Rich's of Plymouth, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1977

232 N.L.R.B. 621 (N.L.R.B. 1977)

RICH'S OF PLYMOUTH, INC.
Rich's of Plymouth, Inc. and Retail Clerks Union
Local 224, Retail Clerks International Association,
AFL-CIO. Cases I-CA-12064 and 1-RC-14492
September 29, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On July 1, 1977, Administrative Law Judge
Michael O. Miller issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge, to
modify his remedy,1 and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Rich's of
Plymouth, Inc., Plymouth, Massachusetts, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
i In accordance with our decision in Florida Steel Corporation. 231
NLRB 651 (1977). we shall apply the current 7-percent rate for periods prior
to August 25, 1977. in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge: This
matter was heard on March 16 and 17, 1977, in Boston,
Massachusetts, based upon unfair labor practice charges
filed on July 29 and amended on August 17 and September
1, and a complaint issued on September 30, 1976.' The
complaint alleges that Rich's of Plymouth, Inc., herein
Respondent, violated Section 8 (aXI) and (3) of the
National Labor Relations Act, as amended, herein the Act.
Respondent's answer denied the substantive allegations of
the complaint. Consolidated for hearing with the unfair
labor practice allegations were objections to the election
filed by Retail Clerks Union Local 224, Retail Clerks
International Association, AFL-CIO, herein the Union,
pursuant to a supplemental decision issued by the Regional
Director on September 3. The objections parallel certain
unfair labor practice allegations.
All parties were afforded full opportunity to appear,
examine and cross-examine witnesses, and argue orally.
General Counsel and Respondent filed briefs which have
been carefully considered. Based upon the entire record,
including my observation of the witnesses and their
demeanor, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS AND THE UNION'S LABOR
ORGANIZATION STATUS-PRELIMINARY CONCLUSIONS
OF LAW
Respondent is a Massachusetts corporation engaged in
the operation of a retail store in Plymouth, Massachusetts.
The complaint alleges, Respondent admits, and I find and
conclude that Respondent satisfies the Board's standards
for the assertion of jurisdiction over retail enterprises and is
an employer, engaged in commerce and in operations
affecting commerce, within the meaning of Section 2(2),
(6), and (7) of the Act.
The complaint alleges, Respondent admits, and I find
and conclude that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background- The Union Campaign
The union campaign began in mid-April, and the first
organizational meeting, announced by a flyer, was called
for April 26. The Union filed a representation petition on
May 14, and, following a hearing, and Decision and
Direction of Election, an election was conducted on July
22. Respondent's employees, including those employed in
leased departments, by a vote of 41 to 22 (with 7 ballots
challenged) rejected union representation. The Union
timely filed objections to conduct affecting the results of
the election.
B. Solicitation of Grievances and Promises of
Benefit
In response to the organizational activity, management
also held meetings with the employees of each shift on
April 26. Gerald Costello, personnel and operations
manager for the eight-store Rich's chain, spoke. Costello
had frequently met with individual employees or in much
smaller groups. He had seldom conducted meetings with
the entire employee complement of a store. Costello
discussed the Union's campaign and the effect of signing
I All dates hereinafter are 1976 unless otherwise specified.
232 NLRB No. 98
621
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorization cards. In the course of the meeting, Costello
asked, as he testified he generally did when he met with
employees, whether the employees had any problems they
wished to discuss. Two subjects were raised, health
insurance and a grievance committee.2 Costello said that
management would look into both subjects. He asked how
many would be interested in health insurance and told the
employees that if such a benefit were to be implemented it
would be chainwide and would involve Rich's and the
employees sharing the costs. Subsequently, Costello asked
an employee, Aida Periera, for her reaction to the
insurance proposal. She told him that she still wanted
union representation. About May 10, according to the
uncontradicted testimony of employee Susan Nelson,
Costello and Assistant Store Manager Ronald Croteau
held another meeting with a group of 15 or 20 night-shift
employees. Costello told them that the "day" employees
"had been asking for an insurance policy and a grievance
committee." He asked for their reactions and they
responded affirmatively. Costello told them that he would
set up a voting procedure for the grievance committee and
would look into the insurance.
Shortly thereafter, management had a ballot box con-
structed.and set up an election for a grievance committee.
Management also designated the number of employees on
each shift who would serve on that committee.
After about 2 days, the ballot box was removed,
apparently on the advice of counsel. The ballots were never
tabulated and no grievance committee was elected or
implemented. Similarly, on the advice of counsel, there was
no further mention of health insurance. Costello instructed
his managers to tell employees, if they asked about either
the health insurance or the grievance committee, that
Respondent "had been advised by counsel not to go into
this at this point."
The complaint alleged that, by the foregoing conduct,
Respondent solicited grievances, impliedly promised bene-
fits, and actually granted benefits to its employees in order
to discourage unionization. By asking the employees
whether they had any problems they wished to discuss, I
find, Costello solicited their grievances. The manner in
which he did so, formal meetings with the employees of an
entire shift as distinguished from the small and informal
meetings he had previously held, indicates a change in
Respondent's approach toward employee grievances. This
changed approach, coupled with the discussion of the
organizational campaign during those meetings, the subse-
quent solicitation of additional employee reaction, the
abortive committee election, and the intimation upon
cancellation of that election that further consideration
could not be given to either suggestion as long as the Union
was in the picture, clearly conveyed to the employees the
message that Respondent, in its effort to defeat the Union,
was now willing to look much more favorably upon any
request or suggestion employees might make. By this
conduct, I find, Respondent impliedly promised benefits in
an attempt to undermine support for the Union, in
2 Costello's testimony, somewhat inconsistent between direct and cross-
examination, indicated that both subjects were raised by employees.
3 Wage increases were granted in August 1972 and May 1974 through
January 1976 because of mandated increases in state and Federal minimum
violation of Section 8(aXl) of the Act. The Stride Rite
Corporation, 228 NLRB 224 (1977). See also Campbell Soup
Company, 225 NLRB 222 (1976), and cases cited therein.
As the grievance committee election never proceeded to
completion, and no committee was elected, named, or
permitted to function, I find that there was no actual grant
of benefits in that regard.
C. The Wage Increases
In early May, Respondent granted an across-the-board
wage increase of 5 cents per hour in all of its stores,
including Plymouth. The granting of this raise occurred
within 2 weeks after Respondent's acquisition of knowl-
edge of the Union's campaign.
The Board, in Newport Division of Wintex Knitting Mills,
Inc., 216 NLRB 1058 (1975), concisely summarized the
state of the law regarding the announcement or grant of
wage increases during the pendency of an election
campaign:
It is well established that the announcement of a
wage increase during the pendency of a representation
petition for the purpose of stifling an organizational
campaign constitutes unlawful interference and coer-
cion ...
An employer's legal duty in deciding whether to
grant benefits while a representation petition is pending
is to determine that question precisely as if a union
were not in the picture. An employer's granting a wage
increase during a union campaign "raises a strong
presumption" of illegality. In the absence of evidence
demonstrating that the timing of the announcement of
changes in benefits was governed by factors other than
the pendency of the election, the Board will regard
interference with employee freedom of choice as the
motivating factor. The burden of establishing a justifi-
able motive remains with the Employer. [Citations
omitted.]
Respondent, to rebut the "strong presumption of illegali-
ty," points to an alleged practice of granting periodic wage
increases, the modest amount of the raise, the fact that it
was given throughout all eight stores, and was not
publicized.
Respondent introduced a compilation of wage increases
granted in its stores from April 1972 through May 1976, in
support of its contention that it had a policy of periodic
raises, granted at 6-month intervals in the spring and fall.
Eliminating from that compilation those raises which,
according to Costello's testimony, were given for reasons
not connected with its periodic raise policy,3 the exhibit
reveals that increases were granted somewhat less regularly
than Respondent contended. Thus, in the various stores
shown thereon, it appeared that raises were granted at
intervals varying from I to 12 months. The majority,
however, were given at 6-month intervals. In the Plymouth
store, raises had followed a 6-month pattern, having been
wages, and in January 1973 to meet local competition. From May 1974
through January 1976, no periodic raises were given because of the size and
frequency of increases in minimum wages.
622
RICH'S OF PLYMOUTH, INC.
given April and October 1972 and 1973, and again in April
1974. Further, the exhibit indicates that the majority of
raises were given in the months of February, March, April,
September, and October. Costello testified that due to
increases in the minimum wages required in May 1974,
January 1975, and January 1976, the policy of 6-month
reviews were temporarily stopped during that period. In
January, he stated, Respondent's president, its controller,
and he "decided to go back on normal policy of reviewing
the employees every six months." May was chosen because
it was in the spring, consistent with the alleged practice of
step raises in the spring and fall. No corroborative
testimony or documentation of this decision was adduced.
Based upon the foregoing, I am constrained to conclude
that Respondent has failed to sustain its burden of proving
that the wage increase was not motivated by antiunion
considerations. Respondent's history of wage increases
revealed no consistent pattern to which the May raise
could be connected; indeed, no periodic raises had been
given in the month of May in the past and the instant raise
was 5, rather than 6, months after the preceding raise.
Costello's testimony that the raise was planned in January
was both unconvincing and uncorroborated, though
corroboration would have been available to Respondent if
it existed. Cf. Mallory Controls Company, A Division of P. R.
Mallory Co., Inc., 214 NLRB 616 (1974), wherein the
employer supported its contention that the raise was
preplanned with memoranda predating knowledge of the
union activity. It is true, as Respondent argues, that the
raise was given throughout the chain. However, the chain
was neither so large, nor the raise so great, as to negate the
presumption of illegality created by the timing of that raise,
particularly in conjunction with Respondent's other anti-
union conduct. Cf. Freighimaster, a Division of Halliburton
Services, 186 NLRB 3, 11-12 (1970), wherein raises were
given to 5,600 employees worldwide, although the unit
involved but 400 employees in one location. Accordingly, I
find that by granting a wage increase in early May, in order
to discourage union activity, Respondent has violated
Section 8(a)(1) of the Act.
D. Creating the Impression of Surveillance
In late April, employee Aida Periera was observed by
Steven Rice, then the store manager, when she gave a
union authorization card to another employee. Rice told
her, "Aida, I know that you are responsible for this."
Periera, who had, in fact, been the Union's initial contact
in the store, protested that she had only been giving the
other employee her telephone number, which she had
written on the card in lieu of any other piece of paper.
Periera's testimony stands uncontradicted.
Respondent contended that Periera and other employees
had been open about their union activities, thus negating
the coercive effect of implied surveillance. The record does
not, however, reveal that Periera had openly proclaimed
her union advocacy as early as late April. 4 It also
contended that Rice's remark was ambiguous and isolated.
In light of the other conduct found unlawful herein, Rice's
A union flyer. announcing a meeting and bearing the signatures of the
organizing committee, did not appear until mid-June.
statement can hardly be deemed isolated. And, while his
statement was less than explicit, in view of the facts that a
union authorization card was involved in the transaction,
and that the major "thing" which was going on at the time
was the organizational campaign, I find it reasonably clear
that Rice was referring to that campaign. Rice's remark, I
find, was of such a character as to create an impression of
surveillance of union activities, and thus interfered with
employee rights to engage in such activities. Accordingly,
by this conduct, Respondent has violated Section 8(aX ) of
the Act. Commerce Concrete Company, Inc., 197 NLRB 658
(1972).
E. Threats of Loss of Benefits
Respondent held a final preelection meeting with its
employees on July 20. Among those present was Bennett
Rich, Respondent's president. He spoke and, together with
the other management representatives present, answered
the employees' questions. Employee Doreen Santos testi-
fied that he told them, in haec verba, "If the union won we
would lose our privileges and benefits." She also testified
that he told them that the Union would cause dissension,
that they would have to go through a shop steward to get a
day off and that, if they had any problems, they would not
be able to go to the managers. Periera, in her direct
testimony, essentially corroborated Santos, and added,
when called on rebuttal, that Rich said that they would lose
their sick days, anniversaries, and birthdays, because they
would not be in the union contract. She acknowledged that
Rich stated that all benefits would be subject to negotia-
tion.
Respondent's witnesses, Costello, Cote, the store manag-
er, and Croteau, then assistant store manager, all denied
that Rich threatened loss of benefits and privileges if the
Union got in. Costello testified that, in response to a
question about existing benefits, Rich stated that all
benefits would be negotiated. Similarly, Rich's remarks
about the functions of shop stewards came in response to
employee questions. Croteau recalled Rich stating that he
did not feel that it was necessary for employees to have
someone else to fight their battles with the employer.
Costello recalled Rich stating that if there were serious
problems in the store, in regard to such matters as days off
or vacations, they would have to go through the shop
steward, who would act as a buffer between management
and the employees.
I credit the collective recollections of Costello, Cote, and
Croteau as I was unfavorably impressed by the employees'
testimony in regard to the foregoing. Santos appeared to be
selective in the facts which she could or would recall and
her testimony about the exact words used by Rich lacked
probability. Periera's recollections were vague, even after
her recollection was refreshed by both leading questions
and reference to her affidavit. She testified to the specific
threats of benefits losses only when recalled as a rebuttal
witness, although she had been asked about Rich's alleged
threats when questioned during General Counsel's case-in-
chief. I was more favorably impressed by the testimony, as
623
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to this meeting, of Costello, Cote, and Croteau. Costello
was particularly firm and positive in his denial that Rich
threatened that benefits would be lost and he appeared to
have a good recollection of what occurred in that meeting.
Cote also impressed me as a generally credible witness; he
candidly admitted his opposition to the organization of his
employees and his knowledge of employee union activity.
Croteau's demeanor similarly revealed no basis for discre-
diting his testimony and I note that he was no longer in
Respondent's employ at the time he gave his testimony.
Accordingly, I find that Rich did not make the threats
attributed to him in the complaint, either expressly or
impliedly, and shall recommend that this allegation be
dismissed. See Computer Peripherals, Inc., 215 NLRB 293
(1974); Stumpf Motor Company, Inc., 208 NLRB 431
(1974).
F. The Refusal To Rehire Jeanne Schembri
Jeanne Schembri was employed as a salesclerk in the
jewelry department in Respondent's Plymouth store from
August 1975 until her resignation on July 9.5 General
Counsel contends that Respondent refused to rehire her
because of her union activity, in violation of Section 8(a)3)
of the Act.
Schembri testified that she learned of the union activity
around May I from a fellow employee. She asked Assistant
Store Manager Croteau what he knew about the Union and
why the jewelry department employees had received no
literature. He told her that it was probably because the
jewelry department was a concession. Schembri told him
that she thought it would be good if the Union could get
the jewelry department employees a 15-minute break as
they were the only employees in the store not to receive
one. Croteau stated his opinion that Rich's employees did
not need a union. Croteau did not deny this conversation.
On May 7, Dottie McDonald, jewelry concession
supervisor, took Schembri aside and told her that the
employees in the jewelry department would thereafter be
getting a 15-minute break, a 30-minute lunch period,
neither of which they had been receiving before, and a 5-
cent-per-hour raise. McDonald did not testify and no
evidence was adduced to dispute Schembri's statement that
these improvements in benefits were granted at that time.
Schembri related a series of conversations with Mary
Fontaine, jewelry department manager, between May 3
and July 9, which, if credited, would establish knowledge
of, and hostility toward, Schembri's union activity by
Fontaine, and which would constitute interrogation,
threats of discharge or benefit loss, impressions of surveil-
lance, and an admission that the refusal to rehire was
motivated by her union activity.6 Fontaine denied some of
these conversations specifically and denied, generally, that
she had any conversation with Schembri about the Union
I The jewelry department was a leased concession. The employees of
leased departments were included in the appropriate unit for the election in
Case I-CA-14,492. The record reflects that all employees hired in leased
departments were required to meet Respondent's approval.
6 General Counsel disclaimed, without explanation, any intention of
alleging these incidents, except the last mentioned, or the newly instituted
break and lunch periods, as independent violations of Sec. 8(aXl). Due
process. I believe. requires that I deem myself bound by such a disclaimer.
Notwithstanding his disclaimer, General Counsel argued that I should
until their second telephone conversation of July 9. She
admitted, however, that she knew that Schembri favored
the Union. Fontaine claimed that this knowledge was
derived from her observation of changes in Schembri's
attitude toward her. She told Mr. Cote that Schembri was a
union supporter.
As is frequently the case, I find that I can totally credit
neither witness. I was unfavorably impressed by Schembri's
hostile and robot-like testimony. Moreover, Schembri's
affidavits 7 evidence a strong hostility toward Fontaine and
I was completely unpersuaded by Schembri's assertion that
while she disliked Fontaine in their "business relationship,"
she was friendly toward her in a separate "personal
relationship." Additionally, contrary to General Counsel's
contention, Schembri's affidavits do not completely sup-
port her testimony; several of these significant conversa-
tions are nowhere related in those affidavits. Accordingly,
while I credit her undenied testimony of conversations with
Croteau and McDonald, I discredit the testimony of
Schembri as to the conversations between Fontaine and
herself, except where corroborated by Fontaine.
On the other hand, I was much more favorably
impressed with Fontaine's demeanor and candor. How-
ever, I note that Fontaine told Cote of Schembri's union
support. It is unlikely that she would have done so on the
basis of mere speculation from hostile behavior. Either
Schembri and Fontaine had some discussions about the
Union or Fontaine had been otherwise specifically in-
formed of Schembri's union activities.
On July 7, according to her undenied testimony,
Schembri spoke to the union representatives in front of the
store, and while doing this saw both Cote and Croteau.
On July 9, Schembri reported for work about 4:45 p.m.
She had previously complained about a reduction in hours
which took place on June 25, and had requested holiday
pay for Memorial Day and Independence Day. At work
she saw both Fontaine and McDonald. McDonald asked
her why she had attached a note to her timecard requesting
2 hours additional pay for Memorial Day. She told
McDonald that the Union had said that she was entitled to
it. She also began to complain to McDonald about the
reduction in her hours. Fontaine, who had been out of the
department, returned and told Schembri that she was
scheduled to work on the following day, a Saturday. Both
Friday night and Saturday were expected to be busy
because of an ear-piercing clinic and Schembri protested
that it was not customary for an employee to have to work
2 consecutive "clinic" days. She also protested that she had
not been scheduled to work Saturday. Fontaine told her
that she had been listed on the schedule for the prior 2
days. McDonald, evidencing some anger, suggested to
Fontaine that they leave. Schembri followed McDonald
and asked to speak with her. She returned to her
consider these incidents as evidence of animus and in support of the
objections.
I Schembri's affidavits, Resp. Exh. 3, were not received in evidence and
were placed in the rejected exhibit file. General Counsel, however, argued
from those affidavits in his bnrief. Upon reviewing those affidavits, and
considering General Counsel's argument therefrom as a waiver of his
objections, I have reconsidered my ruling and now receive those affidavits in
evidence.
624
RICH'S OF PLYMOUTH, INC.
department, expecting McDonald to follow her. When she
returned and found that McDonald had left without
talking to her, she became upset. She walked over to the
service desk and asked Croteau to find a replacement for
her as she was quitting. Croteau said that he would and
took her keys. Schembri picked up her personal belongings
and left. Before she left, she gave some instruction on what
to do in the department to the employee from the service
desk who had been assigned to take her place.
As soon as she got home, Schembri called Fontaine and
told her what she had done and why. She also told
Fontaine that she had given some instruction to the
employee who was working in the department. Around
9:30 p.m., Schembri again called Fontaine. She apologized
for her actions, said that she was sorry she had quit and
asked for her job back. Fontaine told her that she would
have to speak to McDonald and that McDonald was upset
with Schembri because Schembri had mentioned the
Union to her. Schembri volunteered to work the following
day if they would take her back. Fontaine remarked on
what a good salesclerk Schembri was and how she would
be missed and said that she would call McDonald and
relay her apology and request to return. According to
Fontaine, Schembri only apologized for hurting Fontaine
and, when Schembri asked for her job back, told her that
she could not do anything for her, the decision was up to
"management." Fontaine believes that she did ask Schem-
bri why she had mentioned the Union to McDonald.
On the following day, Schembri again spoke with
Fontaine. Fontaine told her that McDonald had said that
her rehire was up to "management." She suggested that
Schembri call the owner of the concession, Mr. Smith. It
was Schembri's testimony, denied by Fontaine, that
Fontaine told her that she was playing "dirty pool" by
demanding additional pay for holidays, and that the Union
was behind it. Thereafter, Schembri called Mr. Smith, who
told her that her rehire was up to Fontaine, McDonald, or
Croteau.
On the following Monday or Tuesday, according to
Schembri, she again called Fontaine who told her that she
had been replaced and would definitely not be rehired.
Schembri protested that this was unfair, that others had
quit and been rehired, and alleged that she was being
denied reinstatement because she had mentioned the
Union to McDonald. Fontaine allegedly agreed. Fontaine
denied making any such statements. Schembri was re-
placed within about 2 days of having quit.
As noted, Fontaine denied all mention of the Union
between her and Schembri other than the one instance on
the night of July 9. For the reasons set forth above, I credit
Fontaine.
Cote, the store manager, was responsible for the decision
not to rehire Schembri. He admitted that Fontaine had told
him that Schembri was in favor of the Union a couple of
days before she quit. On that day, he was also told, by
McDonald, that Schembri had claimed that the Union told
her that she was entitled to holiday pay. He admitted that
he was opposed to the employees' unionization. He also
acknowledged that Fontaine had told him that Schembri
was a very good employee; he personally considered her to
be such. It was Cote's testimony that he refused to permit
Schembri to be rehired because she had walked out of the
store, without notice, on a busy sale night, when there was
both an ear-piercing clinic and a lot of merchandise to be
put away.
General Counsel adduced evidence to establish that
Schembri was treated differently from other employees
who had quit. The evidence was not conclusive. It
established that it was Respondent's practice, generally, to
record that an employee who failed to show up for work
without notice or who quit without warning - such as
leaving for lunch and not returning, not an uncommon
event - had quit not in good standing. This meant that the
employee was not eligible for rehire. It also reflected that,
at least some of the time, an employee who failed to show
up or who walked out would be contacted by Respondent
to determine the problem or the employee's intentions.
Further, that evidence showed that Respondent's policies
were not rigid. Not all store managers treated similar
conduct in the same way. At the Plymouth store, Schem-
bri's predecessor had quit four times, albeit with notice,
and had been rehired. Another employee, a young man,
had been discharged for stealing and had been rehired
several months later upon his request and that of his
parents, when it was felt that he had learned his lesson.
Based upon the foregoing and notwithstanding that I
have discredited much of Schembri's testimony regarding
her conversations with Fontaine, I conclude that, but for
her union activity, particularly her reliance on advice of the
Union in claiming holiday pay and protesting a cut in her
hours, Respondent would have rehired Schembri. In so
concluding, I note that Cote was opposed to the Union,
Respondent was responsible for other unlawful conduct,
both Fontaine and McDonald had apprised Cote of
Schembri's union activity, and Fontaine referred to
Schembri's mention of the Union in her conversation with
McDonald on the night she quit. Schembri was acknowl-
edged to be a good employee, she did not leave Respon-
dent's store "in the lurch," rather, she warned Croteau that
she was leaving and even assisted in preparing someone
else to run the department, and she quickly repented of her
hasty decision. If, as the record reflects, Respondent would
rehire an inexperienced employee discharged for stealing, it
would appear improbable that it would refuse to rehire an
experienced and very good employee who quit in a fit of
pique, but who demonstrated enough concern for her
department to make sure it was covered when she left and
who apologized and sought reinstatement within 4 hours,
unless it had another, more sinister, reason for denying
reinstatement. Accordingly, I find that by denying rein-
statement to Jeanne Schembri because of her union
activity, Respondent has violated Section 8(a)(3) and (1) of
the Act.
UI. CONDUCT AFFECTING RESULTS OF ELECTION
I have found that Respondent violated Section 8(aX)() of
the Act by certain conduct occurring prior to May 14, the
date the petition was filed. Under longstanding Board
precedent, such conduct cannot be relied upon as a basis
for setting aside the election. Ideal Electric and Manufactur-
ing Company, 134 NLRB 1275 (1961); Goodyear Tire and
Rubber Company, 138 NLRB 453 (1962). However, within
625
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the objections period, I have found that Respondent
discriminatorily refused to rehire an employee in violation
of Section 8(a)( 3) and (I) of the Act. I further find that such
conduct also interfered with the exercise of a free and
untrammeled choice in the election held on July 22.
Accordingly, I recommend that the election in Case I-RC-
14492 held on that date be set aside and a rerun election be
conducted.
IV. THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) and (3)
of the Act, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
refused to rehire Jeanne Schembri, Respondent shall offer
her immediate and full reinstatement to her former or a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges, and shall make her
whole for any loss she may have suffered as a result of the
discrimination against her. Any backpay found to be due
shall be computed in accordance with the formula set forth
in F. W. Woolworth Company, 90 NLRB 289 (1950), and
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
"A violation of Section 8(a)(3) goes to the very heart of
the Act." It therefore warrants that Respondent be further
required to cease and desist from infringing in any other
manner upon the rights guaranteed by Section 7 of the Act.
Pan American Exterminating Co., Inc., 206 NLRB 298, fn. 1
(1973); Entwistle Manufacturing Company, 23 NLRB 1058,
enfd. as modified 120 F.2d 532 (C.A. 4, 1941).
Nothing in this recommended Order shall be construed
as requiring Respondent to withdraw, vary, or abandon
any wage increases or benefits which it may have granted
its employees in an effort to discourage their union
activities.
FURTHER CONCLUSIONS OF LAW
I. By soliciting grievances and promising and granting
benefits to its employees in order to discourage them from
supporting the Union and by creating the impression that
the employees' union activities were under surveillance by
the Employer, Respondent has interfered with, restrained,
and coerced its employees in the exercise of rights
guaranteed them under Section 7 of the Act, thereby
violating Section 8(a)(l) of the Act.
2. By refusing to rehire Jeanne Schembri because of her
union activity, membership, or support, Respondent has
discriminated in regard to the hire and tenure of her
employment, in violation of Section 8(a)(3) and (1) of the
Act.
3. The unfair labor practices enumerated above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
8 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions and recommended Order herein shall. as provided in Sec.
10248 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
4. The unfair labor practice set forth above in subpara-
graph 2 has interfered with the employees' rights to a free
and untrammeled choice in the election conducted in Case
I-RC-14492 on July 22, 1976, and has tainted the results of
that election.
5. Respondent has not engaged in any unfair labor
practices not specifically found herein.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby make the following recommended:
ORDER8
The Respondent, Rich's of Plymouth, Inc., Plymouth,
Massachusetts, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Soliciting grievances from employees and promising
and granting wages increases and benefits to employees in
order to discourage them from supporting the Union.
(b) Creating the impression that the Employer is
engaging in surveillance of employee union activities.
(c) Discriminatorily refusing to rehire any employee
because of that employee's union activity, membership, or
support.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Jeanne Schembri immediate and full reinstate-
ment to her former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges, and make her whole
for any loss of earnings she may have suffered by reason of
the discrimination against her in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination or copying, all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other documents
necessary and relevant to analyze and compute the amount
of backpay due under this Order.
(c) Post at its Plymouth, Massachusetts, store copies of
the attached notice marked "Appendix." 9 Copies of said
notice on forms provided by the Regional Director for
Region I, after being duly signed by the Respondent's
authorized representatives, shall be posted by it immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced or covered
by any other material.
9 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
626
RICH'S OF PLYMOUTH, INC.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
IT IS FURTHER RECOMMENDED that Case 1-RC-14492, be
remanded to the Regional Director, that the election
conducted on July 22, 1976, be set aside, and that the
Regional Director conduct a rerun election at such time as
he deems the circumstances permit a free choice on the
issue of representative.
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 were afforded the
opportunity to present evidence, it has been found that we
violated the National Labor Relations Act in certain
respects and we have been ordered to post this notice and
to carry out its terms.
The National Labor Relations Act gives you, as
employees, certain rights, including the right:
To engage in self-organization
To form, join, or help a union
to bargain collectively through a representa-
tive of your own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
Accordingly, we give you these assurances:
WE WILL NOT promise you that we will satisfy your
grievances or promise you benefits in order to discour-
age you from supporting Retail Clerks Union Local
224, Retail Clerks International Association, AFL-
CIO, or any other union.
WE WILL NOT grant you wage increases of benefits in
order to discourage you from supporting the above-
named union or any other labor organization. How-
ever, we are not required to withdraw, vary, or abandon
any wage increases or benefits.
WE WILL NOT create the impression that we are
engaging in surveillance of your union activities.
WE WILL NOT refuse to rehire any employee because
of that employee's union activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
statutory rights.
WE WILL offer Jeanne Schembri immediate and full
reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
loss of seniority or other rights or privileges, and WE
WILL make her whole for any loss of earnings she may
have suffered by reason of the discrimination against
her.
RICH'S OF PLYMOUTH, INC.
627