S. E. Nichols-Dover, Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1967

165 N.L.R.B. 924 (N.L.R.B. 1967)

924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. E. Nichols -Dover , Inc. and Retail Store
Employees Union Local #692, Retail Clerks
International Association , AFL-CIO. Case
5-CA-3586-1.
June 23, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On April 7, 1967, Trial Examiner Sidney D.
Goldberg issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial
Examiner'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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions,
and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, S. E. Nichols-
Dover, Inc., Dover, Delaware, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
1. Insert the words "Promising and" at the
beginning of the first line of paragraph 1(a) of the
Trial Examiner's Recommended Order.'
2. Substitute the words "on forms provided" for
the words "to be furnished" in the second line of
paragraph 2(d) of the Trial Examiner's
Recommended Order.
3. Substitute the word "hearing" for the word
"trial" in the first line of the second paragraph of the
notice attached to the Trial Examiner's Decision.
' The address and telephone number for Region 5, appearing at
the bottom of the notice attached to the Trial Examiner's
Decision, is amended to read. Federal Building, Room 109,
Charles Center, Baltimore, Maryland 21201, Telephone 962-2909
TRIAL EXAMINER'S DECISION
SIDNEY D . GOLDBERG , Trial Examiner : In this
proceeding , under Section 10(b) of the National Labor
Relations Act, as amended (herein called the Act), the
complaint ' alleges that S. E. Nichols -Dover, Inc. (herein
called Respondent), which operates a retail department
store near Dover , Delaware, interfered with its employees'
exercise of rights guaranteed them in the Act by inducing
them to withdraw their designations of Retail Store
Employees Union , Local#692, Retail Clerks International
Association , AFL-CIO (herein called the Union ), as their
collective -bargaining representative ; by coercively
interrogating employees concerning their activities in the
Union ; and by promising and granting employees
economic benefits to refrain from belonging to or
supporting the Union ; and discriminatorily discharged one
of its employees to discourage membership in the Union.
Respondent answered , denying the allegations of the
complaint , and a hearing on the issues so raised was held
before me at Dover , Delaware, on December 6, 1966, at
which all parties were represented and were afforded an
opportunity to present evidence, cross-examine witnesses,
and argue upon the facts of the law. Counsel for
Respondent subsequently filed a memorandum which has
been considered.
For the reasons hereinafter set forth in detail , I find that
Respondent interfered with employees' rights
substantially as alleged in the complaint and that it
discriminatorily discharged employee Betty Rubasky to
discourage membership in the Union.
Upon the entire record in this proceeding , 2 including the
demeanor of the witnesses and official notice of relevant
findings in certain Board decisions ,3 I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The Respondent admits that it is a Delaware corporation
operating a department store near Dover , Delaware; that
during the year preceding the issuance of the complaint it
purchased and received goods valued at more than $50,000
from points outside the State of Delaware; that during that
same period its gross sales were more than $500,000; and
that it is engaged in commerce within the meaning of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits that the Union is a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent operates the Dover store of the S. E.
Nichols chain, which has its headquarters in New York
' Issued October 21, 1966, upon a charge filed August 23, 1966,
and an amended charge filed October 14, 1966
2 The word "admission " appearing on p 95, 1 3, of the
transcript is hereby corrected to "admonition "
3 Pursuant to the request of the General Counsel at the hearing,
official notice is taken of the Board' s decisions at 159 NLRB 1071,
involving Respondent (on which the opinion of the Third Circuit
Court of Appeals directing enforcement was issued March 16,
1967), and at 156 NLRB 1201 , involving S E. Nichols Company,
the parent organization , and Nichols Discount City, its wholly
owned subsidiary, which operates the store in Elmira, New York
165 NLRB No. 135
S. E. NICHOLS-DOVER, INC.
and opened this store for business in August 1965. Its
operation calls for a normal complement of about 85
salesclerks, part-time and full- time, but during particularly
active periods, such as its opening weeks and the
Christmas shopping time, as many as 120 clerks may be
employed.
As found by the Board in the case involving
Respondent, the Union was engaged in an organizing
campaign , even before the store was opened, among the
employees who had been hired to prepare for the opening.
During this effort, both before and after the opening, the
Board held Respondent interfered with its employees'
rights of self-organization by interrogating employees
concerning their attitude toward a union, by engaging in
surveillance of the activities of a union organizer, and by
discriminatorily discharging an employee, Carol Roxby, on
September 20, 1965, to discourage her membership in the
Union and to cause other employees to avoid contact with
union organizers.
With the discharge of Roxby, however, the Union's
activities at Respondent's store apparently lapsed and
they were not resumed until about June 1966.4
B. Chronology and Findings
The general outline of the facts in this case, as
established by the testimony of witnesses called by the
General Counsel, is not controverted by the Respondent
herein, although the details of several of the most
important incidents are disputed by the testimony of its
witnesses.
1. The meetings
In the normal operation of the store, meetings of the
salesclerks were held from time to time to acquaint them
with operating procedures they were required to follow.
These meetings were infrequent during the early part of
1966 but, when the Union resumed its organizational
activity, these meetings were held with increasing
frequency. About a dozen meetings were held between the
middle of June and the early part of August; some were
held in the cafeteria before opening in the morning, with a
substantial number of employees present, and some were
held at other places with three to a dozen employees
present.
The presiding officials at the general meetings included
the store managers-Donald Miller until July 20 and
Morgan Jones thereafter-Manfred Brecker, personnel
manager of the chain, Joseph C. Keller, general supervisor
of the chain, and Donald Miller-after July 20-as
4 All dates hereafter are in 1966.
5 Nothing actually said at any of these general meetings is
alleged to have been violative of the Act, but the institution of an
employee discount, announced at the meeting of July 20, is so
alleged
6 Miller admitted this conversation with Mrs. Beachy , although
he could not remember its date. He admitted that they had
discussed the Union's effort to organize the store and that he
"happened to mention to her that if anyone had signed a card and
had since changed their mind, they could revoke the card " He
also admitted that she told him she had signed a card the previous
August, but testified that she expressed "relief" when he made
the statement and followed by saying that she and several other
925
assistant manager of the chain. At several of these
meetings , more than one official spoke to the employees.5
During the general meeting held June 12, employee Ann
Beachy walked in late. She had been on vacation and did
not know that a meeting was to be held that day. When the
meeting was over, she was called to one side by Store
Manager Miller who said he wanted her to know what had
been said at the meeting . Beachy testified that, when
Miller told her that one of the girls had claimed that the
Union wanted her to organize the colored employees in the
store, she became angry because she resented the
implication of racial discrimination and that Miller then
told her she could help the girls in the store by joining the
Union and then withdrawing from it to show them that
their authorizations, although given , could be withdrawn.
Beachy told Miller that she had already joined the Union,
and Miller then suggested that she make a carbon copy of
her letter of withdrawal which she could either keep or
give to him to keep in the store as proof, if the Union
should come there with the cards, that she had withdrawn
hers.6 Two days later, she wrote a letter to the Board,
requesting withdrawal of her union card, and gave the
copy to Miller.
At the general meeting which was held about July 20,
when Brecker announced that Jones would succeed Miller
as store manager, Brecker also said that he had come
down from New York because of the "disruption" and lack
of "harmony" among the employees by reason of the
"union business ," and that he came down to see if he
could "iron out" the problems. At that meeting Brecker
also referred to the Board's decision, which had issued on
June 23, directing the reinstatment of Carol Roxby, and he
said that the Company "was going to a higher court" and
would "fight definitely until they won out on it."
At this same meeting, Jones, after being introduced by
Brecker as the new store manager , announced that the
employees would thereafter be entitled to a 10-percent
discount on purchases made in the store.
2. The discharge of Elizabeth Rubasky
On Thursday, July 28, a week after Jones succeeded
Miller as store manager, about 14 women employees, all
interested in the Union, held a meeting at Alexander's, a
nearby restaurant.
On the evening of the following Tuesday, August 2,
according to the testimony of Elizabeth Rubasky, Jones
came into the garden shop, where she was working at the
cash register, sat down in one of the chairs, and asked her
also to sit down. When she did so, he asked her how she
was and how her arm was feeling after the recent
operation on it. Mrs. Rubasky said both she and her arm
girls who had signed cards would like to have them back He
denied that he had said she could help him by joining the Union
and then withdrawing her card Since Miller was Respondent's
principal official involved in this conversation and was shortly
thereafter promoted into the parent organization , it seems
probable that he would adjust his testimony to hide his own
misstep and to exculpate Respondent, if possible. Mrs Beachy,
on the other hand, was still employed by Respondent and
appeared at the hearing pursuant to subpena : She had nothing to
gain by exaggerating or distorting the terms of the conversation
Her testimony , moreovei, showed no inconsistencies and was
forthrightly given. Accordingly, I find that the conversation
occurred as described by Mrs. Beachy
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were "fine."7 Jones then asked her whether she had
heard any "rumbling" in the store about the union
becoming active again and she said she had.8 Jones
followed this with a question concerning the meeting at
Alexander's: Mrs. Rubasky said she had attended it;
another employee, Elizabeth Fuller, had driven down with
her; and the girls in the store wanted to hear the Union's
story and to find out how they could better themselves.
Jones asked her if she had signed up with the Union and
she said she had, asking Jones whether he was angry.
Jones said it was a free country and she could do what she
pleased; but he then excused himself abruptly and walked
out of the garden shop into the main part of the store.
The following evening Mrs. Rubasky reported for work,
as usual, at 6 p.m. and was again assigned to the garden
shop. At about 9:20, she testified, Jones passed through
the garden shop and greeted another employee with whom
Mrs. Rubasky was talking, but ignored her. Ten minutes
later he came back into the garden shop with Tom
Gottschalk,9 one of the assistant managers, called Mrs.
Rubasky aside and said: "As of tonight, Betty, we will not
need your services anymore." She became upset and
asked Jones what she had done; he also became upset,
said "Your work is insufficient" and left the shop, telling
Gottschalk to give her her pay. She turned to Gottschalk
and asked why she was being discharged, saying that it
could not be on the basis of "insufficient" work since she
had enjoyed her work and done it well. Gottschalk said: "I
am sorry, Betty, I wish I could tell you but I cannot."10 He
then handed her an envelope containing her pay. She
returned to her post until 10 p.m., when the store closed,
emptied and checked in her register, and went home.
After she arrived at home she was still upset and
telephoned Personnel Manager Brecker at his home in
New York. She told Brecker what had happened and said
that her discharge could not have been based upon her
work but was probably because of the Union. Brecker said
he didn't know anything about it and that the Union wasn't
any problem.
A week later, Mrs. Rubasky returned to the store and
spoke to Jones; she said she had heard that her dismissal
had something to do with her arm and asked whether, if
she produced a medical discharge from her surgeon, she
could return to work. Jones answered: "I am sorry, but I
cannot tell you that." She then asked him whether he
would give her a recommendation if she looked for work
elsewhere and he said he would give her the "highest
recommendation" because she deserved it and that he
would never do anything to hurt her.
Jones did not controvert Mrs. Rubasky's testimony that
he had arranged for her assignment to duty at cash
' It is not disputed that Mrs Rubasky underwent surgery on
July 7 for the removal of a calcium deposit in her shoulder It is
also not disputed that, both before and after the operation, Jones
assigned Mrs Rubasky to work at cash registers and made certain
that she had a "bagger" to help her, rather than continue her
regular work in the dress department where she was required to
raise her arms to return dresses to their racks Mrs Rubasky
testified that they discussed her problem and that Jones promised
to- and did- help her Jones' testimony that he did not know
that she had been having difficulty with her arm and that the
surgery was for the purpose of curing it is rejected as not credible
8 Mrs Rubasky also testified, without contradiction, that a
union iepresentative had visited her at her home around the
middle of June and that a week thereafter she told Jones about the
visit She also testified that she had spoken with Jones several
times about the Union Jones' questioning of Mrs Rubasky is
alleged to be violative of Section 8(a)(1) of the Act Respondent
registers, both before and after her operation, and I have
rejected as not credible his denial that he knew it was her
shoulder that required treatment. Furthermore, he did not
deny her statement that she had previously discussed the
Union with him and his only response to her testimony that
on August 2 he had asked about "rumblings" in the store
concerning the Union was that he could "not recall" the
conversation.
For the reasons that will now be stated, I find Jones to
be completely untrustworthy as a witness. It is not
disputed that Mrs. Rubasky was away from work for 3
weeks at the beginning of July- 1 week was her vacation
and the other 2 weeks were without pay- and that she
returned to work on July 24. She testified that when she
returned to work, and continuously until the date of her
discharge, she kept a small gauze pad affixed to her
shoulder with strips of adhesive tape and that her reason
for doing so was to cover indications of recent surgery,
although the skin had healed. She also testified that she
and Jones met four or five times after her return and that
he was quite solicitous concerning her recovery. On one of
these occasions, about 2 days before her dismissal, she
assured him that she was feeling quite well; she uncovered
one corner of the gauze pad to show him the scar and he
remarked that it looked "fine."
Jones admitted that he had seen Mrs. Rubasky "a
couple of times" since she came back to work but that, on
the night he dismissed her, he saw, for the first time, that
there was "an oozing" coming out of her arm. He testified,
on direct examination, that he told her that he was sorry
but would have to lay her off "because she could not work
under those conditions. She had to get her arm fixed up
before she could work." While he also admitted the
conversation of a week later and that he said he wouldn't
hurt her in getting another job, he again couldn't recall
that she asked whether she could get her job back if she
brought a release from her physician.
On cross-examination, Jones testified that not only was
Mrs. Rubasky's arm "oozing through the bandage," but
that she "opened it up and showed it to me."
Mrs. Rubasky testified that the incision on her shoulder
never became infected and that there had not been any
discharge from it; that it was completely closed before the
end of July but that she continued to keep it covered with a
clean gauze pad because it looked "kind of funny." On
rebuttal she gave substantially the same testimony.
The General Counsel, on rebuttal, called Dr. James R
McNmch, who testified that on July 7 he performed an
operation on Mis. Rubasky's shoulder for the removal of a
calcium deposit and that he closed the incision
immediately. He testified that he saw Mrs. Rubasky in the
had no legitimate reason at that particular time to he questioning
its employees about their union attachments, and Jones' abrupt
reaction to Mrs Rubasky's answer may well have been
interpreted by her as an exhibition of displeasure- and therefore
coercive Accordingly, I find it to have violated the section (Blue
Flash Express, Inc , 109 NLRB 591 )
9 His name erroneously appears in the transcript as "Gashod",
it is hereby corrected wherever so misspelled
10 Gottschalk did not testify, either to give his version of this
critical conversation or, if he was not present as Mrs Rubasky
testified, to say so Gottschalk was a managerial employee of
Respondent and, presumably, within its control, but there is
nothing in the record to explain his failure to testify Accordingly,
I draw from this an inference that his testimony would not have
supported, but would have contradicted, Jones' account of the
conversation
S. E. NICHOLS-DOVER, INC.
hospital daily until she was discharged on July 10 and that
he again saw her on July 21, when he removed the sutures,
on July 28, on August 4, and on August 16. He testified
that on July 21, the wound had healed completely and
satisfactorily and that there was no discharge from it but
that on that date and on July 28 he put a dressing on it. He
testified that when he saw her on August 4, the wound was
completely healed with a "fine line" scar ; that there was
no "crusting" or any defect on it and that it did not then or
thereafter require a dressing.
In making my findings concerning the content of the
conversations involving Jones, Gottschalk, and Mrs.
Rubasky on August 3 and the condition of Mrs. Rubasky's
arm at that time, I note, as a preliminary observation, that
Jones testified haltingly and evasively. His statement, that
Mrs. Rubasky uncovered an "oozing" on her arm, is
incredible. His testimony and his demeanor while
testifying were such, even before Dr. McNinch testified,
that I would have been reluctant to accept his statements
as truthful. When there are added to these, moreover,
Respondent's failure to call Gottschalk, and Dr.
McNinch's obviously disinterested and forthright
testimony that the condition described by Jones did not
and could not have existed, I can reach no other
conclusion but that Jones was utterly unworthy of belief.
Accordingly, I find that Jones' assigned reason for
dismissing Mrs. Rubasky was completely without
foundation in fact but was an afterthought[[ devised to
conceal Respondent's real reason for her discharge-her
activities on behalf of the union organization in the store.
Upon the same facts, I find that Jones' refusal to reinstate
Mrs. Rubasky a week later, when she asked him to do so,
was also based upon her union activities.
3. Solicitation for withdrawal of union designations
Early in the morning of August 4, employee Ann Beachy
testified, Jones came to her at her work station and said:
"Ann, I would like you to do me a favor. I would like you to
write a letter to the Union withdrawing your card." Mrs.
Beachy said that she had already written such a letter but
Jones said he wanted her to write another one and that he
wanted a carbon copy of it; that he would supply the paper
and envelope and would send it out. Mrs. Beachy wrote
the letter and gave it to Jones. While she was writing the
letter, employee Barbara Reed asked what she was doing
and, when Mrs. Beachy said she was withdrawing her
union card at Jones' request, Mrs. Reed said she would
also write one and asked Mrs. Beachy to tell Jones for her.
When Mrs. Beachy handed Jones her letter, with the
envelope and carbon copy, she told him what Mrs. Reed
had said. Jones handed her some paper and an envelope
from a package of stationery in his hand and he instructed
her to take them to Mrs. Reed. Mrs. Beachy obeyed.
When she brought back the letter written by Mrs. Reed,
Jones said: "Sue Cook wants to write a letter, too. I want
you to go back and see her." Mrs. Cook, however, greeted
Mrs. Beachy with hostility, saying that, although she had
decided to withdraw her union designation, she would not
do it under threat of losing her job and that she would talk
directly with Jones about it. As Mrs. Beachy returned to
her work station she was approached by employee
Margaret Pittman who said that Jones had told her to see
Mrs. Beachy and she nodded toward the paper and
" After the employee meeting held the following evening and
discussed below , Jones asked employee Gloria Carey whether she
had noticed that Mrs Rubasky was missing from the meeting and
927
envelope in Mrs. Beachy's hand. Mrs. Beachy told her to
come into the stockroom and said that Barbara Reed "is
doing it, too." None of the foregoing testimony was
controverted by Jones or anyone else on Respondent's
behalf.
The Union produced the letters written, as described
above, by employees Beachy, Cook, Reed, and Pittman. It
also produced a letter, signed with the name Jane Conner,
who is not identified in the record. This letter is slightly
more elaborate in form than the others, which simply
request withdrawal of the cards. The Connor letter, in
addition to requesting withdrawal of the card, makes the
statement that the writer had changed her mind and that
she did not think that a union was needed at the place
where she was employed. Respondent conceded that all
five letters were on identical stationery. Examination of
the letters and envelopes, in evidence, shows that the
regular postage on all-except the Conner letter was paid by
affixing a stamp but that the registry fee on all of them, as
well as the regular postage on the Conner letter, was paid
through the use of postage meter No. 385878, which shows
that they were posted August 4. t' Moreover, all five letters
bear consecutive post office registry numbers. Since Mrs.
Beachy testified that she handed Jones both her own letter
and that written by Mrs. Reed, and there is no evidence
that would point to any contrary conclusion, I find that the
five letters were mailed by Jones or at his orders.
4. Impression of surveillance
During the afternoon of August 4, Mrs. Beachy testified,
while she and Jones were talking, she told Jones that she
had been at the employees' meeting at Alexander's the
previous Thursday night. Jones said he knew about it; that
he "knew all of the girls that were there and what had gone
on." Later that day Jones, in talking with employee Gloria
Carey, said that he "knew about the meeting that was held
at Alexander's."
5. The automatic wage increase
According to both the testimony of the employees and
the terms of the employee booklet admittedly in use by
Respondent at the time, new employees were scheduled to
receive a 10-cent-per-hour increase in wages after the
completion of 6 months' employment. Wage increases
thereafter were to be given, as the booklet put it:
at the discretion of the manager, based upon
length of service, your cooperation and above all your
progress and ability.
During the evening of August 4, Jones held a meeting
with about a dozen employees whose work hours were in
the evenings. Employee Gloria Carey testified that, toward
the end of the meeting, she called Jones' attention to the
fact that she expected to complete a year's service on
August 17 and she asked him whether she would receive a
raise. Jones said that she would and then, turning to the
assembled group, he said: "By the way, girls, you get a
raise at the end of the year." Mrs. Beachy also testified
that she learned, at one of the meetings in this period, that
the employees were to receive automatic raises at the end
of a year's employment.
Jones denied that he had promised any employees an
automatic raise at the end of a year's employment and
lie then said that she had been let go "because of her arm"
" The Cook letter is dated August 8 but, since it is postmarked
the 4th, it is obvious that the written date is an error
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, as far as he knew, no such promise had been made by
any other official. He admitted that he had directed 10-
cent wage increases for 10 to 15 employees who had
already had their 6 months' increase. In view of my finding
that Jones was not a credible witness, and the
disinterested testimony of the two employees- both of
whom had already been given their second wage
increases- I find that Jones did make the statement at the
meeting on August 4.13
6. Conclusions
The factual disputes having been resolved as set forth
above, consideration is now directed to the legal effect of
the findings made.
Respondent admits having instituted the employee
discount when Jones took over as manager on July 20, but
contends that it had been under consideration for some
time and that it had its origin in employee suggestions. It
adduced no evidence in support of this contention except
Jones' unsupported testimony, which I reject. In view of
Brecker's undisputed statement , at one of the meetings in
July, that he had come down because of the union
activities in the store, and the announcement of the
employee discount, also at a meeting in July, it seems
quite clear, and I find, that the purpose of Respondent in
extending this benefit to the employees was to interfere
with their self-organizational activities.
The institution of an automatic 10-cent wage increase
for each employee at the end of the first year of service
was also intended, I find, to interfere with the employees'
efforts at self-organization.
The conduct of an employer in promising and conferring
benefits upon its employees during, and with knowledge
of, their self-organizing activities constitutes interference
with employee rights of self-organization in violation of
Section 8(a)(1) of the Act.'"
Respondent knew, I have found, that Mrs. Rubasky was
engaged in activity directed toward the organization of its
employees. I have also found that its stated reason for
discharging and refusing to reinstate her was fabricated
and untrue , and that its true reason for the discriminatory
termination of her employment was to discourage her
membership in and activity on behalf of the Union.
Accordingly, Respondent thereby violated Section 8(a)(3)
and (1) of the Act.
Both Miller and Jones solicited employee Ann Beachy to
withdraw her card authorizing the Union to represent her
in collective bargaining with Respondent. This conduct, as
well as Jones' instructions to Mrs. Beachy to ask employee
Cook to withdraw her card, interfered with and restrained
employee rights guaranteed in the Act and violated
Section 8(a)(1) thereof.15 Although the record does not
show that Jones directly solicited the withdrawal requests
from employees Reed and Conner, his active assistance in
supplying the stationery for their use in this connection
and his mailing of their letters constitutes similiar
interference violative of Section 8(a)(1) of the Act.16
It seems quite clear, and I find, that when Jones told
employees Carey and Beachy that he knew about the
13 Employee Susan Shields also testified that she heard of the
establishment of automatic raises at the end of a year's service
but she testified that it was announced by Brecker some time in
July
14 Betts Baking Company, 155 NLRB 1313, Scolding Locks
Corporation, 150 NLRB 1688
15 Avondale Shipyards, Inc., 162 NLRB 421; Justesen's Food
meeting at Alexander's, he intended to give them the
impression that Respondent was keeping the employees'
self-organizing activities under surveillance. Such conduct
interferes with and restrains employee rights guaranteed
in the Act and violates Section 8(a)(1) thereof.17
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices, it will be recommended
that it cease and desist therefrom and take certain
affirmative action, including the posting of an appropriate
notice, to effectuate the policies of the Act.
Having found that Respondent discharged and refused
to reinstate Elizabeth Rubasky in violation of Section
8(a)(3) and (1) of the Act, I shall recommend that it
reinstate her to her former or a substantially equivalent
position and make her whole for any loss of earnings
suffered by reason of her unlawful discharge, her backpay
to be computed in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289, with interest thereon in the
manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
In view of the nature and extent of the unfair labor
practices found herein, and by the Board in 156 NLRB
1201 and 159 NLRB 1071, to have been engaged in by
Respondent, which indicate its determination to interfere
aggressively with its employees' rights of self-organization,
I shall recommend a broad cease-and-desist order
herein.18
Upon the basis of the above findings of fact and upon the
entire record in the case, I reach the following:
i
CONCLUSIONS OF LAW
1. S. E. Nichols-Dover , Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Retail Store Employees Union Local #692, Retail
Clerks International Association , AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
3. By discriminating in regard to the hire and tenure of
Elizabeth Rubasky by terminating her employment on
August 3, 1966, and by refusing to reinstate her on
August 10 , 1966 , to discourage union membership,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a)(3) of the Act.
4. By granting to its employees a 10-percent discount on
purchases made in the store ; by instituting the practice of
granting a 10-cent-an-hour wage increase at the end of 1
Stores, Inc., et al., 160 NLRB 687; Berry Kofron Dental
Laboratory, et at, 160 NLRB 493; Newberry Mills, Inc., 141
NLRB 1167,1170,1176-77
16 Park Sherman Company, 161 NLRB 1559
17 Precision Products & Controls, Inc , 160 NLRB 1119
Is N L.R B v. Entwistle Mfg Co , 120 F 2d 532, 536 (C.A 4,
1941)
S. E. NICHOLS-DOVER, INC.
year ' s employment ; by coercively interrogating an
employee concerning union activities ; by soliciting and
assisting employees to withdraw their authorizations of the
said labor organization as their representative for
collective bargaining ; by making statements to give
employees the impression that their self-organizing
activities were being kept under surveillance; and by
discharging and refusing to reinstate Elizabeth Rubasky to
discourage her membership in the said labor organization,
Respondent has interfered with , restrained , and coerced
employees in the exercise of rights guaranteed them in
Section 7 of the Act and has thereby engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, it is
recommended that S. E. Nichols -Dover , Inc., its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Granting benefits of any kind to its employees to
interfere with , restrain , or coerce them in the exercise of
rights guaranteed them in Section 7 of the National Labor
Relations Act, as amended : provided , however, that
nothing herein shall be construed as requiring it to
withdraw benefits heretofore granted.
(b) Soliciting or assisting its employees to withdraw, or
to persuade other employees to withdraw , authorizations
to Retail Store Employees Union Local #692, Retail Clerks
International Association , AFL-CIO, or any other labor
organization , to represent them for the purposes of
collective bargaining.
(c) Coercively interrogating employees concerning their
self-organizing activities or the conduct of any labor
organization engaged in assisting them in their self-
organizing activities.
(d) Making statements to give its employees the
impression that their self-organizing activities are being
kept under surveillance.
(e) Discourgaging membership in Retail Store
Employees Union Local #692, Retail Clerks International
Association , AFL-CIO, or any other labor organization, by
discriminatorily discharging or refusing to reinstate any
employee.
(f) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their rights of
self-organization ; to form labor organizations ; to join or
assist Retail Store Employees Union Local #692, Retail
Clerks International Association , AFL-CIO, or any other
labor organization ; and to engage in concerted activities
for the purpose of collective bargaining and other mutual
aid or protection , or to refrain from any and all such
activities , except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized
by Section 8(a)(3) of the National Labor Relations Act, as
amended.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer to Elizabeth Rubasky immediate and full
reinstatement to her former or a substantially equivalent
position , without prejudice to her seniority and other rights
929
and privileges, and make her whole for any loss of wages
which she may have suffered as a result of its
discrimination against her , in the manner provided in the
section hereof entitled "The Remedy."
(b) Notify said Elizabeth Rubasky if presently serving in
the Armed Forces of the United States of her right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its place of business at Dover, Delaware,
copies of the attached notice marked "Appendix."19
Copies of said notice, to be furnished by the Regional
Director for Region 5, after being duly signed by its
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by it to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 5, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith 20
I" In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order " shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board 's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
20 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read. "Notify the
Regional Director for Region 5, in writing , within 10 days from the
date of this Order , what steps Respondent has taken to comply
herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
The trial , which was held in Dover on December 6,1966,
resulted in a decision that we violated the Act and
interfered with our employees ' rights under it-
(1) By asking employees to withdraw the
authorization cards which they had given to Retail
Store Employees Union Local #692, Retail Clerks
International Association , AFL-CIO, and by asking
them to try to persuade other employees to do the
same.
(2) By promising and granting benefits - employee
purchase discounts and an automatic wage increase
at the end of a year's service-to restrain our
employees in their self-organizing activities
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) By coercively interrogating an employee
concerning the activities of that Union and the
activities of other employees in connection with it.
(4) By making statements to give employees the
impression that we were keeping under surveillance
the activites of our employees in connection with that
Union.
(5) By discharging Elizabeth Rubasky on August 3,
1966, and refusing to reinstate her on August 10, 1966,
to discourage her membership in that Union.
To comply with that Decision, we now notify our
employees that-
WE WILL NOT continue or repeat any of the above
conduct or any other conduct in violation of the Act,
BUT the Decision does not require us to withdraw or
cancel the employee purchase discount or the
automatic wage increase previously granted.
WE WILL offer Elizabeth Rubasky full and
immediate reinstatement to the same position which
she had on August 3, 1966, or to a substantially
equivalent one, without prejudice to her seniority or
other rights and privileges, and we will compensate
her by paying her the amount, with interest, of any
wages she may have lost by reason of her unlawful
discharge.
All our employees are free to join and remain members
of the above named Union, or any union, and they are free
to refrain from joining that Union, or any other union,
unless and until we sign a contract which, in compliance
with the terms of Section 8(a)(3) of the Act, requires union
membership as a condition of continued employment.
S. E. NICHOLS-DOVER, INC.
(Employer) -
Dated By
(Representative ) (Title)
Note: We will notify the above-named employee if
presently serving in the Armed Forces of the United States
of her right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 6th Floor, 707 N.
Calvert Street, Baltimore, Maryland 21202, Telephone
752-8460, Ext. 2100.