S. E. Nichols-Dover, Inc.

National Labor Relations Board - Board Decisions

Oct 18, 1967

167 N.L.R.B. 832 (N.L.R.B. 1967)

832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. E. Nichols-Dover , Inc.; Spencer Shoe Corporation
and IMAC Food Systems. Inc. and Retail Store
Employees Union , Local #692, Retail Clerks
International Association , AFL-CIO. Case
5-CA-3664
October 18, 1967
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND ZAGORIA
On June 20, 1967, Trial Examiner Boyd Leedom
issued his Decision in the above-entitled proceed-
ing, finding that the Respondents had engaged in
and were engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that they
cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Ex-
aminer's Decision. The Trial Examiner also found
that the Respondents had not engaged in a certain
unfair labor practice and recommended dismissal of
this allegation of the complaint. Thereafter, the
Respondents filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief, and the
General Counsel filed exceptions and a supporting
memorandum.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
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 exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions,' and recommenda-
tions of the Trial Examiner,2 as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
below, and hereby orders that the Respondents, S.
E. Nichols-Dover, Inc., Spencer Shoe Corporation,
and IMAC Food Systems, Inc., Dover, Delaware,
their officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order, as herein modified:
1. The following paragraph 2(a) is added to the
Recommended Order: "(a) Upon request, bargain
collectively with the above labor organization as the
exclusive bargaining representative of the em-
ployees in the above-described unit."
Paragraphs 2(a), (b), (c), (d), and (e) of the
Recommended Order are accordingly renumbered
2(b), (c), (d), (e), and (f), respectively.
2. Paragraph 2(e) of the Trial Examiner's
amended Recommended Order is amended by sub-
stituting the words "on the forms provided" for the
words "to be furnished."
' The Trial Examiner inadvertently omitted including in his Recom-
mended Order an order affirmatively requiring Respondent S E Nichols-
Dover, Inc , to bargain with the Charging Party The omission is cor-
rected below
' We find it unnecessary to pass upon the validity of the authorization
cards of employees Shirley Caswell, Carolyn McNew, Bonnie Lee (Witt)
Rattray, Elizabeth Becker, and Robert Thompson, inasmuch as exclusion
of these cards would not affect the Union's majority status at the time of
the demand We adopt the Trial Examiner's conclusion with respect to the
card of Leona Morns, as she was in fact employed on October 27, and it
is immaterial that she may not have been employed on the day before,
when she signed her card
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BOYD LEEDOM, Trial Examiner: This case, heard at
Dover, Delaware, on March 30 and 31, and April 3 and
4, 1967, pursuant to an original charge and amended
charges dated December 5, 1966, and January 9 and
April 3, 1967, and a complaint issued on February 17,
1967, presents the questions whether the employees of
the three Respondents named in the caption above con-
stitute an appropriate unit for collective bargaining under
the National Labor Relations Act, whether the Union
named above represented a majority of employees of the
three Respondents on October 27, 1966, and whether the
Respondents unlawfully refused to bargain with the
Union, as required by the Act; whether the Respondents
discriminatorily discharged three employees contrary to
provisions of the Act; and whether the Respondents en-
gaged in on-the-job harassment of employees and other
conduct such as threats, promises, and surveillance in
violation of Section 8(a)(1).
On the entire record of evidence, my observation of the
witnesses as they testified, and on due consideration of
the briefs filed, I make the findings and conclusions
hereinafter set forth; and determine that Respondents un-
lawfully (1) refused to bargain with the Union; (2)
discharged two employees; and (3) interfered with
employees' Section 7 rights; in violation of Section
8(a)(5), (3), and (1) of the Act, respectively.
• I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. The Employer and the Labor Organization
I find that the allegations of paragraphs 3 through 8 of
the complaint, respecting the nature and the volume of
business carried on by each of the named Respondents,
are true, and conclude therefrom that Respondents at all
times material herein were employers engaged in com-
merce within the meaning of Section 2(6) of the Act.
There is no dispute as to this aspect of the case.
I also find and conclude that the Union named in the
caption at all times material herein has been a labor or-
ganization within the meaning of the Act, another aspect
of the case not controverted
167 NLRB No. 121
B. Background
S. E. NICHOLS-DOVER, INC. 833
S. E. Nichols-Dover, Inc , Respondent herein, is one
of a chain of several retail discount stores under common
ownership and common direction of labor relations The
two other named Respondents are licensees in the
Nichols store at Dover, Delaware, one operating a shoe
department and the other (IMAC) operating a snackbar.
The Union has been seeking to organize the total
operation since late in 1965, with a diminution in activity
meantime because of the prosecution of earlier unfair
labor practice proceedings growing out of the union ac-
tivity. The effort then resumed at an accelerated pace
with the result that the Union, claiming to represent a
majority of the employees, demanded recognition on or
about October 27, 1966. Events led to charges out of
which the issues herein arose.
I take official notice of previous cases instituted before
the National Labor Relations Board involving the Dover
store and another within the Nichols chain and which
have been adjudicated at the level of Trial Examiner, the
National Labor Relations Board, or in one instance
through enforcement of the Board's Order by the Circuit
Court of Appeals for the Third Circuit. These cases are
S. E. Nichols Company, 156 NLRB 1201 (affirming the
decision of Trial Examiner William W. Kapell who found
the Respondents in the case in violation of Section 8(a)(1)
and (5) of the Act), S. E. Nichols-Dover, Inc., 159 NLRB
1071 (affirming the decision of Trial Examiner Harold X.
Summers who found the Respondent in the instant case,
that is Nichols of the Dover store, in violation of Section
8(a)(3) and (1) of the Act; enfd. 374 F.2d 115 (C.A. 3));
and the Decision of Trial Examiner Sidney D. Goldberg
in S. E. Nichols-Dover, Inc., Case 5-CA-3586-I issued
April 7, 1967, in which he found the Respondent
Nichols, in the instant case, that is the Dover store, in
violation of Section 8(a)(3) and (1) of the Act. This case
is now before the Board on exceptions to the Trial Ex-
aminer's Decision filed by Respondent.
C. The 8(a)(1) Violations
The evidence reveals, and I find, that Respondents in
their continuing opposition to the Union's effort to or-
ganize the store in Dover engaged in unlawful interroga-
tion of the employees.
I credit the testimony of Mrs. Jane Connor that follow-
ing employee meetings at which Morgan Jones, the
Respondents' store manager, spoke against the Union, he
contacted Mrs. Connor individually and asked her if she
had been approached by union representatives. He also
asked her if the employees in the store had been "running
to the union." Still later Jones talked to her about her at-
tendance at a union meeting at Alexander's Restaurant.
He told her he did not think the store needed a union and
asked her if she had signed a card. This conduct, together
with the suggestions made by Jones and other manage-
ment representatives in employee meetings, coerced the
employees, and resulted in Mrs. Connor, and others, writ-
ing letters requesting that their union cards be returned to
them. I find and conclude that this conduct violated Sec-
tion 8(a)(l) of the Act.
I credit the testimony of Elaine Hennessy, one of the
employees hereinafter found to have been unlawfully
discharged, and find that Morgan Jones, store manager,
talked to her in his inner office right after a meeting during
the Union's organizational campaign, held in Alexander's
Restaurant. He asked her what went on at the meeting
and told her her husband should not permit her to go to
such a place with strange men. A couple of weeks later he
asked her on the sales floor if she had heard any rumors
from the girls about union activity. She also attended a
meeting of employees called by management in the
summer of 1966 when company representatives told 15
or 16 girls present that the store did not need a middle
man (the Union), that if there was trouble between the
employees and the Employer the employees could go
directly to the Employer.
Mannfred Brecker, vice president of Respondent
Nichol's parent company, visiting the Dover store from
the New York office, suggested ways and means that a
union card could be revoked for those of the employees
who had signed them. If the employees wanted to, he
said, they could make carbon copies and the Company
would keep the copies in the office if the employees
desired.
Not long thereafter Hennessy and other employees
were told one evening not to punch out at quitting time
but to stay in the office area. They did and Store Manager
Jones made a speech, telling the employees that if any
wanted their union cards back, they could get them back
because this was a free country I find and conclude that
this conduct on the part of management representatives
violated Section 8(a)(1) of the Act.
I credit the testimony of Joanna Fairley and find that
she attended an employees' meeting called by Respond-
ents at which management representatives suggested
that authorization cards previously signed by employees
and delivered to union representatives could be recalled
by writing letters. This witness was a shy young girl easily
influenced. I find that she was induced to write a letter
asking for the withdrawal of her union card through the
machinations of Clara Darling, at the time manager of the
IMAC snackbar; and that Darling used the influence of
Joanna Fairley's mother over Joanna in getting the letter
written asking withdrawal of the card. Darling made the
envelope and paper readily available for writing the letter.
It came from her small desk in the snackbar Wherever
there is a conflict in the testimony of Darling and the wit-
ness Joanna Fairley, I discredit Darling and credit Fair-
ley. The demeanor of Darling on the stand revealed a par-
tisanship so in favor of management that much of her
testimony cannot be credited. I find and conclude that
this conduct on the part of Respondent respecting the wit-
ness Joanna Fairley violated Section 8(a)(I) of the Act.
I find and conclude that representations and sug-
gestions made by management representatives in em-
ployee meetings induced employee Margaret Pittmann to
write a letter asking that her union authorization card be
returned to her. In her effort on the witness stand to ex-
tricate management representatives from the effort to get
her union card returned to her, she gave tes"ttinony wholly
unbelievable because of its unreasonable character and
inconsistencies I find from her own testimony that the
letter she wrote asking the return of her union card, was
stamped, registered, and posted by management not-
withstanding her earlier testimony that she went across
the street from her motl.,;r's dwelling and mailed in there
herself in a corner mailbox. I find and conclude that the
conduct of management in this connection violated Sec-
tion 8(a)(1) of the Act
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I further find and conclude that the conduct of Respond-
ents respecting the requests of various employees for
the return of their union authorization cards was unlaw-
ful, intended and tending to coerce the employees in each
instance to write the letter requesting the return of the
union card, and find and conclude that in each instance
Respondent violated Section 8(a)(1) of the Act. This find-
ing, in addition to Jane Connor, Joanna Fairley, and Mar-
garet Pittmann, involves the letters of withdrawal of em-
ployees Dorothy Myrks, E. Barbara Reed, Helen
Shockley (whose withdrawal letter never reached the
Union), and Regina Fairley.
In addition to the foregoing violations of Section
8(a)(1), I find and conclude that the following conduct of
Respondents violated the same section of the Act:
I credit the testimony of Delores Ippolito and find from
her testimony that she was active in behalf of the Union
during its organizational campaign, and that she attended
the union meeting at Alexander's Restaurant. Soon
thereafter, Morgan Jones, store manager, contacted her
about it. He told her that he had a spy there, that 14
women attended and he knew who everyone was. Ip-
polito is another of the employees hereinafter found to be
unlawfully discharged. She, along with Elaine Hennessy,
and Joyce Burnett, all three office workers at the time,
had difficulty in the office one evening over division of
work among themselves. Morgan Jones came to the office
and during this difficulty which occurred on the evening
of the day a local newspaper carried the report of a previ-
ous NLRB proceeding involving Respondents. He was
agitated and, notwithstanding his denial, I find that he
said essentially this: "that if this G. D. union gets in this
place, I will lock the doors and if any more problems arise
between you girls I will get rid of the three of you and will
do the work myself."
I also find that earlier in the summer Jones called Ip-
polito to his office and asked what she thought the
opinion of the girls in the store was about the Union. He
responded to her answer that he could not understand
why anyone would want to pay $60 a year to a union, and
if anybody wanted a raise they should ask for it. On
another occasion he asked her why any adult woman
could attend such a meeting as the one the Union held at
Alexander's Restaurant. I find and conclude that all of
these conversations the store manager had with this wit-
ness violated Section 8(a)(1) of the Act
Counsel for General Counsel argues that statements of
a former supervisor, Aubray Cephas, constitutes another
violation of Section 8(a)(l ). Cephas testified that Store
Manager Jones told him a short while before the employ-
ment of Susan Scheel came to an end, that he, the wit-
ness, should get on Scheel's back and stay there, that they
knew she belonged to the Union, and they were going to
get rid of her; that he, the witness, followed these orders
and that Scheel's employment soon thereafter did ter-
minate. The circumstances relating to the General Coun-
sel's use of Cephas as a witness indicate that Cephas was
almost a volunteer That is to say, it appears that until
Cephas came to the hearing entirely of his own volition as
a spectator, the General Counsel had no intention of
using him, but upon learning what Cephas' story would
be, if called, decided to call him as a witness. The record
also reveals that Cephas had been summarily discharged
as an employee and supervisor just before the hearing.
While certain aspects of Cephas' testimony impress me
favorably I am reluctant to rest a finding of this alleged
violation on his testimony because of the strong motiva-
tion he had, by reason of his recent, sudden discharge,
either to consciously or unconsciously make a case
against his employer. I take this position particularly
because the finding of the additional 8(a)(1) violation
urged by counsel for the General Counsel would not alter
the remedy in the case
D. The 8(a)(3) Violations
1. Susan Scheel
It was not until counsel for the General Counsel
learned of the testimony that the witness Aubray Cephas
would give respecting Susan Scheel, and her termination,
that the complaint was amended (during the hearing) to
allege that she had been discriminatorily discharged. Em-
ployee Scheel had testified at an earlier NLRB proceed-
ing involving Respondents, at the instance of the General
Counsel, and had attended the union meeting in August
1966 at Alexander's Restaurant. According to her own
testimony, she quit working at Nichols-Dover store about
February 15, 1967, because of a rather serious spinal in-
jury. While she was away from work on account of this in-
jury she testified she decided she could not take the "nit
picking" to which she was subjected by supervisors,
especially Cephas, and so called the store and advised
them that she was not coming back. This was on Februa-
ry 28, 1967, and on that day she went to work for Grants,
another new, large mercantile establishment just opening.
While Cephas testified, as hereinbefore appears, that
he was told by Store Manager Jones to harass Scheel, re-
gardless of just cause, he also testified that he had previ-
ously complained considerably about Scheel's per-
formance as an employee, for good cause. Scheel's own
testimony as to the nature of the complaints made against
her which she characterized as "nit picking" do not im-
press me as constituting any great harassment particu-
larly in view of the type person she appeared to be. Scheel
is an outgoing, happy person who from all appearances
would not be greatly distressed with the kind of com-
plaints she testified were made about her work per-
formance. She revealed strong capacity to take, and in
lesser degree to give rebuffs.
Work at the new store, Grants, offered some attraction,
even at a reduced wage rate and I am no more persuaded
that she quit Nichols because of discriminatory action on
account of her union activity, than that she quit voluntari-
ly to take the other job that was available at Grants. Thus,
I find that there is lacking a preponderance of the
evidence to establish she was unlawfully discharged
because of her union activity and recommend that this al-
legation of the complaint be dismissed.
2. Delores Ippolito
The evidence reveals and I find that Delores Ippolito
had gone to work for Respondents when the Dover store
opened and had been found to be a satisfactory employee.
This is indicated by the fact that after she had voluntarily
quit after her first employment, she was taken back when
she asked to be returned, and was shown a preference as
to her choice of jobs. That is, she had indicated she had
wanted to work in the office, and was put on a cash re-
gister until an opening occurred and then was given office
employment.
Her work in the office involved greater responsibility
than her previous employment and involved the handling
S. E. NICHOLS-DOVER, INC. 835
of money and the cashing of checks of substantial sums.
I find and the evidence clearly reveals that Respond-
ents' management knew of Ippolito's interest in, and
support of, the Union. She had signed a union authoriza-
tion card and as hereinbefore appears had attended union
meetings. Store Manager Morgan Jones had questioned,
her about these matters and thus learned of them.
I discredit completely the reasons advanced by
Respondents for Ippolito's discharge. The reasons given
her by management personnel were vague and incon-
sistent; and the reason for her discharge that seemed to
emerge from the evidence offered in behalf of Respond-
ents at the hearing, that is that she was let go as a part of
a normal reduction in force following Christmas hirings
to meet the Christmas increase in business, is wholly un-
persuasive. She had not been hired for the Christmas rush
and employees of much less service in the store were
retained when she was discharged. Likewise the reason
given her at the time of her discharge that she was being
let go because of "incompatability" and again by other
representatives of management that she was let go
because of "bad attitude" are completely devoid of sub-
stance and appear to be only a word and a phrase seized
upon as excuses to avoid acknowledging that she was
being discharged because of her union activity.
From all the evidence adduced respecting the incident
in the office of the store on the night of December 7,
when the three girls of the office force were having dif-
ficulty among themselves as to division of work, and
when Jones came to the office in an agitated state and
made much of a newspaper story reporting the hearing
that day of charges against Respondents in an earlier
NLRB proceeding, I infer that he attached much blame
for all of his difficulties with the Union to Ippolito and
Elaine Hennessy and that the decision to let them go was
considerably advanced by this incident. I credit Ippolito
and Hennessy as to Jones' attitude about the newspaper
story. Both, as he well knew, were active union ad-
herents, and displayed qualities of responsibility and
leadership that added greatly to his burden in keeping the
Union out of the store.
In addition to the foregoing evidence which I would
find sufficient to justify a finding of unlawful discharge of
Ippolito because of her union activity, there is additional
support for the finding. If Respondents actually had been
dealing in good faith with Ippolito in letting her go on the
ground that she was no longer needed as work lessened
after Christmas, and the work force necessarily was to be
reduced, her discharge would not have taken place
without some kind of understanding as to recall, when-
ever she might be needed. Her record as a long-time em-
ployee (for this store) with satisfactory service (except as
Respondents sought to create an appearance of un-
satisfactory service in the latter weeks of her employ-
ment, which I find to be pretense) would clearly have
required a discussion with her as to possible recall and
some notice of discharge. The termination came however
without any notice, and as previously indicated without
any satisfactory explanation whatever.
Furthermore, I credit the testimony of Aubray Cephas,
the supervisor who had been discharged just before the
hearing began, as hereinbefore mentioned, respecting
management's intention to discharge Ippolito and also
Elaine Hennessy, because of their union connection. He
testified that Martin Wolfe, first assistant manager for
Respondents, told him in December 1965 or January
1966 that both Ippolito and Hennessy were in the Union
and that they were both going to be "let go." Soon they
were discharged.
This conversation, he testified, took place about a week
before both women were terminated. Notwithstanding, I
failed to rest a finding of an alleged violation of Section
8(a)(1), on the testimony of this witness respecting the
employee Susan Scheel, I credit his testimony here, in
part because as I have previously indicated the witness'
demeanor and testimony in some respects seemed credi-
ble, and in a more significant part because the first
assistant manager, Martin Wolfe, to whom this statement
is attributed by Cephas, failed to deny that he made the
remark concerning these two employees. Furthermore,
such a statement by Wolfe would fit what seems to me
from all the evidence to be a clear purpose as to Respond-
ent's intention respecting Ippolito and Hennessy. At the
time of the statement Cephas was a part of the "team"
and according to his own testimony at least was cooperat-
ing in the apparent effort of management to keep the
Union out of the store. It is entirely plausible that Wolfe
would have confided in Cephas as to the intention to get
nd of these two employees.
In addition to the foregoing the testimony of Morgan
Jones is full of patent inconsistencies as to whether Ip-
polito was discharged or merely laid off with intention of
recall, as to the failure of any notice to her that she might
be recalled, as to the fact she has never been recalled not-
withstanding that there have been many new employees
hired since her termination, and his total inability to dis-
close from his own records that the reason she had not
been recalled was because there had been no opening for
her.
Because of the foregoing I find and conclude that
Delores Ippolito was discriminatorily discharged because
of her union activity as alleged in the complaint.
3. Elaine Hennessy
The unlawful pattern of conduct engaged in by Respond-
ents respecting the discharge of Delores Ippolito,
hereinbefore found to be in violation of the Act, was in
general followed respecting the discharge of Elaine Hen-
nessy. She, as Respondent knew, was a solid, persistent,
and effective supporter of the Union. Not only had she
signed a card authorizing the Union to represent her, but
she solicited cards from other employees. She had
worked effectively in several positions in the store and
had progressively been given more responsibility up to
the time of her precipitous discharge. I find the reason ad-
vanced by Respondents for her discharge - that she had
violated the rules concerning smoking, to be wholly un-
persuasive and clear pretense. I discredit all the
testimony offered by Respondents' witnesses relating
thereto. In concluding as I do that her discharge violated
Section 8(a)(3) as alleged, I rely on the testimony of the
former supervisor, Aubray Cephas, hereinbefore set forth
and credited, to the effect that the first Assistant Manager
Wolfe had told him about a week before Hennessy's
dismissal, that management knew her to be a member of
the Union and that her termination was slated at an early
date.
E. The Refusal to Bargain-8(a)(5)
1. The unit question
A threshold unit question in the case is whether em-
ployees of licensees (Spencer Shoe Corporation and
310-5410-40-54
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IMAC Food System, Inc , Respondents named in the
caption hereof) of a principal merchandiser in merchan-
dising establishments now in vogue, such as S. E.
Nichols-Dover, Inc., is engaged in (commonly called
discount stores) can be included along with the em-
ployees of the principal and thus constitute an ap-
propriate unit for purposes of collective bargaining As a
general proposition it is established beyond all question
that in proper circumstances employees of the licensees
are appropriately included in the unit of the principal em-
ployer This is not to say, of course, as Board decisions
disclose, that in all situations licensees within such a store
must always be included or that the inclusion would al-
ways be appropriate.
Respondents concede in the brief that the three em-
ployees of Spencer Shoe Corporation may be included,
but argue that the unit cannot be appropriate if the em-
ployees of IMAC are not excluded. The reasons argued
by Respondents for exclusion of the IMAC employees
are that the snackbar has separate supervision and ad-
ministration, its employees do substantially different
work from that of the Nichols employees, it has its own
"exclusive" store area in an alcove with a lower ceiling,
it pays for its own utilities and owns and repairs its equip-
ment and fixtures, establishes its own wage rates and shift
hours, hires and supervises its own employees whose
hours differ from Nichols' hours, the employees are not
interchangeable, and IMAC has its own cash register.
The testimony of Clara Darling, manager of the
snackbar, goes much too far in seeking to establish a
separate identity for IMAC with respect to the entire
operation. Her effort to show IMAC's separate identity
by signs posted in the snackbar approaches the ludicrous.
Evasive on the difficult questions of cross-examination as
to just what signs tended to establish the separate identi-
ty, the truth emerges that the sign involved is a very small
one hanging at the rear of the snackbar space showing in
small lettering that IMAC is the license for the restaurant
operation. This unpersausive testimony detracts from the
rest of her testimony seeking to show no connection with
Nichols, the rest of the testimony in and of itself being un-
believable by reason of its exaggeration Thus, having
testified that she had fired a snackbar employee, and re-
ported it by letter to Jones, Nichols' manager, and on
receiving subsequently an inquiry from the employee as
to why he had been fired, and admitting she had suggested
he talk to Jones who might see it differently, she later
testified "it (the IMAC operation) has nothing to do with
Nichols in any way, shape, or form." And this statement
followed her previous admission that there was no way
any customer could walk into the store and tell that
IMAC was not a part of Nichols, that insofar as she knew
IMAC never advertised apart from the Nichols adver-
tisements and that IMAC was never closed when Nichols
was open or open when Nichols was closed
From the whole record of evidence and the inferences
I can clearly draw from observing the relationship
between Morgan Jones, manager of Nichols, and Clara
Darling, manager of IMAC, I am satisfied that Jones
could and did exert real influence as to labor relations
and other aspects of the management of the I MAC opera-
tion. Numerous store facilities were common to both
Nichols and IMAC, and IMAC receipts passed through
Nichols and job applications were made for work with
IMAC at the Nichols office.
Substantial reasons for Respondents' acquiescence
that employees of Spencer Shoe Corporation may
properly be included in the unit, but not those of IMAC,
do not appear either from the evidence adduced by
Respondent or the arguments made by it in the brief. A
practical purpose, however, and perhaps an appealing one
for Respondents, appears in the record for their desiring
to eliminate IMAC employees from the unit while willing
to include the employees of Spencer Shoe Corporation
This purpose is somewhat like the objective of gerryman-
dering in creating legislative districts. Thus I I of the I I
employees in the IMAC unit signed union authorization
cards while only I of the 3 employees in Spencer, signed
cards. Granting that Respondent attacks the validity of
some of the I I IMAC cards, it would enjoy a significant
benefit on the unit question, if IMAC should be excluded.
The testimony of Mannfred Brecker, vice president of
Nichols' parent company, for personnel, to the effect that
there is no writing establishing the relationship between
the Respondent Nichols and the two licensees, Spencer
Shoe Corporation and IMAC, seems almost incredible.
He however should know and testified positively that
there is nothing in writing setting up the rights and obliga-
tions of the licensees in the Nichols store His testimony
in this respect is weakened however in that he also said
under oath that insofar as he knew this lack of an agree-
ment in writing prevailed throughout the chain. Specifi-
cally he said he believed there were no written agree-
ments 2 years ago at the Elmira store, while the record
and the findings of the Trial Examiner and the Board in
the earlier case of S. E. Nichols Company, 156 NLRB
1201 (involving Elmira) reveal that in that case there
were written leases. They contain the provision that in
the event of any labor dispute involving a licensee, affect-
ing the operation of the store, the licensor is authorized to
settle and determine the dispute, with the licensee being
subject to termination of the license if it failed to settle ac-
cording to the licensor's determination. These leases also
provide that the licensee must adhere to the wages and
fringe benefits and other rules and policies of the licensor
with respect to the operation of the store. Brecker also
testified that insofar as he knew the arrangement between
all of the Nichols' stores and their licensees was basically
the same as the terms and conditions prevailing between
the Dover store and their two licensees Spencer Shoe
Corporation and IMAC If in fact there are no written
agreements between Nichols and its licensees in any of
the stores such practice seems so unreasonable and so un-
businesslike (considering that all the liscensees insofar as
the public is concerned are represented to be a part of the
Nichols operation in all advertising and otherwise) as to
lead to the speculation that the written leases were
eliminated for the purpose of avoiding adverse findings
against Nichols in the area of labor relations, such as have
been imposed on them in the earlier cases hereinbefore
cited.
Notwithstanding Brecker's unbelievable statements
that Nichols' companies have no right whatever to con-
trol the operation of their licensees, in any respect what-
ever, except to cancel their right to occupancy on some
undetermined set of standards, I draw the inference from
all the evidence that Nichols does have a degree of con-
trol essentially equivalent to that set forth in the Elmira
leases, referred to in the earlier decision, and find and
conclude that the employees of Nichols, Spencer Shoe
Corporation, and of IMAC are, under relevant Board
decisions, appropriately within the one unit involved in
this case, for the purposes of collective bargaining. Such
was the holding of the Trial Examiner and the Board in S.
S. E. NICHOLS-DOVER, INC. 837
E. Nichols, cited above, respecting the Elmira store (156
N LRB 1201, 1204). See the cases cited therein.
2. The majority question; the demand for bargaining
The significant date for determining the individuals in
the unit involved in this case, and whether on such date
the Union held valid cards from a majority of the em-
ployees in the unit, is October 27, 1966. The Union's
letter demanding recognition was dated October 26,
1966, and the evidence indicates and I find that it was
received by Respondents on October 27, the day follow-
ing. There is no real significance whether the critical date
be deemed the 26th or 27th. The Union's letter addressed
to Mannfred Brecker was answered by counsel for
Respondent, on November 1, 1966, in Brecker's absence
from his office. This letter indicated that the Company
could not recognize the Union because charges (later
dismissed) were then pending against it alleging coercive
activity on the Union's part by reason of which a card
check would not accurately reflect the answers of the em-
ployees; and suggested that there be a National Labor
Relations Board election
While counsel for Respondents argues that the Union's
demand was ambigous and not one actually requiring a
response from the employer, no such claim was set forth
in the November 1 letter. I find that the Union's letter of
October 26 is a clear-cut demand for recognition and for
the commencement of collective bargaining. There can be
no serious question about this.
General Counsel's Exhibits 4 and 5 list the employees
on the Nichols, Spencer Shoe, and IMAC payrolls as of
the significant date. This was stipulated, with counsel for
Respondent reserving the right to contend that the em-
ployees of the licensees should not be included in the unit.
The stipulation listing the names of 117 employees of S.
E. Nichols Company at Dover (Exh. 5) appears to be an
outright stipulation as to the eligibility list as of October
27, 1966, although as it developed in the hearing, counsel
for Respondents sought to deviate from this list as
hereinafter appears. The names of 131 employees appear
on General Counsel's Exhibits 4 and 5. The General
Counsel contends that the unit should include two addi-
tional employees, Carol (Braun) Roxby, an employee
found to have been unlawfully discharged in the case of
S. E. Nichols-Dover, Inc., 159 NLRB 1071, and
Elizabeth Rubasky, an employee held to have been dis-
criminatorily discharged in the case of S. E. Nichols-
Dover, Inc, decided by Trial Examiner Sidney D. Gold-
berg, decisions hereinbefore cited. Counsel for Respond-
ent contends that these two employees should not be in-
cluded in the unit because subsequent events (their
removal from the area) would have made it impossible for
them to resume employment as of the eligibility date, Oc-
tober 27. 1 find and conclude however that they, being
entitled to reinstatement under the decisions mentioned
are, under the law, members of the unit, bringing the total
number of employees in the unit to 133 subject only to
Respondents' contention that some of these employees,
notwithstanding the stipulation, should not be included.
As of the crucial date, when the membership of the unit
totaled 133 employees, the Union held 77 signed cards,
10 more than a majority; but counsel for Respondent con-
tends that some of these 77 cards are not valid.
he union cards involved in this case are clear, unam-
biguous authorizations to the Union to represent the
signer of the card for collective-bargaining purposes
under the Act.
Respondents' attack on the card includes the conten-
tion that the letters of withdrawal (hereinbefore referred
to in the section dealing with the 8(a)(1) violations) effec-
tively revoked these cards. Inasmuch as I have previ-
ously held that the Company's effort in procuring the let-
ters of withdrawal constituted a violation of the Act, the
withdrawals are ineffective and the cards to which they
relate remain valid authorizations. See Quality Markets,
Inc., 160 NLRB 44.
The sheer transparency of the effort made by Mannfred
Brecker to establish his own objectivity and that of the
other management representatives who addressed the
employees in meetings , respecting the employees' rights
"to have a union if they so desire it" is so inconsistent
with the background of unlawful opposition Respondents
have shown toward the Union, as to render his testimony
not only unpersuasive of his claim that there was no effort
on management's part to get the employees to withdraw
their union authorization cards, but actually makes it
clearer that this was in fact Respondents' purpose in
calling the meetings. I therefore find and conclude that
the Union's 77 authorizations are not diminished in any
respect by the effort to get certain of the employees' cards
withdrawn.
Notwithstanding Respondents stipulated that the two
employees Shirley Caswell and Leona Morris, both of
whom signed union authorization cards, were on the eligi-
bility list, that is, were employees in the unit on the criti-
cal date for determining union majority, Respondents of-
fered evidence and argued in the brief that the card of
neither of these employees should be counted because
neither was an employee on the date the demand was
Tade.
Counsel for the General Counsel cites and relies on the
case of Cruis Along Boats, Inc., 128 NLRB 1019, for the
proposition that Respondents should be held to their
stipulation without deviation. The cited case arose in a
situation different from the one here, and in my judgment
is not authority for the proposition that one who enters
into a stipulation such as the one involved here, should be
held strictly to it under all circumstances. am of the view
however, and hold that any stipulation 1eliberately en-
tered into after the parties have had ample time to give
careful and sober consideration to the facts agreed on,
should not easily be disregarded. Unless a mistake in
stipulating can be shown by clear and convincing
evidence the stipulation should prevail. To hold other-
wise would result in an unwarranted disruption of orderly
and expeditious administrative practices. \1 therefore look
to the evidence adduced by Respondent s in ascertaining
whether these two employees should be included in the
unit, and their cards in determining the question of union
majority.
The employee Shirley, Caswell testified that she went
to work the latter part of June 1966 and after working
about a month was forced to quit because of a babysitting
problem. She first testified that she then went back to
work the last of September "I believe ... and worked
until after Christmas, the 1st of January." If this
testimony were accurate she would have been employed
as of the eligibility date, October 26 or 27, 1966 But her
testimony as will hereafter appear, is so uncertain that it
cannot support a finding. Following this testimony, on
leading questions by Respondents' counsel, she said she
believed October 28 was the correct date of her return to
work which would eliminate her from the payroll on the
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
critical date Queried "you don't remember now whether
this was in September or October? [that she returned to
work]." She replied, "It must have been October ... I
can't swear to the exact date." Her testimony is so uncer-
tain that it leaves in total doubt the date of her return to
work as between October 26, 27, or 28. Her union card
was dated during her earlier employment, July 19, 1966.
The record does not support a finding that her absence
because of the babysitting problem was a temporary
layoff and so the possibility of resolving the issue on this
basis does not exist.
Store Manager Jones was then called to testify from the
pay records as to when her second term of employment
began. He testified after much shuffling of papers, and un-
certainty as to the exact records he was looking at. He
said, "My date of her starting is the 28th of October and
that payroll ending would be 11/2. Here's my date
[without supplying the foundation record] where she
came back right here." When asked on cross-examination
"When Mrs. Caswell came back to work on, as you put it,
on the 26th or 27th or 28th?" Jones testified "Twenty-
eighth of October." The examination then continued on
for several questions and answers along an unproductive
line and seemed to come to a halt. I inquired as to the
reason for the period of waiting and counsel for the
General Counsel advised that his associate counsel was
examining pay records. By agreement the witness Mor-
gan was excused, ostensibly with the intention of re-
calling him later, and another witness was sworn in and
testified on another line of evidence. While Jones
resumed the stand he testified no further about the Shir-
ley Caswell employment and at the end of his testimony
counsel for General Counsel moved that his testimony as
well as that of the employee Shirley Caswell be stricken
in that its purpose was to impeach the stipulation. This
motion I denied. Jones' statement that the employment
began on October 28, 1966, is unpersuasive in that foun-
dation for it is lacking, and I cannot hold that it prevails
over the stipulation . Furthermore, the employee Caswell
testified that she had called Respondent and talked to
Mrs. Pittmann, to find out if she could come back to work
and that this occurred at least 2 days before she reported
on the job - "it wasn't any more than a week, a couple of
days I would say." She had been told by Mrs. Pittmann
that there was an opening and that she could have it. Even
granting that Jones may have been accurate in his state-
ment that October 28 was the date of Caswell's first ac-
tual reemployment (and there is nothing to indicate it
would have been later), she became an employee for the
purposes of representation as of the time of her employ-
ment by Mrs. Pittmann at least 2 days earlier than Oc-
tober 28. Because of the situation as revealed by all of
this testimony I find and conclude that Caswell was an
employee on the critical date and that her union card
previously signed should be counted toward the Union's
majority.,Ihere is nothing in the evidence sufficiently cer-
tain that she was not an employee to warrant setting aside
Respondents' stipulation1
The only significant evidence in the record bearing on
Respondents' contention that Leona Morris was not an
employees on October 26, 1966, is Respondents ' Exhibit
19, the employee's timecard. It shows that her first actual
work was done on October 27, 1966. Her authorization
card to the Union (erroneously referred to by counsel for
Respondents in the record as her timecard) is dated Oc-
tober 26, 1966. Because of the probability approaching
certainty, that the employee had knowledge at least a day
before she went on the job, that she had the employment,
plus the fact that she dated the union card the day before,
I infer that she was an employee on October 26; and find
and conclude that her card should be counted toward the
union majority.
Respondents contend that various employees signed
their cards after October 26, 1966, and dated them on
this date or earlier at the suggestion of the soliciting union
representatives, and these cards not being in possession
of the Union on the date of demand cannot be counted.
One such employee is Carolyn McNew Her testimony
is rather persuasive that she did not go to work for
Respondents until October 24 and that she signed the card
after she had actually been on the job. There is however,
great uncertainty in her testimony as to how much later
she signed the card. Notwithstanding that she was
pressed with numerous questions by counsel for Respond-
ents, many of which were leading, no clear picture forms
that she signed the card on any date later than October
26, 1966. Testimony as meaningful as any other that was
inconsistent is to the effect that she signed the card
within a week after she went to work on October 24. This
would allow for signing on October 26 There is no inti-
mation in her testimony that any union representatives
suggested to her that she date the card on any date dif-
ferent than the one on which she signed it, and she admits
that the date on the card she put there, that is October 24.
And she confesses she knows no reason why she would
have dated it on a date other than the day she signed it.
The evidence does not disclose to my satisfaction that the
card was not signed on October 24 and so I find and con-
clude that it must be counted in determining the Union's
majority.
The union authorization card of the employee Bonnie
Lee (Witt) Rattray is dated October 19, 1966. This em-
ployee testified with certainty that October 19 is the day
she went to work for Respondent and that she did not sign
the card until some time thereafter. But she is uncertain
as to how long after she first went to work that she signed
the card. She testified it "might be a week to a week and
a half- 2 weeks at the most." She also testified that
Oscar Hollinger, union representative who solicited her
signature , told her to date the cards as of the date she
went to work. Hollinger denied that he said any such
thing to her and that the signed card was in the possession
of the Union when they made the demand for recognition.
Hollinger, as the authorization cards in the evidence dis-
close, followed a practice in the main of making a notation
on the back of each card as to the date each was signed
and at what place. On the Rattray card, General Coun-
sel's Exhibit 80, there is no such notation as to date the
only notation being "Signed at home D.K. & O.H."
While this lack of date in the notation would tend to give
some credence to Rattray's testimony that she did not
sign on October 19, the circumstance loses some sig-
nificance in that Hollinger did not invariably show the
date on all the cards. Because of the uncertainty in Rat-
tray's testimony as to when she signed the card, and
Hollinger's denial , I find no support in the evidence for
concluding that the card was signed on any date other
than the date it bears, and therefore find and conclude the
card must be counted toward the Union's majority.
The union authorization card of employee Elizabeth
Becker, General Counsel's Exhibit 79, bears the date Oc-
tober 21, 1966. This is the date she testified she went to
work for Respondent. She also testified, however, that
she did not actually sign the card on this date but dated it
S. E. NICHOLS-DOVER, INC.
as she did because Hollinge ,. instructed her to do so. She
testified further that "mayl a about a week" elapsed
between the day she started to work and the day she
signed the card . On cross-examination she modified this
by testifying she thought she went to work on a Friday
night and signed the card the following Wednesday or
Thursday . Hollinger testified that he definitely did not tell
her to date the card any other date than the day she
signed ; and that the card duly signed was in the posses-
sion of the Union when they made the demand for recog-
nition . Because of the employee 's uncertainty as to when
she signed the card , and Hollinger 's denial , I find nothing
in the record to support a conclusion that the date the
card bears was not the date it was signed , and therefore
hold that the Becker card must be counted toward the
Union's majority.
The employee Robert Thompson signed a union
authorization card that bears the date "10 -25-66 ." Early
in his testimony as to the date he actually signed the card
he stated without hesitation that he signed it after Christ-
mas 1966 . He then began to waver stating he really could
not be sure when he signed it but thought it was about 2
months after he went to work for Nichols . He was also
uncertain as to when he went to work even as to the
month . As of the time of the trial Thompson was still in
the employ of Nichols as stock clerk . He has difficulty
reading , is not at all self-assertive and would be easily in-
fluenced by the two representatives or investigators en-
gaged by Respondent to contact the witnesses as the trial
was in progress respecting the facts relating to signatures
and time and place of signing authorization cards. The
union authorization card which he signed , General Coun-
sel's Exhibit 33, bears the "Received" stamp of Region
5 of the National Labor Relations Board , Baltimore,
Maryland , indicating receipt of the card in the Baltimore
office on December 13, 1966. This completely refutes of
course Thompson 's testimony that he signed the card
after Christmas . His testimony is so uncertain that it
furnishes no support whatever for the contention of
Respondent that this card was not signed on the date it
bears, that is October 25, 1966 , and I therefore find and
conclude that the written document as introduced, as in
the previous similar cases constitutes the only dependa-
ble evidence as to when the card was signed . The Thomp-
son card must be counted toward the Union ' s majority
The cards of employees Bonnie Lee (Witt) Rattray,
Sandra Santee, Pauline Yike, and Barbara Dixon fall into
another category of objection raised by Respondents.
Respondents argue that the evidence shows these named
employees signed their cards only on the misrepresenta-
tion of the union solicitors that a majority of the em-
ployees had already signed . I reject this contention first
on the ground that the evidence does not establish any
substantial misrepresentation as claimed, and secondly
on the ground that the Board has held "representations of
the type here considered are immaterial in determining
the Union ' s majority status on the basis of signed
authorization cards, and there appears no reason even for
receiving any testimony concerning such matter ." Merrill
Axle and Wheel, Service, 158 NLRB 1113. In the cited
case the Board in support of its position quotes language
of the court in N.L.R.B. v. Cactus Petroleum, Inc., 355
F.2d 755 (C.A. 5). I therefore find and conclude that
none of the cards of the employees last named above are
invalidated by reason of this contention of the
Respondent.
I also reject the contention of Respondent that the
839
authorization cards of Albertina Haver and Dorothy
Lanaras are invalid because obtained on the representa-
tion that the only purpose for the cards was to obtain an
NLRB election.
It is well established by numerous Board decisions that
a clear and unequivocal written authorization to a union
to represent the employee who signed the card is not in-
validated by any representation that it may be used for an
election or is rendered ineffective as a valid authorization
counting towards a union ' s majority except when the
representation made is that the only purpose for which
the card was obtained was to get an election. The
evidence in this case does not support any finding that
any card was obtained by any representation made by the
union solicitors that the only purpose of obtaining the
card was to get an election . I therefore find and conclude
that no card is rendered invalid by reason of Respond-
ents' contention that such representations voided the
cards of Albertina Haver and Dorothy Lanaras.
I also reject Respondents' contention that the cards of
the employees Pat Seaman and Lynda Satterfield are in-
valid because obtained on the union solicitors ' represen-
tation that if the employees would sign the cards as of the
date requested they would avoid any initiation fee,
whereas if they waited until a later time they would have
to pay an initiation fee. I do this on the ground that there
is no support in the evidence that the union solicitors
made any such representation . On the contrary , I find and
conclude that such reference as was made to initiation
fees was a legitimate one, and so recognized by Board
decisions , that is, that the Union involved , during an or-
ganizational campaign of an employer not organized,
makes no charge of an initiation fee of any employee on
the payroll as of the date of the request for recognition. I
therefore find and conclude that neither card was signed
because of the representation as contended for by
Respondents , and that both are valid and count toward
the Union's majority.
Employees Edward Bremer, Jack Spencer , and William
Hammond are in the military service , stationed at Dover
Air Base. They worked at the Nichols store during the
hours that their military service permitted , all regularly
and for substantial periods per week . Respondents con-
tend that notwithstanding their regular , part-time employ-
ment the uncertainty as to their length of service in the
store because of the possibility of their transfer away
from the area for military service at another station
disqualifies them for membership in the unit, and that the
authorization cards they signed should therefore not be
counted . I find and conclude that there is no substance to
this contention and hold that the cards of these employees
are valid and should be counted towards the Union's
majority. Respondent also claims that W . Richard
Wynder was a casual employee of Spencer Shoe Cor-
poration and that his card should not be counted. There
is no question however from the evidence that as of the
time of the demand for recognition he was a regular em-
ployee entitled to a representation in the unit. The cir-
cumstance on which Respondent relies to make its con-
tention respecting him is that in the course of the Em-
ployer 's business it became expedient to offer him a job
at a distant location and rather than relocate the employee
quit his job with Respondents so that he might apply for
admission to a college located at Dover. The right to
representation as a member of a bargaining unit is not
determined by hindsight , and the rule respecting Wynder
is no different than the rule that would apply to any eligi-
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ble employee, who after the event of an election or de-
mand for recognition, quits for whatever purpose. He
would be entitled to vote in an election, entitled to have
his authorization card counted if majority is being deter-
mined by cards , and to have representation up to the time
he chooses to terminate his employment . This is elemen-
tary. His card must be counted in determining the
Union's majority.
Inasmuch as I have made the foregoing determinations
that none of Respondents' attacks is valid on the 77
authorization cards the Union held from employees in a
unit numbering 133, I find and conclude that as of the
date the Union made its demand for recognition it did
represent a majority of the employees in the unit. I also
find and conclude from the whole record of evidence that
Respondents did not act in good faith when they refused
to recognize and bargain with the Union, but on the con-
trary sought time to undermine the Union's majority as
evidenced by their repeated and quite flagrant unfair
labor practices. Respondents' conduct reveals a disposi-
tion to reject collective bargaining. I therefore find and
conclude that they violated Section 8(a)(5) of the Act as
alleged in the complaint.
I have made certain corrections in the record pursuant
to motions filed by the Respondents and in behalf of the
General Counsel, by a separate order.
11. THE REMEDY
Having found that Respondents have engaged in and
are engaging in unfair labor practices I shall recommend
that they cease and desist therefrom and take certain af-
firmative actions more fully set forth in the Recom-
mended Order that follows, including the posting of an
appropriate notice, to effectuate the policies 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, I
recommend that Respondents S. E. Nichols - Dover, Inc.,
Spencer Shoe Corporation, and IMAC Food Systems,
Inc., their officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in any labor organiza-
tion by discriminating in regard to hire, tenure, or other
conditions of employment.
(b) Interrogating employees about a union or about
their attitude toward the Union.
(c) Encouraging or in any manner aiding their em-
ployees to withdraw their membership from or support
for any union or to discourage the employees in any
manner from attending union meetings.
(d) In any other manner, interfering with, restraining,
or coercing their employees in the exercise of their right
to self-organization , to form labor organizations , to join
or assist any labor organization , to bargain collectively
through representatives of their own choosing , to engage
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 th0 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
in concerted activities for the purpose of collective bar-
gaining or any mutual aid or protection , and to refrain
from any and all such activities except to the extent that
any such right may be affected by an agreement requiring
membership in a labor organization as a condition of em-
ployment, as authorized in Section 8(a)(3) of the Act.
(e) Refusing, upon request, to bargain collectively
with Retail Store Employees Union, Local #692, Retail
Clerks International Union, AFL-CIO, as the exclusive
representative of their employees in the unit hereafter
described as to wages, hours, and other terms and condi-
tions of employment . The unit consists of all employees
employed at the Nichols-Dover, Delaware, store, includ-
ing leased department employees and office clerical em-
ployees, but excluding guards and supervisors as defined
in the National Labor Relations Act, as amended.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Offer Elaine Hennessy and Delores Ippolito rein-
statement to their former positions even though this may
necessitate displacement of present incumbents (or, if the
position of either no longer exists, to a substantially
equivalent position) without prejudice to seniority or
other rights and privileges , and to make each whole for
any loss of earnings suffered by payment to each of a sum
of money equal to the amount she would have earned
from the date of her discharge to the date of Respondents'
offer of reinstatement, less her net earnings during said
period. Backpay shall be computed on a quarterly basis
in a manner prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289, with interest thereon at the
rate of 6 percent per annum computed quarterly.
(b) Notify Elaine Hennessy and Delores Ippolito if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon applicatio.i
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 their place of business at Dover, Delaware,
copies of the attached notice marked "Appendix."'
Copies of said notice, to be furnished by the Regional
Director for Region 5, after being duly signed by Respond-
ents' authorized representative, shall be posted by
Respondents immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps
shall be taken by Respondents to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Notify said Regional Director , in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.2
I In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing , within 10 days from the date of this Order , what steps Re-
spondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
S. E. NICHOLS - DOVER , INC. 841
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL NOT discourage membership in Retail
Store Employees Union, Local #692, Retail Clerks
International Union , AFL-CIO , or any other local
organization , by discriminating as to the hire, tenure,
or any other term or condition of employment of any
of our employees.
WE WILL NOT ask employees about a union or
about their attitude toward any union , and WE WILL
NOT encourage or aid any employee in any manner
whatsoever to withdraw his or her membership from,
or her support for any union.
WE WILL NOT in any other manner , interfere with,
restrain , or coerce our employees in the exercise of
their right to self-organization , to form , join, or assist
a labor organization , to bargain collectively through
a bargaining agent chosen by themselves; to engage
in any other concerted activities for the purposes of
collective bargaining or other mutual aid or protec-
tion, or to refrain from any such activities (except to
the extent that the right to refrain is limited by the
lawful enforcement of a lawful union -security
requirement).
WE WILL offer Elaine Hennessy and Delores Ip-
polito their former or substantially equivalent jobs
(without prejudice to seniority or other employment
rights and privileges) and WE WILL pay each for all
loss suffered because of our discrimination against
her.
WE WILL upon request, bargain collectively with
Retail Store Employees Union , Local #692 , Retail
Clerks International Union, AFL-CIO, a s the exclu-
sive representative of our employees in the unit
hereafter described as to wages, hours, and other
terms and conditions of employment. The unit con-
sists of all employees employed by us at the Nichols-
Dover, Delaware , store, including leased department
employees and office clerical employees , but exclud-
ing guards and supervisors as defined in the National
Labor Relations Act, as amended.
WE WILL notify Elaine Hennessy and Delores Ip-
polito if presently serving in the Armed Forces of the
United States of their 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.
All our employees are free to become or remain mem-
bers of any labor organization or to refrain from becoming
such members.
Dated By
Dated By
Dated By
S. E. NICHOLS - DOVER, INC.
(Employer)
(Representative ) (Title)
SPENCER SHOE CORPORA-
TION
(Employer)
(Representative ) (Title)
IMAC FOOD SYSTEMS, INC.
(Employer)
(Representative ) (Title)
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, Federal Build-
ing, Room 1019, Charles Center, Baltimore , Maryland
21202, Telephone 962-2909.