. How-
ever, the date was supplied by General Counsel in a leading question and I
do not believe it to be correct. Rather, it was more likely the one held the
first of July.
6 General Counsel concluded that the three men from New York were Rain-
bow representatives. However, I find, as Dora Baughn testified, that they were
the liquidators.
7 Dora Baughn testified that Downs attended this meeting. I credit Downs’
denial.
Fink began to take applications on August 1 and continued
to do so through August 2. She set up tables on one side of
the store on the lower level there she stationed herself to
hand out blank applications and receive the completed ones.
She conducted brief interviews with the applicants and ex-
plained Rainbow’s wage rates and hours to each of them. On
August 2 or 3 Frank Calendar, another Rainbow management
employee, arrived in Chicago and thereafter shared with
Fink, the responsibility for hiring new sales/cashier employ-
ees for Rainbow.
On August 1 and 2, between 75 and 130 people applied
at the State Street store for sales/cashier jobs with Rainbow.
Subsequently, help wanted signs were placed in the windows
of each of the other 12 stores. Then, 3 or 4 days before each
of these stores was scheduled to prepare for opening, a store
manager was sent to that store with a table and chair and
some application forms. The store manager would then sup-
ply a blank application form to interested potential employ-
ees who completed the form and returned it to her. The com-
pleted forms were then mailed to the State Street store.
Thereafter, applicants were called to the State Street store
where they were interviewed by Calendar. Some of these
were chosen by Calendar to help open the store at which
they had applied and sent back to be put to work by the store
manager preparing the store for opening. The store manager
would then choose from those working at her store the ones
she deemed to be the best workers and hire them to be the
permanent sales/cashiers at that store. This system of hiring
continued at each of the remaining stores until all 13 were
fully complemented and open for business.
Jerry Gesiakowski, the Union’s director of organizing, was
the individual who had represented Associated’s unit em-
ployees prior to its closing. Sometime in August, long after
he learned on May 31 that Associated was filing for bank-
ruptcy, Gesiakowski also heard that some of the stores had
opened as Rainbow shops. Gesiakowski visited several of the
stores to determine if any of the employees previously em-
ployed by Associated had been hired by Respondent. He did
not, however, make any attempt, at this time, to contact Re-
spondent’s management to seem recognition or apprise it of
the existence of the Union’s contract with Associated.
Finally, on October 17, Gesiakowski visited the State
Street store and handed a letter to Frank Calendar demanding
recognition of the Union as representative of the employees
in the 13 stores which Respondent had taken over from As-
sociated. At the same time a copy of the letter was sent by
certified mail to Respondent’s corporate office in Brooklyn,
New York. Although several business agents from the Union
had visited various stores prior to October 17, none of them
had contacted any member of Respondent’s management.
The Union at no time provided Respondent with a copy of
the contract which it had with Associated nor did it furnish
to Respondent the names, addresses or other information
concerning its member employees of Associated.
Except for Associated employees at the State Street store
and one other store, for a day or two, virtually all of the unit
employees had left the employ of Associated long before
representatives of Respondent came to Chicago to reopen the
stores as Rainbow shops, and had dispersed without any con-
tact being made with Respondent’s management Exceptions
to this general rule are discussed below.
II. ALLEGED 8(A)(1) AND (3) VIOLATIONS, INCIDENTS,
AND OTHER EVIDENCE OF ANTIUNION ANIMUS
As noted above, in June Carl Wyant called a meeting
which was held in the office in the basement of the State
Street store. The purpose of the meeting was to advise mem-
bers of management what was going to happen to them dur-
ing the period of liquidation. Among those present were the
district managers including Dora Baughn Wyant, at this
meeting, advised each of those present at which stores they
would be working during the final month of Associated’s ex-
istence, as each store closed. He also advised those present
that the district managers would act as store managers and
assistant store managers and that the rank-and-file sales per-
sonnel, i.e., union employees would not be retained. At least,
that is what happened following the meeting.
Dora Baughn, still a district manager at the time of this
meeting, testified credibly that at the time of the meeting, she
knew nothing about Rainbow Shops or its eventual take over
of Associated’s stores. According to Baughn, at the June
meeting there was no one from Rainbow in attendance; there
was no one from New York in attendance; there was no dis-
cussion of Rainbow Shops, Inc. taking over Associated
stores; there was no discussion of Rainbow Shops, Inc.; there
was no discussion of any takeover of Associated’s stores;
and there was no discussion of whether or not a takeover
company would hire union employees.3
About the first of July,4 another meeting was held. This
was again attended by district managers who were scheduled
to become store managers, the State Street store manager and
assistant managers. Present also were three men from Con-
solidated, the New York company which was in charge of
liquidating Associated’s remaining assets. The liquidators ad-
dressed the district managers, soon to be store managers, and
advised them about selling off the merchandise and about
how many payroll hours could be used to do so. As at the
June meeting, Rainbow Shops, Inc. was not mentioned nor
was there any discussion about any company taking over the
Associated stores or whether it would hire union employees.
Ida Lachtara, a witness for the General Counsel, testified
that a meeting was held in the office of the State Street store
which I believe to be the one described immediately above.5
Lachtara, a rank-and-file employee of Associated and a
member of the Union for 14 years testified, in agreement
with the above, that the meeting was attended by all of the
managers, i.e., district managers, ‘‘and the new men that
took over the store.’’ Lachtara testified that there were three
men from New York but could not otherwise identify them.6
After the meeting, the participants came out of the office
and dispersed. Edna Downs, the State Street store’s assistant
store manager for Associated, had not attended the meeting7
but had been working just outside the office where the meet-
ing was held. Alpert, the store manager, had attended the
81RAINBOW SHOPS
8 Where Lachtara’s testimony is contrary to these findings, it is not cred-
ited.
9 Neither Alpert nor Wyant testified. The inability or unwillingness of any
party to call these key witnesses has seriously undermined the role of the fact
finder to draw a complete picture of the takeover of Associated’s stores by
Rainbow and its effect on Associated’s union employees.
10 The record is muddled as to specific dates. An attempt has been made
herein, to place the various meetings in proper chronological order based on
the subject content of the meetings and the probabilities of the sequence of
events.
11 Counsel for the General Counsel, in brief, p. 5, assumes that the applica-
tion being discussed at this meeting concerned applications for jobs with Rain-
bow, citing Tr. 312–313. The cited transcript pages, however, do not mention
Rainbow. Moreover, two witnesses testified that there was no mention of
Rainbow at either of these meetings.
12 The context of the discussion about seniority clearly indicates that the
meeting concerned the relationship between Associated and its employees and
had nothing to do with Rainbow shops.
13 Not otherwise identified but probably Emily Wroblewski.
14 Lachtara’s testimony to the contrary is not credited. Her testimony, all
60 pages of it, is riddled with inconsistencies as to dates, the contents of meet-
ings and alleged statements made to her directly. I find her testimony totally
unreliable and do not generally rely upon it unless supported by the testimony
of others or by the probabilities of a given situation.
meeting and told Downs what it was about. According to
Lachtara, Downs came up to her after the meeting and said,
‘‘I’m sorry, but you can no longer work for York because
they are not taking any union people.’’ Since Downs, at the
time, was still an employee of Associated and had probably
just been told that the district managers would be retained for
the month of July for the purpose of closing down the re-
maining stores and that the rank-and-file (union) employees
were being terminated, I conclude that this is what she was
telling Lachtara. Since this conversation, at any rate, had
nothing to do with Rainbow because Rainbow was not yet
on the scene, and since Associated is not a respondent in this
case, I find that the incident is neither a violation nor evi-
dence of animus.8
Lachtara testified concerning a second meeting which oc-
curred about a week after the one described immediately
above. The time then, would be about the second week in
July. According to Lachtara, those who attended were again
the district managers and ‘‘the three people who took over
the store.’’ Present also were Alpert, manager of the State
Street store and Edna Downs, his assistant.
Following this meeting, according to Lachtara, Downs ap-
proached her and said, ‘‘This is it. No more job, no more
union employees. You can’t even try to get a job.’’ Alpert
also spoke to her and told her that he was sorry; that ‘‘they
are not taking any union [rank-and-file] employees.’’ When
she asked if she could fill out an application, he replied in
the negative, adding that he ‘‘didn’t even know if he would
have a job.’’ He said that definitely ‘‘no union employees
could fill out applications.’’ Finally, according to Lachtara,
Dora Baughn talked with her. Baughn broke down and cried.
She indicated to Lachtara that she was losing her job and
stated. ‘‘I am sorry you are losing your job too because no
union employees can apply.’’
I find that these conversations all occurred before Rainbow
arrived on the scene; that they had nothing to do with Re-
spondent; but rather with the termination of rank-and-file
employees of Associated, and their replacement by district
managers for the purpose of closing down the remaining
stores. These conversations are neither violative of the Act
nor evidence of animus on the part of Respondent.
General Counsel called Ora Surney, a rank-and-file union
employee, to testify to an event that occurred the last week
in July. By that time it was known that Rainbow was doing
to take over certain Associated stores. According to Surney,
as she was running up the stairs from the basement to the
first floor, she saw Alpert and Wyant standing at the top of
the stairwell. She heard Alpert tell Wyant that Rainbow is
a nonunion company, that they do not want union workers
there. Surney did not hear any reply nor any more conversa-
tion. Since Alpert was not an employee of Rainbow at the
time and there is nothing in the record to indicate that his
hearsay statement was anything more than an opinion, I will
not rely upon it as evidence to support the General Counsel’s
case.9
Following the meetings with the district managers, Alpert
called two meetings with all personnel including rank-and-
file (union) personnel to inform them of the decisions made
and already communicated to the district managers. One
meeting was held in early July, the second in mid-July.10
Both meetings were held at the State Street store.
Alpert addressed the assembled employees at both meet-
ings. He informed them that the remaining Associated stores
would all be closing but that he did not know the exact
dates. He explained that he would continue as manager of
the State Street store until it closed but that personnel at the
other stores during the few remaining weeks would be re-
placed by district managers (nonunion personnel) and all
rank-and-file (union) personnel would be terminated. The
district managers would become store managers and assistant
managers and would be in charge of liquidating merchandise
and closing the stores. He added that rank-and-file employees
at the State Street store would be permitted to continue
working if they chose, until it closed. Alpert wished all the
employees well and offered to provide references for those
employees seeking employment elsewhere.
Some employees, threatened with displacement, apparently
argued that the layoff procedure should follow seniority and
that rank-and-file employees with greater seniority should be
permitted to apply11 for the work still available at the other
stores. Alpert replied that he was sorry but none of the rank-
and-file (union) employees could apply for the remaining
jobs because the jobs were being filled by nonunion person-
nel, i.e., the district managers. He added that he did not want
to hear anything about seniority anymore; that ‘‘they’’ (As-
sociated) would recognize seniority for purposes of vaca-
tion12 pay, but that was it. He concluded by stating that there
was ‘‘no more union in the company.’’
One employee, Emily lll,13 began to argue but
Downs cut her off, reiterating Alpert’s statements and add-
ing, ‘‘None of you girls can apply for a job because it is
going to be a nonunion shop. There is no union in the store
anymore.’’
Two witnesses, Downs, a management employee and Eve-
lyn Sullivan, a rank-and-file union employee, testified
credibly that Rainbow was never mentioned at either of the
two July meetings where Alpert and Downs addressed the
rank-and-file. I find this to be the case.14
As noted above, Judy Fink interviewed between 75 and
130 applicants for jobs with Rainbow on August 1 and 2.
Associated employee Evelyn Sullivan requested and obtained
an application from Fink, filled it out and returned it to her.
82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Qualls had also worked at other Associated stores on a part-time basis
but no longer did so at the time of her layoff at 6330 S. Halsted.
16 General Counsel substituted the word ‘‘Rainbow’’ for ‘‘they’’ in his next
question and the witness followed General Counsel’s lead.
Sullivan testified that she was never interviewed for employ-
ment by Fink or any one else from Rainbow and never
worked for Respondent. Sullivan also testified that she
worked at the State Street store the days that Fink was taking
applications and took several messages for Fink and brought
them to her so that Fink knew that she was an employee of
Associated. When she returned her application to Fink, there
was no discussion.
Fink testified that the 2 days that she was taking applica-
tions there were long lines of applicants. Sullivan confirmed
this. According to Fink, as she obtained each completed ap-
plication, she asked each applicant a few questions such as
there they lived in proximity to the store which they were
inquiring about.
Ethel Weatherspoon, Sullivan’s sister also applied for
work with Rainbow on August 1. She obtained an applica-
tion from Fink but did not inform Fink of her relationship
to Sullivan. She completed the application and returned it to
Fink. At this tine, according to Weatherspoon, Fink asked
her if she ever belonged to a union and she replied in the
negative, adding that she preferred not to; that she had had
some bad dealings with unions. Fink denied asking
Weatherspoon or any other applicant questions about unions.
I credit Fink’s denial. Weatherspoon was hired by Fink the
same day she applied, as a part-time sales associate, later to
be groomed as an assistant manager.
With regard to Sullivan’s application, Fink testified that a
cashier had been calling Fink to answer the telephone and at
one point Fink asked her if she wished to apply. Fink im-
plied that the cashier, whose name Fink could not recall, nay
have been Sullivan. The cashier then asked Fink whether she
would be there all day, and if she could file an application
later. Fink told her that she could, and the cashier came over
later and obtained an application. Fink could not recall
whether or not the cashier ever turned in a completed appli-
cation. She did not, nor did anyone, shed any light on why
Sullivan was not hired.
Counsel for General Counsel would have me compare the
disparate treatment of Sullivan’s and Weatherspoon’s appli-
cations and conclude that it reflects antiunion animus since
at the time of application Fink was aware that Sullivan was
a union member and Weatherspoon was not. I find that the
comparison does not, of itself, evidence antiunion animus but
the matter will be weighed as part of the total picture.
Evelyn Sullivan testified that on August 6, the last day
that Associated was in business at the State Street store, she
attended a meeting, called by Alpert. Present were all of the
other employees, managers, and assistant managers. Accord-
ing to Sullivan, Alpert addressed those present, telling them
that it was their last day, that the store was closing. He stated
that he was staying on as manager and that Downs was also
staying on as assistant manager but that from his understand-
ing, Rainbow Shops was not hiring union members. Downs
also spoke after Alpert and, according to Sullivan, said that
Rainbow Shops definitely was not accepting union members.
Although Sullivan testified that everyone attended this
meeting, no one was called to support her testimony.
Lachtara, General Counsel’s most prounion witness, gave
testimony concerning August 6, her last day working for As-
sociated but did not mention any meeting. Downs took the
stand to refute Sullivan’s testimony. She stated that there was
no meeting on August 6 and she never made the statement
attributed to her by Sullivan at any meeting that she did at-
tend. I find that there was no meeting on August 6 and credit
Downs over Sullivan.
Clara Qualls, a rank-and-file employee of Associated, and
union member for 10 years, testified that she was laid off
from her job at the 6330 S. Halsted Street store on April
23.15 She was laid off, at that time, by Dora Baughn who
had taken over as store manager for the purpose of closing
the store.
According to Qualls, in July she visited the store at 635
E. 63d Street where she engaged Dora Baughn in conversa-
tion. Baughn told Qualls at this time that ‘‘they16 weren’t
hiring any union employees.’’
Baughn testified that in July she was working at the Hal-
sted Street store for Associated preparing that store for clos-
ing and did not work at the 63d Street store until early Au-
gust. In August she worked for 2 to 3 days, possibly a week,
for Rainbow helping to get the store ready for opening. It
was not until after she finished working at 63d Street that
she next went to 6330 where she was appointed store man-
ager. At any rate, Baughn specifically denied telling Qualls
that Rainbow was not hiring any union employees.
I find that if the alleged conversation occurred in July,
Baughn was still working for Associated and was merely
telling Qualls that the closing down of stores would be ac-
complished by the replacement of rank-and-file employees
by district managers and that union (unit) employees would
not be hired or retained for this purpose. If Qualls was
wrong as to the date of the alleged conversation, and it took
place in early August, the only time that Baughn was at the
63d Street store, then I find that although she was a Rainbow
employee, she had not yet been appointed store manager at
6330 S. Halsted. In either case, Baughn was not an agent of
Rainbow at the time of the alleged statement and I find no
evidence of a violation or of animus on the part of Respond-
ent in connection therewith.
Qualls also testified that around the last of August, later
corrected to the last of September, she visited the store at
6330 Halsted and again talked with Dora Baughn who was
by then manager of the store for Rainbow. She asked
Baughn for an application. Baughn, according to Qualls, told
her that they weren’t hiring any union employees.
With regard to this incident, Baughn denied that there was
any August or September meeting with Qualls but testified
that Qualls visited her store in March or April 1989 and
asked her if she would furnish a reference on her behalf be-
cause she had applied for a position at a hotel. Baughn
agreed to do so. Baughn denied that Qualls either asked for
an application or inquired about openings on this occasion.
She also denied ever telling Qualls that Rainbow was not hir-
ing union employees or people who had been with the Union
at Associated.
I find that Qualls did, in fact, visit Baughn’s store in Au-
gust or September, asked for an application and was told, as
she credibly testified, that they were not hiring union em-
ployees. It is quite clear that if Baughn made the statement
attributed to her in the complaint dated December 30, it had
to have been made before the issuance of complaint, prob-
83RAINBOW SHOPS
17 American Press, 280 NLRB 937 (1986).
18 Love’s Barbecue Restaurant, 245 NLRB 78 (1979).
19 American Press, supra.
20 Love’s Barbecue, supra.
21 Love’s Barbecue, supra.
ably at the August/September meeting described by Qualls,
not the following March or April.
I find that by Baughn’s statement to Qualls that Rainbow
was not hiring any union employees, Respondent violated
Section 8(a)(1) of the Act.17 I find, further, that this state-
ment effectively dissuaded Qualls from pursuing her intent to
seem employment with Respondent in violation of Section
8(a)(3).18
Marcela Dargin was an employee of Associated from Oc-
tober 1978 until December 1987. She was employed as a
cashier and bookkeeper at the E. 63d Street store until her
layoff. In March 1988 she was hired to work at Associated’s
Just Kids store in Evergreen Plaza as assistant manager and
cashier. In July 1988 she was laid off at that store because
Associated was going out of business. There were only
evening hours available and Dargin was unable or unwilling
to work evenings. Her last day was July 16. She had been
a member of the Union for 10 years.
Dargin testified that in late August or early September,
after it had been taken over by Rainbow, she visited the 63d
Street store and talked to Dora Baughn, who was the store
manager at the time. Her visit was not for the purpose of ap-
plying for a job. According to Dargin, Baughn told her that
Rainbow had hired all new girls, that they weren’t hiring any
union members and that they were only hiring managers. She
advised Dargin that the girls that they had hired were making
minimum wage and working less than 20 hours.
As noted earlier, Dora Baughn was not, during August or
September or any relevant period, the store manager at the
63d Street store but only worked there in early August for
a few days helping to open the store. Rather, Dora Daughn
became the store manager at the 6330 Halstod Street store
after she helped set up the 63d Street store. Since Dora
Baughn denied making the statement attributed to her and,
in any case, was clearly not an agent of Respondent at the
63d Street store when the alleged offending statement was
made, I shall recommend dismissal of the allegation.
As an aside, personnel papers in the record indicate that
Belle Baughn, Dora’s sister-in-law, was the store manager at
the 63d Street store during the critical period. Belle is not
mentioned in the complaint as involved in any of the alleged
8(a)(1) incidents and none of General Counsel’s witnesses
were examined in connection with Belle Baughn’s possibly
being involved in the incidents at the 63d Street store alleged
to be violative of the Act.
Evelyn Sullivan, an employee of Associated for a year and
a half, was employed at the State Street store as a rank-and-
file, cashier-saleslady-bookkeeper until August 6, 1988, at
which time she was terminated because the store had gone
out of business, as of that date. Sullivan had been a member
of the Union for most of the period of time she worked for
Associated.
Sullivan testified that after Rainbow had taken over the
Associated stores, sometime in September, she went to the
store at 6330 Halsted Street to seem employment because she
had heard that ‘‘some of the girls’’ were quitting. There, she
spoke to Dora Baughn, the store manager, whom she had
never met before, and asked her if she could fill out an ap-
plication for employment. According to Sullivan, Baughn
told her that applications were not being given out at the
store, that she would have to go to the State Street store.
When Sullivan explained that she had worked at the State
Street store and had already put in an application there,
Baughn told Sullivan that the York (Associated) girls were
not being hired because Rainbow was not taking union mem-
bers. She stated that Rainbow was afraid of the union mem-
bers coming in and forming another union. After her discus-
sion with Baughn, Sullivan did not contact the State Street
store either by telephone or in person.
Concerning this incident, Dora Baughn testified that she
does not know Sullivan and that she could not recall anyone
coming into the store at 6330 S. Halsted Street in or around
September and identifying herself as a former York (Associ-
ated) employee. She further testified that she never told any-
body who may have come into the store that Rainbow Shops
did not want a union or that it was afraid of employees form-
ing a union or that former York employees were not going
to be hired by Rainbow.
With regard to this incident, I find that Baughn did, in
fact, make the statement attributed to her by Sullivan. I fur-
ther find that as store manager with supervisory authority,
her statement is properly attributable to Respondent and is a
violation of Section 8(a)(1) of the Act.19 Finally, I find that
Respondent’s failure to hire Sullivan was violative of Section
8(a)(3).20
Ollie Sims, an employee of Associated since 1964, had
worked at the 6330 S. Halsted Street store as a cashier, until
June 4, 1988, when she was laid off. According to Sims, she
visited her previous place of employment about a week after
it had reopened as a Rainbow Shop in August and spoke
with Dora Baughn, the store manager, one of several store
managers for whom Sims had worked as an employee of As-
sociated. Sims testified that this visit occurred either in mid-
August or September and was casual and initially not for the
purpose of seeking employment. She did not, therefore, ask
for an application at first.
According to Sims, after some small talk, however, she
suggested to Baughn that she could come back to work at
the store. To this suggestion, Baughn replied, ‘‘They are not
going to hire you,’’ adding, ‘‘If you were a [union] member,
they won’t hire you.’’
With regard to Sims’ visit to the 6330 S. Halsted Street
store, Dora Baughn testified that Sims stopped in at the store
after it was reopened as a Rainbow store, said hello to the
window trimmer and to her, and then left. Baughn denied
that Sims requested that she be permitted to come back to
work for Rainbow at this tine. She also denied telling Sims
that Rainbow was not hiring union members or people who
had been in the Union at York [Associated].
In this matter, I credit the testimony of Sims over that of
Baughn. Consequently, I find violations of Section 8(a)(1)
and (3).21
Geneva Walker was an employee of Associated from Au-
gust 1977 through December 5, 1987. She worked at the
6330 S. Halsted Street store and the store located at 78th &
Halsted. She was employed as a cashier and salesclerk at
both locations and, as a rank-and-file employee, was a mem-
84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 American Press, supra.
23 Love’s Barbecue, supra.
24 Love’s Barbecue, supra.
25 The complaint alleges that Gardner was the store manager and Respond-
ent’s agent. The answer denies this Campbell testified that she believed that
Gardner was an assistant store manager at the time. The records indicate that
Gardner was the sole salaried person at the store. I conclude that she was the
store manager.
26 American Press, supra.
27 Love’s Barbecue, supra.
ber of the Union. Walker was laid off at 6330 S. Halsted
after being told that the store was going to close.
Walker testified that after the store at 3434 Halsted re-
opened as a Rainbow store, she visited that store in the first
part of September and spoke to the store manager, Renee
Carrillo. She asked Carrillo if she was hiring. Carrillo replied
that she was not hiring at the time but that Walker could take
an application. She did so but did not fill it out at the time.
As a consequence, the Region undertook an investigation
and as part thereof, it sent out questionnaires, one of which
was received by Walker on December 3. According to Walk-
er, it was the receipt of the questionnaire which prompted
her to return to Carrillo’s store to see what was going on.
On December 5, Walker returned to the store and again
spoke to Carrillo. According to Walker, Carrillo told her that
‘‘they don’t hire no union members there. Anybody that had
been at Associated Retail, they weren’t hiring. Carrillo and
Walker then discussed the various members of Associated’s
management who had been hired by Rainbow and where
they were working at the time. Carrillo asked Walker if she
knew Dora Baughn. Walker told Carrillo that she knew Dora
Baughn personally. Carrillo then suggested that Walker ‘‘get
the lowdown’’ from her. After leaving her application with
Carrillo, Walker left the store.
Upon arriving at her home, Walker immediately called
Dora Baughn at the store at 6330 S. Halsted. Baughn sug-
gested that Walker call her at her home that evening, and
Walker did so. According to Walker she asked Baughn why
she did not call and hire some of Associated’s ex-employees
since she knew them so well and so personally. Baughn re-
sponded:
They don’t want none of the union members. That is
why none of the jobs is not offered to us. . . . And she
said they didn’t want no union. And nobody that is af-
filiated with Associated Retail.
With regard to the Carrillo/Walker conversation, Carrillo
did not testify. With regard to the Baughn/Walker telephone
conversation, Baughn testified that she did, in fact, have a
telephone conversation with Walker on December 5. She tes-
tified further that she knew Walker from the days when she
was a district manager for Associated, and that Walker called
her rather than the other way around. According to Baughn,
Walker told her that the reason she was calling was that she
had received a letter from the Union [probably the question-
naire from the Board] and wanted to know if Baughn knew
anything about it. Baughn replied in the negative. Walker
then asked Baughn if she knew who the head of the com-
pany was. Although Walker had not asked for a job, Baughn
replied that Walker should call Celender if she were applying
for a job because she understood that Respondent was in
need of managers and assistant managers at the time. Baughn
specifically denied telling Walker that Rainbow Shops did
not want union members or telling her that Rainbow was not
hiring people that had been in the union at York.
Between the testimony of Baughn and Walker, I credit that
of Walker and find that by Baughn’s statements Respondent
violated Section 8(a)(1) of the Act.22 Moreover, I find that
Baughn made it clear to Walker that it was futile for any ex-
employee of Associated who had been a union member to
apply for employment with Rainbow and by so doing, Re-
spondent violated Section 8(a)(3).23 Similarly, I credit Walk-
er’s description of her conversation with Carrillo and find
Respondent in violation of Section 8(a)(1) and (3) in connec-
tion therewith.
On December 6, the day after her discussion with Dora
Baughn, Walker visited the Rainbow store located at 47th
and Ashland. There she spoke with the store manager, Doro-
thy Ringo and asked her if Rainbow was doing any hiring.
Ringo replied in the negative, at the same time identifying
Walker by name and explaining that she remembered her
from working together on inventory at the store at 63d and
Halsted, when it was an Associated store. She advised Walk-
er to see Calender at the State Street store about employ-
ment, but cautioned, ‘‘but they don’t want no union. That is
why they ain’t hiring any of these York people.’’
Dorothy Ringo testified that Geneva Walker visited the
store where she was manager on December 6. She said that
she could not remember whether or not Walker asked her if
she was hiring, but denied telling her that Rainbow Shops
did not want a union.
With regard to the December 6 conversation between
Walker and Ringo, I credit Walker’s description of what was
said. I find that Walker inquired about a job and that Ringo
made the statement attributed to her I find that Respondent,
through Ringo, violated Section 8(a)(1) and (3).24
Marilyn Campbell was an employee of Associated from
May 31, 1977, until July 19, 1988, at which time she left
her employment at the store located at 4049 W. Madison be-
cause the store was in the process of closing. Campbell testi-
fied that in October she visited the store where she used to
work, by this time a Rainbow store, and talked with Vera
Gardner, the store manager.25 According to Campbell, Gard-
ner told her that she liked working there, then described how
things were different than they had been when she had
worked for Associated. When Campbell asked Gardner about
a job with Rainbow, Gardner replied that Rainbow was not
hiring any of the old Associated cashiers because ‘‘they
didn’t want to hire any of the union workers.’’ She added
that Rainbow was only hiring parttimers because they were
only paying minimum wages. Campbell decided not to file
an application because Gardner had said that Rainbow was
not hiring any of the old cashiers, any of the union workers.
Gardner did not testify and the statement attributed to her
by Campbell remains undenied. I credit Campbell’s testi-
mony that the statement was made and find that it was in
violation of Section 8(a)(1).26 I also find that the statement
made by Gardner had the effect of convincing Campbell not
to bother filing an application for employment with Respond-
ent because it would be futile to do so. Consequently, I find
Respondent in violation of Section 8(a)(3) of the Act.27
The fact that four different store managers told General
Counsel’s witnesses that Respondent was not hiring ex-em-
ployees of Associated because of their union affiliation con-
85RAINBOW SHOPS
28 Love’s Barbecue Restaurant, supra.
29 Kessel Food Markets, 287 NLRB 426 (1987); R & L Cartage & Sons,
292 NLRB 530 (1989).
30 Applicants for full-time work only would not have accepted part-time
work even if offered and are therefore not listed as discriminatees.
31 The remedy does not extend to former employees of Associated who had
not applied for employment.
32 If no exceptions are filed as provided in Sec. 102.46 of the Rules and
Regulations of the National Labor Relations Board, the findings, conclusions,
and recommended Order herein shall, as provided in Sec. 102.48 of the Rules
and Regulations, be adopted by the Board and become its findings, conclu-
sions, and Order, and all objections to them shall be deemed waived for all
purposes.
vinces me that the statements were more than were reflec-
tions of their opinions and, on the contrary, reveals the
antiunion bias underlying the refusal of Respondent to hire
any of Associated’s rank-and-file union employees. For this
reason, I find that any ex-employee of Associated that had
been a union member, who actually filed an application for
employment with Rainbow, and who was denied employ-
ment, must be considered a discriminatee. This includes
those employees who filed applications in 1988 and who
were belatedly not hired until 1989, after the issuance of the
complaint.
III. THE 8(A)(5) ALLEGATION
General Counsel argues the application of Love’s Bar-
becue28 with a consequential finding of an 8(a)(5) violation.
The record reveals, however, that 11 of the 13 stores taken
over by Rainbow from Associated were closed and their
union employees terminated by Associated before Rainbow
appeared on the scene. These employees dispersed long be-
fore Rainbow began interviewing perspective employees on
August 1 and 2 and probably never even heard of Rainbow
much less gave any consideration as to whether or not it
would be futile to apply for employment with Respondent.
When General Counsel’s witnesses were made aware during
the period August through December 1988 that it was futile
for them to apply for work, they were the only ones so ad-
vised, at least insofar as the record reveals. There is nothing
to indicate that the other employees, terminated the previous
June, July or earlier, were aware of the incidents which oc-
curred weeks or even months later or were dissuaded from
seeking employment with Rainbow because of them. I there-
fore recommend dismissal of the 8(a)(5) allegations.29
CONCLUSIONS OF LAW
1. The Respondent, Rainbow Shops, Inc., is an employer
engaged in commerce and in an industry affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by tell-
ing applicants for employment that it was not hiring union
members.
4. Respondent violated Section 8(a)(1) and (3) of the Act
by discouraging the filing of job applications and failing to
consider for employment and refusing to employ applicants
for employment because they had been employed by Associ-
ated Retail Stores, Inc. and had been represented by the
Union for purposes of collective bargaining. The following
applicants suffered discrimination as a result of Respondent’s
8(a)(1) and (3) violations:
Witness applicants:
Evelyn Sullivan
Clara Qualls
Ollie Simms
Geneva Walker
Marilyn Campbell
Applicants for part-time work:30
Caroline Caira
Dorothy Campbell
Betty Mack
Betty Henderson
Lillian Williamson
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) and (3)
of the Act, I shall recommend that it be required to cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent’s hiring practices have dis-
criminated against applicants who had been employed by As-
sociated Retail Stores, Inc. and who had been represented by
the Union in violation of Section 8(a)(3) and (1) of the Act,
I shall recommend that it offer all such individuals who
would have been hired, employment in the positions for
which they would have been hired but for the Respondent’s
unlawful discrimination or, if those positions no longer exist,
in substantially equivalent positions, dismissing, if necessary,
any and all persons hired to fill such positions.31 I shall also
recommend that Respondent make whole, for any losses they
may have suffered, all individuals it would have hired but for
its unlawful discrimination against they, backpay and interest
thereon to be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950); and New Horizons for
the Retarded, Inc., 283 NLRB 1173 (1987).
On the basis of these findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended32
ORDER
The Respondent, Rainbow Shops, Inc., Chicago, Illinois,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling applicants for employment that they will not
hire union members.
(b) Discouraging the filing of job applications by appli-
cants and failing to consider for employment and refusing to
employ such applicants for employment because they have
been employed by Associated Retail Stores, Inc., and have
been represented by United Food and Commercial workers
Union Local 1550, chartered by the United Food and Com-
mercial Workers International Union, AFL–CIO, CLC or any
other labor organization.
86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to all individuals who would have been hired,
employment in the positions for which they would have been
hired, but for Respondent’s unlawful discrimination or, if
those positions no longer exist, in substantially equivalent
positions, dismissing, if necessary, any and all persons hired
to fill such positions.
(b) Make whole, in the manner set forth in the section
above entitled ‘‘The Remedy,’’ those individuals the Re-
spondent would have hired, but for its unlawful discrimina-
tion, for any losses they may have suffered by reason of the
Respondent’s failure to hire them.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this recommended
Order.
(d) Sign and post at its stores in Chicago, Illinois, copies
of the attached notice marked ‘‘Appendix.’’34 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 13, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the consolidated complaint be
dismissed insofar as it alleges violations of the Act not spe-
cifically found
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice.
To act together for other mutual aid or protection.
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discourse the filing of job applications by
applicants, fail to consider for employment or refuse to em-
ploy applicants for employment because they have been em-
ployed by Associated Retail Stores, Inc. and have been rep-
resented by United Food and Commercial Workers Union
Local 1550, chartered by the United Food and Commercial
Workers International Union, AFL–CIO, CLC or any other
labor organization.
WE WILL NOT tell applicants for employment that we are
not hiring union members.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL offer to all individuals who would have been
hired employment in the positions for which they would
have been hired but for our unlawful discrimination or, if
such jobs no longer exist, in substantially equivalent posi-
tions, dismissing, if necessary, any and all persons hired to
fill such positions. WE WILL make whole with interest all in-
dividuals we would have hired but for our unlawful discrimi-
nation for any loss they may have suffered by reason of our
failure to hire them.
RAINBOW SHOPS, INC.