S. E. Nichols of Ohio, Inc.

National Labor Relations Board - Board Decisions

Mar 17, 1972

195 N.L.R.B. 939 (N.L.R.B. 1972)

S. E. NICHOLS OF OHIO, INC.
S. E. Nichols of Ohio , Inc. and Retail Clerks Interna-
tional Association , Local 698, AFL -CIO. Case 8-
CA-6414
March 17, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On November 19, 1971 , Trial Examiner Benjamin B.
Lipton issued the attached Decision in this proceeding.
Thereafter , Respondent filed exceptions and a support-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three -member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and brief
and has decided to affirm the Trial Examiner 's rulings,
findings, ' and conclusions and to adopt his recom-
mended Order , as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Respondent,
S. E. Nichols of Ohio, Inc., New Philadelphia , Ohio, its
officers , agents , successors , and assigns, shall take the
action set forth in the Trial Examiner 's recommended
Order.
' In affirming the Trial Examiner 's finding that employees Lena Barnhart
and Carolyn Moore were discharged for engaging in protected activities in
violation of Section 8(a)(1) and (3) of the Act, we rely solely on the Trial
Examiner's finding that the alleged misconduct of Barnhart and Moore,
which was Respondent's alleged reason for its action , did not occur and that
Respondent 's good faith is not a defense.
Respondent has excepted to certain credibility findings made by the Trial
Examiner . It is the Board's established policy not to overrule a Trial Ex-
aminer's resolutions with respect to credibility unless the clear preponder-
ance of all the relevant evidence convinces us that the resolutions were
incorrect , Standard Dry Wall Products, Inc., 91 NLRB 544, enfd . 188 F.2d
362 (C . A. 3). We have carefully examined the record and find no basis for
reversing his findings.
In the third line of the fourth paragraph in section II, C of his Decision,
the Trial Examiner inadvertently referred to a meeting as taking place on
October 30 . The record shows that this meeting was held on March 30. We
hereby correct this inadvertent error.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Trial Examiner : Hearing in this
case was held before me in New Philadelphia , Ohio, on Au-
gust 27 , 1971,1 upon a complaint by the General Counsel'
alleging violations of Section 8(a)(1) and (3) of the Act. Briefs
All dates are in 1971 unless otherwise noted.
The Union's charge was filed on May 5 and served on May 7; the
complaint thereon issued on June 25.
939
filed by General Counsel and Respondent have been duly
considered.
Upon the entire record in the case,' and upon my observa-
tion of the demeanor of the witnesses on the md, I make
the following:
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
Respondent is engaged in the retail sale of general mer-
chandise , having its principal offices and place of business in
New York , New York . It operates a department store in New
Philadelphia , Ohio , which is particularly involved in this
proceeding . Annually , at this department store , Respondent
sells products valued in excess of $500 ,000, and has a direct
inflow of goods in interstate commerce valued in excess of
$50,000.
Respondent admits , and I find, that it is engaged in com-
merce and that the Union is a labor organization , within the
meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Issues and Positions
The complaint alleges , in substance , that Respondent un-
lawfully - interrogated employees , singly and in a meeting
at the store; made promises of benefit to an employee ; threat-
ened an employee with reprisal; and discriminatorily dis-
charged employees Lena Barnhart and Carolyn Moore. Re-
spondent denies all alleged violations . In defense of the
discharges, Respondent affirmatively relies upon statements
it obtained from certain employees that Barnhart and Moore,
while soliciting authorization for the Union, "threatened"
that if they did not sign a card , they would lose their jobs.
B. Organizational Background and Chronology
On March 23 , Barnhart and Moore , sales clerks, were
separately approached away from the store by union repre-
sentatives concerning the prospect of organizing Respond-
ent's employees . Each indicated she would attempt to ascer-
tain the interests of other employees . On March 29, an
evening meeting was held at Barnhart 's home attended by
employees Barnhart, Moore, Gladys Burgess , Hazel Bartha-
low, Dorothy Mamula, Bonnie Lax, and Norma Milyiori.
They decided to contact the Union , - a task undertaken by
Barnhart . On March 30 , about 1:30 p.m ., the same em-
ployees , plus Sheila McCue , met with two union agents at
Barnhart's. The employees were advised of procedures in
organizing, benefits to be obtained , and were given blank
authorization cards and union buttons . Each of the em-
ployees present signed a union card . When these employees
reported for duty that evening , they had their union buttons
openly displayed on their smocks . About 10 employees were
then wearing the buttons. James E . Durda, the store
manager , testified "a few employees" came to him that night
and mentioned that they were solicited to sign cards. He
conceded that "maybe later on," as he was "curious ," he had
asked Doris Holmes "who started the union drive." On
March 30 , March 31 , and April 1 , Durda held meetings in
the store with separate groups of employees relating to the
union campaign . On April 1, Barnhart and Moore were dis-
charged.
' The transcript contains errors and omissions too numerous to specify,
but not affecting any matter of significance . No motion was received to
correct the transcript.
195 NLRB No. 172
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Restraint and Coercion
On March 30, about 6:30 p.m., Durda summoned certain
of the employees, including Barnhart, Moore, Lax, and
Milyiori, to a meeting. Also in attendance were James Mitch-
ell, district manager from New York, three assistant store
managers, two office clericals, and Linda Johnson. Durda
stated he was shocked to learn they were trying to organize
the Union; he did not realize the problems they had in the
store, and they should be free to talk to him if they had any
problem. He, asked each of the employees wearing a union
button why she wanted a union.' The responses included
working conditions, job security, benefits, and the manner in
which Barnhart was treated by Respondent. He said he could
get the employees benefits, such as 7 days of sick pay a year;
they would be receiving their raises; he was working on a plan
for the girls to have every other Sunday of, which would be
put into effect 'as soon as he obtained permission; and the
Company had previously tried to get hospitalization insur-
ance, but could not obtain enough names for a group policy.
In vague and cryptic testimony, Durda indicated that these
benefits were raised in questions by employees, which had
"already been brought up in the past," had been "worked
on," and were "nothing new."'
On March 31 and April 1, further meetings in the store
were held with separate groups of employees,' similar in na-
ture to the meeting on March 30.
Only Durda testified for Respondent concerning the meet-
ings with employees. He stated that his purpose was to let the
employees know the "do's and don'ts" relating to union orga-
nization, according to policies which he had to follow. These
policies are reflected in an "Employee Handbook" given out
to all employees, which is described in part below. He read
"the whole book"7 to the employeesat the March 30 meeting,
and questioned them as to their "problems." I find that
Durda was shifting and evasive as to what he actually said to
the employees regarding union organization. Whether he had
asked the employees individually why they wanted the
Union, Durda replied, "just Hazel Barthalow," because he
had no one to, relieve her at work to permit her attendance
at the meeting on March 30. However, on cross-examination,
he ultimately admitted the essence of the complaint allegation
that he had interrogated the employees individually as to
their involvement with the Union.
The complaint refers only to the meeting on March 30 and
confines the allegation to coercive interrogation of employees.
As to Durda's discussion with Barnhart following,the Octo-
ber 30 meeting (described below), it alleges a further interro-
gation and promises of benefit. In, addition, Durda admitted
that he interrogated `Barthalow in -a separate conversation
apart from the group meetings. The facts supporting these
allegations are amply evidenced. District Manager Mitchell
and other supervisors were present during the meetings, ta-
citly endorsing Durda's conduct. No legitimate purpose was
shown for questioning these employees individually as to
their reasons for wanting the Union. The answers of each
employee might well have disclosed the degree of her involve-
ment in the union campaign. Durda admittedly questioned an
employee to obtain the identity of the leaders. He, sought to
induce the employees to abandon their efforts to unionize by
inviting discussion of their "problems" and clearly offering to
improve their benefits. Considered in conjunction with the
He remarked to Moore that she "was union all along "
These assertions by Durda lack the necessary specificity and probity to
justify the promises, in this context, on the basis that they were previous
commitments by Respondent to the employees
c Some 80 to 90 employees were then employed.
Eleven pages of closely written material.
other unfair labor practices herein, it is found that these,
interrogations, inclusive of Barnhart and Barthalow, were
violative of Section 8(a)(1) of the Act.'
When questioned by Durda as to why she wanted a union,
Barnhart also stated that she had a grievance. The grievance
concerned Barnhart's insistence 'that'she had been given a
leave of absence by the previous store manager, Barnes, and
that when she returned to work in October 1970, Durda
deprived her of seniority and certain benefits. Durda took the
position that, as far as he was concerned, "being the new
manager," she returned as a new employee because when he
hired her back," she never said anything. Earlier in March he
had made this decision clear to'Barnhart. Durda asked Barn-
hart to come to his office after the meeting and he would make
a three-way phone 'call to Barnes. When Barnhart reported
to his office, Durda again asked her why she wanted' the
Union in the store. Did she realize what she is doing to him?
Then he said that Mitchell told trim to restore her seniority,
2-weeks' vacation, sick leave, and 5 cents an hour dating from
the past October. He inquired, "Now, is this what you want?"
She made no reply. He asked her if she would take off her
union button and she refused. As she prepared to leave, he
said, "Think this over." Durda testified that he made these
promises to Barnhart only if Barnes confirmed that, Barnhart
had been given a leave of absence. It'is not indicated that
Durda spoke with Barnes concerning Barnhart at anytime.
In other respects, Barnhart's testimony was not effectively
denied. Until these events on March 30, Durda's firm position
was that Barnhart was not entitled to the deprived benefits
which she claimed. Barnhart is credited in her account of the
conversation in Durda's office on March 30. She was prom-
ised a restoration of these benefits upon the clearly implied
understanding that she would cease her union activities. The
result would be the same even if Durda conditioned the prom-
ise upon Barnes" confirmation of her leave of absence. I find,
therefore, that by such conduct Respondent violated Section
8(a)(1), as alleged."
Mamula testified to a conversation about April 5 with her
manager in the shoe department, Tom Able. Able asked her
if she had engaged in the union activities and she answered,
yes. He said he could not stop her if she wanted to participate.
However, he told her that if either of his two girls participated
in union activities, he would fire them. During the first week
in May, Able approached her and first asked if he had 'made
the latter statement. She replied' affirmatively. Then he said,
"Dorothy, if I said that, I did not mean it that way."
Able initially denied having any conversation with
Mamula about April 5 relating to union activity. In May, he
asked. Maniula if she had been saying that he had made the
alleged threat to fire his two ,girls. She told him she did not
remember that he made such a statement: Able heard that
Mamula wore a union button." Unsure whether the conver-
sation was in early April, he conceded that he had asked her
"if she was wearing one."
There is a seeming inconsistency in Mamula's, testimony
that Able made the alleged threat and that he also said he
could not stop her from participating in union activities.
Upon close study, I would assign'"this result to the fragmented
nature of the questioning. It appears from both versions that
° E g, Blue Flash Express Inc., 109 NLRB 591, Mitchell Plastics, Inc,
159 NLRB 1574.
' The date of this occurrence is not shown.
0° As the complaint does not allege unlawful promises of benefit made by
Durda in any of the group meetings with the employees, it is sufficient, in
my view, to consider the evidence on this subject solely for corroborative
and background purposes
" It was worn only on the night of March 30
S. E. NICHOLS OF OHIO, INC. 941
the conversation in May arose from the fact that such a threat
had been attributed to Able. In all the circumstances , I credit
Mamula . Accordingly , I find that Able engaged in coercive
interrogation of Mamula and issued the threat of discharge,
in violation of Section 8(a)(1).12
D. Discharge of Barnhart and Moore
On April 1 , about 7 p . m., Durda called Barnhart and
Moore to his office . Also present were Mitchell , three assis-
tant store managers , an office clerical and Linda Johnson. It
is undisputed that Durda read to Barnhart and Moore from
a document which he described as an affidavit from employee
Paul Lehman , asked them if they had anything to say, dis-
charged them , gave them their paychecks previously pre-
pared , and ordered them to leave immediately and not come
back again to the store premises. The affidavit was not shown
to Barnhart and Moore . After the discharges , it was posted
for the employees to see . Both testified he told them they had
threatened Lehman with bodily harm . Barnhart had no com-
ment , and Moore denied threatening Lehman in any way.
During the defense portion of the hearing , Respondent ad-
vanced the position that Barnhart and Moore were ter-
minated because they were "part of the systematic effort to
and did threaten employees that they would be discharged if
they did not sign the union authorization cards." Durda tes-
tified they were discharged because "they broke the Nichols'
policy" by threatening Lehman, Joan Hykes , Sharon Taylor
and a few others, but those are the ones he investigated. As
to the "few others" on which Respondent relies, when re-
quested to specify, Durda stated he only knew about Linda
Johnson . In his "investigation," Durda did not attempt to
obtain from Barnhart and Moore their version of the facts.
At the discharge interview , according to Durda , he men-
tioned only the incidents involving Lehman and Taylor -
without relating what he actually said , apart from reading the
affidavit ." Only Durda testified for Respondent concerning
this interview , and his testimony , I find , is less than clear and
forthright.
As it has been raised and is intertwined with the several
issues herein , it is necessary to consider the "Employees
Handbook ," which contains a section under the heading,
"Your Employee Rights And Legal Rights Under A Union
Organization Drive." Pertinent passages are as follows:
... we want you to be aware of one more benefit your
company gives you.
We will protect all our employees from being ex-
ploited or taken advantage of by outsiders , ... the most
frequent ... will be various Union Organizers.
s * * * s
In some cases the union representative has told an
employee she 'd lose her job if she didn 't sign a union
authorization card. If this happens to you , just don't
believe it ....
Do not sign a card because you are told that now if
you sign , you will not have to pay initiation fees, and that
" Respondent contends that Able is employed by a lessee at the store and
that his statements may not be imputed to Respondent . This position was
not asserted , nor litigated , at the hearing . I find it without merit. It is not
contested that Mamula is an employee of Respondent and that she is super-
vised by Able.
" While Durda denied that he referred to a threat of physical harm, the
testimony of Barnhart and Moore is not otherwise clarified in the record.
(Cf. the Taylor incident, infra.) The question is not , of itself, significant to
the issues . However, I cannot find that this rather unusual impression voiced
by both dischargees was made up of whole cloth.
non-signers will be forced to pay such fees if the Union
gets certified.
The truth of the matter is if you sign a card or if you
don't , all these persons will pay initiaion fees or no one
will pay them .... The above reason for getting you to
sign a card is a threat and is illegal . Tell us and we shall
protect you.
Remember , do not sign a card because you are threat-
ened , tell us and we will protect you. It is your right to
have a Union . It is your right not to have a Union. Our
Company will try to see to it that your rights are pre-
served no matter how you choose . Tell us if someone is
trying to stop your freedom of choice.
If it is an organizer , employee or store executive, con-
tact your personnel director ...."
The Lehman incident occurred at a gathering at Barnhart's
house on March 31 , commencing at 10:15 p . m. After work,
certain of the employees had decided to meet there for "pizza
and pepsi ." In attendance were Barnhart , Moore , Burgess,
Barthalow , Milyiori , Mamula , Lax, McCue (i.e., those al-
ready shown to have previously signed cards), Althea Korns
(who arrived at the end of the meeting ), and Lehman ." In the
course of the evening, while sitting around a table , some of
the employees engaged in a conversation concerning the
Union , the sequence of which is not entirely clear from all the
testimony . Barnhart , among others , described various
benefits deriving from union organization . Lehman asked if
everybody had to join the Union . Barnhart replied "if it is
closed shop , yet or you will lose your job, but if it is an open
shop , no, you will not have to join the union ." Lehman
admitted that such a discussion concerning a closed shop was
"how the approach was made tome about joining the union."
It does not appear in her affidavit . Moore took a union card
from her purse and asked Lehman if she would like to read
it. After reading the card, Lehman said she would have to
think it over , that she was afraid to sign as it might result in
her losing her job because she was unable to run a cash
register . During or preceding this general conversation, Leh-
man was weeping while she complained of her personal diffi-
culties in the store and at home.
Lehman testified very briefly on direct . Barnhart handed
her a card and proceeded to tell her that if she did not sign,
she would lose her job . Moore "backed her up." Cross-exami-
nation elicited some elaboration , already described. In her
affidavit, Lehman states in substance: Upon her arrival, she
"was quickly advised that the group was meeting relative to
the question of union organization at the store." On her
refusal to sign a card and "to participate in their efforts to
organize a labor union ," Barnhart told her that if she refused
to sign she "would subsequently lose her job ." Moore "joined
'° The pertinence of these selected portions is to show the inducement
of employees to report to management any "threats " made in union solicita-
tions. The accuracy of Respondent 's legal advice to the employees is subject
to serious question . However , I do not pass upon whether the statements in
the handbook are coercive per se,, no violation thereon is alleged in the
complaint.
" Lehman testified that she asked Barnhart if she could come over that
evening to return a dish she had borrowed , and Barnhart said it would be
fine because her husband would be away at a basketball game . It appears that
she did not bring the dish and Barnhart 's husband was at home that evening.
Her affidavit merely states she was invited by Barnhart . Durda testified
Lehman told him she went there thinking it was a pizza party . Barnhart
testified that Lehman had asked her if she could come over to watch televi-
sion; she was in a hurry and gave no answer . Though involving peripheral
incidents , I view this evidence as tending adversely to affect Lehman's
reliability.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the threat and reiterated" she would be forced out of work
if she failed to sign.
Durda testified that, in his investigation, he spoke to "the
majority" of "about 10 girls" who attended the meeting. The
reports he obtained indicated that none of these girls, except
one, heard the alleged conversation with Lehman. Burgess
and Milyiori testified they were never questioned by Durda.
Mamula and Barthalow testified that he inquired after the
discharges, and they told him no such statements were made
to Lehman. McCue, called by Respondent, testified that
Barnhart told Lehman, "If you don't sign, when the union
gets in you will be fired;" and Moore said, "That is right."
McCue did not remember the exact words. She told Durda
she never thought that Lehman was threatened.
Lehman impressed me as an erratic and unreliable witness,
particularly in view of the conflicts and implausibilities stem-
ming from her testimony. I find that Barnhart and Moore did
not in fact make the remarks attributed to them by Lehman.
In any case, as to Moore, the broad conclusion that she
"backed up" Barnhart or "joined in the threat" is entirely too
vague a basis upon which her discharge may reasonably by
predicated. At Barnhart's home, it was explained to Lehman,
in the lay language of these employees, the distinction be-
tween a "closed shop" (or more accurately a union shop) and
an "open shop." As arising from the former type of union
security in the contract, she was advised of the possibility of
job loss. In the "Employee Handbook," and reemphasized in
Durda's group meetings, Lehman was counseled as were the
employees generally - "just don't believe it" - if told that
"she'd lose her job if she didn't sign a union authorization
card." The employees themselves certainly could evaluate
such a statement, and would know, moreover, that an em-
ployee soliciting card signatures had no possible authority to
carry out a threat of discharge. Even if the remarks were
made as described by Lehman, it has been held in effect that
this kind of pressure from an employee soliciting union sup-
port is not coercive." At the outset of the union campaign,
the employees were assembled and urged by Respondent, as
already prescribed in the handbook, to report any "threat"
made in solicitations of union support or "if someone is trying
to stop your freedom of choice." In my opinion, no employee
could clearly comprehend what would constitute such a
threat within the Company's admonition. It was against this
background that Lehman reported to Durda the incident at
Barnhart's home and an affidavit was prepared.
The general analysis as to Lehman has similar application
to Taylor, Hykes, and Johnson, discussed below.
The Taylor incident. Taylor testified that Moore asked her
if she was going to sign. She answered, no, and stated that
anything she, had to discuss she could go to Durda, which
always turned out to be satisfactory. Moore then said, "I'll
get you." Respondent has not articulated its interpretation of
these words. As already shown, Respondent grouped this
incident with others as part of "a systematic effort" by Barn-
hart and Moore of threatening employees. It is my finding in
the circumstances that the utterance, "I'll get you," is highly
ambiguous, and cannot reasonably be regarded as a threat
justifying discharge."
The Hykes incident. Hykes testified that Moore asked her
to sign a card, and she responded, "I don't know because I
need my job because I am making car payments." Moore then
stated that she might as well sign, because if she didn't sign
16 E.g , N.L R.B v Arrow Specialties, Inc., 76 LRRM 2351, 2354 (C A.
8, 1971), NLR.B. v Karp Metal Products Co., Inc, 134 F2d 954-955
(C.A 2); N.L.R.B v. Dahlstrom Metallic Door Company, 112 F 2d 756, 758
(C.A 2)
1' E g, Corriveau & Bouthier Cement Block, Inc, 171 NLRB No. 113.
she would lose her job anyway when the union got in. Moore
related that they were walking together from the parking lot
when she asked Hykes if she was interested in signing. Hykes
said she would have to talk to her husband and think it over.
It is noted that Durda omitted mention of this incident at the
discharge interview. Moore's denial of Hykes' version is cred-
ited.
The Johnson incident. Durda testified that, on her way to
the discharge interview on April 1, Johnson told him she was
also threatened "by a phone call" from Barnhart and Moore
that she would lose her job if she did not sign a card. John-
son's presence. at the discharge interview was presumably as
an observer for Respondent. She was not called to testify. I
find, particularly, that Respondent's reliance upon this inci-
dent, which it concededly did not investigate, was not in good
faith.
Concluding Findings
In effect, Respondent's position is rested upon a belief that
Barnhart and Moore made the above-described threats to
certain employees which amount to serious misconduct war-
ranting their discharge. In all instances, the stated miscon-
duct took place in the context of alleged solicitations by
Barnhart and Moore of union authorization cards, a basic
protected activity under Section 7 of the Act.1' The essential
law involved is well defined in N.L.R.B. v. Burnup & Sims,
379 U.S. 21. Section 8(a)(1) is violated if an employee is
discharged for misconduct arising out of a protected activity
despite the employer's honest belief, when it is shown that the
misconduct never occurred. "A protected activity acquires a
precarious status if innocent employees can be charged while
engaging in it, even though the employer acts in good faith."
Id. at 23. Respondent's defense must fall on several grounds,
each of which is alone sufficient: (1) The asserted misconduct
did not occur; (2) it does not constitute misconduct reasona-
bly justifying discharge even if it did occur; (3) Respondent
did not harbor an honest or good-faith belief as to (1) or (2)
above; and (4) the true reason for the discharge of Barnhart
and Moore was their union activity and leadership. On items
(1) and (2), the findings have been shown, supra. That Re-
spondent conducted itself in bad faith is evident throughout
the record. Such factors may be noted, among others, that
Respondent did not attempt to consult Barnhart and Moore
in its investigation of the charges against them; Durda did not
credibly describe the results of his investigation, which
strongly tended to corroborate Barnhart and Moore; pay-
checks were prepared in advance, and the decision to dis-
charge was fixed before the final interview; Barnhart, and
Moore were not advised at the discharge interview of all the
incidents upon which Respondent relies; it was unreasonable
for Respondent to characterize and treat the alleged conduct
as "threats," particularly in light of statements in the "Em-
ployee Handbook"; the punishment was summary and dras-
tic vas a vis the asserted offense; and Respondent's animus is
revealed, inter alia, by the contemporaneous unfair labor
practices it committed. Barnhart and Moore were the out-
standing organizers of the Union among Respondent's em-
ployees. That Respondent was aware of this fact may reason-
ably be inferred from its course of interrogations, its attempt
to learn the identity of the instigators, and its investigation of
the Lehman incident. When union buttons were shown at the
store, Respondent immediately convened meetings with the
employees in an obvious effort, by coercive means, to abort
the union movement. Then followed, in a significant brevity
of time, the discharge of Barnhart and Moore.
'B Ibid.
S. E. NICHOLS OF OHIO, INC.
Upon all the foregoing and the entire record, it is con-
cluded that the discharge of Barnhart and Moore independ-
ently violated each of Section 8(a)(1) and (3) of the Act.
III. THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. A broad order appears
warranted particularly by reason of the discriminatory dis-
charges which go "to the very heart of the Act.""
It has been found that Respondent discriminatorily dis-
charged Lena Barnhart and Carolyn Moore. It will therefore
be recommended that Respondent offer these employees im-
mediate and full reinstatement to their former jobs, or if those
jobs no longer exist , to substantially equivalent jobs, without
prejudice to their seniority and other rights and privileges,
and make them whole for any loss of earnings suffered by
reason of the discrimination against them ,20 by payment to
them of a sum of money equal to that which they normally
would have earned, absent-the discirmination, less net earn-
ings during such period, with backpay computed on a quar-
terly basis in the manner established in F W. Woolworth Com-
pany, 90 NLRB 289. Backpay shall carry interest at the rate
of 6 percent per annum , as set forth in Isis Plumbing &
Heating Co., 138 NLRB 716. It will be further recommended
that Respondent preserve and make available to the Board,
upon request, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records necessary and useful to determine the amounts
of backpay due and the rights of reinstatement under the
terms of these recommendations.
Because of its continuing effect on the employees, it is also
necessary, in my opinion, to consider for remedial purposes
Respondent's utilization of the "Employee Handbook" deal-
ing with union organizational activities, described supra. The
matter was fully litigated and shown to be inseparably inter-
woven with unfair labor practices committed, particularly the
discharge of Barnhart and Moore. In the form of its language,
and as verbally emphasized by Store Manager Durda during
the group meetings following the first appearance of union
activity, the employees were urged to report to Respondent
any "threats" arising from employee solicitations of union
support, which threats are vaguely or incorrectly defined in
the document. The necessary tendency - and indeed as I find
the calculated purpose - was to cause employees to inform
Respondent of the protected union activities of their fellow
employees, thereby instilling fear of reprisal, realistically ex-
emplified in this case, and generally inhibiting such activities.
It shall therefore be recommended that Respondent cease and
desist from requesting employees, orally or in writing, to
inform or report to Respondent concerning the union or
concerted activities of fellow employees which are of a pro-
tected character under the Act.21
Upon the foregoing findings of fact, and upon the entire
record in the case, I make the following:
" N.L.R.B. v. Express Publishing Co., 312 U.S. 426; N.L.R.B. v. Entwis-
tle Mfg. Co., 120 F.2d 532 (C.A. 4).
20 If Barnhart was in fact given a leave of absence by the former store
manager, Barnes, a matter to be ascertained in the compliance stage of this
proceeding , she is entitled to the seniority and benefits of which she was
deprived upon her return to work under Store Manager Durda, since Durda
conceded such entitlement, but conditioned restoration upon her abandon-
ment of support for the Union.
" See, e .g., H.W. Elson Bottling Company, 155 NLRB 714.
943
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging Lena Barnhart and Carolyn Moore on
April 1, 1971, thereby discouraging membership in the
Union, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(3) of the
Act.
4. By the foregoing, and by other acts and conduct interfer-
ing with, restraining, and coercing employees in the exercise
of their rights guaranteed in Section 7 of the Act, Respondent
has 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.
Upon the above findings of fact, conclusions of law, and the
entire record in the case, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:22
ORDER
Respondent, S.E. Nichols of Ohio, Inc., New Philadelphia,
Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union activities; coercively promising or granting benefits to
employees; or threatening employees with discharge or other
reprisal to discourage union membership or support.
(b) Requesting employees, orally or in writing, to inform
or report to Respondent concerning the union or concerted
activities of fellow employees which are of a protected charac-
ter under the Act.
(c) Discouraging membership in Retail Clerks Interna-
tional Association, Local 698, AFL-CIO, or in any other
labor organization, by discharging employees, or in any other
manner discriminating in regard to hire or tenure of employ-
ment , or any term or condition of employment.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act:
(a) Offer Lena Barnhart and Carolyn Moore immediate
and full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, and
make them whole for any loss of earnings, in the matter set
forth in "The Remedy" in the Trial Examiner's Decision.
(b) Notify the above-named employees, if presently serving
in the Armed Forces of the United States, of their right to
reinstatement upon application, in accordance with the Selec-
tive Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the
Armed Forces.
(c) Preserve and make available to the Board or its agents
all payroll and other records, as set forth in "The Remedy"
section of the Trial Examiner's Decision.
" In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes.
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its New Philadelphia, Ohio, store, copies of the
notice attached hereto as "Appendix."" Copies of said notice,
on forms provided by the Regional Director for Region 8,
shall, after being duly signed by Respondent, be posted im-
mediately upon receipt thereof, in conspicuous places, and be
maintained for a period of 60 consecutive days. Reasonable
steps shall be taken to insure the said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director of Region 8, in writing,
within 20 days from the date of this Trial Examiner's Deci-
sion, what steps Respondent has taken to comply herewith."
" In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
21 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 8, in writing, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial, in which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to post
this notice; and we intend to carry out the order of the Board,
and abide by the following:
WE WILL NOT ask you anything about a Union, or
who is in the Union, in a manner which would coerce
you regarding your rights under the Act.
WE WILL NOT promise or grant you employment
benefits to keep you from joining or supporting a Union.
WE WILL NOT threaten you with discharge, or punish
you in any way, in order to stop you from joining or
helping a Union.
WE WILL NOT, orally or in writing, request that you
inform or report to us concerning the union solicitations
or activities of fellow employees which are of a protected
character under the law.
WE WILL NOT discharge, or otherwise, punish you, in
order to discourage membership or support for Retail
Clerks International Association, Local 698, AFL-CIO,
or any other labor organization.
WE WILL NOT in any other manner interfere with,
restrain or coerce you in the exercise of the rights guar-
anteed employees in the National Labor Relations Act,
which are as follows:
To engage in self-organization;
To form, join or help unions;
To bargain collectively through a representative
of their own choosing;
To act together for collective bargaining or other
mutual aid or protection;
To refuse to do any or all of these things.
Since it has been found that we unlawfully discharged
Lena Barnhart and Carolyn Moore - WE WILL offer
them back their regular jobs or, if those jobs no longer
exist, we will give them substantially equivalent jobs; and
WE WILL pay them for the earnings they lost because of
the discrimination against them, plus 6 percent interest,
S.E. Nichols of Ohio, Inc.
(Employer)
Dated By
(Representative) (Title)
Note: WE WILL notify the above-named employees, if pres-
ently serving in the Armed Forces of the United States, of
their right to 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 is an official notice and must not be defaced by any-
one.
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. Any questions concerning this
notice or compliance with its provisions may be directed to
the Board's Office, 1695 Federal Office Building, 1240 East
9th Street, Cleveland, Ohio 44199, Telephone 216-522-3715.