Sandy's Stores, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1967

163 N.L.R.B. 728 (N.L.R.B. 1967)

728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer has heretofore assigned as "lead"
engineers on labor contract projects shall be
determined in accord with the formula set out in this
Decision; and (2) the payroll period for determining
eligibility shall be that immediately preceding the
date above.
ORDER
The Employer's motion to dismiss the petition is
hereby denied.
Sandy's Stores , Inc. and Local 1325 , Retail
Clerks International Association , AFL-CIO.
Case 1-CA-4818.
March 31, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND ZAGORIA
On April 5, 1966, Trial Examiner George J. Bott
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner also found that the Respondent had not
engaged in certain other alleged unfair labor
practices. Thereafter, the General Counsel and the
Respondent filed exceptions to the Trial Examiner's
Decision and supporting briefs. The Respondent
also filed a motion to amend its exceptions, t and an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
entire record in this case, including the Trial
Examiner's Decision, the exceptions, and the briefs,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner onl - to the
extent they are consiQtent with the Board's Decision
herein.2
1. We find , in agreement with the Trial Examiner,
that on numerous occasions between June and
December 1964 , Respondent coercively interrogated
employees about their union activities , threatened
employees with reprisals for engaging in union
activities , created an impression of surveillance of
union activities , and promised and granted to
employees benefits to discourage union activities, in
violation of Section 8(a)(1).3
2. In agreement with the Trial Examiner , and for
the reasons stated by him, we find that Respondent
discharged employee Kearns on December 23, 1964,
because of her union activity in violation of
Section 8 (a)(3) and (1).
3. The Trial Examiner found that the Respondent
did not violate Section 8(a)(5) by refusing to bargain
with the Union on August 26, 1964 . We disagree, for
the following reasons.
The basic facts are as follows. In June 1964,
Local 1325, Retail Clerks International Association,
AFL-CIO , herein the Union , began efforts to
organize the employees of Sandy's Stores, Inc., the
Respondent herein, at its store at North Attleboro,
Massachusetts, including employees in leased
departments . Between June 9 and August 25, 1964, -
the Union secured authorization cards from 57
employees. On August 25, 1964 , the Union filed a
representation petition in Case 1-RC-8016 in which
it sought an election among all full-time and regular
part-time employees in the above store and in leased
departments at that store. On the same day, the
Union wrote Respondent requesting recognition in
that unit and offering to submit proof of its majority
to an impartial person ; the Union reminded the
Respondent that its filing of the representation
petition did not relieve the Respondent of its duty to
bargain . By letter dated September 1, Respondent
rejected the demand for recognition for the reason
that the unit sought was inappropriate. On
October 14, a representation hearing was held, and
on November 4, 1964, the Regional Director issued a
decision finding the unit sought was appropriate and
directing an election .4 On December 2, 1964, the
original charges were filed in the instant case.
The Trial Examiner initially found, and we agree,
that the appropriate unit comprises all full- and
regular part -time employees at the Respondent's
North Attleboro store including employees in the
leased departments .5 The Trial Examiner also found
that on August 26, 1964, the date on which the
Respondent received the Union's request for
' In the absence of any opposition thereto, we hereby grant this
motion, in reaching our decision, we have considered
Respondent's additional exceptions
' In the absence of exception, we adopt pro forma the Trial
Examiner's findings that the Respondent did not violate
Section 8(a)(1) by Supervisor Stryer's comments around the end
of November 1964, to employee Linda Crawford, or by
Respondent's granting of Christmas bonuses in 1964
3 The complaint alleges that the Respondent committed other
unfair labor practices in violation of Section 9(a)(1) in addition to
163 NLRB No. 95
those found herein, the General Counsel filed exceptions to the
Trial Examiner's failure to find such violations However, we find
it unnecessary to consider or pass on such incidents and shall
make no additional findings regarding these allegations, as in our
opinion such findings would merely be cumulative and would not
affect the remedy
4 Respondent filed no request for review of this decision
5 This, as noted, was the unit petitioned for by the Union and
the unit found appropriate by the Regional Director in the
representation proceeding
SANDY'S STORES, INC.
recognition, there was a total of 96 employees in the
unit and that the Union on that date had obtained a
maximum of 46 valid authorization cards, which is
less than a majority; he therefore recommended that
the 8(a)(5) allegation of the complaint be dismissed.
We affirm the Trial Examiner's findings
respecting the composition of the unit, except as
indicated below.
Jeanine Ouimet, a sign painter, began work in
December 1963. Although her status for the next
several months is not entirely clear, her name
reappeared on the payroll in early May 1964.
Respondent's records show that she worked
regularly from early May through the middle of
September 1964, and that she resumed work the
week of October 10, and, with the exception of 2
weeks, worked in every week through December 5.
During the summer, Ouimet worked as a full-time
employee; before and after the summer she worked
as a Saturday replacement for employee Hebert.
Although indicating that the case was close, the
Trial Examiner excluded Ouimet from the unit,
relying particularly on the fact that while she was
employed during the summer, Ouimet knew that she
would go to nursing school in the fall and that she in
fact did so; the Trial Examiner concluded that
Ouimet was a "summer replacement" for Hebert
and that, after October 1964, she worked "at her
convenience."
We disagree. The Board has found that summer
students whose employment will terminate at the
beginning of the school year are temporary
employees; it has held, however, that a student who
continues to work on a regular part-time basis when
school begins after the summer should be included
in the unit.6 Here, as indicated, even after she began
school, Ouimet continued to work on Saturdays on a
regular part-time basis. In view of the fact that
Ouimet worked every week except 2 between
September and December, we give little credence to
the testimony of Hebert, relied on by the Trial
Examiner, that in the fall Ouimet worked only
"when it was convenient for her." We accordingly
find that on the critical date Ouimet was a regular
part-time employee and we shall include her in the
unit.
Robert Thaler, a clerk, worked from early June
1964 through the end of August. Although Kannally,
Respondent's store manager, testified that he
believed Thaler returned to school in September, the
Trial Examiner concluded that this "bare
statement" would be insufficient to support a finding
that Thaler was employed for the summer only; the
6 Giordano Lumber Co, Inc , 133 NLRB 205, 207
' This letter was appended as an exhibit to the Respondent's
bnef to the Board In an affidavit explaining why it had failed to
adduce this evidence at the hearing, the attorney for Respondent
stated that Thaler's student status had never factually been in
dispute either on or off the record during the hearing and that the
General Counsel for the first time sought his exclusion in his brief
729
Trial Examiner therefore included Thaler in the unit.
We find merit in Respondent's exception to this
finding. A letter from the office of the Registrar of
the University of Massachusetts, Amherst,
Massachusetts, dated May 4, 1966, indicates that
Thaler, who is a member of the class of 1967, was a
full-time student at the university at various times
including the spring and fall semesters of 1964.7 In
view of the above and the absence of evidence that
Thaler continued his employment after resuming
school on a full-time basis in September 1964, we
find that Thaler was employed for 1964 for the
summer only; we shall therefore exclude him from
the unit.
Patricia Shaw began to work full time in May
1964. She worked until the first week in August, and
her termination slip, dated August 8, 1964, indicates
that Shaw was "on leave." She worked for 4 hours
on August 24; she did not assume work until
October 1965, at which time she filled out an
application form indicating that she had left in
August 1964 because of ill health.
The Trial Examiner concluded that Shaw was not
in the unit on August 26, the date of the Union's
demand for recognition. The Trial Examiner
conclude that her leave status ended on August 24,
when she was recalled to work.
We disagree. Shaw's unexplained recall for
several hours on August 24 does not, standing alone,
require the conclusion that her leave was terminated
on that date. Nor does the indication on Shaw's
application in October 1965 that she left because of
ill health prove that, prior to August 26, her leave
status had terminated. In the absence of any other
evidence indicating that Shaw's leave status had
ended prior to August 26, we find that she had a
reasonable expectation of future employment on that
date, and we shall include her in the unit.
As noted, the Trial Examiner found that the
appropriate unit comprised 96 employees. Since we
have reversed the Trial Examiner and included
Ouimet and Shaw in the unit and excluded Thaler
from the unit, we find that on the critical date the
unit comprised 97 employees.
The General Counsel adduced 54 signed
authorization cards in support of the claim that the
Union represented a majority of employees in the
appropriate unit. The Trial Examiner did not count
four cards, signed by employees whom he excluded
from the unit.8 Since, as discussed above, we have
reversed the Trial Examiner and included in the unit
Ouimet and Shaw, who signed authorization cards,
we must also consider the validity of these two
to the Trial Examiner The attorney for the Respondent asserts
that it advised the General Counsel of his intent to attach the
letter to his bnef to the Board, the General Counsel and the Union
have indicated no opposition to the inclusion of this letter in the
record We therefore reopen the record for the hunted purpose of
incorporating this exhibit as a part of the record here
" These employees are Burgess, Ouimet, Shaw, and Sikonski
r
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorization cards in deciding whether the Union
represented a majority.
The Trial Examiner found, and we agree for the
reasons stated by him, that the cards of 40
employees in the unit were valid, and should be
counted toward the Union's majority.9 We agree
except as to Thaler, whom we have excluded from
the unit, thus leaving 39 employee card signers in
the unit. We also find that the authorization cards of
Ouimet and Shaw are valid. Union Organizer
Spetrini, whose testimony regarding the authenticity
of cards signed by a number of other employees was
believed by the Trial Examiner, testified that he saw
Shaw and Ouimet sign their cards on June 7 and 17,
respectively. The Respondent does not otherwise
question the validity of the cards of Shaw and
Ouimet; the record discloses no facts which would
indicate that these cards were tainted. We shall
therefore count the cards of Ouimet and Shaw
toward the Union's majority.
The Trial Examiner found that the cards of
B. LeBlanc, R. Riley, Chabot, and Black were
obtained by means of misrepresentation and should
therefore not be counted. We disagree as to the
validity of the cards of Riley and Black.
In considering the validity of these cards, we note
initially that the union authorization cards used by
the Union in organizing Respondent's employees on
their face are unequivocal designations of the Union
as bargaining representative: the cards are entitled
"Authorization for Representation" and state that
the employees authorize the Union "to represent me
for the purpose of collective bargaining." The cards
contain no mention of an election.
Riley testified that he was originally given an
authorization card by Union Organizer Fortier, that
he took the card home without signing it, and that he
signed the card at his home at the request of
Organizers Spetrini and Murphy. At the hearing,
Riley did not testify as to what he was told when he
was requested by Spetrini and Murphy to sign the
card; however, in a prehearing sworn affidavit, Riley
stated that the organizers explained that the "card
was to designate the union to represent the
employees and to have an NLRB election."
In eliminating Riley's card, the Trial Examiner
relied particularly on Riley's testimony that, when
he was given cards to distribute to other employees,
he was told that "their cards were to be turned over
to the Labor Board and if a certain percentage was
signed by the employees in the store that there
would be an election held in the store and that these
cards were to be destroyed and that they were not
These are the employees listed in Appendix B attached to the
Trial Examiner's Decision, with the exception of the four
employees in fn. 8, supra, and employees Black, Chabot,
B LeBlanc, R Riley, Mattson, Dumont, Lund, Pelletier,
Crawford, and Gula The cards of the latter employees are
discussed infra
11' The Shelby Manufacturing Company, 155 NLRB 464, and
cases cited there at fn 4
(to) be made public." It is not clear from Riley's
testimony as to whether he was told this when he
signed the card or on another occasion.
The Board held on a number of occasions that
authorization cards are reliable evidence of majority
status so long as the solicitor of the cards does not
represent that they are to be used only to secure an
election.10 Here, there is no testimony that Riley was
told when asked to sign a card that the only purpose
of the card was to obtain an election. On the
contrary, in his prehearing statement Riley stated
that he was told that the card was both for an
election and to authorize the Union to act as his
bargaining representative; also, Spetrini, one of the
persons who asked Riley to sign a card, testified that
he told employees that one of the purposes of the
card was to obtain an election.'1 The fact that Riley
was told in connection with his own solicitation of
cards, and possibly on another occasion, that there
would be an election and that the cards would be
destroyed does not require a contrary conclusion.12
Nor is it relevant, as the Trial Examiner found, that
Riley may have believed that the card would be
destroyed and never made public. The Board has
held that an employee's thoughts or afterthoughts as
to why he signed a union card and what he thought
the card meant cannot negative his overt act of
signing a card designating the union as his
bargaining agent.13
We accordingly find that Riley validly designated
the Union as his bargaining agent.
James Black, whom the Trial Examiner credited,
testified that he read the authorization card given to
him by Organizer Murphy who said that "the
purpose of the signing of the card was to get-well, a
certain majority so they could petition the
government to have an election there." Black
further testified that the representation was that
"they would have an election and if there were
enough votes for the Union then the Union would get
in.
The Trial Examiner, although concluding that
Black's case was "closer to the line," found that the
discussion between Black and Murphy was "to the
point" of getting the Union in through an election; he
therefore eliminated Black's card. However, there is
no evidence that Black was told that the sole
purpose of the card was to obtain an election. We
therefore find, in disagreement with the Trial
Examiner, that Black's card should be counted
toward the Union's majority.
The Trial Examiner, having eliminated the cards
of LeBlanc, Riley, Chabot, and Black, found that
11 The Trial Examiner neither credited nor discredited this
testimony , but credited Spetnm in other respects
1L We therefore find it unnecessary to decide whether this
statement , if made by a union agent in soliciting an employee to
sign a card, would be sufficient grounds to invalidate the card
1' Joy Silk Mills, 85 NLRB 1263, enfd . 185 F 2d 732 (C A D C.),
cert denied 341 U.S 914
SANDY'S STORES, INC.
even if the cards of Mattson, Dumont, Lund,
Pelletier, Crawford, and Gula were counted, the
Union had a maximum of 46 valid cards in a unit of
96 employees, less than a majority. He therefore
found it unnecessary to decide whether, as claimed
by the Respondent, the cards of these six employees
were invalidated because of misrepresentations by
the Union as to the purpose of the cards. Since we
have found that the cards of Ouimet, Shaw, Riley,
and Black were valid, we now turn to the question of
the validity of these six cards.
Employees Mattson, Dumont, Lund, Pelletier,
Crawford, and Gula testified variously that at the
time they signed the cards they were told such
things as, "if 30 percent of the employees signed
cards they could petition the Board for an election,"
731
The Remedy
Having found that the Respondent has engaged in
unfair labor practices in addition to those found by
the Trial Examiner , we shall order it to cease and
desist therefrom and take certain additional
affirmative action to effectuate the policies of the
Act.
As we have found that the Respondent has
unlawfully refused to bargain , we shall order the
Respondent , upon request , to bargain collectively
with the Union , and if an agreement is reached, to
embody such understanding in a signed agreement.
Upon the basis of the foregoing and upon the
entire record in this case , the National Labor
Relations Board hereby makes the following:
"the purpose of the card ... was to see who might be Additional and Amended Conclusions of Law
interested in the union," and "the main purpose was
for an election." The Trial Examiner did not find,
nor does the record show, that any of these
employees were told that the sole purpose of the
cards was to obtain an election. We accordingly find
that these six cards are valid.
In view of the foregoing, and the record as a
whole, we find that on the critical date the
appropriate unit was comprised of 97 employees and
that the Union had obtained valid cards from 49
employees in the unit .14 We accordingly find,
contrary to the Trial Examiner, that the Union
represented a majority of employees in the
appropriate unit on August 26, 1964.
The Respondent contends that its refusal to
bargain was not in bad faith and did not therefore
violate Section 8(a)(5). We have already found that
Respondent engaged in widespread and flagrant
unfair labor practices, violative of Section 8(a)(1) and
(3); these unfair labor practices began in June 1964,
almost immediately after the Union's organizational
drive began, and continued for a period of more than
6 months, until after the Regional Director decided
that the election would be postponed. These
violations made it plain that Respondent's refusal to
bargain was not in good faith but rather evidenced
its rejection of the collective-bargaining principle
and its desire to destroy the Union's majority
status.15 We accordingly find that by refusing to
recognize the Union on and after September 1, 1964,
at a time when it represented a majority of
employees in the appropriate unit , Respondent
violated Section 8(a)(5) of the Act.
14 Member Brown, for the reasons set forth in his separate
statement in Dan Howard Mfg Co and Dan Howard Sportswear,
Inc., 158 NLRB 805, fn 5, would find all the authorization cards to
be valid designations of the Union as the collective-bargaining
representative of the employees in the appropriate unit. He
would, therefore, find that the Union had obtained valid cards
from 51 employees in the appropriate unit comprised of 97
employees
5. All full-time and regular part-time employees of
Sandy's Stores, Inc., at its North Attleboro,
Massachusetts, store, including employees of its
leased departments, but excluding professional
employees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of
Section 9(b) of the Act.
6. At all times since 1964, Local 1325, Retail
Clerks International Association, AFL-CIO, the
labor organization herein, has been, and now is, the
exclusive representative of all the employees in the
above appropriate unit, for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
7. By refusing to recognize and bargain with the
above Union on and after September 1, 1964, the
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, Sandy's Stores, Inc., North Attleboro,
Massachusetts, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
15 Joy Silk Mills, supra , Respondent 's claim that its rejection of
the Union's bargaining demand was lawful because it had a good.
faith doubt as to the appropriateness of the unit sought by the
Union is clearly without merit Owego Street Supermarkets, Inc.,
159 NLRB 1735
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner's Recommended Order, as herein
modified:
1. Add the following new paragraph 1(e) to the
Trial Examiner's Recommended Order and reletter
present paragraph 1(e) as "1(f)."
"(e) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment with Local 1325, Retail Clerks
International Association, AFL-CIO, as the
exclusive representative of all its employees in the
following appropriate unit:
All full-time and regular part-time employees of
Sandy's Stores, Inc., at its North Attleboro,
Massachusetts, store, including employees of its
leased departments, but excluding professional
employees, guards, and supervisors as defined in the
Act."
2. Add the following as paragraph 2(a) to the Trial
Examiner's Recommended Order, the present
paragraphs 2(a) through (e) being consecutively
relettered.
"(a) Upon request, bargain collectively with the
above-named Union as the exclusive representative
of the employees in the above-described unit and,
if an agreement is reached, embody such under-
standing in a signed agreement."
3. The notice is modified by adding the following
after the fourth indented paragraph:
WE WILL, upon request, bargain collectively
with the above Union, for the following
appropriate unit, with respect to rates of pay,
wages, hours of work, and other conditions of
employment, and if an agreement is reached,
embody such understanding in a signed
agreement.
All full-time and regular part-time
employees of Sandy's Stores, Inc., at its
North Attleboro, Massachusetts, store,
including employees of its leased
departments, but excluding professional
employees, guards, and supervisors as
defined in the Act.
IT IS FURTHER ORDERED that the complaint,
insofar as it alleges that the Respondent otherwise
violated Section 8(a)(1) of the Act, be, and it hereby
is, dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE J. BOTT, Trial Examiner: Upon a charge and
amended charge of unfair labor practices filed by the
above-named Union on December 2, 1964, and January 12,
1965, respectively, against Sandy's Stores, Inc., herein
sometimes referred to as Respondent or Company, the
I The first amendment to the complaint was made by an
"Acting Regional Director ," and Respondent contends that since
there is no provision in the Board's Rules and Regulations
providing for the exercise of such authority , the amendment was
improper I find no merit in this contention The Rules,
Sec 102 121 , provides for a liberal construction to effectuate the
General Counsel of the National Labor Relations Board
issued a complaint and notice of hearing dated July 13,
1965, which was amended on September 24 and
September 29, 1965, and during the hearing. The
complaint, as amended, alleged that Respondent had
engaged in unfair labor practices in violation of
Section 8(a)(1), (3), and (5) of the National Labor Relations
Act, herein called the Act. Respondent filed an answer
and a supplemental answer to the complaint in which it
admitted certain allegations of the complaint, but denied
the commission of any unfair labor practices, and which
set out certain affirmative defenses.' A hearing was held
before me at Providence, Rhode Island, beginning on
October 11, 1965, continuing on various dates in October
and November, and concluding on December 1, 1965, at
which all parties were represented. Subsequent to the
hearing, counsel for the General Counsel and the
Respondent filed briefs which have been fully considered.
Upon the entire record in the case, and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Massachusetts corporation with its
principal place of business in West Roxbury,
Massachusetts. At all times material herein it has operated
discount department stores at West Roxbury and North
Attleboro, Massachusetts, the latter store being the only
one involved in this proceeding.
During the year immediately preceding the issuance of
the complaint, Respondent had a gross volume of business
at each store in excess of $500,000 and direct inflow of
goods from points outside of Massachusetts to both stores
in excess of $50,000. Respondent concedes, and I find,
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent concedes, and I find that the Union is a
labor organization within the meaning of Section 2 (5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The Evidence as to Alleged Violations of Section 8(a)(1)
of the Act; Findings and Conclusions With Respect Thereto
1. President Dushman's speeches to employees
in June 1964
The Union began to organize the employees at
Respondent's North Attleboro store in early June 1964. On
June 21 or 22, Hyman Dushman, Respondent's president
and principal stockholder, made speeches to all
employees, assembled in the store for that purpose, during
which, according to General Counsel, he made various
promises and grants of benefits, all in violation of
Section 8(a)(1) of the Act.
purposes and provisions of the Act ," and, in any case, the
complaint was again amended by the Regional Director, who, as
agent of the General Counsel, would appear to have ratified the
first amendment
SANDY'S STORES, INC. 733
Dushman made two speeches to employees on the same
day, one at 5 p.m. and the other at 10 p.m., in order to
reach the employees on both shifts. Dushman testified that
he spoke from a written document and related the items in
the document to the employees. The document is in
evidence and is headed "Sandy's Personnel Policy."2
Dushman said he told the employees that the store
manager would also have a copy of the personnel policy
available for their information.
The document that Dushman used in addressing the
employees contains 15 or more items relating to wages,
hours, and working conditions, ranging from wages, paid
vacations, and paid holidays, to the more indirect kinds of
benefits, such as call-in pay, paid funeral leave, and the
like. Although there is no question that Dushman told the
employees about all the benefits listed in the document
upon which he relied, there is a dispute about whether
some of the subjects mentioned were new grants or merely
restatements of existing company policy. Dushman
admitted that some were new.
It is clear that employees did not get paid for holidays
before the speeches, and Dushman agreed that the
announcement of six paid holidays was the institution of a
new policy. Similarly, his announcement of the
discontinuance of "split shifts" marked the creation of a
new policy affecting employees.3
The Company had no group insurance plan for
employees, covering such items as hospital and surgical
care, at the time of the speeches, and Dushman conceded
that his announcement that such a plan was under study
and would be announced later was the first time the
employees were so advised.
Although the above three items are apparently the only
ones admitted as being really new, Dushman conceded
that other benefits announced as now guaranteed had
been discretionary in the past. For example, he stated that,
before his speech, paid sick leave for employees had been
granted in the discretion of management but his
notification that, "All regular full-time employees, after
having been continuously employed for six (6) months,
shall be entitled to sick pay on the basis of one half-day's
pay for each month of employment. . . ," was the first time
that a "firm" policy was instituted. He also agreed that
there had been a "discretionary policy" in the past in
regard to paid time off in the case of a death in an
employee's family and that the provision for mandatory
paid time off, the amount to be determined by the store
manager , was the first time the policy was "formalized."
The provision permitting employees to take reasonable
leaves of absence was also within the sole discretion of the
store manager before his announcement, he said.
In his speeches, Dushman announced that employees
with 1 year of service would be entitled to a 1-week paid
vacation and those with 2 years would be entitled to 2
weeks. He testified that Respondent always had a vacation
policy at the West Roxbury store but he could not "recall"
whether it was instituted in North Attleboro in 1963 or
1964. If the witness was indicating that his statement of
Respondent's vacation policy was merely a reiteration of
established policy, I discredit him. Employees Robinson
and Fortier, who had worked for Respondent since 1962,
testified that they had never been told about the vacation
policy before Dushman's speech, and Fortier said she took
a vacation in 1964 and was not paid for it. It would seem
that if Respondent had granted paid vacations in 1963 it
could have been easily established by records. I find that
Dushman's announcement regarding paid vacations was
also a grant of new benefits.
Dushman also testified that his pronouncement that
employees working on "inventory, when taken on Sunday
." would be paid at overtime rates was not the first time
this policy had been announced. He said it was announced
when the first inventory was taken in 1962, and he
"assumed" that the policy was announced by whomever
solicited employees to work on inventory. Mildred Hawes,
a former head cashier for Respondent, testified that, while
employees who had already put in 40 hours were paid time
and one half for inventory, those who had not were not. I
credit Hawes, and I find that Dushman's announcement in
this area was also a grant of new benefits.
Respondent's employees are sometimes required to
work after 11 p.m. Although there is no reference to a
premium rate for employees involved in this practice in
the document used by Dushman during his speeches,
employee Robert Riley testified that Dushman also
announced that those working after 11 p.m. would be paid
time and one half. Dushman said he did not recall
discussing the subject in his speeches. It was his
recollection that the policy started in early June and if
"these meetings ," referring to his speeches, "occurred on
either June 20 or 21, then the policy of paying overtime
after 11 p.m. would have preceded the meeting." But
Riley testified that he got no overtime for work after
11 p.m. before Dushman spoke but did subsequently, and
company records in evidence indicate that the system of
payment for work after 11 p.m. changed after Dushman's
speeches.4 According to these exhibits, in the week ending
June 13, 1964, 30 employees worked after 11 p.m. on
Saturday night, but none got premium pay for the hours
after 11 p.m. But, for the period ending August 22, 1964,
36 employees worked after 11 p.m. and all were paid at the
overtime rate. I find that Dushman did talk about this
issue in his June speeches and that he announced a new
policy with respect to work after 11 p.m.5
To return for a moment to those fringe benefits, like
paid sick and funeral leave, which Dushman claimed had
previously been granted in the store manager's discretion;
manifestly, "formalizing" or making firm what had been
informal and uncertain before is a substantial
improvement in working conditions as far as employees
are concerned and would be a violation of the Act if
improperly motivated. In any case, whatever discretionary
policy Respondent had about sick or funeral leave in the
past, I find that it was loose and practically nonexistent.
Norma Fortier and Margaret Robinson testified credibly
and without contradiction that they received no paid sick
leave before June 1964, although each had been employed
since 1962. Shirley Hawes, employed as head night cashier
to December 1963, denied that there was a sick leave
policy during her tenure, and she also stated that although
she had a death in her family, she did not get paid for time
off to attend the funeral.
z G C. Exh 25
3 A split shift is one in which an employee is scheduled to work
a certain number of hours during the day and return in the
evening to work again.
4G C. Exhs 86 and 87.
5 The issue here, it should be stressed to avoid confusion, is
premium pay for hours worked after 11 p in regardless of the
number of hours worked during the week Employees who had
worked 40 hours and then worked after 11 p in would be paid
premium rates as required by applicable State or Federal law
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, as in the case of paid sick and funeral leave, I
find that the very important item listed as "Wage Review"
which Dushman announced in his speeches was more than
a simple restatement of company policy, which he seemed
to suggest in his testimony. Like sick leave or funeral
leave, the "firming up" or stating as a matter of right what
had been a matter of employer discretion before would be
a grant of benefits, but I also find here that any periodic
wage review policy Respondent had was loose and, so far
as some employees were concerned, nonexistent.
Employee Robert Riley testified credibly that there was a
wage review policy before Dushman spoke, but it was not
"enforced" by the store manager, and Riley never was
reviewed or granted a raise. Robinson and Fortier never
heard of periodic wage reviews before Dushman
mentioned them, and, of most importance, Hawes credibly
testified that there had been no store policy of reviewing
wages every 6 months. She said that when the employees
she supervised asked her for a raise and she transmitted
their requests to the store manager she would get a "brush
off" without any mention by the manager of the claimed 6-
month review policy. I find, without resolving or
computing precisely how many employees received raises
before and after Dushman spoke, that his announcement
in this area constituted a substantial improvement in
employee benefits.
Respondent contends that Dushman's speeches were
unrelated to employee union activity, but were motivated
by other considerations; that the employee program which
Dushman announced had been planned, surveyed, and
decided upon before union activity commenced, and that,
in fact, Dushman had no knowledge that the Union's
organizational campaign had begun at the time he spoke to
employees.
Briefly summarized, Dushman testified that there had
been reports of union activities in the store for as much as
2 years and that around the time of his speeches "there
was a step up in the volume of reports coming back to
(him) regarding the union activity." He admitted that he
received reports during the 3 weeks before he spoke that
"union orgaiiizers were visiting employees," that
"organizers were in the parking lot in front of the store and
talking to employees," and that they were also visiting
employees, but then he added that he did not remember
whether he learned that the organizers were "trying to sign
up employees for the union" before he made his talks. He
indicated that all his information was "hearsay" until he
received the Union's demand for recognition on August 26,
1965, and said he did not know that it was the Retail
Clerks Union which was organizing, but just "a union."
Dushman said that he visited the North Attleboro store
in June before the speeches and discovered that there
"was a tremendous amount of employees griping about the
fact that they were not paid for Memorial day." This
information and a generatlack of "esprit de corps," which
he sensed among the employees, caused him to get in
touch with his brother-in-law who happened to be
president of another chain of discount stores. Dushman
learned from his brother-in-law that his company had been
paying its employees for holidays and that Respondent
was generally "behind the times in our employee
relationship." Armed with information supplied by his
brother-in-law about his company's personnel policies,
Dushman prepared the outline of Respondent's personnel
policy from which he read during his talks to employees.
He said he tried to get his Company's policies in line with
his competition as quickly as possible, because
Respondent was "the least paying and (lowest) rated
employer in employment conditions in the New England
area at that time on holidays, wages, and general
conditions of employment. . . ." Dushman said that it "was
a big surprise ..." to him when he found out how far
behind his competitors he was.
I do not credit Dushman's testimony, and I find that his
speeches were prompted by the Union's organizing efforts
and were designed to discourage employees from joining
or assisting the Union. Dushman's testimony about the
extent of his knowledge of union activity in the store
appeared to be an evasion and an attempt to blur the time
sequence in order to lessen the significance of the
coincidence of the speeches and the union activity. The
testimony also contains enough admissions about
organizers visiting the store and the parking lot to support
a finding, on the basis of his testimony alone, that he knew
that the Union was actively engaged in a campaign to
organize the employees at the time he delivered his talks. I
found his suggestion that any knowledge he had about
activity was about a union only rather than about the
Union difficult to accept, particularly in the light of his
testimony that he discussed his personnel problems with
his brother-in-law, who is also in the retail field, and that
the word "union" was mentioned during this discussion.
Assuming that Dushman may have been ignorant in regard
to the Retail Clerks Union, it is too much to believe that his
brother-in-law failed to enlighten him.
Additional evidence that Dushman was fully aware of
the Union's campaign before he made his speeches is
found in the testimony of Allan Harris, a former
department manager in Respondent's store. Dushman had
denied that he addressed a meeting of store supervisors
and discussed the Union's campaign and the benefits he
intended to announce to employees. Harris testified
credibly and in significant detail about the managers'
meeting and union activity. He said Dushman made his
speeches around June 20, 1964, and he knew there was a
union campaign on at the time because he had seen the
organizers in the parking lot and in the store talking with
employees. As far as he was concerned, the activity was
"common knowledge," and the department heads talked
about the subject among themselves. The union campaign
began around the first part of June, according to Harris,
and he pointed to Louis Spetrini, who led the union drive,
and identified him as one of the organizers he saw in the
store. Contrary to Dushman, Harris recalled no union
campaign in 1963. In regard to the managers' meeting,
Harris said it occurred either the day before or on the
same day as the speeches. Dushman discussed the topics
he intended to touch upon in his speeches, and he also
mentioned the union activity. Specifically, Dushman told
the department heads not to discuss union affairs with
employees because "there were some legal technicalities
and we might say something inadvertently and ... we are
in trouble ...." Dushman advised the group to refer all
employee questions about unions to the store manager. In
my opinion, Dushman's warning to supervisors about
employer pitfalls in a union campaign is a clear indication
SANDY'S STORES, INC. 735
that he was well aware that the campaign was under way
much sooner than he said he was.6
Analysis of the facts relating to pay for Memorial Day
reveals that Respondent's claim that employee
dissatisfaction forced it to immediately revamp its entire
labor relations policy and immediately announce it to its
employees is unfounded. Dushman testified that he
learned that one of the leased departments had paid
employees for Memorial Day and that this influenced him
to get all store benefits "into line." The millinery
department is the concession involved but it developed
that it employed only one employee. In addition,
Department Manager Harris testified that his employees
did not "gripe" to him about nonpayment for the holiday,
although he agreed that there was some dissatisfaction in
the store among employees. Dushman's reaction to
employee discontent seems greatly disproportionate to the
cause he claimed to rely on, and the source of it must be
found in a stronger stimulus. In my opinion, based upon
the timing of his announced employee program, his lack of
candor, and the other considerations set forth, the
speeches were made primarily because the employees
were being solicited to join the Union and in order to
dissuade them from interesting themselves in the Union.
I find and conclude that by promising and granting
employees economic benefits as found above, Respondent
violated Section 8(a)(1) of the Act.7
2. Other alleged violations of Section 8(a)(1) of the Act.
a. Interrogation and additional promises of benefit
The complaint alleged certain illegal acts of
interrogation and additional promises of benefit. Margaret
Robinson worked as a cashier at night under Head Cashier
Helen Bennett . She testified that on some uncertain date
in June 1964 , she telephoned Bennett at her home to let
her know that she would be late for work or for some other
reason connected with her job . According to her, Bennett
asked her during the conversation if she knew that the
Union was trying to get into the store . Robinson said she
did, and Bennett said she hoped not , because "we had a
friendly atmosphere." Bennett admitted that Robinson
called her, but she maintained that Robinson asked her if
she knew that the Union was organizing at Sandy's. She
said that she commented that she had heard something
about it, but that such was the extent of the conversation.
Robinson did not recall how her conversation about the
Union with Bennett started , and could not positively state
that she had not initiated it. In view of Robinson's
uncertainty about the time and the reason for her
telephone call, and her inability to remember who first
spoke about the Union , I conclude that Bennett 's recall of
the event is as good as or better than Robinson's and I
credit her . I find that Bennett did not illegally interrogate
an employee as alleged in the complaint.
Thomas Kannally became Respondent 's store manager
sometime around August 1, 1964, and he was involved in
certain other alleged acts of illegal interrogation.
Employee Fortier testified that she had a conversation
with Kannally in the latter part of August in which he
"asked what the problems were and why we were
interested in the union ...... Fortier told Kannally that
employees were not happy about wages and other
conditions and thought the Union could help them.
Kannally replied that he had just become manager and he
intended to make "some changes," but , because of the
union campaign , he could not make them at that time.
Kannally admitted that he talked with Fortier , but he said
Fortier initiated the conversation by remarking , "Tom, we
have been hearing so much about the union and what they
were going to do, and we haven ' t heard anything from you
or Sandy's ." He did not deny that he asked Fortier why the
employees wanted a union or that he said there were
changes he intended to make which had to be postponed
because of the union activity . Fortier admitted under
cross-examination that she told Kannally that the
employees had heard the union side and wanted to know
what the company had to offer . Because of Kannally's
relatively innocuous inquiry about employee discontent
and Fortier 's concession that she asked Kannally for his
views, I find no illegal interrogation in this incident.
Employee Margaret Robinson also had some talk with
Kannally about unions. The Board had scheduled an
election on the Union 's petition for December 4, 1964, and
Robinson testified that , just before December 4, Kannally
asked if "she knew anything about unions ." Robinson told
Kannally she did not approve of them , and Kannally
commented that "the older girls didn ' t want a union and
weren't voting for it ...." Kannally also said that he would
consider "it a personal slap in the face if the Union got in
... ," and he added that "his hands were tied and that he
couldn ' t do anything right then (but) things were going to
be better ...... Kannally admitted that he asked Robinson
if she was familiar with unions and whether she had any
questions to ask and he did not deny the rest of her
testimony . I find that Kannally's approach to Robinson
was not casual in a routine visit but was designed to get the
employee to disclose her sentiments . Kannally's
interrogation, coupled with his implied promise of
benefits , was not protected by Section 8(c) of the Act. By
such conduct , Respondent violated Section 8 (a)(1) of the
Act.
Kannally's questioning of employees just before the
scheduled election was apparently not isolated. James
Black testified that Kannally asked him and another
employee if they had any questions about the Union or the
election and whether they had ever worked in a union
shop. Black said Kannally came back later and again
asked him if he had any questions . Black had none, and
Kannally said , "Well, I guess you know the way that we
would like to see you vote." Kannally agreed with the
substance of Black 's testimony , and he added that he told
the employees that if the Union won the Company would
"become a union shop." Kannally, accompanied by
Department Manager Skolnick , also talked with
employees in the children ' s department around
December 1 or 2. Employee Barbara Gula testified
credibly and without contradiction that Kannally asked
them if they had any questions about the Union. Gula
responded that she wasn 't paid enough for the amount of
work she did and thought that the Union would get her a
raise. Later that day, Kannally and Dushman,
Respondent ' s president , returned , and Dushman stated
that he understood that the employee "had some doubt,"
and added that Kannally had told him that Gula was a good
worker. During this conversation , either Dushman or
Kannally told Gula that she was due for a raise , but she
would not receive it at the time because of the Union, but
" Ja,ies Black , who is now a supervisor at Respondent's
Quincy store , but who was then in the unit , testified credibly that
a week or two before Dushman's speech , Department Manager
Stryer pointed out to him that the union organizers were in the
Company's parking lot again
I N L.R.B v. Exchange Parts Company, 375 U S 405.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would get it on December 30, which she did. The next day,
Gula said, Dushman saw her, commented that she was a
good worker and asked her if she was interested in
pursuing the retail business as a career. I find that
Kannally's interrogation of Black and Gula was coercive in
the circumstances and violated Section 8(a)(1) of the Act.
Kannally's and Dushman's promise of a wage increase and
Dushman's inquiry about Gula's interest in a career were
also, I find, promises of benefits designed to influence
Gula's vote in the coming election and were additional
violations of the Act.
Employee Theresa Urbanowicz testified credibly and
without contradiction that, about a week before the Board
election scheduled for December 4, Dushman told her he
was impressed with her work and asked her if she would
like a lob in his Boston office. Dushman also said he hoped
that she would not vote for the Union. I find that
Dushman's comments were a promise of benefit, in the
context in which uttered, and were designed to influence
the employee's vote in the election. By such conduct,
Respondent violated Section 8(a)(1) of the Act.
b. Creating the impression of surveillance
Employee Urbanowicz testified that sometime "in the
fall" Office Supervisor Mildred Hawksley told her that she
had heard that Urbanowicz had been having lunch with the
union organizers. Urbanowicz conceded that she had, and
told Hawksley that they had been discussing the benefits
which would accrue if she voted for the Union. Linda
(Butterworth) Messier testified that she frequently spoke
with the union organizers when they were in the store and
that Mildred Hawksley told her that she should not talk
with them because Store Manager Kannally was observing
the employees who talked to the organizers. Hawksley did
not testify, and I credit the employees. Although it may
very well be that Hawksley was friendly wish employees
even to the extent of being their confidant, in the absence
of an explanation of her remarks I find them to be coercive
in the sense that they conveyed to employees the
impression that Respondent was watching what they did in
the union area. By such conduct Respondent violated
Section 8(a)(1) of the Act.
c. Threats of reprisal
Respondent's store contains a number of leased
departments, and Respondent and those operating these
leased departments or concessions were found to be "joint
employers" in the Decision and Direction of Election,
dated November 4, 1964, in Case 1-RC-8016. The
complaint, as amended, alleged that Mae Smith,
Respondent' s agent , threatened employees that their de-
partment would be shut down if they voted for the Union.
Barbara Sullivan, employed by the E & R Smith
Company, which was operating the jewelry concession
during the period in question, testified credibly and
without contradiction that in Decem'er 1964, just before
the scheduled election, Mrs. Smith told her that she could
not afford to pay union wages and that if the union "gut in"
the employees would not have jobs. I find that Smith's
statement was coercive in the circumstances, and that by
such conduct Respondent violated Section 8(a)(1) of the
Act."
Employee Robert Riley was supervised by Department
Manager William Shea in June 1964, and he testified that,
sometime in June, Shea told him, "off the record" that
Store Manager Weinschell had stated to him that if Riley
did not stop his union activity in the store he would have to
discharge him. Riley told Shea that Weinschell had no
proof that he was conducting union business in the store
and that what he did away from the store was his own
affair. Neither Shea nor Weinschell testified, and I find
that the conversation occurred as described by Riley. I
find that by transmitting Weinschell's threat to Riley,
Shea threatened Riley with reprisals because of his union
activities as alleged in the complaint, and by such conduct
Respondent violated Section 8(a)(1) of the Act."
d. Alleged improper activities of William Stryer
It was also alleged that a department head made
promises of benefits to employees in order to discourage
union activities, but I find that these allegations are not
supported by the evidence. Linda (Butterworth) Messier
testified that, near the end of November 1964, Stryer told
her she was doing good work and he would try to get her
promoted to assistant manager in the store which
Respondent planned to open in Quincy, Massachusetts. A
day or two later, Stryer told Messier and another employee
that he would get them both jobs as assistant managers in
the new store. There is nothing in Messier's testimony
indicating that Stryer's promises were union related.
Stryer supervised one employee, Messier, and she said she
had complained about needing more help. If the
conversation took place, an inference that :t was intended
as a palliative for Messier's complaint about being
overworked is just as valid as one that it was motivated by
union factors.
Employee Linda Crawford testified that around the end
of November 1964 Stryer commented, "Don't say
anything, but I think at Christmas there may be a small
bonus." There is nothing in the conversation about the
Union. and Stryer was not Crawford's supervisor. In the
next section of the decision Respondent's alleged illegal
grant of a bonus in late December 1964 will be discussed.
Even if Respondent's grant were found illegal, there is no
evidence that employee were ever told by any
management representative that a bonus was forthcoming
except that found in this alleged remark of Stryer. Stryer
testified that the only conversations he ever had about
bonuses were with Store Manager Kannally about his own.
I think it very unlikely that Stryer knew that Respondent
intended to give a cash bonus, or, if he did, that
Respondent would have used him alone to spread the word
throughout the store. On the basis of all the circumstances
surrounding this incident, I find that the allegation that
Stryer coercively promised a bonus has not been sustained
by a preponderance of the evidence.
e Employee bonuses
The General Counsel alleged in the amended complaint,
dated September 24, 1965, that Respondent violated the
Act by granting "new and/or increased Christmas bonuses
to its employees " Employees were given a $10 bonus on
December 24, 1964. They had not been told before they got
the bonus that they were to receive one, or how much it
8 Respondent, in the circumstances of this case, is responsible
for the unfair labor practices committed by the lessees'
supervisors Zayre Corporation, 154 NLRB 1372, 1382
9 There is no evidence that Riley was violating any proper rule
against engaging in union activity in the store
SANDY'S STORES, INC.
would be. The Board election scheduled for December 4,
1964, had been canceled when the Union filed unfair labor
practice charges against Respondent, and it must be
General Counsel's theory, therefore, that the bonuses
were given, not to influence the election but as a reward to
the employees for apparently having lost interest in the
Union and to help keep them in that frame of mind. There
is no direct evidence that the bonuses were union
connected, and the record shows that Respondent had
given employees a dinner at Christmastime in 1962 and
candy or liquor in 1963. The cost of the 1964 bonus was not
so much in excess of the earlier dinners or other gifts that
an inference of interference is compelled. I find that his
allegation has not been sustained by a preponderance of
the evidence.
B. The Discharge of Edyth Kearns
1. The facts
Kearns was hired by Mildred Hawksley of Sandy's
Stores in August 1964, but she worked for and was paid by
the Sullivan Doughnut Company which operated the
doughnut concession. Kearns sold doughnuts but she also
spent a substantial amount of time working at the
adjoining snack bar, which was operated by Respondent.
Shortly after Kearns was hired she signed a union card.
Spetrini and Murphy, the union organizers , spent a
substantial amount of time from August to December 1964
in the store at the snackbar which Kearns attended as part
of her duties. Kearns spoke with them almost daily and
gave them information about newly hired employees, such
as their names and sentiments for or against the Union.
She said, and I credit her testimony, that Department
Head Stryer visited her station many times while the union
men were present, and that Store Manager Kannally and
Head Cashier Bennett could and did easily observe her
talking to Murphy and Spetrmi.10
Sometime before the scheduled Board election, Stryer
was at the snackbar and a conversation about a strike in
the area occurred. Kearns' comments caused Stryer to
state that she apparently did not approve of his antiunion
observations. Some weeks later, Dushman, Respondent's
president, visited the snackbar and, after mentioning the
election which was set for December 4, said that if the
"union got in" layoffs would be on a seniority basis and
Respondent could do nothing for Kearns "if they decided"
to lay her off. Kearns replied that she didn't work for
Dushman but for Sullivan, the lessee. According to her,
Dushman "just grinned and walked away.""
Kearns was terminated by Kannally on December 23,
1964, at the end of her shift. She testified that at
approximately 10 p.m. as she was turning in the days'
receipts, Kannally paid her off and told her that Sullivan
Doughnut Company was letting her go. Kearns asked
Kannally for a reason, and, he replied that he didn't know
why she was being terminated.
On the next day, Kearns telephoned Mrs. Sullivan and
asked her why she had been laid off. Sullivan told her that
'o It is clear from Kearns' testimony that Stryer spent more
time at the snackbar than others Since this seems to have been
his normal pattern, I find that he was not engaging in surveillance
of umon activities , as alleged in the complaint, as amended.
" Although Dushman was electioneering , I find that his
statement about the possible effects of unionism was protected by
Section 8(c) of the Act and not , therefore , a threat of reprisal as
alleged in the complaint In this connection , I have considered
Kearns' correction of the original statement she gave on this
737
Sandy's was not satisfied with her services. When Kearns
protested that she had worked for 6 months without any
criticism of her work, Sullivan said that that was what
Respondent had told her, but she then explained that she
had "to go along" because a competitor was trying to get
the doughnut concession. Kearns had never been told by
any representative of Sullivan Doughnut that her work was
unsatisfactory or that there had ever been complaints from
anyone about the quality of her work.
Store Manager Kannally was called as a witness by
General Counsel under rule 43(b) of the Federal Rules.
Kannally testified that he "laid (Kearns) of" because she
was employed to sell doughnuts, and he noticed that the
concession was beginning to run out of doughnuts early in
the evening at approximately 6 p.m., and "the doughnut
counter would be empty prior to the closing of the store."
Kearns' shift ran from 5 to 10 p.m., and Kannally said that
he "saw no reason why she should continue to be
employed behind the doughnut counter when there were
no doughnuts to sell." He said he explained to Kearns the
reason for her layoff, and, according to him, Kearns' only
reaction was, "fine, now I can collect unemployment
(compensation) from two jobs." 12 Kannally said he had no
knowledge how Kearns felt about the Union. He conceded,
however, that he was aware that Spetrini and Murphy
were in the store frequently during the campaign and that
he saw them at the snackbar talking with Kearns, but he
denied that he knew Kearns was transmitting information
to them, and he said that he learned of it for the first time
during the instant hearing.
2. Additional findings, analysis, and conclusions in
Kearns' case
For a number of reasons, I discredit Kannally's
testimony, and I find that Kearns was discharged not
because of any proper business considerations but
because of her union activities. In the first place,
Respondent knew or certainly suspected that Kearns was
sympathetic to the Union and had probably signed a card.
Both Spetrini and Murphy corroborated Kearns in regard
to their open association with her at the snackbar in clear
view of many supervisors. Department Head Stryer was
frequently at the snackbar and actually and admittedly
engaged in conversation with Kearns about unions. Indeed
Spetrini testified without contradiction that, during the
second week of December while he was at the snackbar
just before Kearns came to work, he heard Eileen Dupell,
the employee on duty, tell Richard Crisp, a supervisor in
charge of the receiving department of Respondent's West
Roxbury store , that Spetrini was a union agent. Crisp
replied that he knew it, and said , "watch it, we think Edyth
Kearns is giving him information ." Finally, with respect to
knowledge , when Dushman suggested to Kearns that a
union victory might affect her job, she appeared
unconcerned.
Respondent shifted its reasons for Kearns ' discharge. In
Kannally's first examination he mentioned a shortage of
doughnuts only, but when he testified later he suggested
subject as bearing on her credibility and I find that it does not
affect it . She volunteered the correction to the General Counsel
before she testified, and the statements allegedly made by
Dushman are not substantially different in meaning and are as
difficult to distinguish as "threats " and "prophecies "
12 Kearns was employed at another company from 11 p in. to
7 a.m.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that there were other factors involved in Kearns'
termination, such as complaints about her leaving work
early, using vulgar language, and having unkempt hair, but
even in regard to these suggested derelictions he
conceded that leaving early had nothing to do with her
layoff, and he was unable to say how much weight he had
given to reports he had received about Kearns' language.13
It appears that Kannally never did anything about any
complaints he had received about Kearns-he testified
that he had no recollection of specific conversations with
her in this regard-and Kearns testified credibly that no
one had ever criticized her conduct on the job. In my
opinion, these matters, which were never brought to
Kearns' attention, are makeweights. 14
Kannally's personal involvement in Kearns' discharge
was unusual and is another indication that the real reason
for her discharge lies elsewhere. Kannally admitted that
normally he did not check to see if leased departments
were overstaffed, and he had never laid off a leased
department employee before. Kannally suggested that,
because Sullivan Doughnut and Sandy's had an
arrangement whereby the doughnut saleswoman covered
Sandy's snackbar and the snackbar employees helped out
at the doughnut counter, his intervention was reasonable.
But Sullivan Doughnut paid Kearns' wages and Kearns
covered the snackbar for 1-1/2 hours every night at the
beginning of her shift and also helped the snackbar
employee anytime she needed it, all at no cost to
Respondent. By laying Kearns off, Respondent was
apparently losing free help. Kannally's explanation of the
basis for his unusual participation in the discharge of a
concessionaire's employee is illogical, therefore. Kearns
testified that Sullivan told her that the decision to lay her
off was Respondent's not hers. This is consistent with
Kannally's personal intervention contrary to his general
practice, and I credit Kearns.
There are other factors found in Kannally's testimony
generally which make its reliability questionable. Kannally
appeared to be evasive on a number of subjects. At one
point he testified that, after he laid off Kearns, a snackbar
girl covered both counters, thereby clearly indicating that
Kearns was not replaced. Later it appears from his
testimony that a Sullivan Doughnut employee with less
service than Kearns, who had been filling in on Kearns'
night off, replaced her. Kannally also could not state with
any certainty what Kearns' present status really is. He
suggested that seasonal layoffs are not uncommon and he
did not choose to label Kearns' separation a "discharge,"
although if anything is clear in the case it is that Kearns
was permanently severed from Respondent's employ.
Finally, where Kannally's testimony differs from
Kearns, I credit her because of the above considerations
and upon their demeanor generally. Kannally, as
indicated, was evasive and inconsistent, but Kearns
appeared to testify simply apd without exaggeration.
Kannally could not recall any conversation with the
Sullivan Doughnut personnel about Kearns. It is unlikely
that he had none or could not recall it. and it is an
13 In addition, he subsequently said that he "didn't think
about" Kearns' hair problem when he terminated her
"In his earlier examination, Kannally was asked if he had ever
stated that "Mrs Kearns was discharged because you had many
complaints about her?", and Kannally said he couldn't recall
When General Counsel then asked, "she wasn't discharged
because of customer complaints9" he replied, "No, I specifically
said why she was laid off "
5 Kannally also testified that he handed Kearns an envelope
additional indication that Kearns' statement that Sullivan
told her that she had to "go along" with Kannally in the
discharge for competitive reasons was truthful.15 I credit
Kearns' statement that Kannally told her that the Sullivan
Company was letting her go for reasons unkown to him,
and I discredit Kannally's testimony that Kearns' last
words were an expression of pleasure in the prospect of
unemployment compensation.'s I also credit Kearns'
testimony that business conditions in her department were
better in December than they were in previous months and
that the department did not run out of merchandise any
sooner in December than it did in prior months.
I find that Respondent's asserted reason for Kearns'
discharge is specious. I also find, on the basis of the above
considerations and on the whole record, that the real
reason Respondent discharged Kearns was that she
engaged in union activities. By such conduct, Respondent
violated Section 8(a)(3) and (1) of the Act.
C. The Refusal to Bargain Collectively with the Union
1. The appropriate unit
On August 25, 1964, the Union demanded recognition
and also filed a petition for certification with the Board.
On September 1, the Company replied to the Union's
demand and declined recognition. On October 14, a
hearing was held on the Union's petition in
Case 1-RC-8016, and on November 4, 1964, the Regional
Director issued a Decision and Direction of Election. The
election was scheduled for December 4, 1964, but it was
canceled upon the filing of charges of unfair labor
practices by the Union. The Union's petition was
subsequently withdrawn.
The Regional Director's decision in the representation
case described the unit in which he directed an election as
follows:
All full-time and regular, part-time employees of
the Employer at its North Attleboro, Massachusetts
store, including employees of its leased departments,
but excluding professional employees, guards, and
supervisors as defined in the Act.
This is the same unit described in the complaint as
"appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act."
Respondent's answer denied the appropriateness of the
unit. Respondent's first contention is that the Regional
Director was in error in including leased departments in
the unit on the theory that Respondent and the lessees are
"joint employers," and also incorrectly determined
the supervisory status of certain individuals. These
matters concerning the status of lessees and super-
visors were not relitigated, and all parties assumed
at the hearing, and assume correctly in their briefs, that
I will follow that decision. But in addition to the dis-
puted categories about which no new evidence was
taken, there are a substantial number of disagreements
about persons and categories in regard to whether they
which he "assumed" contained her pay, and so he "must have
told Mrs Sullivan that she was being laid off in order to get her
pay " But he could not recall that he told Sullivan "how or why
(Kearns) was being laid off."
" Kearns continued to work at her other job and never applied
for unemployment compensation after her discharge by
Respondent, for, of course, she was not entitled to it, since she
was still employed at her other job
SANDY'S STORES, INC.
fall within the broad unit found by the Regional Direc-
tor and were also on the appropriate payroll to be used
in computing the Union's alleged majority. These unit
contentions are disposed of as follows: During the
course of the hearing the parties agreed to the inclusion
of 69 persons in the unit as of August 26, 1964, which
was the date on which the bargaining demand was re-
ceived. The names of those persons are listed in Ap-
pendix A.17
It also appears from the briefs of the parties that
they are now in agreement that certain other employees
are properly included in the unit. I find, in accord with
this agreement, and on the basis of the record, that the
following are within the unit:
Ida Demers worked for lessee Spencer Shoes. She went
on medical leave in July 1964 and returned to work in
September.
Grant Forbes was an hourly rated employee with no
supervisory authority during the week ending August 29,
1964, although there was a possible change in his status a
short time after that.
Lucille St. Pierre. Although there was a question as to
her status as a confidential employee, Kannally's
testimony showed that she did not have regular access to
information of a labor relations nature. She, too, is
therefore in the unit, since she was regularly employed on
the critical date.
Ann Goltz was employed on August 24, 1964, and
worked regularly thereafter. She is also in the unit.
Edith Michaud is in the unit although she worked only
during the week in which the critical date fell. There is no
evidence that she was a temporary employee, and she
should also be included.
Arnold Reis was also eligible for there is no evidence
that he was a temporary employee.
Gilberte Hebert did not work between the week ending
June 27 and the week ending September 19, 1964, but her
uncontradicted testimony shows she was on leave of
absence, and she may be included.
Marie Corr started on August 24, but she worked
regularly thereafter. There is no longer an issue in her
case, and since the record shows she was on the payroll at
the critical date, she is included.
Helen Darelius, an employee of Kraft Millinery, a lessee
and "joint employer," worked alone in the department and
was not a supervisor. She is included.
Marjorie Pieno was regularly employed from July
through December 1964, although she worked only 3 hours
in the week ending August 29. She is also in the unit.
Marietta DeBlois was regularly employed at all material
times and is clearly in the unit.
The addition of the above 11 employees to the agreed
list, Appendix A, results in a total of 80 persons upon
which there is firm agreement.
Respondent would add other employees to the unit as
follows:
a. Jean Smith and supervisory questions
Jean Smith worked for lessee Sullivan Doughnut, but
she worked only on Saturday, August 15, and Saturday,
August 22, and then she was terminated. I find her
'r See G C Exh 74. The letter "I" after the names in the
exhibit indicates agreement that the person was "in the unit "
There is an "I" after Ouimet's name, but there is really no
agreement about her, and she will be discussed separately
739
ineligible because she was not on the payroll on August 26.
Frank Rossi was employed by Spencer Shoes, a lessee,
as assistant department manager, and there is an issue as
to supervisory status. Joseph Grobel, office manager and
accountant of Spencer Shoes, testified credibly, on the
basis of his experience with the company for 12 years, that
assistant managers have the same authority as managers.
They hire and fire, but check with the manager before
discharging anyone. I find that Rossi was a supervisor
within the meaning of Section 2(11) of the Act, and was not
in the unit.
Mary Glynn was employed by the lessee C & S Candy,
and there is an issue as to her supervisory status. Glynn
was the only employee in her department, which is a self-
service department. She was hourly rated, punched a
timeclock, did not keep anyone's time and never granted
tithe off. Occasionally her superior would advise her to get
extra casual help during Easter or Christmas season, but
she would then inform Mildred Hawksley, Respondent's
head cashier, who would hire the temporary help. I find,
on the basis of Glynn's testimony, that any direction she
gave these casuals was routine and did not require the
exercise of independent judgment. Glynn had no
meaningful supervisory authority, in my opinion, and
should be added to the unit. 18
Margaret Rousseau would be excluded by General
Counsel as a supervisor. The Regional Director's decision
in the representation case allowed her (spelled Russo
there) to vote under challenge because the record did not
"contain sufficient information to determine" her status.
Rousseau testified that she left Respondent in June 1964
and returned in August 1964 as "head cashier" on days.
Helen Bennett, found to be a supervisor in the
representation case, was head cashier at night. There were
as many as eight cashiers working during the day, and
Rousseau said she scheduled their lunch periods and
assigned them to cash registers. Rousseau had access to
the office from which she obtained cash for the cashiers.
She herself worked, and she said she spent 50 percent of
her time at the registers and the other 50 percent making
out a tally of the days receipts. She also bagged
merchandise like the others. Rousseau was an hourly
rated employee, and although she said she got a raise
when she returned to Respondent iii August, she also
testified that her duties did not change but were
essentially the same as they were when she worked as a
cashier. Helen Bennett, the night head cashier, makes out
Rousseau's work schedule. It also appears that Kannally
and Hawksley were Rousseau's supervisors, and she said
Hawksley, the office manager, was always available.
Rousseau did not settle any grievances or take any
disciplinary actions, and it is clear that she had none of the
greater powers of a supervisor. I find that Rousseau had no
meaningful supervisory duties within the meaning of
Section 2(11) of the Act and should be included.19
Marcia Foy worked during the critical week for a lessee,
but she was hired, according to the testimony of a
representative of the E & R Smith Company, to be a
department manager. He said that since she had no
experience in that department, she was "an apprentice"
department manager. She was the only "manager" of any
kind present in the department, however, and the manager
18 Eastern Camera and Photo Corp, 140 NLRB 569 Note
Helen Darelius, supra, who was in charge of the millinery
department , but was agreed to be in the unit
'y Untted Stores ofAmerica, 138 NLRB 383, 385, fn. 7.
295-269 0-69-48
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is responsible for the proper operation of the department.
The record shows at least three employees in the
department during the week in question. Other
department managers of leased departments were
excluded in the representation case, and, though the
record is sketchy, I find that, since General Counsel made
out a prima facie case that Foy occupied the position of
supervisor during the critical period, she would be
excluded.
b. Social Security Act beneficiaries
The Respondent would add, and the General Counsel
exclude from the unit, three employees who, because they
were receiving social security benefits, were limiting their
earnings to $1,200 a year so that their monthly benefits
would not be cut under the appropriate provisions of the
Social Security Act.20
Rita Rousseau receives a widow's pension of $1,200 a
year. She has been employed by Respondent for 3 years
and earns $1.40 an hour. Rousseau works a regular
schedule of hours, but she limits her earnings and takes
the summer off to keep under $1,200. Occasionally, she
works at the store when called to help out in rush periods
during the summer. In 1964 she ceased work in mid-June
and came back in August. She was on the payroll used to
determine the Union's majority in this case, but she took
some time off in September, October, and December 1964.
She said it was her decision to limit her earnings, and that
Respondent did not limit her hours.
Patrick Strain, also on a pension, is employed by
Respondent as a handyman. He earns $1.50 per hour, and
he said it was "up to him" how many weeks he works.
When he gets close to $1,200, he asks for a leave of
absence and it is granted. Strain worked in May 1964, and
a termination slip in his file, dated May 29, 1964, read
"lack of work," but Strain testified that his wife was ill at
the time and Respondent gave that reason in order to help
him collect unemployment compensation. He returned to
employment in November 1964 after the death of his wife.
Strain worked regular hours from 8 a.m. to 2 p.m. while
employed, and he said that it was understood when he left
in May that he could come back to work whenever he
washed.
Leo St. Pierre was also receiving social security benefits
and limiting his earnings to $1,200. He began to work at
Respondent on May 16, 1964, and his work record shows
that he worked from mid-May through mid-July; ceased
working until mid-August, when he returned to work for 5
weeks and ceased in September for the rest of the year.
Kannallv testified without contradiction, however, that
10 Taunton Supply Corp, 137 NLRB 221, 222-223, Vogue Art
Ware & China Company, 129 NLRB 1253, 1255, The Horn &
Hardart Company, 147 NLRB 654, 659; Social Security Act, 42
USCA § 403 At the time of the events in this case beneficiaries
could earn only $1,200 a year without penalty, but in 1965 the law
was amended to permit earnings of $1,500 a year without penalty.
21 W W Chambers Co, Inc, 124 NLRB 984, F W Woolworth
Company, 119 NLRB 480,484.
22 Taunton Supply Corp , supra, 222-223, and other cases cited
fn 19
23 Belcher Towing Company, 122 NLRB 1019, Belcher Towing
Company, 126 NLRB 197, 199, enfd 284 F 2d 118, 121 (C A 5),
Joclin Manufacturing Company, 137 NLRB 216, reversed and
remanded 314 F 2d 627,634 (C A 2), but see International Ladies
Garment Workers Union v N L R.B , 339 F 2d 116, 125 (C A 2),
St. Pierre did not leave in September because he was
close to maximum earnings, but because of an injury.
Records also show that he worked a regular workweek
during the crucial week of August 29, 1964.
There is nothing on the face of the Regional Director's
decision in the representation case which excludes from
the appropriate unit social security beneficiaries who are
limiting their earnings. The Regional Director's unit
finding contains certain specific exclusions, but the
category in question here is not mentioned and, moreover,
Rousseau, Strain, and St. Pierre worked regularly, even if
part time, and so would seem to fall within the broad
eligibility requirement of the Regional Director's finding
"All full-time and regular part-time" employees, as
contrasted with casual employees who have no fixed
scheduled .21 But General Counsel argues for their
exclusion on the ground that they do not have a sufficient
"community of interest" with the rest of the employees,
and it is clear that, if that issue had been litigated at the
representation hearing the Director would have excluded
them on that ground.22 I am also convinced that, if the
election had taken place as directed and if the pensioners'
ballots had been challenged, the challenges would have
been sustained on the same basis, which, in my opinion,
would be tantamount to finding that they were never
included in the first place.23 Thus, in Belcher Towing,24
although the Board's Direction of Election was silent about
college students holding summer employment, it sustained
challenges to their ballots because they lacked community
of interest with the other employees. The Jocltn25 case
involved a consent-election agreement which said nothing
about students. College students were challenged at the
election and the Regional Director sustained the
challenges. Although the court of appeals reversed on
other grounds, it held that although the stipulation
"literally provided for the inclusion of all workers on the
payroll during the test period except those expressly
excluded, and college students were not so excluded. . . ."
nevertheless, the Board's policy on the issue of students
was "sufficiently crystallized" so that the agreement
should be construed as incorporating the Board's policy
and excluding such employees, unless the agreement
explicitly made them eligible.26
The General Counsel also contends in his brief that the
unit found by the Regional Director in this case is
essentially the same unit set forth in the Union's
bargaining demand and alleged in the General Counsel's
complaint as appropriate. Since there was no request for
review of the decision in the representation case, he
argues that the decision became final and, absent certain
conditions not present here, may not be relitigated in a
where the postdecision elimination of certain "staff personnel"
was held to be too much of a change in the initial election
boundaries, and compared, Cherrin Corporation v N L.R B., 349
F.2d 1001 (C A 6), where the exclusion by sustaining a challenge
to the ballot of an employee enjoying a special status, although no
such class was specifically eliminated by the Regional Director's
initial decision, was sustained
24 Fn 23, supra
26 Fn 23, supra
26 Although Belcher Towing was a Board-ordered election after
a hearing and Joclin involved a consent agreement, the principles
of construction illustrated in them are much the same I am also
assuming that the Board ' s policy in regard to social security
beneficiaries is "sufficiently crystallized" to invoke the policy
applied to college students in Joclin
SANDY'S STORES, INC.
subsequent unfair labor practice proceeding27 even if the
petition for an election is ultimately withdrawn.29 But
General Counsel's contentions in this regard are not
completely accurate and do not precisely describe either
the whole proceeding or our problem.29 We were not
proceeding in this case on the basis of a Board
certification of representatives, as was the case in
Pittsburgh Plate Glass, but we were, in a sense , really
attempting to discover what the Regional Director's
decision encompassed in order to illuminate our problem
of unit inclusions and exclusions and perhaps throw some
light on the more important question of what was the
appropriate unit in which the Union sought recognition in
the first place. Moreover, although, from a practical point
of view, the decision of the Regional Director was
considered final in most of its major findings by all
parties-there was no attempt to relitigate the broad scope
of the unit in regard to issues such as lessees as joint
employers with Respondent, single store as against
multiple stores, and the inclusion or exclusion of
department heads, which matters had all been thoroughly
litigated before by the same parties-a substantial amount
of time was spent exploring such subjects as the eligibility
of social security beneficiaries, students, persons on
leaves of absence, and casual or intermittent employees.
Whether the parties were "relitigating," "litigating,"
"partially relitigating," or just "clarifying" a unit may be
only a matter of semantics, but, in any case, I am of the
opinion that, if the decision here is controlled by the
Regional Director's findings, the Board would exclude the
pensioners , even though not specifically mentioned by the
Regional Director, and, if not so controlled, they should be
excluded on the basis of the record in this proceeding.
Whatever bearing this unit uncertainty may have on the
issue of Respondent's state of mind when it refused to
recognize the Union as a majority representative in an
appropriate unit is another matter.
c. Students employed during the summer only
Students employed during summer vacation who intend
to return to school are ineligible to vote in an election and
their status is not affected by failure to announce their
intent to their employer.30 This is so because they are
considered temporary or casual employees who do not
have a "community of interest" with other employees.31
General Counsel would exclude from the unit a number of
persons under these principles, but Respondent contends
that students employed during the summer should not be
excluded as a class in the absence of a showing that the
Union had ever taken a position on this issue. The
employees in question are:
Edward Burgess: General Counsel took the position at
the hearing that Burgess should be excluded because,
although employed during the critical period, he intended
to return to school in the fall. In his brief, General Counsel
argues that if an employee was a student before and after
the summer, it may be inferred that the employee did
intend to return to school. He contends, however, that
27 Section 102 67(b) and (1) of the Board 's Rules and Regulations,
Series 8, as amended, Pittsburgh Plate Glass Company v.
N L R B., 313 U S. 146,162
2s Dazzo Products, Inc, 149 NLRB 182
21 And even if all units , that is to say, the Regional Director's
unit, the Union's demand unit, and the General Counsel's
complaint unit are all equal to each other, it does not advance as
much, because the questions -till remain -what does the
741
since there is no evidence that Burgess attended school
prior to the summer of 1964 it may not be inferred that he
intended to leave work to go to school in the fall. Kannally
testified, however, that he was given notice and knew that
Burgess was "returning to school," and so if there is
anything to the argument about prior and subsequent
schooling, it would appear to be a fair inference, which I
draw, that if Burgess was "returning " to school he must
have had prior attendance. I find that Burgess was a
student employed only for the summer within the meaning
of the cases.
MacKay: This employee worked from May to
September 1964. Her application shows that she
graduated from high school in 1964, and Kannally testified
that she returned to school in September. I find that she
meets the requirements of a student employed for the
summer only.
Nardelli: It was agreed at the hearing that Mary
Nardelli was a day student in college before and after the
summer of 1964. She worked for Respondent from the
beginning of June through mid-September 1964, and it is
noted on her application that she could return to work on
December 19, 1964, for the holidays. Spetrini testified that
when `le solicited Nardelli she told him she was going to
college and so had no reason to sign a union card. I find
that Nardelli was a student employed for the summer only.
Jeanine Ouimet: General Counsel and Respondent
seemed to be in agreement at one time that Ouimet was in
the unit but Respondent did indicate that it might question
her status. Records indicate that she first worked for
Respondent on December 18, 1963, but the record is not
clear about her status in the following 4 or 5 months. She
again appeared on the payroll in early May 1964 and
worked only through the middle of September 1964. She
resumed work again the week ending October 10, 1964,
and with two exceptions, worked in every week through
December 5. General Counsel contends that Ouimet was
not working for the summer only and that there is no
evidence that she was temporary. Ouimet did not testify,
and we must rely on Hebert's testimony for additional
information about Ouimet. Hebert worked in Ouimet's
department. She testified that Ouimet was about 18 years
of age and was hired to take Hebert's place for the summer
while Hebert was on leave. According to her, Ouimet was
a high school girl who intended to go to nursing school in
the fall, and did. When Hebert returned in the fall, Ouimet
went to school, and Respondent then "hired her when she
was able to work." Ouimet knew that she was going to
attend professional nursing school while she was
employed during the summer. It also appears that Ouimet
had been employed on Saturdays or at night while in high
school but Hebert was not sure. She said, however, that
after September 1964, Ouimet worked only when "it was
convenient for her."
General Counsel contends in this case that the fact that
Ouimet may have attended school while working does not,
of itself, warrant her exclusion, and he would include her.
In Giordano Lumber Co., Inc.,32 the Board held that a
definition mean to the Board, and what should it have meant to
the parties9
30 Pacific Tile and Porcelain Company, 137 NLRB 1358,
1364-65
ii Brown-Forman Distillers Corporation, 118 NLRB 545, Home
Brewing Company, Incorporated, 124 NLRB 930, 932
'2 133 NLRB 205, 207
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
student who intended to work regularly on Saturdays after
the summer vacation was a regular part-time employee
and would be included. In my opinion, although the case is
close, Ouimet should be excluded. She was hired as a
summer replacement for Hebert, and when she returned
in October 1964, she worked at her convenience. Her case
is a mixture of "working for the summer only" during the
critical period, and casual or intermittent thereafter.
M. Richards: She was a full-time college student
before and after her employment in the summer of 1964,
and her application form contains a notation, "left for
college." I find her to be a temporary employee within the
meaning of the cases.
Frances Sikonski: Sikonski was out of college for one
semester in 1963, but returned in the fall of 1963. During
the summer of 1964, she worked for Respondent as a
cashier, but only on weekends, because she was going to
summer school. She returned to college in the fall of 1964.
She testified that she "leaves" Respondent at the end of
every summer and did so in 1965 too. She recalled that she
said "something" to her supervisors in the summer of 1964
about returning to school. General Counsel would include
her in the unit because Sikonski indicated that she was not
"really sure" she was going to school in the summer of
1964. In the first place, Sikonski was referring to her
intentions about going to summer school, and, moreover,
she did go back to college, and continues to do so. Since
communication of intent is not important , as General
Counsel points out , any wavering by Sikonski is irrelevant.
I find that this part-time, summer-only employee had no
more community of interest with employees than any of
the other college students who have been excluded.
Susan Hadfield- She was hired for and worked only
during the summer of 1964 for lessee C & S Candy Co.
She was a college student before and after the summer. I
find her to be a temporary employee during the eligibility
period.
Robert Thaler- Thaler was employed from early June
through the end of August 1964. Thaler did not testify, and
the only evidence in the record about his status during the
summer of 1964 is Kannally's response to General
Counsel's inquiry about whether Kannally had "any
knowledge as to Robert Thaler's status as of August 29,
1964." Kannally replied that "it appears that he worked
pretty steadily from June to the end of August and then I
believe he returned to school." This is a borderline case,
but I do not think that this bare statement of Kannally's
will support a finding that Thaler was employed for the
summer only. Since he was regularly employed on the
crucial date, I find him to have been in the unit.33
Valerie Whalen: It was stipulated that Whalen was a
student at Syracuse University during the school years
1963-64 and 1964-65. Whalen worked for Respondent
from mid-June through August 1964. Kannally said he
could not recall Whalen, and offered nothing about her
status. I find that this employee should also be excluded as
a temporary employee.
As in the case of the Social Security Act pensioners,
there is nothing on the face of the Regional Director's unit
33 Thaler's case obviously very much like Burgess', but
Kannally seemed to have less knowledge about Thaler than he did
about Burgess
34 Cases cited in fn 31, supra
35 Giordano Lumber Co , Inc, 133 NLRB 205, 207
36 If an election had taken place it would seem that Federovich
finding in the representation case expressly excluding
students working only during vacation, but I find, as I did
in the pensioner cases, on the basis of the record in this
case, and in accord with established Board policy, that
Burgess, Hadfield, MacKay, Nardelli, Ouimet, Richards,
Sikonski, and Whalen are not to be considered in the unit
for the purpose of computing the Union's majority, but that
Thaler shall be.34
Richard Lee: There is probably now no issue in this
case, but Kannally stated that Lee was a "student" but he
did not know whether in high school or college. The
records in evidence show that Lee worked every week
from the week ending July 25, 1964, through the week
ending October 10, 1964. Kannally also said he had no
knowledge that Lee was other than a regular employee.
The fact that an employee is going to school while working
does not disqualify him. I find that Lee was not a student
working for the summer only during the critical period. I
would include him.35
d. Leave of absence cases
Catherine Federovich: Early in the hearing, General
Counsel stated that he had information from
Mrs. Federovich's husband that she had been ill and on
leave of absence during the critical period, but that
Federovich was not available to testify. Records show that
the employee was hired in 1962. She worked through the
third week in July 1964, and then there was a break in
service until the first payroll in October 1964. Although
there were no records to support his statement, Kannally
testified credibly that he knew Federovich and that she
was absent from work during the period in question
because of illness. The employee returned in the fall to her
old job and did not make a new employment application.
General Counsel now contends that there is no evidence
that Federovich was granted a leave of absence, and she
should be excluded. I think the evidence is substantial that
Federovich was absent from work because of an illness
and that there was no real severance of employment. She,
therefore, was in the unit when the Union made its
demand for recognition.36
Ola Wood: Wood went on leave of absence in June
1964 and was scheduled to return after school opened in
September.37 Wood's father became ill during her leave
and she informed her supervisor in August that she had to
take care of him, and would not return in September.
Wood testified that when she told her supervisor that she
could not come back in September, she did not intend to
give up her job, but did intend to return when she was able
to make arrangements for her father's care. In September,
Wood asked her supervisor for nightwork, and she
returned to her old job, but at nighttime, in the last week of
September 1964. General Counsel contends that Wood
abandoned her job in August when she told her supervisor
that she could not return in September because of her
father's illness. Since Wood kept in touch with her
supervisor, as he had advised her to, and actually returned
to work not long after the time she said she would, I find
would have been eligible to vote under the Direction of Election
which included employees who did not work during the
appropriate eligibility period "because they were ill " Wright
Manufacturing Company, 106 NLRB 1234, 1236
31 Leave of absence during the summer season while children
are home from school is not unusual in Respondent 's store
SANDY'S STORES, INC.
that there was no real change in her leave status during
August. Wood should be included.38
Jacqueline Hathaway: Hathaway asked Department
Manager Stryer in May 1964 if she could take the summer
off to be with her children and come back in the fall, and
Stryer said he thought she could. The employee did take
off, but in September she telephoned Stryer and told him
that she was not returning because of her daughter's
illness. Kannally was not store manager at the time that
Hathaway was allegedly granted leave, but Stryer did not
deny her testimony when he appeared for Respondent. I
find that Hathaway was on leave of absence during the
critical period and had at that time a "reasonable
expectation of reemployment in the foreseeable future,"39
and an "interest in the terms and conditions of
employment" which would have permitted her to
participate in the selection of bargaining representative,
even though she subsequently quit her employment.40
Patricia Shaw: Shaw was working at the beginning of
May and worked through the first week in August 1964.
Shaw did not testify, but a termination slip in her file
states "on leave." For some reason not disclosed in the
record Shaw came back to work for 4 hours only on
August 24 and did not appear on the payroll thereafter
until October 1965, when she filled out a new application
which stated that her previous employment at the
Company was from March 1964 to August 1964, and that
she left for reasons of health. When Shaw was employed in
April 1964, she also filled out a new application, although
she had been employed previously and left for reasons of
health. General Counsel contends that Shaw should be
included because Respondent's own record shows she was
on leave as of August 8, 1964, and no evidence was offered
to show that her leave status changed when she was
recalled 4 hours on August 24, 1964. Although the case is
something like Hathaway's, I am inclined to agree with
Respondent that the facts indicate that Shaw terminated
her employment in August 1964. The fact that she was
recalled to work on August 24, 1964, is evidence that her
leave was over, and her new application in August 1965, a
year later, stating that she had left earlier because of
illness, is some additional evidence that reemployment in
August 1964, even for only 4 hours, had changed her leave
status. I find that the evidence will not sustain a finding
that when Shaw left Respondent's employ on August 24,
1964, she had a reasonable expectancy of reemployment in
the foreseeable future. She was not, therefore, in the unit
on August 26,1964.
Carolyn Girard: Girard was not actually working
during the critical period, but she had been employed the
week before and also worked thereafter. Girard testified
that she quit her employment with Respondent in March
1964. In August 1964, while she was in the store shopping,
she asked Department Manager Bannon if she could come
back to work at her old job on days in September when her
children returned to school . Bannon told her he was
presently short of help on nights and asked Girard if she
would fill in. She agreed to do so, but only for a week,
because she was unable for personal reasons to work at
nighttime . During this conversation , Bannon told her that
he would talk with the store manager about her getting her
38 Boland Manufacturing Company, 89 NLRB 3, 5
as Vent Control, Inc , 126 NLRB 1134.
40 Horn & Hardart Company, 147 NLRB 654, 659
4 1 Ra-Rich Manufacturing Corporation, 120 NLRB 1444
743
old job back in September. Girard then worked 17-1/2
hours, at nighttime, during the week ending August 22,
1964, and during that week she again reminded Bannon
about her wish to return in September. Before the week
was out, Bannon told her that there would be an opening
and she could have it in September. Girard returned to her
old job on September 7, 1964. She said that Bannon's
August offer of a job would have permitted her to return
immediately, but she was unable to because of her
children. General Counsel argues that Girard is out
because her employment in August was only temporary,
and although she had a job offer in August, she did not
become a permanent employee until she started to work in
September 1964. Under Board cases, he contends that
employees hired to work must be employed and working
on the eligibility date in order to vote in an election and
that the same rule applies in determining Girard's status.41
Respondent argues that Girard was like a laid-off
employee who had been recalled from layoff status but
who did not return because of a picket line.42 Girard's
case, of course, is not exactly like either example, but I
think that, during the week ending August 29, 1964,
although she was not actually working, she had a
community of interest with the other employees in the
unit , for she had worked the week before and would return
to her old job in the very next week pursuant to a definite
understanding with her employer. Girard may be
considered an employee on leave during the critical period
and therefore in the unit . I so find.
e. Cases arising out of disagreement over the critical date
The critical date upon which it must be shown that the
Union had majority status is August 26, 1964 , the date
upon which the demand was received.43
Janice Carter: -TFis person, an employee of
E & R Smith Jewelry , Co., did not work after August 25,
1964 , and should be excluded.
Sheila Parham : She also did not work after August 25,
1964, and was not in the unit on the critical date.
f. Casual employees
The Decision and Direction of Election in the
representation case included in the unit all "full-time and
regular part-time employees," thereby implicitly excluding
casuals or those who work only when called. Respondent
would add certain employees to the unit on the ground that
they showed a pattern of employment.
Gibbons: This employee was hired on August 13, 1964.
She worked when she was called by telephone to work.
She had no regular schedule, but she worked on Friday,
August 14; Monday, August 24; and Tuesday,
September 12. Thereafter, she worked only parts of 6
weeks in 1964. She is a casual and should be excluded.44
Lynn Gourlay: Kannally said that Gourlay was also
called into work when needed and had no regular
schedule. She, like Gibbons, should be excluded.
Lumnah: She was hired on August 14, 1964; she had no
regular work schedule and would be called as needed. She
worked 15 hours in the week ending August 15, 8 in the
" Vogue Art Ware & China Company, 129 NLRB 1253
44 Rea Construction Company, 137 NLRB 1769
94 W W. Chambers Co , Inc , 124 NLRB 984,988.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
week ending August 29, 5 in the week ending
September 12, and thereafter, parts of only 3 weeks in
1964. She was a casual employee and not in the unit.
Nancy Reynolds: Kannally testified that she did not
have a regular schedule and was telephoned to come to
work on certain days. Records show that she was hired on
August 13, 1964, and worked on Friday in the week ending
August 15. She did not work in the week ending
August 22, 1964, and, in the week ending August 29, she
worked Monday only. I find Reynolds to have been a
casual during the period in question and excluded from the
unit.
Peggy Samson. This employee was hired on August 13,
1964, and worked 1 day, but a different day, in the weeks
ending August 15, August 29, and September 12. Kannally
testified that he "couldn't honestly say" that an employee
with that work record was a "regularly scheduled
employee." She should be excluded as casual.
Cynthia Stone- Mrs. Stone is the wife of Larry Stone,
department manager of Spencer Shoe, a lessee. Stone
worked more hours than the other employees found to be
casuals, but her work record shows that in the last 6
months of 1964 she did not work at all in 12 of the weeks,
and in other weeks her iours varied from approximately 4
to 24 a week. Joseph Grober, representative of Spencer
Shoe, testified that Stone worked only when her husband
asked her to because he needed extra help, and he
described Stone's employment as "part time casual
work." I credit his testimony, and I find that she should be
excluded from the unit.
Janet Poirer: Kannally testified that she was called in
to work as needed. Company records show that she
worked 5-1/2 hours on Monday in the week ending
August 29, and 7-1/2 hours on Tuesday, in the week ending
September 12. She worked in only 2 weeks thereafter in
1964. I find that she was a casual nonscheduled employee
and excluded from the unit.
Marcia Desilets: She was hired on August 21, 1964.
Kannally said she was not notified when to come in. She
worked 5 hours on Monday, August 24, 1964, and
thereafter worked only 12 hours in 2 weeks in 1964. She,
like the others, was not in the unit on August 26, 1964.
Karen Langille: She was hired on August 13, 1964, and
worked only when called. Kannally said her status was like
Gourlay's. As a casual, she was not in the unit.
Andrea Sltz: She was hired on August 13, 1964, and
worked 5-1/4 hours on Friday, August 15, 5-1/4 hours on
August 24, and not at all thereafter. She had no regular
schedule and should be excluded.
Donna Breault: She, also a casual, did not work for
Respondent after August 22, 1964, and she should be
excluded in any case.
g. Additional casuals who may or may not be in dispute
From my study of the briefs, it appears to me that there
may be no present issue about the following persons, but
in any event , I find on the basis of the record that
Elizabeth Adams, Kathleen Ashworth, J. Bourgeois , Cherly
Dawson, and LeClaire were casual and not regular part-
time employees on the critical date. As such , they were not
in the unit.
It. Miscellaneous Respondent-claimed additions
J. Cohen: Respondent suggests that he be added, but it
is not clear why. Cohen was not employed from the end of
May 1964 until the week ending September 11. Kannally
testified that Cohen left his employment with Respondent
to go to work for his father and that Kannally "hired" him
in September 1964. Since there is no evidence that Cohen
was on leave of any kind, he should be excluded since he
was not on the payroll at the critical date.
Decelle: It was stipulated at the hearing that Decelle
should be excluded. Respondent now suggests that if
Goodwin is in, then Decelle should be too, because their
cases are similar. The stipulation should be ground enough
to exclude this employee, but in any case, General Counsel
agrees that Goodwin is out, and that disposes of Decelle.45
i. General Counsel's additional unit claims
Except where noted there seems now to be no real
dispute about the following, and I find them to have been
in the appropriate unit at the time the Company received
the Union's demand.
Joyce Browning- She worked regularly from the week
ending August 15 through the end of September,
averaging approximately 20 hours a week.
Lydia Goyette (Lawton): Kannally testified that he had
no knowledge that Goyette was not a regular full-time or
regular part-time employee during the critical period, and
since the record shows that she worked a substantial
number of hours in every week from June through
October, I find that she should be included.
Rachel Savard: She worked from mid-August through
early October, with the exception of 1 week, averaging
approximately 20 hours per week. Kannally was unable to
say that she was not a regular employee, and he thought
that she quit because of family problems. Since there is no
evidence that she was not a regular employee and because
she was on the appropriate payroll, I find that she was in
the unit.
Ruth Swanbeck: She was on the 1964 payroll from July
through mid-September, and Kannally testified that as far
as he knew she was a regular employee. She would be
included therefore.
Jeannette LeBlanc: This employee worked for
E & R Smith, a lessee, and she was a regularly scheduled
employee during the week ending August 29, 1964,
according to Elliott Smith, a representative of the lessee.
In July and August, LeBlanc worked without a manager,
but there is no evidence that she was a supervisor. I find
that she was in the unit.
Barbara Sullivan: This employee also worked for the
jewelry lessee and, like LeBlanc, was regularly scheduled
during the critical period. She, too, was in the unit on
August 26,1964.
Sandra Stearns: She began working regularly for
Puritan Drugs, a lessee, on August 24, 1964, and worked
regularly through the end of 1964, according to the
testimony of a representative of the lessee and a
stipulation between the parties. I find that she was in the
unit on the appropriate date.
Edyth Kearns. Kearns worked regularly from the week
"Goodwin was on leave of absence, but she returned on quit Since she was not on the payroll , and no longer on leave, she
August 24 and worked that day only Kannally said he thought she may be excluded
SANDY'S STORES, INC.
ending August 22, 1964, through the end of 1964, for lessee
Sullivan Doughnut, and she was in the unit.
j. Total number of employees in the unit on August 26,
1964
According to the General Counsel's contentions and
computations set forth in his brief, there were 95
employees in the unit on the critical date. I have found,
however, that certain employees on his list should be
excluded. Those employees are: Burgess (student),
Ouimet (student or casual), Sikonski (student), Shaw (not
on excused leave), and the elimination of their names
reduces General Counsel's unit to 91. On the other hand, I
have found that certain other persons should be added,
namely, Federovich (sick leave), Ola Wood (on leave),
Girard (on leave), M. Rousseau (not a supervisor), and
Glynn (not a supervisor), and the addition of these 5
employees makes a total of 96 employees in the unit
against which the designation cards submitted by the
Union must be compared.46
2. The Union's majority status
The General Counsel relies on 54 signed union
authorization cards in evidence in support of the allegation
of the complaint that the Union represented a majority of
employees in the unit found appropriate .47 Having found
that Sikonski, General Counsel's Exhibit 55; Ouimet,
General Counsel's Exh. 43; Burgess, General Counsel's
Exhibit 76; and Shaw, General Counsel's Exhibit 84, were
not in the unit on August 26, 1964, their cards must be
deducted, and there remain 50 authorization cards all of
which General Counsel contends are valid and most of
which Respondent claims should not be counted for
various reasons now to be considered.48
Respondent's broadest attack is on the cards of 31
employees on the ground that they were not authenticated
by the signatory.49 The record shows with respect to these
questioned cards that:50
Anderson, P. (General Counsel's Exhibit 27): Organizer
Murphy obtained and saw this card signed; Creegan
(General Counsel's Exhibit 30): Organizer Spetrini
obtained, and saw card signed; Fregeolle (General
Counsel's Exhibit 35): Signed in the presence of Spetrini
and Murphy; Gauthier (General Counsel's Exhibit 36):
Spetrini obtained and saw it signed; Maigret (General
Counsel's Exhibit 40): Spetrini witnessed the signature;
Paine (General Counsel's Exhibit 44): Murphy saw it
signed ; Browning (General Counsel's Exhibit 58): Murphy
saw it signed; Cardin (General Counsel's Exhibit 59):
Spetrini saw it signed; Flanagan (General Counsel's
96 G C. Exh 18 is a list of employees eliminated by stipulation
at the heanng In addition , although there now seems to be no
dispute about them but to eliminate as much uncertainty as
possible, I find that the following were not in the unit on the
critical date - Browar , Markiewicz (quit), Mullaney (not employed
after 8/24/64), Paulsoky (fired before and rehired after critical
date), M Reilly (not on payroll and no evidence of excused leave),
Yankee (stipulated out), Sandland (not employed before
October 1964), Lifshitz (not on payroll and no evidence of leave),
E Butterworth (not employed before September 1964 ), Gendreau
(same as Butterworth ), Magnan (not employed after 8 /13/64),
Mareau (not employed after 8/14/64), M Smith (not employed
after 8/20/64), Shea (not employed at N Attleboro store).
41 The cards of employees Browar, G C Exh 91, M Richards,
G C Exh. 82; Markiewicz , G C Exh. 80, and Goodwin, G.C
Exh 73, are also in evidence , but it is now agreed that said
745
Exhibit 61): Spetrini saw it signed; Goyette (Lawton)
(General Counsel's Exhibit 63): Spetrini saw it signed;
LeBlanc, J. (General Counsel's Exhibit 64): Spetrini saw it
signed; Marques (General Counsel's Exhibit 65): Murphy
saw it signed; Newell (General Counsel's Exhibit 66):
Spetrini saw it signed; Northrup (General Counsel's
Exhibit 68): Spetrini saw it signed; Stafford (General
Counsel's Exhibit 73): Spetrini saw it signed; Lescault
(General Counsel's Exhibit 38): Spetrini saw it signed;
Jetter (General Counsel's Exhibit 62): Spetrini saw her
sign the card on August 25, 1964; Polion
(General Counsel's Exhibit 69): Spetrini saw it signed;
Stearns (General Counsel's Exhibit 71): Murphy saw it
signed. Spetrini was also present; Lee (General Counsel's
Exhibit 79): Murphy saw it signed; Richards, L. (General
Counsel's Exhibit 81): Spetrini saw it signed; Savard
(General Counsel's Exhibit 83): Spetrini saw it signed;
Thaler (General Counsel's Exhibit 85): Spetrini saw it
signed, but he filled in the rest of the card; Hathaway
(General Counsel's Exhibit 75): Respondent is in error
here, for she identified her own signature. Hathaway was
solicited by a person who she thought was a Joe Rossi who
worked in the stockroom. There is no real evidence in the
record that this Rossi was a supervisor as Respondent
contends; Swanbeck (General Counsel's Exhibit 90):
Murphy saw it signed.
It is not necessary that the signer of an authorization
card testify to its authenticity. Cards are valid where the
signing was observed by the attesting witness, and even if
the witness is only able to testify that he gave a card to an
employee and received it back signed, the card is valid.si I
find on the basis of the credited testimony of Spetrini and
Murphy that the cards signed by the above-named
employees are not invalidated because the signers did not
directly attest to them.
Respondent also contends that four cards should not be
counted because they were not authenticated by either the
signatory or a witness to the signing.
Grace Manoogian (General Counsel's Exhibit 41):
Spetrini said the employee handed him the signed card.
The card is valid.
David Newell (General Counsel's Exhibit 67): Spetrini
gave this card to Marie Newell, David Newell's wife, and
asked her to get his signature. About a week later,
Mrs. Newell returned the card to Spetrini and told him her
husband had signed it. Neither of the Newells testified. I
find that the card is a presumptively valid authorization
and that there is no evidence in the record to rebut it. The
card may be counted.52
Rita Kelly (General Counsel's Exhibit 56): Norma
Fortier testified credibly that she and Kelly discussed the
employees were not in the unit on the critical date and their cards
may not be counted
48 Appendix B is a list of all the cards upon which General
Counsel relies
99 Six of the 31 are the cards of M. Richards , Shaw, Burgess,
Ouimet, Browar , and Markiewicz who are not in the unit and need
not be considered
50 Based on the testimony of Organizers Spetrini and Murphy
Si N.L.R B v. Economy Food Center, Inc, 333 F 2d 468, 471
(C A 7); N L R B. v Somerset Shoe Company, 111 F.2d 681, 687
(C A 1), Howell Chevrolet Company, 204 F 2d 79, 85-86 (C A 9),
I. Taitel and Son, 119 NLRB 910, 912, enfd 261 F.2d 1 (C A 7),
cert. denied 359 U S 944
52 N L.R B v Hunter Engineering Company, 215 F.2d 916, 923
(C.A 8)
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union and Kelly asked for a card. Fortier obtained one and
gave it to Kelly. Fortier didn' t see Kelly sign, but Kelly
gave her the card back signed, and she turned it into the
Union. Spetrini testified that employees Robert Riley,
R. Default, Norma Fortier, Marie Newell, and Karen
Cardin were "key" employees who volunteered to obtain
signatures for the Union. I find that Kelly's card is a valid
authorization.
Marion Carpenter (General Counsel's Exhibit 28):
Fortier obtained the card from Carpenter, after having
discussed the Union with her on a number of occasions,
and gave it to Spetrini. This card is also valid.
The Respondent also contests eight cards, some of
which are included in the group just disposed of, on other
grounds, such as alleged discrepancies as to date, time,
and purpose.
Claire Desmaris (General Counsel's Exhibit 31):
Desmaris testified that she signed her card while on leave
of absence which did not begin until after Labor Day 1964.
If this is true, the card was not in possession of the Union
on August 26, 1964, the critical date. I find that Desmaris
was mistaken, and that the card was signed on the date it
bears, August 3, 1964. The card also has a Labor Board
stamp on its back which indicates that it was received by
the Board on August 25, 1964, which was the day the
Union filed its petition and submitted its cards. In
addition, Desmaris appeared uncertain about the whole
thing; she stated, for example, that it was possible that she
signed the card before she went on leave, and, although
she said she could not recall filling in the date on the card,
she also said it could be her handwriting. Demaris' card is
a valid card.
Elaine Couturier (General Counsel's Exhibit 29):
Spetrini testified that he obtained the card, but Couturier
testified that she had never spoken with a union organizer.
She said she did not recall filling out the card, but she
admitted it bore her signature. The card is dated June 17,
1964, and it bears an August 25 Board stamp. I find it
valid.
Rita Thibodeau• She signed on June 20, 1964, but she
said the person who solicited her said that if she signed
then she would not have to pay an initiation fee.
Respondent contends that this statement contaminates
the card, citing N.L.R.B. v. Gorbea, Perez & Morell, 300
F.2d 886 (C.A. 1). On remand by the court, however, the
Board held that any "waiver," in the circumstances of that
case, was not "of such consequence to require invalidation
of the Union's majority status."53 Thibodeau's card may
not be invalidated on this ground.
According to Respondent, a number of other cards,
which were allegedly obtained just before or on the day the
Union demanded bargaining, should not be counted
because the circumstances indicate that the cards may not
have been signed on the dates they bear. Among the cards
in this category are:
Barbara Gula (General Counsel's Exhibit 75): Gula's
card is dated August 25, 1964, and she testified that she
filled out the entire card, including the date. She said the
card was executed at a restaurant across from the store
and that other employees were present at the time. She
recalled Sandra Stearns and possibly Richards, but not the
others who were there. She also said Spetrini and Murphy
were present.
Stearns and Richards: They did not testify, but their
cards were identified by Murphy. He said the signing took
place at the restaurant across from the store, and that
Spetrini and Gula were also present. Stearns' and
Richards' cards (General Counsel's Exhibits 71 and 81) are
both dated August 25. Spetrini also testified that he was
present when the cards were signed on August 25.
Respondent argues that since a number of cards are
dated August 25, 1964, the very day the demand was
made, and do not carry the Board stamp, the cards are
unreliable as far as the dates are concerned. But Spetrini
explained that he made a greater effort during the few
days before the demand to get more signatures because
the petition for an election was going to be filed and he
wanted to make a good showing. The petition was filed,
however, before he was able to return the cards signed
during the week in question to his office. I credit his
explanation. I also find that, in the circumstances
described above, namely, Gula's testimony that she filled
out her card and dated it, and the factual and testimonial
corroboration of the time, place, and persons present, are
reliable indicators of the correctness of the dates on her
card as well as on Stearns' and Richards'. I find them all
good.54
Beatrice Jette (General Counsel's Exhibit 62): Jette's
card is dated August 25, 1964, and Respondent contests it
for substantially the same reasons as in the Gula,
Richards, and Stearns cases, but Spetrini and Murphy
testified that the date was accurate, and I credit their
testimony. Ifind nothing in the circumstances surrounding
her card to make it unreliable.
Rachel Savard (General Counsel's Exhibit 83): Savard
did not testify, but Spetrini testified that he saw her sign
the card. This card is also dated August 25, 1964, and, like
the other cards obtained on August 25, does not have a
Board date stamp on the back. When Spetrini identified
Savard's card he did not specifically say that he got it from
her on August 25, and, in addition, Respondent correctly
observes that the ink used for the date on the card appears
to be a different color from the ink on the rest of the card.
For these reasons, Respondent contends that the date of
signing has not be reliably fixed. I am somewhat troubled
about this card, but I think the record will support a
finding that it was signed on the date it bears. Although
Spetrini explained that he knew Jette's card was signed on
August 25, and said he visited her home before he went to
Jolly Cholly's restaurant where he obtained the signatures
of Richards, Gula, and Stearns on the same day, he did
not, in so many words, fix the date on Savard's card by
relating it to other events whose occurrences were reliably
fixed in time. He also stated, as I understood him, that the
basis for his testimony that employees signed cards on a
given date was, as a general rule, the date the card bore.
But Spetrini also testified that he turned over all cards
signed prior to August 26, 1964, to a Board investigator,
and Savard's card contains on its reverse side the
notation, "Handed to Rodio near Jolly Cholly, No.
Attleboro, Mass, 11:00 A.M. 12/16/64." He also said that
the cards given to the Board agent in December were not
53Gorbea, Perez & Morell, 142 NLRB 475, reversed 328 F 2d 54 In Indiana Rayon Corporation, 151 NLRB 1294, cited by
679 (C A 1), Endro Corporation, et al., 147 NLRB 1167, 1177-78 Respondent, each employee, unlike here , denied or could not
Moreover, I do not think this somewhat cryptic and clearly recall inserting the date
isolated remark bungs the case within the court 's rationale in
Gorbea
SANDY'S STORES, INC.
turned in to the Board on August 25 with the others
because they were in his possession when the Union's
attorney filed the petition. In my opinion, the real import of
Spetrmi's testimony is that Savard's card was obtained on
August 25, 1964. I credit his testimony and since
presumptively an instrument was executed on the date it
bears, I find the card reliable.
Dorothy Potion (General Counsel's Exhibit 69): Polion's
card is dated August 20, 1964. Spetrini testified that the
employee signed the card in his presence. Murphy also
testified that he was with Spetrini at Polion's home and
saw the card signed. Polion did not testify. Respondent
questions the card because it was not turned in to the
Board's office with the rest of the cards on August 25 and
so does not have the Board's date-received stamp on the
back. No one asked Spetrini or Murphy any question about
the date on the card when they identified it and after it was
admitted in evidence. I find that the circumstances that
Spetrini did not deliver or have delivered this card to the
Regional Office on August 25, despite the fact that it was
presumptively obtained on August 20, is insufficient, of
itself, to overcome the reasonable inference that the card
was signed on the date it bears. I so find.
Theresa Lescault (General Counsel's Exhibit 38): This is
another card obtained during the last week of the Union's
drive and not delivered to the Board when the petition was
filed, but given to a Board agent during the investigation of
this case. The card is dated August 24, 1964, and both
Spetrini and Murphy saw it signed by the employee at her
home. I find nothing in the circumstances surrounding this
card to taint its validity as an authorization for
representation.
Edyth Kearns (General Counsel's Exhibit 50): Kearns
was the employee who I have found was discharged
because of her union activities. Her card is also dated
August 25 but not delivered to the Board until much later.
Kearns, however, identified her own card, and Murphy
said he saw her sign it. The card is clearly valid.
Respondent claims that the following 10 cards should
not be counted because of misrepresentation as to the
purpose of the cards, the alleged misrepresentation,
briefly stated, being that the only purpose of the cards was
to obtain an election.
Bernadette LeBlanc (General Counsel's Exhibit 78):
LeBlanc was called as a witness by Respondent.
LeBlanc's signature was obtained by Robert Riley. She
testified that Riley asked her if she would sign a card, and
she said, "I will go along with you." She said her hand had
been injured and was in a cast, so Riley filled out the card,
and she signed it. The whole transaction took about 15
minutes, and LeBlanc stated that, since her husband had
just returned home and she was busy getting supper, Riley
spent most of the time talking with her husband over a cup
of coffee. According to LeBlanc, she had heard some
rumors about a union before she went on sick leave but
remembered little about it, and so when Riley asked her to
sign, she asked him "what's it for?" She said that Riley
replied, "Well, just to see if they-they are trying to get a
percentage of the employees to sign to see if they can get a
vote, but the card doesn't mean anything and nobody
would know that it was signed or anything because they
are destroyed afterwards." Asked if she looked at the
information on the card "to see if it was correct," she said
she did not, but merely "glanced at it, but I couldn't very
well say that I read it thoroughly." LeBlanc conceded,
747
however, that she checked the address, occupation, and
other like information on the card.
Robert Riley (General Counsel's Exhibit 45): Riley was
called to the stand twice, first by General Counsel in his
case-in-chief, and later by Respondent. In his first
appearance he testified about some acts of the Company
alleged as violations of Section 8(a)(1) of the Act, but no
mention was made in direct examination about the card he
had signed, for that had been introduced earlier through
Spetrini. Under cross-examination , however, Riley said
that he had been first asked to sign a card by Norma
Fortier who gave him one. He carried it in his pocket, but
he had not signed it when he was approached by Spetrini
and Murphy at his home. Riley signed a card at the
organizers' request, and was given other cards to
distribute. He said he solicited other employees, but could
remember getting LeBlanc's signature only. He said he
had been told what to say to employees when he solicited
them about the reason for signing cards for the Union, but
he could not remember whether Fortier, an employee, or
Spetrini, the organizer, told him. In any case, he testified
that he was told that "these cards were to be turned over
to the Labor Board and if a certain percentage was signed
by the employees in the store that there would be an
election held in the store and that these cards were to be
destroyed and that they were not [to] be made public."
Riley said that, when he approached employees seeking
their signatures, he "told them that the purpose of the card
was to allow them to see if the majority of the employees in
the store would like to have an election and have the union
represent them."
When Riley was called by Respondent in its case to
testify about a conversation he had with Store Manager
Kannally, in August 1964, concerning the Union's recently
filed petition for election, he was cross-examined about the
Union's numerical strength at the time the demand was
made. He testified that he had never heard the word
"majority" mentioned by Spetrini or Murphy. Asked if he
knew that the Union had made a demand for recognition as
the bargaining agent for the employees, he responded that
he did not, for he did not "think the union had any right to
demand it because we signed the cards to be shown to the
Labor Board to have an election in there to see if we
wanted a union ...." He added that such was what the
"union men" explained to him when he signed his card.
Shown a sworn statement he had given a Board agent
during the investigation of this case, he admitted that he
had stated in the affidavit that, "The two union organizers
for the Retail Clerks Union came to my home to discuss
the union and to have me sign a card. I signed it
voluntarily. They explained that the card was to designate
the union to represent the employees and to have a NLRB
election." He said, however, that he understood,
nevertheless, that "the only time they would represent us
is after the election ... if they won ...."
Riley also testified about LeBlanc's card. He said he
asked her to sign, and she did, and he also stated that the
other writing on the card did not appear to be his, as
LeBlanc had testified.
James Black (General Counsel's Exhibit 51): At the time
he testified Black was receiving manager at one of
Respondent's other stores, but it must also be recalled that
he was called by the General Counsel as his witness, and I
have previously credited his testimony. In regard to the
card he signed, he said he signed along with three other
employees at Murphy's request. He said he read the card
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that Murphy said that "the purpose of the signing of
the card was to get-well, a certain majority so they could
petition the government to have an election there."
According to Black, he couldn't remember Murphy's exact
words, but the "whole discussion" was about "getting the
Union into Sandy's ... and the purpose of the signing of
the card was to get the union in." He repeated later,
however, that the representation was that "they would
have an election and if there were enough votes for the
union then the union would get in."
David Mattson (General Counsel's Exhibit 42): This
employee testified that Murphy and Spetrini spoke to him
for about 15 minutes. He was asked if he were interested
in seeing a union in Sandy's and he said he was. According
to him, one of the men stated that everyone they had
spoken to that day had signed. It appears that Mattson was
the first employee to sign, however, Mattson also said the
men told him that "if 30 percent of the employees signed
cards they could petition the Board for an election."
Mattson is and was a member of another union at the time,
and he and the organizers "talked about unions in general
and my children were running around and we talked about
kids and that's about it." In addition to the representation
about an election, Respondent claims that the organizers'
comments about others signing that day, when, in fact,
Mattson was the first to sign, were a material
misrepresentation invalidating the card under N.L.R.B. v.
Rohtstean, 266 F.2d 407 (C.A. 1).55
Rita Dumont (General Counsel's Exhibit 33): Asked
what was said to her about the "purpose of the
authorization card," she said, "The only thing I remember
was that they were having us fill out the cards so they
could bring them to the labor board so they could hold an
election." In response to the question, "Did they tell you
any other purpose?" she answered, "No." She also said
she signed her name to the card but she didn't read it, and
none of the information on the card except the signature
was filled in by her. When Dumont was asked if anything
was said at the time she signed the instrument about a
"card check," she answered that, "The only thing they
had said was that they had to have so many to bring to the
Labor Board so they would be able to hold an election."
Dumont conceded under cross-examination that she had
told counsel for the General Counsel earlier that she could
not remember whether she had signed a card or not. She
testified that the organizers had visited her home three
times and she said she could not remember all they talked
about, but she recalled that "benefits" and "more
money," "if the union got in" were mentiQned. She said
their conversations lasted 10 to 15 minutes on each visit,
and she could not actually recall when she signed the card.
Spetrini said that he filled in all spaces on her card except
the signature."''
Carolyn Lund (General Counsel's Exhibit 39): Lund
ss It may be that the Rohtstean court doctrine is not Board
doctrine See Top Mode Manufacturing Co , 97 NLRB 1273, 1296,
enfd 203 F 2d 482 (C A 3). But compare, S E. Nichols Company,
156 NLRB 1201 In any case , the remark made to Mattson was
just "sales talk" which he did not rely on See, Philamon
Laboratories , Inc, 131 NLRB 80, 86, enfd 298 F 2d 176, 179
(C A 2), Engineers & Fabricators, Inc., 156 NLRB 919
ss Respondent questions this card as being unreliable in regard
to date of signing as well as with respect to misrepresentation of
purpose The card bears the August 25 Board stamp is dated
August 5, 1964, on its face I find that it is unquestionable in that
regard
51 The card is dated July 1, 1964, on the face , and it has the
testified that she signed her card and could have dated it,
but the other spaces were filled in by some one else.57
Asked if she recalled what the solicitor said the "purpose
of the card" was, she replied "to see who might be
interested in a union." That was all she could recall of the
conversation, for, as she said, "it was quite a long time
ago."
Rata Pelletier (General Counsel's Exhibit 70): Pelletier
was solicited at home while she was doing her
housekeeping. One of the visitors-she could not
remember which one-told her that the reason for
requesting her signature was that he "would like to get to
know how many was interested in getting the union and he
Just wanted to get an idea of how many was interested in a
union." The solicitor remained with her "about 10 or 15
minutes," and he made no other explanation about the
card. She signed the card, and although she said she .
merely glanced at it, she filled in all the spaces. She
conceded she could not recall all that the organizers said
because she was so busy at the time.
Harriet Chabot (General Counsel's Exhibit 60): Chabot
testified that before she signed her card she told the
organizers who had visited her home that she "didn't know
how (she) was going to vote." They responded that if she
signed a card, "it didn't mean that [she] was signing for
the Union ...." it meant that she "was signing the card
because they needed so many cards to be able to hold an
election." She said they did not tell her "any other
purpose," and she repeated that they told her that "the
purpose of the card was `511 to hold an election and that no
one would see the card she signed except the "Labor
Board." The union men talked to Chabot twice, but she
could not recall how long their visits lasted. She said she
filled out the card and signed it, and she indicated that
there may have been more in her conversations with the
organizers than that just set forth, but she could not
remember.59
Linda Crawford (General Counsel's Exhibit 49):
Crawford signed her card on June 10, 1964, and she said
the organizers told her that "the main purpose was for an
election." Crawford said that she had met Murphy at
employee Anderson's home that afternoon where he had
given a talk about the union, and so she "asked him to
come to [her] house ... and speak to [her] husband
because he knew more about unions because he belonged
to one and he would have more questions to ask ...." She
recalled certain topics, such as union dues, being
discussed, but she said she didn't remember all that was
said that night. She did recall that she was told that the
card would be held in confidence and that the Union
needed "a certain percentage of these cards before they
could go for an election."
Barbara Gula (General Counsel's Exhibit 37). Gula
filled out the entire card and signed it. She said the
Board 's stamp, indicating that it was received on August 25, on
the back Spetnni filled in everything on this card but the
signature
se The last two quotes are from the questions asked by counsel
in his examination
sy Chabot's testimony on direct that she was told that signing a
card did not " mean that she was signing for the Union," changed
to "it didn 't mean I was voting for the union " when she was
requestioned on the subject , but she maintained at a later point in
the record, in answer to a leading question , that she recalled
testifying that "the purpose of the card was just to be able to bung
the Labor Board in for an election "
SANDY'S STORES, INC. 749
organizers talked about "benefits," but she thought that
they indicated that the benefits would come after the
Union "got in" and this would be "after an election." She
said the union men said they would like to have an
election. She also recalled asking them what "the purpose
of signing the card was ... ," but she said she couldn't
remember what they told her.
Both Spetrini and Murphy testified about what they
generally told employees when they talked with them in an
effort to persuade them to sign cards. According to
Murphy, he generally used the same "approach ...
concerning the purpose of the card," and explained to
employees "that the card was confidential and if
necessary it would be shown to a disinterested party an
impartial observer in the case of a cross card check and in
the case of going to an election it would be given to the
NLRB." He said he didn't recall telling any employee
about filing a petition for an election, for he "hoped" the
Union and the Company would agree to a card check.
Spetrini testified that he and Murphy were in charge of
the campaign and that they had a group of "key
employees" who had volunteered to help get signatures to
cards. He said he told this group of volunteers early in the
campaign that the purpose of the cards was to petition the
Board for an election, but he added that such was only
"half of what I said," because he also told the group that
the card also designated the union as bargaining
representative and "if it was possible we could go to a card
check where if we had the majority the company could
agree to recognize us on the cards and we would then
become the bargaining agent without an election."
Called in rebuttal, Spetrini testified that in his attempts
to sign employees for the Union he did not tell them that
"the only purpose for the card was to get an election or
that the card was just to get an election," but he said that
he told them that such was "one of the reasons." He said
he was confident that he had made no statement that the
"only purpose" was for an election because he had
instructions not to do so from his superior. According to
Spetrini, near the "end of May or the first two days in
June," a meeting took place in the office of Arthur Sousa,
secretary-treasurer of the Union, which he and Murphy
attended. Sousa spoke about authorization cards, and
Spetrini testified that, "He told us that he had been
informed that as a result of ... something that happened
in another area ... that from now on the possibilities were
going to be expressed, [of] going to a card check much
more than in the past. We were to tell the people that the
cards-in the past we told the people the cards were only
for an election but that the election was [now] one of the
reasons and that is how cards were to be obtained." Asked
"" It was stipulated that Murphy would testify about this
meeting with Sousa the same as Spetnni , if called as a witness.
Si The cards used in the campaign are in the following form-
RF7 All CI FIIKS INTFRNATIONAI ASSOLIA rioN
(AII) oted wnh the AFI -( 10)
Ali] IIOIIIZA I ION FOR REM Si NTATION
Desmmg to enfol the rights end benefits of collective bargo oo,g, 1, the
undersigned emplole, t the
2
Store Address
(Firm Name)
a
Fmployed on
Store N.
Dept
(Job T,tle)
home Address Phone
hereh ) authorize Retail Clerks Internononal Aasoctat,on ,- AFI -CIO , or rte chartered
IJ I ncol Ilnron to represent me for the purpose of collectite borgntning , respecting rates
of pnl , .. ogee, hours of emplol me,t , or other condittuns of employment , in accordance
.ath oppheoble Ian
if Sousa "indicated any other reasons" for signing a card,
he answered: "Yes, going to a card check primarily."")
Spetrini said that, except for two or three employees,
every employee solicited by him or by Murphy in his
presence was told that one of the reasons for signing a card
was to obtain a "cross card check."
Arthur Sousa testified that he had a meeting with the
organizers assigned to Sandy's in early June and discussed
the authorization cards. He said he explained to them, that
although the cards were "self explanatory,"61 they should,
nevertheless, explain to employees that the "primary
reason" was to get an election, but that if the Union
secured a majority of signatures there could be a card
check if the Company agreed. Sousa said that these dual
objectives were "stressed ... continuously" throughout
the campaign.
For a proper frame of reference, a word or two about the
cases on this subject of misrepresentation about the
purpose of authorization cards, particularly with respect to
their use as a vehicle for obtaining status through an
election. The cards in question do not mention an election
but clearly authorize the Union to represent the signer "for
the purpose of collective bargaining," and such cards are
an acceptable means of proving a union's majority.62 It has
also been frequently held that "An employee's thoughts
(or afterthoughts) as to why he signed a union card and
what he thought the card meant, cannot negative the overt
action of having signed a card designating a union as
bargaining agent.",:' But contemporaneous
representations are also material in considering the
validity of a designation, and where the union
misrepresents the purpose of authorization cards by
stating that it intends to use them only to obtain an
election, the Board does not consider such cards evidence
of majority status because the signers have not "clearly
manifested an intention to designate the union as their
bargaining representative. "f 4 But it must be emphasized
that, in order to invalidate cards obtained during a union
organizing campaign it is not enough that an election has
been mentioned, stressed, or even formally announced as
"the primary purpose" of signing cards, rather employees
must have been informed by the solicitor that the cards'
"sole" or "only" purpose or function is for an election.6.5
Because of this oft-repeated distinction in the cases
between "a" purpose and "only" end, and since in
assessing a representation to determine whether it was a
misrepresentation it seemed reasonable to assume that the
ordinary meaning of the words used and the context and
environment in which they were uttered must be
considered rather than just the accidental use or omission
of an adjective or an adverb, I have set out the testimony
82 United Mine Workers v. Arkansas Oak Flooring Co., 351 U.S
62,71-72
e' Joy Silk Mills, Inc. v N L.R.B , 185 F 2d 732, 743 (C A.D.C ),
N.L R B v. Greenfield Components Corporation, 317 F.2d 85, 89
(C.A 1), N.L.R B v. Gorbea, Perez & Morell, 300 F.2d 900, 902
(C A 1)
64 Englewood Lumber Company, 130 NLRB 394, 395, N L R B.
v. Koehler's Wholesale Restaurant Supply, 328 F.2d 770, 773
(C A. 7)
65 Cumberland Shoe Corp., 144 NLRB 1268, enfd. 351 F 2d 917,
920 (C A 6); S E Nichols Company, 156 NLRB 1201, fn. 1.
Dote (Signature of Employee)
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on this subject in some detail as a basis for the following
findings:
Recognition through a card check was not emphasized
by card solicitors during the campaign. Although I have no
reason to disbelieve Arthur Sousa's testimony that the
organizers were given instructions to stress the card-check
aspects as well as the election objectives, this advice was
given, according to him, in "early June," after the
campaign had started, and, in my opinion, was generally
not followed, for I can find no evidence of any weight in
this record indicating that any employee was told about a
possible check of authorizations as a means of establishing
the Union as bargaining agent for the employees. It is also
clear to me, and I find, that the theme of the campaign,
insofar as securing recognition was concerned, was the
utilization of the Board's election processes. This finding
is consistent with the testimony of all employees who
testified about the subject and with the Union's normal
and conventional action in filing a petition, litigating the
unit, obtaining a favorable direction of election, and
preparing for an election which was called off on its eve
But these findings are not to be taken to mean that the
"only" thing that employees were told was that the cards
meant an election and "only" that; they are intended to
facilitate our task of finding what employees were really
told about an election by eliminating what they were not
told.
LeBlanc's and Riley's cards, in my opinion, are clearly
invalidated because of representations made to them
about an election. I find that the language used to them led
them to believe that the card's only purpose was to obtain
an election. LeBlanc was solicited by Riley, who was
helping in the campaign. He told her the card was to get an
election, that it "doesn't mean anything," and it would be
destroyed after the election. Twice LeBlanc said that
Riley told her that the card had "just" the purpose
described. LeBlanc's testimony is not only
uncontradicted, it is corroborated by Riley who testified
that he was told to tell employees that the cards were to be
turned over to the Board for an election and then
destroyed. When he approached employees for their
signatures, he told them that "the purpose" of the card
was to see if the employees would "like to have an
election." Although Spetrini denied that he had told
anyone that the "only" purpose of the cards was an
election, Riley was originally solicited by Fortier, another
volunteer organizer, and Fortier did not contradict Riley.
Riley was much impressed by the confidential nature of
the cards. He believed that the cards would be destroyed
and never made public, and that is what LeBlanc testified
Riley told her.16 Riley, like LeBlanc, impressed me as
testifying truthfully to the best of his recollection.
Although a substantial period of time had passed when
they testified about the events described, I find that they
both gave a reasonably good account of what happened,
and their recall of what they said and what was said to
them was as good as Murphy's and Spetrini's recollection
of what they said to employees.67
I also find that Harriet Chabot's card is not a valid
authorization because of the circumstances under which it
was signed. Before she signed the card, Chabot told the
solicitor that she didn't know how she would vote in the
election, but she was told to sign it anyway because "it
didn't mean she was signing for the Union . . " This
remark, taken with the discussion of an election by the
solicitors, their reference to the secrecy of her signature
and the absence of any representations that the card had
any other purpose leads me to believe that the natural
meaning of the representations made to Chabot was, as
she credibly testified, that "the purpose of the card was
. " to obtain an election and her signature was needed
to help achieve that purpose.
James Black's card is closer to the line, I feel, but it too,
I find, is an unreliable designation of the Union. Black
testified without exaggeration and with fairly good recall. I
credit his testimony that his entire discussion with Murphy
was "to the point" of getting the Union in through an
election and that the reason for signing a card was to
petition the Board to hold an election.
The elimination of LeBlanc's, Riley's, Chabot's, and
Black's cards leaves the Union with a maximum of 46 valid
cards designating the Union, which is less than a majority
of the 96 employees I have found to have been properly in
the unit on August 26, 1964, when the Respondent
received the Union's demand. I find and conclude,
therefore, that Respondent did not refuse to bargain in
violation of Section 8(a)(5) of the Act as alleged.'"
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent Company set forth in
section III, A and B, above, occurring in connection with
the operations of Respondent as described in section I,
above, have a close, intimate, and substaintial relation to
trade, traffic, and commerce among the several States
and, such of them as have been found to constitute unfair
labor practices, tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent Company
engaged in unfair labor practices in violation of
Section 8(a)(1) and (3) of the Act, it will be recommended
that the Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
It will be recommended that Respondent offer employee
Edyth Kearns immediate and full reinstatement to her
former or substantially equivalent position, without
prejudice to her seniority and other rights and privileges,
and make her whole for any loss of earnings she may have
suffered by reason of the discrimination against her, by
payment to her of a sum of money equal to that which she
would have earned as wages from the date of the
discrimination against her to the date of offer of
"" This is close to the line separating an employee's "thoughts
or after thoughts" from what was actually said, but the cards used
in the campaign also state the signers' "confidence will be
respected "
84 For example, Spetrmi said that securing an election as a
purpose of the cards was only half of what he told employees, but
Murphy could not recall talking Labor Board elections with any
employee including Riley, which, in passing, would have been
contrary to Sousa's instructions to explain both purposes
se Since it is unnecessary for a decision, I make no findings
about whether the other employees listed above were told that the
"sole" purpose of their cards was to obtain an election It is
evident however, that an election was also discussed with them
and the confidential nature of their acts emphasized in many
cases
SANDY'S STORES, INC.
reinstatement, and in a manner consistent with Board
policy set forth in F.W. Woolworth Company, 90 NLRB
289. Interest on backpay shall be computed in the manner
set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
It will also be recommended that the Respondent
preserve and make available to the Board, upon request,
payroll and other records to facilitate the computation of
backpay.
It will also be recommended, in view of the nature of the
unfair labor practices the Respondent has engaged in, that
it cease and desist from infringing in any manner upon the
rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent Company is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 1325, Retail Clerks International Association,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of
employment of Edyth Kearns, thereby discouraging
membership in the Union, the Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
4. By engaging in the conduct set forth under
section III, A, above, Respondent interfered with,
restrained, and coerced its employees'and has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
5. Respondent did not refuse to bargain with the Union
in violation of law as alleged in the complaint.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law and upon the entire record in the case,
it is recommended that Respondent Sandy's Stores, Inc.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or in any
other labor organization, by discharging, laying off, or
otherwise discriminating in regard to the hire or tenure of
employment of employees, or any term or condition of
employment.
(b) Interrogating its employees as to their sympathies
for, or actitivies on behalf of, the Union, or any other labor
69 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
751
organization, in a manner constituting interference,
restraint, or coercion in violation of Section 8(a)(1) of the
Act.
(c) Threatening employees with discharge, or other
reprisals, and granting or promising employees benefits in
order to discourage union membership or activities.
(d) Creating the impression among employees that it is
engaging in surveillance of their union activities.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities
except as qualified by Section 8(a)(3) of the Act, as
amended.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer to Edyth Kearns immediate and full
reinstatement to her former or substantially equivalent
position without prejudice to her seniority or other rights
and privileges, and make her whole for any loss of earnings
she may have suffered by reason of Respondent's
discrimination against her as set forth in that section of
this Decision entitled "The Remedy."
(b) Notify the above-named employee if presently
serving in the Armed Forces of the United States of her
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, all payroll records and other records
necessary to analyze the amount of backpay as set forth in
the section of this Decision entitled "The Remedy."
(d) Post at its store in North Attleboro, Massachusetts,
copies of the attached notice marked "Appendix C."69
Copies of the said notice, to be furnished by the Regional
Director for Region 1, after being signed by Respondent's
representative, shall be posted by the Respondent
immediately upon receipt thereof, and maintained by it for
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of the receipt of this Decision,
what steps have been taken to comply with the
Recommendations herein made.70
70 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 Respondent has taken to comply herewith."
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
Alberto Fraise Northrup
Anderson, M. Fregault Paine
Anderson, P. Fregeolle Pelletier
Bennett, D. Garland Polion
Bishop Gauthier Rabarkoff
Black Gula Reis, E.
Butterworth, L. Gumieniak Riley, R.
Cardin Hess Robinson
Carpenter Jette Sequin
Cataloni Kelly Sherman
Chabot Knight Stafford
Couturier Kubiski St. Pierre, G.
Crawford LeBree Thibodeau
Creegan LeBlanc, B. Tourigny
DeNeneo Lescault Urbanowicz
Desmarais Lund Whitney
DuFault Maigret Williams
Dumont Maione Marques*
Dupelle Manoogian Carroll*
Ferrate Manson Richards, L.*
Fisher Mattson Perry*
Flanagan Meyer Newell, M.*
Fortier Newell, D. Godin*
Total 69
* Means employees of lessees and agreed in unit, if
lessees are properly included in Regional Director's
Decision.
APPENDIX B
Anderson, P.
Black
Browining
Burgess
Butterworth, L.
Cardin
Carpenter
Chabot
Couturier
Crawford
Creegan
Desmarais
DuFault
Dumont
Flanagan
Fortier
Fregeolle
Gauthier
Goyette (Lawton)
Gula
Hathaway
Jette
Kelly
LeBlanc, B.
Lee
Lescault
Lund
LIST OF CARD SIGNERS
Maigret
Manoogian
Mattson
Newell, D.
Northrup
Ouimet
Paine
Pelletier
Polion
Riley, R.
Robinson
Savard
Shaw
Sherman
Sikonski
Stafford
Swanbeck
Thaler
Thibodeau
Urbanowicz
LeBlanc, J.
Sullivan
Marques
Newell, M.
Stearns, S.
Richards, L.
Kearns
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT discourage membership in
Local 1325 , Retail Clerks International Association,
AFL-CIO, or any other labor organization, by
discharging or refusing to reinstate any of our
employees , or in any manner discriminating in regard
to their hire or tenure of employment , or any term or
condition of employment.
WE WILL NOT interrogate employees concerning
activities on behalf of the above -named or any other
labor organization, in a manner constituting
interference , restraint, or coercion violative of
Section 8(a)(1) of the Act.
WE WILL NOT threaten employees with discharge or
other reprisals , or grant or promise employees
benefits in order to discourage union membership or
activities.
WE WILL NOT create the impression among our
employees that we are engaging in surveillance of
their union activities.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their rights to self-organization , to form labor
organizations , to join or assist the above - named or any
other labor organization , to bargain collectively
through representatives of their own choosing, or to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection
or to refrain from any or all such activities except to
the extent that such rights may be affected by an
agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3) of the Act, as amended.
WE WILL offer to Edyth Kearns immediate and full
reinstatement to her former or a substantially
equivalent position without prejudice to seniority and
other rights and privileges and make her whole for
any loss of pay suffered as a result of the
discrimination against her.
SANDY'S STORES, INC.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the above-named employee if
presently serving in the Armed Forces of the United States
of her right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 24 School
Street, Boston, Massachusetts 02108, '1 elephone
223-3300.