Tri-State Stores, Inc.

National Labor Relations Board - Board Decisions

Oct 1, 1970

185 N.L.R.B. 829 (N.L.R.B. 1970)

TRI-STATE STORES, INC.
Tri-State Stores, Inc. and Retail Clerks Union, Local
No. 1439, AFL-CIO. Case 19-CA-4523
October 1, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On May 13, 1970, Trial Examiner Maurice Alexan-
dre issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
actions, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that the
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recom-
mended that these allegations be dismissed. Thereafter,
the Respondent filed exceptions to the Trial Examin-
er's Decision and a supporting brief. The General
Counsel filed 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 made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner, and hereby orders that
Respondent, Tri-State Stores, Inc., Moses Lake, Wash-
ington, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.
' In in 22 of his Decision , the Trial Examiner inadvertently misquotes
from the record The correct quotation reads "I don't remember if I
doubted one way or the other I doubted if there would be a majority
if it were put to a vote at this time , I don't know "
TRIAL EXAMINER'S DECISION
829
MAURICE ALEXANDRE, Trial Examiner: This case was
heard in Moses Lake, Washington, on January 6, 7, and 8,
1970, upon a complaint issued on October 31, 1969,'
alleging that Respondent had violated Section 8(a)(1), (3),
and (5) of the National Labor Relations Act, as amended
In its answer, Respondent denied commission of the unfair
labor practices alleged. The issues presented are whether or
not Respondent violated those sections by engaging in
various acts of interference, restraint and coercion, by
discharging employee Ilse L. Iliff, and by failing to accede
to the Union's request for bargaining.
Upon the entire record, my observation of the witnesses,
the brief filed by the General Counsel and adopted by the
Charging Union, and the brief filed by Respondent, I make
the following
FINDINGS AND CONCLUSIONS'
The Unfair Labor Practices
Respondent is a Washington corporation engaged in the
operation of a retail department store in Moses Lake,
Washington. The president of the corporation is Doris
E. Connelly, who is also president of another corporation
which operates a companion store in Moscow, Idaho, where
most of the administrative functions relating to both stores
are performed. Catherine J Buchanan is Respondent's secre-
tary-treasurer. John S. Ehart was manager of the Moses
Lake store until the end of September 1969,' when he
was replaced by Jim L. Anderson. Patrick Banks was
assistant store manager.
A. Interference, Restraint, and Coercion
I The evidence
In August 1968, following the death of her husband,
Connelly took over management of the two stores. Being
without business experience, she encountered considerable
difficulty in coping with the problems which faced her.
One of these problems consisted of rumors that she intended
to close or sell the Moses Lake store. Connelly testified
that sometime during July 1969, she told Store Manager
Ehart that if her problems continued, she would feel com-
pelled to discontinue operation of the store.
On or about August 25, because of reports of pilferage
at the two stores, Connelly adopted a policy under which
employees of both stores would be asked to take polygraph,
or lie detector, tests. Upon learning of the new policy,
' Based on an original and an amended charge filed, respectively,
on September 29 and October 13, 1969, by Retail Clerks Union, Local
1439, AFL-CIO, hereafter called the Union
' No issue of commerce is presented The complaint alleged and
the answer admitted facts which, I find, establish that Respondent is
an employer engaged in commerce within the meaning of the Act
I further find that the Union is a labor organization within the meaning
of the Act
' All dates hereafter referred to relate to 1969 unless otherwise stated.
185 NLRB No. 117
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's employees became disturbed and decided to
hold a meeting at the store Assistant Manager Banks
telephoned the Moscow store and reported the situation
to Connelly Buchanan and a representative of the company
which furnished the polygraph service thereupon went to
Moses Lake and the latter explained the mechanics of
the test at the meeting of employees.' Among other things,
he told them that the test was voluntary, and that anyone
who volunteered would receive a bonus of $20.
On the evening of September 2, Respondent's employees
met at the home of Employee Ellen Jones to discuss the
polygraph policy. At the meeting, the employees also dis-
cussed the possibility of obtaining a 5-day workweek, a
matter which they had previously discussed with Manager
Ehart. After the meeting, a representative of the Teamsters
Union, who had been present at the meeting, called the
Charging Union and suggested that one of its representatives
meet with Respondent's employees the following day. The
employees met again at Ellen Jones' home on September
3, at which time Needham, an organizer for the Union,
appeared, explained the advantages of union representation,
stated that if a majority of the employees signed authoriza-
tion cards, the Union would request recognition by Respond-
ent, but told them that Respondent might insist that the
Union prove its majority through a Board election Needham
then distributed authorization cards, read the contents to
them, and told them not to sign if they had questions
or were unsure of themselves. At the meeting a number
of employees signed cards and returned them to Needham.
In addition, Needham received cards from six additional
employees between September 3 and 9.
Connelly testified that on September 3 or 4, Controller
Tout told her that he had received a telephone call from
Assistant Manager Banks reporting the union activity at
Moses Lake. At first, she testified that she received this
information on September 3 or 4, but then stated that
it was after those dates, adding that it was difficult to
remember. Connelly further testified that she was shocked
and that she discussed the situation with Buchanan. On
September 4, Buchanan telephoned Employee Iliff at Moses
Lake and questioned her regarding the union situation.'
On the same day, Connelly telephoned two individuals
for help: Terri Clevenger, a ' self-employed management
consultant who had performed services for her in the past,
and Bill Jones, a friend. Connelly testified as follows regard-
ing her reason for seeking Clevenger's help:
Q. Then, I take it, you felt the polygraph test was
one of the reasons that was causing the union activity
in the Moses Lake store?
A. I think it was the reason.
Q. So you called Tern Clevenger to see if she could
calm the employees in the Moses Lake store?
A. Yes.
Q. And I presume, then, from what you are saying,
that the reason you wanted her to calm the employees
at the Moses Lake store was to eliminate this union
activity?
' Connelly accompanied them to Moses Lake but did not go to the
meeting
' Iliffs discharge on September 8 is discussed below.
A Not specifically, no-
* * *
Q. Was that one of the reasons?
* *
A. It was not the primary reason.
Q. Was it one of the reasons?
A. I never considered it that way. I never considered
it-
Q. (Interrupting) Did you call Tern Clevenger after
you found out about the union activities?
A. I was concerned about the uproar in this store,
the personnel problems we were having in the store.
* * *
Q Did you mention the union situation?
A. I probably did. The polygraph test and the union
are almost synonymous in my thinking. I probably
did.
Connelly also told Jones about both the polygraph and
union problems. Jones expressed the opinion that Clevenger
would be helpful, agreed to fly her to Moses Lake in
his plane and stated that he would try to talk to the
employees and calm them. Clevenger and Jones arrived
at the Moses Lake store on September 6 and talked to
the employees as a group Jones told them he was not
going to take over the store, and Clevenger told them
that she would talk individually with any employees who
wished to discuss any problem. Connelly testified that Cle-
venger and Jones returned to Moscow on September 7
and reported to her their belief that the employees would
be calmed if Clevenger spent time in Moses Lake talking
to them. At about that time, Respondent posted a notice
on the store bulletin board stating that the polygraph tests
had been postponed. Thereafter, Clevenger returned to
Moses Lake, remained at the store for several weeks, and
talked to employees individually.
Store Manager Ehart testified that on or about September
9, he was told by Connelly that if the store were unionized,
she would very likely close it. Ehart relayed this information
to Assistant Manager Banks, William Boyes, and several
other store department heads. On the same day, the depart-
ment heads met at the store. Employee Lehman testified
that with Ehart's permission, she attended the meeting
as a substitute for Moulton, her department head; that
Clevenger, Ehart , Banks, Boyes, and Cathy Roberts were
at the meeting; that Banks and Clevenger did most of
the talking; and that the latter told those present- "The
fat is in the fire. I just got the word from Moscow, the
store will, the doors will close if this union deal goes
through " Lehman further testified that Clevenger or Banks
stated that something would have to be done before the
union representative arnved at the store, that Banks stated
that he would telephone a lawyer and left the room, that
on his return he stated that he had been told by the
lawyer that the only way "to stop the cards going through"
was for the employees to write letters to the Union withdraw-
ing their authorization cards and stating that they wished
to bargain directly with Respondent, and that Clevenger
or Banks instructed those present to request the employees
TRI-STATE STORES, INC 831
in their departments to write such letters. Ehart testified
that at the employees' request, he, Banks and Clevenger
did not attend However, Cathy Roberts testified that the
three individuals were at the meeting, that someone at
the meeting informed those present of a "rumor" that
Connelly would probably close the store if the Union came
in, that neither Ehart nor Banks made the statement, but
that she did not know who did Clevenger did not testify
There is considerable testimony that after the close of
the meeting, Cathy Roberts told employees about Connelly's
statement regarding closing the store Roberts did not con-
tradict this testimony.' In addition, the department heads,
including Boyes and Roberts, followed their instructions
and solicited employee letters revoking their authorization
cards In one instance, Roberts went to the home of an
employee to request such a letter and wrote out the contents
of the letter when the employee stated that she did not
know how to word it.
A total of 35 employees wrote letters to the Union
stating in effect that they did not wish to be represented
by the Union. Department Head Boyes told Employee
Dirk to collect the letters. Later that day, Boyes told
Manager Ehart that he was going to the Union's office
in Spokane to try to obtain revocation of the authorization
cards signed by employees, and Ehart raised no objection'
Boyes then left for Spokane accompanied by four employees!
On their arrival, two of the employees took the letters
to the Union's office On the next day, September 10,
Boyes told Ehart that he had not succeeded in obtaining
revocation of the cards.'
During the above-mentioned conversations with employ-
ees, Clevenger had been asked whether the number of
workdays per week could be reduced, and she replied
that this could be done. About the second week of Septem-
ber, Clevenger told a number of the employees who worked
6 days a week that they could work 5 days a week
About 3 weeks later, Respondent restored them to the
original schedule. Sometime during September, Respondent
gave a number of employees a wage increase.
2. Concluding findings
The complaint alleges, and I find, that Respondent violat-
ed Section 8(a)(1) of the Act by interfering with, restraining,
and coercing its employees in the following respects-
(a) As noted above, Buchanan telephoned Employee Iliff
on September 4, the day after the employees met for the
second time and signed authorization cards. Iliff testified
that Buchanan stated that there had been an employee
meeting and asked her about the "union business" at the
Some of the employees testified that Roberts had told them that
Connelly's statement was contained in a letter Roberts merely testified
that she had never seen such a letter
Boyes was night manager and was presumably scheduled to work
that night
° One of the four, Graham, testified that he was scheduled to work
that night, asked and received permission from Boyes to be on leave,
but was not paid for the time
Boyes was on a salary basis and received his full pay for the period
which included September 9
store, that Iliff pretended ignorance, that Buchanan then
stated that she had heard that most of the girls who
had attended the employee meeting had signed authorization
cards and inquired whether Iliff had signed one, and that
Iliff answered in the negative On interrogation by the
General Counsel, Buchanan denied knowledge of the meet-
ing, but then admitted learning of the September 3 meeting
sometime after the discharge of Iliff on September 8. In
view of Connelly's testimony that she learned of the meeting
and discussed it with Buchanan on September 4, the latter's
testimony is obviously unworthy of credit Buchanan further
testified that she could not recall the telephone conversation
described by Iliff, and that "to the best of [her] knowledge"
she did not discuss authorization cards with her. On interro-
gation by counsel for Respondent, Buchanan denied having
discussed union activities with Iliff. I credit Iliff's testimony
as more reliable, and find that she was unlawfully interrogat-
ed by Buchanan. There is no merit to Respondent's defense
in its brief that Buchanan had no management position
at the Moses Lake store and that her duties were clerical.
Buchanan was secretary-treasurer of Respondent.
(b) I find no evidence to support the allegation in the
complaint that Connelly and Boyes told any rank-and-
file employees that the Moses Lake store would be closed
or sold if the employees unionized. However, I find that
such a threat was made by Clevenger.
The record establishes, and I find, that Clevenger attended
the meeting of September 9, and that she told those present
that she had received word that the store would be closed
if the employees unionized. Since Clevenger was Respond-
ent's agent, the Respondent is accountable for her conduct.
And since at least one rank-and-file employee, Lehman,
was present at the time,10 the threat to close the store
was unlawful
Respondent defends by asserting that the record shows
that business continued as usual and that physical improve-
ments were made in the store after September 29, when
Ehart was replaced as store manager. It further points
out that in a written notice to the employees, posted on
October 20, Connelly expressly stated that Respondent had
not authorized, and repudiated, statements that the store
would be closed if unionized. This evidence fails to establish
that the threats made on September 9 were lawful On
the contrary, it shows that the coercive tendency of the
threat continued for a least a month."
(c) The record establishes, and I find, that on September
9 Boyes and Cathy Roberts solicited and obtained from
the employees a number of letters repudiating the Union
as their bargaining representative; that in one case Roberts
10 The parties stipulated that Lehman's department head, Moulton,
was an employee within the meaning of the Act Since she went to
the meeting as a substitute for Moulton , Lehman a fortiori was an
employee
" Although the complaint does not expressly allege that Clevenger
was one of those who made the threat, I find that the issue was fully
litigated
Although I find that Cathy Roberts repeated the threat to close the
store to rank-and-file employees, I deem it unnecessary to resolve the
parties' dispute as to whether she was a supervisor . For, even if it
were determined that she was a supervisor , this would merely result
in a finding of additional , cumulative threats
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
helped an employee prepare such a letter, and that Boyes
accompanied other employees in taking the letters to the
Union's office This conduct was unlawful unless Respond-
ent is not accountable therefor. Respondent contends that
it cannot be held accountable because Boyes and Roberts
were not supervisors. I find that Respondent must be held
accountable because in engaging in the conduct in question,
Boyes and Roberts, whether or not supervisors, were acting
as Respondent's agents and the employees knew it.
According to the credited testimony of employee Lehman,
who was present at the September 9 meeting , either
Clevenger or Banks instructed those present at the meeting,
including Boyes and Roberts , to obtain the letters. Since
Clevenger was Connelly 's agent and Banks was an admitted
supervisor, it follows that Boyes and Roberts acted as
agents for Respondent in carrying out their instructions,
irrespective of whether received from Clevenger or Banks.
Moreover , it is a fair inference that Lehman communicated
the events at the meeting to the employees , and hence that
they were aware that management wanted such letters. In
addition , Boyes was permitted to take the letters to the
union office in Spokane by Store Manager Ehart , who had
been present when the instructions were given , who knew
the purpose of Byes ' trip, and who nevertheless permitted
payment of Boyes' full salary for the period which included
his trip.
(d) The record establishes that Connelly learned of the
employees' union activity on September 3 or 4, that she felt
that such activity was caused by the announcement of the
polygraph test policy, and that she immediately arranged
for Clevenger to go to the Moses Lake store to "calm" the
employees and persuade them to abandon their attempt to
unionize The record further shows that during the second
week of September, Clevenger attempted to carry out her
mission inter alia by reducing the workweek of a number of
employees from 6 to 5 days Although this change had been
requested by employees, I find, contrary to Respondent's
contention, that Clevenger acceded to their request in order
to demonstrate to them that unionization was unnecessary
and should be abandoned Such conduct constituted
unlawful interference, restraint, and coercion
(e) The record shows that 19 of the Respondent's
employees received wage increases effective September 1.
However, employees Rosenow and Parsons testified without
contradiction that they first learned of their increases at
the end of September or beginning of October. Buchanan
and Ehart testified that Respondent regularly evaluated
employee performance each calendar quarter and that upon
receiving recommendations from the store manager , Connel-
ly determined which employees would receive pay increases.
An employee admittedly did not receive an increase as
a matter of course They further testified that the evaluations
for the September 1 increases were made in August, i.e.,
before the commencement of union activity. Respondent
contends that since evaluations were made in August pur-
suant to an established program, the wage increases were
unrelated to union activity and hence were lawful. According
to Respondent, it had no choice but to give the increases
since it could have been urged that its failure to do so
was an unfair labor practice
I do not credit the testimony of Buchanan and Ehart
respecting the date of the evaluations. Buchanan admitted
on cross-examination that she had no information respecting
the matter and had merely assumed the date As for Ehart,
I find that he had a poor memory and was an unreliable
witness Moreover, even if it were assumed that the evalua-
tions were made in August, there is no evidence that
Connelly made the final decision respecting the increases
before the commencement of union activity Connelly gave
no testimony respecting the date of her decision, and
Respondent has failed to explain why, if the decision was
made before September 1, it did not announce the wage
increases immediately.
For these reasons, I am not persuaded that the increases
were in fact decided upon on or before September 1, and
find that they were put into effect after Respondent learned
of the commencement of the union activity on September
3 or, 4, and indeed after the Union's request for recognition
on September 15 (see infra), in order to influence the
employees to reject unionization.
(f) The record establishes that the taking of the polygraph
test by employees was voluntary, and that they were so
informed by an agent of Respondent as early as August 25
I accordingly find, in agreement with Respondent, that the
record fails to support the allegation of the complaint that
Respondent unlawfully eliminated the test as a mandatory
condition of employment 12
B The Discharge of use L. Ihff
1. The evidence
Ihff was hired by Respondent on April 2, 1968, and
worked as an office clerk until August 22, 1968, when
she was promoted to assistant office manager." She was
informed of her promotion by Ehart, who had just been
promoted to the store manager's job. Beginning in November
1968, friction broke out between Ehart and Miff. According
to Iliff, their "first feud" occurred in that month, but
she denied that she was discourteous to him "at that
time " She further testified that they got along well at
times, but that on other times, she "criticized" him; that
they "had several conflicts"; that they "argued" at times,
that she is "outspoken"; and that she has been described
as "tactless." On August 26, the day after the polygraph
policy was announced, Ihff, who was under the impression
that Ehart intended to go to the Moscow store to see
Connelly, told him that she wished to talk to Connelly
herself about certain grievances relating to pay and employ-
ment. Ehart asked her, in effect, why she could not discuss
her problems with him, and Iliff replied, "Well, because
you are a puppet on a string " She then related the conversa-
tion to another employee.
'= At the hearing, the General Counsel was given leave to strike
that portion of the complaint which alleged that Respondent had unlawfully
improved and reestablished a pension plan
" The parties stipulated that Ihff was a rank-and-file employee at
all times material
TRI-STATE STORES, INC.
On September 3, Iliff attended the employee meeting
at the home of Ellen Jones and signed a union authorization
card. As already found, during a telephone conversation
with Iliff on September 4, Buchanan revealed her knowledge
of the meeting, stated that she had heard that most of
the employees at the meeting had signed authorization
cards, and asked Iliff whether she had signed a card.
On September 8, Store Manager Ehart informed Iliff
that she was discharged. Connelly testified that 2 or 3
weeks before that date, she was informed by General Manag-
er Stockwell that he had received a telephone call from
Ehart, who inquired whether he had authority to discharge
Iliff," and that Stockwell replied that he did. She further
testified that she first learned of the discharge from Ehart,
that he did not tell her why, and that she did not ask
him because she assumed, as a consequence of Ehart's
inquiry respecting his authority to discharge Iliff, that he
was having difficulties with her. She also testified that
she was subsequently told by Stockwell that Ehart had
made his inquiry and had discharged Iliff because the
latter had challenged his authority.
At the time he discharged Iliff, Ehart asked whether
she wished to discuss the matter, and she replied that
she did not unless he did. According to Iliff, she responded
in this fashion and did not ask the reason for her discharge
because Union Organizer Needham had warned that
employees who signed authorization cards might be dis-
charged. Ehart furnished no testimony respecting any of
the foregoing events. Buchanan testified that she had never
discharged or recommended the discharge of any employee
at the Moses Lake store.
2. Concluding findings
Respondent contends that Iliff was discharged solely
because of her insubordination. The General Counsel con-
tends that Respondent had theretofore always condoned
her misconduct; but that when it learned or began to
suspect that Iliff had engaged in union activity, it decided
to discharge her. In support of this contention, the General
Counsel argues that Connelly learned on September 4 of
the existence of union activity and the execution of the
authorization cards, and that Buchanan's interrogation of
Iliff concerning the authorization cards demonstrates that
she knew that Iliff had signed a card. Such knowledge,
the General Counsel argues, creates an inference that Iliff
was discharged because of protected activity, and that the
burden of establishing has been met inasmuch as Respondent
has failed to present any direct evidence rebutting such
inference.
There is no doubt that Ehart had ample provocation
for discharging Iliff. The question is whether she was dis-
charged solely for cause, or in whole or in part because
of protected activity. I find that such activity was one
of the reasons for the discharge.
" Iliff was supervised by Buchanan in her work duties , and her name
appeared under that of Buchanan instead of Ehart on the table or organiza-
tion prepared after their promotions . Thereafter, she told him on several
occasions, allegedly in jest, that he had no authority- to discharge her.
833
First, I note that at the hearing, Respondent took the
position that it discharged Iliff for both insubordination
and suspected pilfering." Apparently, Respondent has
shifted its position somewhat, and now relies only on
insubordination.'6 I further note that at the time of her
conversation with Ehart on August 26, Iliff informed him of
her desire to discuss certain employees' grievances with
Connelly. Since Ehart indicated his feeling that Iliff wanted
to go over his head and told her that such problems were
none of her concern and that she was trying to interfere in
management prerogatives, it is apparent that he was nettled
by Iliffs desire to discuss employee grievances with
Connelly as well as by her insubordinate remarks to him.
In addition, although Ehart ascertained that he had
authority to discharge Iliff, he did not exercise that authority
promptly, but waited until Septebmer 8 to discharge her;
i.e., a period of almost 2 weeks. Although called as a
witness, Ehart was not asked by Respondent to explain
the delay. Indeed, Respondent failed to interrogate him
as to his reason for the discharge or any of the circumstances
relating thereto." If Ehart regarded Iliffs misconduct as
sufficiently serious to warrant a discharge, it was incumbent
upon him to explain his delay in acting. The failure to
explain, when combined with the timing of the discharge,
i.e., 5 days after the September 3 meeting and 2 days
after Clevenger arrived at Moses Lake, suggests that the
misconduct became intolerable to Ehart only after Iliff s
expressed desire to discuss employee grievances directly
with Connelly was augmented by her participation in the
employee meeting.
There is no direct evidence that Ehart knew that Iliff
was present at the meeting. However, I find it reasonable
to infer that he did. For one thing, the store had a small
complement of employees," and news apparently traveled
swiftly." Moreover, I have little doubt that when Clevenger
went to the Moses Lake store on September 6, she did
not conceal Connelly's antiunion views, and that information
regarding the identity of those present at the September
3 meeting was then communicated to Ehart.20
" At the commencement of the hearing , counsel for Respondent
stated that Iliff was discharged because of a personality conflict with
Ehart "and also that there was some suspicion of pilfering in the store.
S he was the center of this, being suspected."
s There is not a shred of evidence relating to pilfering by Iliff
I accord no probative weight to Connelly's hearsay testimony that
Stockwell told her that Ehart had discharged lliff because she had challenged
the latter's authority
IS Respondent had some 40 employees (see infra)
19 Employee Collins testified that everyone at the store seemed to know
about the meeting Assistant Store Manager Banks learned of the meeting
almost immediately and promptly reported his information to Controller
Tout in Moscow, who in turn called Connelly Ehart testified that it was no
secret that the employees were organizing, and that he had heard that
authorization cards had been signed I do not credit Ehart's testimony that
he did not learn of the September 3 meeting until 2 or 3 weeks later
20 It is likely, for example, that Cathy Roberts, who was present at the
meeting, was a source of such information Although no finding is made as to
whether she was a supervisor, I am satisfied that she considered herself
aligned with management Thus, Union Organizer Needham testified
without contradiction that at the time Roberts signed an authorization card,
she expressed the belief that she might be a supervisor In addition, she
admitted that she may have told a representative of the Board's Regional
Office that she could effectively recommend the hiring or firing of
employees
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In all the circumstances, I find that Ehart was irked
not only by Iliffs insubordination, but also by her aggressive-
ness in wishing to discuss employee grievances; and that
when he learned of her presence at the employee meeting,
he finally decided that he would rid himself of a strong
union sympathizer as well as a difficult employee. Such
a discharge constituted a violation of Section 8(a)(3) and
(1) of the Act.
C. The Refusal To Bargain
1. Respondent's answer admits, and I find, that the
following constituted an appropriate unit of Respondent's
employees at the time material herein:
All employees of Respondent employed at 515 West
Broadway, Moses Lake, Washington, excluding the
store manager, assistant manager, guards, professional
employees, and supervisors as defined in the Act.
The record contains a typewritten list which, the parties
stipulated, contains the names of 45 persons employed
by Respondent on September 15. Four of the names were
crossed out and the parties further stipulated that the
four names should be disregarded because Banks was a
supervisor and the other three were no longer employed
on September 15. Although initially there was a dispute
as to whether 6 of the remaining 41 employees on the
list were supervisors or rank-and-file employees, the parties
ultimately stipulated that 3, Chandler, Dirk and Moulten,
fell into the latter category. The parties are still in dispute
as to whether Boyes, Roberts, and Hamilton are supervisors
or employees includible in the unit.
It is unnecessary to determine the exact number of
employees in the unit by resolving the status of the three
disputed employees. For however such status is resolved,
the record nevertheless establishes, and I find, that as
of September 15, there were between 38 and 41 employees,
that the Union had at least 25 valid authorization cards,"
and that it thus represented a majority.
2. On September 15, Union Organizer Needham went
to the Moses Lake store and gave Ehart a sealed envelope
which Needham identified as containing the Union's demand
for recognition. Ehart accepted the envelope but then
returned it to Needham, stating that he was not authorized
to receive it." Needham put the envelope on Ehart's desk
and left. Clevenger then entered the office, Ehart telephoned
Connelly, and he was instructed to open the envelope.
Clevenger opened it, and Ehart read the contents of the
Union's demand to Connelly. The letter, which was
addressed to Ehart, read as follows:
11 In arriving at this figure, I have not included the cards signed by the
following Kibuchi whose name does not appear on the typewritten list,
Wright whose name is crossed out, and Roberts whose supervisory status is
in dispute
YY Ehart testified that Connelly had told him she did not want to go union,
and that she had instructed him to refuse to accept the demand "when it was
delivered " Connelly testified that she expected to hear something from the
Union, and that after learning from Controller Tout that some kind of cards
had been signed , she instructed Ehart that he was without authority to accept
a Union demand for recognition
This is to notify you that a substantial majority
of your employees in the collective bargaining unit
described below have designated Retail Clerks Union,
Local 1439, AFL-CIO, N. 1615 Division St., Spokane,
Washington as their exclusive collective bargaining rep-
resentative.
In view of such designation, we now demand recogni-
tion , for the purpose of collective bargaining, as the
exclusive representative of such employees. The collec-
tive bargaining unit in which we demand recognition
consists of:
"All selling and non-selling employees employed
at the following location, Tri-State Distributors,
Inc., 515 W. Broadway, Moses Lake, Washington
98837 and excludes store manager, assistant store
manager, guards, watchmen and supervisors as
defined in the Labor Management Relations Act,
as amended."
The Union is proposing a meeting at our office,
N. 1615 Division, Spokane, Washington or any other
mutually agreeable place on Thursday, September 25,
1969 at 2:00 P.M. for the purpose of negotiating a
collective bargaining agreement. If such date is incon-
venient for you, please notify us so that a more conve-
nient date can be agreed upon.
If there is any doubt in your mind that the Union
does in fact represent a majority of employees, we
are willing to permit a neutral person to check our
authorization cards at the time of such meeting for
the purpose of verifying our majority status."
He then forwarded the letter to Connelly. Respondent
never requested the Union to establish its claimed majority,
nor has it ever bargained with the Union. However, the
parties stipulated that Respondent filed a petition for an
election on September 23.
I find that the Union, on or about September 15, requested
Respondent to bargain with it as the exclusive bargaining
representative of the employees in an appropriate unit,
and that Respondent has refused to do so at all times
since that date. In its brief, Respondent attempts to justify
its conduct by claiming a good-faith belief on the part
of Respondent that the Union did not represent a majority.
In supportof this alleged belief, Respondent asserts that
the Union did not "openly" organize the employees, that
it did not communicate with Respondent's officers, that
it did not exhibit the authorization cards to Respondent,
and that the employees signed letters withdrawing the
authorization cards. The fact is, however, that Connelly
knew that the employees had signed union authorization
33 Ehart testified as follows respecting his belief concerning the Union's
majority at the time he read the letter
Q Did you have any reason at that time to doubt whether or not the
Retail Clerks 1439 represented a substantial majority of your
employees as set forth in that paragraph9
A No, I don't believe so I don't think I did any except for the feeling
that I couldn't accept it just as it was without l question
Q You had no reason at that time to doubt that the statement was
correct9
A I don't remember if I doubted it one way or the other, I doubted
if there would be a majority if it were put to a vote at that time , I don't
know
TRI-STATE STORES, INC
cards; that her agents sought and obtained letters from
employees purporting to revoke their authorization cards;
that she then instructed Ehart to refuse to accept the
Union's bargaining request which she anticipated; that the
Union's request for bargaining nevertheless reached Connel-
ly; and that despite her alleged doubt concerning the Union's
majority, she neither expressed it nor accepted the Union's
offer to submit to a card check. In such circumstances,
it strains credulity for Respondent to assert its good faith,
particularly when such assertion is predicated upon card
revocations which were obtained through its own unlawful
conduct An employer may, , of course, reject a recognition
request, and demand an election "with a simple `no com-
ment' to the union." N.L.R.B. v. Gissel Packing Co., 395
US 575. But Respondent was not content to follow that
path. Instead, it engaged in conduct which demonstrated
a desire to delay and avoid bargaining irrespective of whether
or not the Union had a majority.
Apart from Respondent's attempt to delay and avoid
bargaining, I find that Respondent's unfair labor practices
were intended to undermine the Union and were so coercive
as to destroy the likelihood of holding a free election
among its employees. I agree with Respondent that the
preferred method of determining a union's majority status
is a Board election. But where the employer engages in
unfair labor practices which make it unlikely that the
employees can freely express their wishes in such an election,
it is appropriate to determine such status on the basis
of authorization cards which they have executed And
if the cards establish a majority, a finding that the employer
violated his obligation to bargain and the issuance of a
bargaining order are warranted. N.L.R.B. v. Gissel Packing
Co., supra. I find that Respondent's numerous and serious
violations of the Act have made a free election unlikely.
And having concluded that the Union had a card majority
at the time of its demand for recognition, I further find
that Respondent violated its obligation to bargain with
the Union and that the issuance of a bargaining order
is appropriate.24
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing its
employees, as found herein, Respondent engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act.
. 2. By unlawfully discharging employee Ilse L. Iliff, as
found herein, Respondent engaged in unfair labor practices
in violation of Section 8(a)(3) and (1) of the Act.
3. By unlawfully refusing to bargain with the Union,
as found herein, Respondent engaged in unfair labor prac-
tices in violation of Section 8(a)(5) and (1) of the Act.
1' Respondent's assertion in its brief that to bargain with a union that does
not represent a majority of its employees would constitute action "contrary
to the rights of the employees" demonstrates a rather belated concern for
those rights Nor would such rights be adequately protected by Respondent's
offer, made in its brief, "to issue such statements to employees and do such
other things as may be proper and necessary to assure a fair election " It is
true, as Respondent points out, that the Board ordered an election despite the
employer's unfair labor practices in H W Elson Bottling Co, 155 NLRB
714 That case is, however, inapposite since there, unlike here, the union did
not have a majority at the time of its demand for recognition
835
4. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
5. Respondent did not violate the Act by any conduct
not found herein to constitute an unfair labor practice.
THE REMEDY
I recommend that Respondent cease and desist from
its unfair labor practices, and that it take certain affirmative
action designed to effectuate the policies of the Act. Specifi-
cally, I recommend that Respondent offer to Ilse L. Iliff
immediate and full reinstatement to the position which
she held at the time of the discrimination against her
or to a substantially equivalent position, without prejudice
to her seniority and other rights and privileges. I further
recommend that Respondent make Iliff whole for any loss
of earnings she may have suffered by reason of the discrimi-
nation against her, by paying to her a sum of money
equal to that which she would have been paid by Respondent
absent such discrimination, less net earnings during the
said period. The loss of earnings shall be computed in
the manner set forth in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716. In addition, for the reasons already noted above,
I shall recommend that Respondent bargain with the Union
as the majority representative of Respondent's employees
in the unit found herein to be appropriate.
RECOMMENDED ORDER
Respondent , Tri-State Stores , Inc., its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Unlawfully interrogating or threatening its employees,
unlawfully encouraging , requesting or in any manner aiding
its employees to revoke union authorization cards, and
unlawfully improving the hours of work or rates of pay
of its employees in order to influence them to reject unioniza-
tion.
(b) Unlawfully discharging employees or otherwise unlaw-
fully discriminating in regard to their hire , tenure of employ-
ment , or any term or condition of employment.
(c) Unlawfully failing or refusing to bargain collectively
with Retail Clerks Union, Local No. 1439, AFL-CIO,
as the exclusive representative of the employees in the
following appropriate unit:
All employees of Respondent employed at 515 West
Broadway , Moses Lake, Washington , excluding the
store manager, assistant manager , guards , professional
employees , and supervisors as defined in the Act.
(d) In any other manner interfering with , restraining,
or coercing its employees in the exercise of any right
guaranteed in Section 7 of the Act.
2. Take the following affirmative action:
(a) Offer to Ilse L . Iliff immediate and full reinstatement
to her former or a substantially equivalent position, and
make her whole for any loss of earnings she may have
suffered by reason of Respondent 's discrimination against
her, in the manner set forth in the section herein entitled
"The Remedy."
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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, for examination and copying , all payroll
records and reports, and all other records necessary to
analyze the amount of backpay due and the right of reinstate-
ment under the terms of this Recommended Order.
(d) Upon request, bargain collectively with Retail Clerks
Union, Local No. 1439, AFL-CIO, as the exclusive repre-
sentative of the employees in the unit found herein to
be appropriate , and embody in a signed contract any
understanding reached.
(e) Post at its store in Moses Lake , Washington , copies
of the attached notice marked "Appendix."25 Copies of
said notice , on forms provided by the Regional Director
for Region 19 shall , after being signed by Respondent's
representatives, be posted by the Respondent immediately
upon receipt thereof and maintained by it for 60 consecutive
days thereafter , in conspicuous 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.
(f) Notify the Regional Director for Region 19, in writing,
within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith .16
' In the event no exceptions are filed as provided by Sec l02 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations, and Recommended Order herein shall, as
provided in Sec 102 48 of the Rules and Regulations , be adopted by the
Board and become its findings, conclusions, and order, and all objections
thereto shall be deemed waived for all purposes in the event that the Board's
Order is enforced by a judgment of a United States Court of Appeals, the
words in the notice reading "Posted by Order of the National Labor
Relations Board" shall be changed to read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing , an Order of the National
Labor Relations Board "
26 In the event that this Recommended Order is adopted by the Board, this
provision shall be modified to read "Notify the Regional Director for
Region 19, in writing, within 10 days from the date of this Order, what steps
it has taken to comply herewith
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with
these rights
WE WILL NOT unlawfully discharge employees or
otherwise discriminate against them because of their
union activities.
WE WILL NOT unlawfully question or threaten our
employees.
WE WILL NOT unlawfully encourage, ask, or help
our employees to revoke their union authorization
cards.
WE WILL NOT unlawfully increase wages or improve
working hours in order to induce our employees not
to unionize.
WE WILL offer to take back Ilse L. Iliff to her
old job and pay her for all the wages she lost because
of her discharge.
WE WILL, upon request , bargain collectively with
Retail Clerks Union, Local No. 1439, AFL-CIO, as
the exclusive representative of all our employees in
the following unit with respect to rates of pay , wages,
hours of work , and other terms and conditions of
employment , and embody in a signed agreement any
understanding reached The bargaining unit is.
All employees of Respondent employed at 515
West Broadway, Moses Lake, Washington, exclud-
ing the store manager , assistant manager , guards,
professional employees, and supervisors as defined
in the Act.
TRI-STATE STORES, INC.
(Employer)
* Date By
(Representative)
(Title)
Note: We will notify Ilse L . Iliff 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 is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Republic
Building , 10th Floor , 1511 Third Avenue, Seattle, Washing-
ton, 98101, Telephone 583-7473.