W. T. Grant Co.

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 400 (N.L.R.B. 1969)

400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W. T. Grant Company, Employer-Petitioner and
Retail Clerks Union, Local 17, Retail Clerks
International Association , AFL-CIO
W. T. Grant Company and Retail Clerks Union,
Local 17, Retail Clerks International Association,
AFL-CIO. Cases 20-RM-1083 and 20-CA-5243
December 16, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On August 13, 1969, Trial Examiner James R.
Hemingway 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. He
also found that the Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that such allegations
be dismissed. The Trial Examiner found, in
addition, that the Respondent's unlawful conduct
had interfered with a Board election held on August
1, 1968, and recommended that the election be
vacated and set aside. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision
and a supporting brief, the Charging Party filed a
reply brief, the General Counsel filed
cross-exceptions to the Trial Examiner's Decision
with a supporting brief, and the Respondent filed an
answering brief to the cross-exceptions.'
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 these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions,
cross-exceptions, and briefs, and the entire record in
these cases, and hereby adopts the findings,
conclusions,' and recommendations of the Trial
Examiner as modified herein.3
'The Respondent's request for oral argument is hereby denied as the
record , exceptions , and briefs adequately present the issues and the
positions of the parties
'In adopting the Trial Examiner's findings and conclusions, we
specifically disavow his comments on page 2 section I with respect to the
Respondent 's position on jurisdiction , and also his comments concerning a
"fishing expedition" on page 10 section IV , F, of his Decision . In addition,
we do not rely on the Trial Examiner's detection of a note of retaliation in
Manager Rhea 's tone in finding Rhea 's remarks to employee Brown
coercive , but we find them coercive solely on the basis of the remarks
themselves.
'In view of the numerous other violations of Section 8(a)(l), we find it
unnecessary to pass upon the additional 8(a)(l) finding sought by the
General Counsel , inasmuch as such a finding would be merely cumulative
and would add nothing to the remedy
Although we agree with the Trial Examiner that
the Respondent's refusal to bargain with the Union
violated Section 8(a)(5) and (1), and that a
bargaining order is appropriate, we do not adopt his
rationale in support thereof. Rather, we have
considered the totality of the circumstances of this
case in the light of the guiding principles applicable
to the issuance of bargaining orders as set forth in
the Gissel Packing Co. case.4 We find that the
conduct of the Respondent, set forth in the Trial
Examiner's Decision, demonstrated its propensity to
engage in violations of the Act under conditions that
heighten the possibility that relief in the form of the
customary cease-and-desist orders will not
sufficiently effectuate the statutory policies herein.
We are satisfied that a bargaining order would be
necessary even in the absence of an 8(a)(5) violation
to remedy the other unfair labor practices in this
case . We also find that the Respondent, by refusing
to recognize the Union as majority representative of
its employees, has violated Section 8(a)(5) and (1) of
the Act. The Respondent' s numerous violations of
the Act were of such a nature as to make it unlikely
that a fair or coercion-free rerun election can be
held. We are persuaded that the unambiguous cards
validly executed by a majority of employees in the
unit represent a more reliable measure of employee
desire on the issue of representation in this case, and
that the policies of the Act will be effectuated by the
issuance of a bargaining order. Accordingly, as the
Union had obtained validly executed authorization
cards from a majority of the employees in the unit
as of June 20, 1968, we find that an order to
bargain is appropriate, and we shall, therefore,
adopt the Trial Examiner's Recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, W. T. Grant
Company, Oroville, California, its officers, agents,
successors, and assigns , shall take the action set
forth in the Trial Examiner's Recommended Order.
IT IS FURTHER ORDERED that the petition in Case
20-RM-1083 be, and it hereby is, dismissed, and all
proceedings held in connection therewith be, and
they hereby are, vacated.
In agreeing with the Trial Examiner that the Respondent interfered with
the exercise of the employees ' free choice in the election conducted on
August 1 , 1968, we have relied only on the Respondent 's unlawful conduct
committed after June 27, 1968, the date the petition was filed.
IN L R.B v. Gissel Packing Co., Inc, 395 U.S 575. We find no reason
to remand this proceeding to the Trial Examiner for further hearing
because the facts underlying our findings herein have been thoroughly
litigated.
180 NLRB No. 45
W. T. GRANT COMPANY
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. HEMINGWAY, Trial Examiner: Upon an
original charge filed on October 11, 1968, and an
amended charge filed on December 20, 1968, by Retail
Clerks Union, Local 17, affiliated with Retail Clerks
International Association, AFL-CIO, herein called the
Union, against W. T. Grant Company, herein called
Respondent, alleging violations of Section 8(a)(l), (3), and
(5) of the National Labor Relations Act, as amended, 29
U.S.C. Sec. 151, et seq., herein called the Act, a
complaint issued against Respondent on January 15, 1969,
alleging violations of Section 8(a)(1) and (5) of the Act.
To this complaint, Respondent filed an answer on January
24, 1969, and an amendment and supplement to that
answer on March 5, 1969. By order of the Regional
Director for Region 20, issued on March 4, 1969, the said
Regional Director directed a hearing on the Union's
objections in Case 20-RM-1083, and directed a
consolidated hearing in that case and in the complaint
case before a Trial Examiner.
Pursuant to notice, a hearing was held before me at
Oroville, California, on April 1, 2, and 3, 1969. At the
close of the hearing, a time was fixed for the filing of
briefs, and following an extension of such time, briefs
were received from all parties.
From my observation of the witnesses and upon the
entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and at all times material herein has
been, a Delaware corporation engaged in business as a
retailer of general merchandise, having its principal office
and place of business at New York, New York, and retail
outlets throughout the United States, including a retail
store at Oroville, California, the only one involved herein.
During the year preceding the issuance of the
complaint, Respondent, in the course and conduct of its
business operations , received gross revenue in excess of
$500,000.
During the year preceding the issuance of the
complaint , in the course and conduct of its business
operations, Respondent purchased and received, at its
operations in California , goods and materials valued in
excess of $50,000 directly from sources located outside the
State of California.
Respondent's answer states that it "lacks sufficient
knowledge and information to form a belief of the truth of
the allegation" of the complaint that, in the same period,
Respondent sold and shipped goods and materials valued
in excess of $50,000 from its facilities in the State of
California directly to purchasers located outside that state.
Since no one is in a better position to know the facts of
this allegation of the complaint , and since no explanation
is given of why Respondent lacks such knowledge, I take
the denial to mean that Respondent chose not to go
through its records to ascertain the truth or falsity of the
allegation. Such is not the situation contemplated by
Section 102.20 of the Board ' s Rules and Regulations and
I believe it would be justifiable to consider the
Respondent's denial of this allegation to be frivolous and
to constitute no denial at all. However , the remaining
allegations of the complaint as to jurisdiction, expressly
401
admitted in Respondent's answer, are sufficient to show
that the Board has jurisdiction and to show that its
standards for asserting jurisdiction have been met.'
II. THE LABOR ORGANIZATIONS INVOLVED
The Union is a labor organization admitting to
membership employees of Respondent.
III. THE ISSUES
1. Whether or not a sufficient number of employees in
the appropriate unit signed applications for membership in
the Union to give the Union a majority, which majority is
dependent upon whether (a) two employees were
supervisors and (b) whether or not a certain employee was
on leave of absence.
2. Whether or not, when Respondent refused Union's
request to bargain, it had a good-faith doubt of the
Union's majority.
3. Whether or not, between the date of request to
bargain and date of election, Respondent engaged in
conduct designed to dissipate the Union's majority status.
IV. THE FACTS
A. Organization
In the forepart of June 1968, as a result of a telephone
call from an employee of Respondent, Leonard Loyd,
secretary-treasurer of the Union, agreed to meet with a
group of employees at the home of the son of another of
Respondent's employees, Marie Bigby, on June 19.'
Before that date, Bigby and Bobbetta Brown, another
employee, had set up a going-away party for a departing
employee for the night of June 19, and they invited most
of the employees. Fifteen of the employees attended.
During the evening, Loyd, who was requested to tell the
employees present about the Union, spoke to them and
told them what the Union could do for them and
explained the procedure of signing applications for
membership in order to present them to Respondent in
requesting recognition. He also mentioned the practice of
waiving the initiation fees when the Union was organizing.
Some of the employees wished to sign applications for
membership then and there, but Loyd said that he had not
brought any with him. He said, however, that if the
employees wished to wait, he would telephone an associate
in Chico to see if it would be possible to have any
applications delivered to him. Most of the employees
waited, and, when the application cards arrived, 14 of the
15 employees who had been present signed them and
returned them to Loyd. The fifteenth had had to leave
before the cards arrived. On the following day, Brown
procured signatures on union application cards of three
more employees.
B. Request and Refusal to Bargain
On the morning of June 20, Loyd prepared a letter to
Respondent, claiming a majority, demanding recognition,
and requesting bargaining for a unit including all selling
and nonselling employees, including snack bar or
restaurant employees, but excluding office workers,
'W T. Grant Company. 136 NLRB 152; W T Grant Company, 144
NLRB 1179; W. T. Grant Company, 168 NLRB No. 16.
'All dates are in the year 1968 unless otherwise stated.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guards , watchmen and supervisors as defined in the Act.
With this letter , a recognition agreement form , and the
fourteen signed application cards, Loyd, accompanied by
a business representative , went to the store and presented
the letter , recognition agreement , and cards to the
manager, William Rhea. Loyd asked Rhea to satisfy
himself that each of the signers of the membership
application cards was an employee of the store. According
to Loyd, Rhea looked through the cards and replied that
they were all employees. Rhea testified that he noticed
that the top card was that of Bobbetta Brown and that he
just "ruffled" through the others and then read the letter.
Loyd claimed to have cards for 14 of " the 18" employees
and asked Rhea if he agreed that the Union represented a
majority. The testimony of Rhea and Loyd is conflicting
as to what Rhea replied , but I find that Rhea conveyed
the impression to Loyd that he could not dispute the
Union 's claim . Loyd asked Rhea to sign the recognition
agreement , but Rhea replied that he could not do so but
would have to telephone a supervisor.
In the presence of the two union representatives, Rhea
telephoned the district manager (Wilkes) of the
Respondent and told him what Loyd had said. That
official told Rhea that he would communicate with
Respondent ' s Labor Relations Manager in New York,
that a man would be in town to investigate , and that he
would be in touch with the Union. Loyd gave his card to
Rhea with the request that he be contacted when the
higher company official arrived. After cautioning Rhea
not to discriminate against employees, the union officials
left.
Although Division Manager Wilkes arrived on June 21,
he did not contact the Union . His actions at the store will
be related hereinafter.
On June 26 , Labor Relations Manager Brown, in New
York, wrote the following letter to Loyd at the Union's
address in Chico, California:
This will acknowledge receipt in my office of two letters
under date of June 20: (1) your hand-delivered letter to
Mr. William Rhea - (2) Mr. William Rhea 's letter to
you.'
This is to advise you that the Employer - W. T.
Grant Company - Oroville, Calif. No. 1011 - doubts
that Local 17 has been designated as collective
bargaining representative by an uncoerced majority of
employees in an appropriate bargaining unit.
In order to settle this question concerning
representation , and as evidence of our desire to
promptly settle this issue, I have filed an RM petition,
a photostatic copy of which is attached for your
information.
Please be advised that all further contacts respecting
this matter should be made with the undersigned.
C. The Appropriate Unit and the Union 's Majority
Therein
Although Brown's letter to the Union raised no specific
objection to the unit described in the Union's demand for
recognition , its RM petition, the Respondent defined the
proposed unit as "all full-time and regular part-time
selling and nonselling employees , including office clerical
employees and luncheonette employees , excluding the
store manager , assistant manager , management trainees,
and guards , professional employees , and other supervisors
'No testimony was given by any witness concerning such a letter, and it
was not introduced in evidence.
as defined in the Act." The Union did not contest the
appropriateness of this unit. This is the unit (except for
order of listing) alleged in the complaint. A stipulation
entered into at the hearing gave the unit as substantially
the same, adding only "casual employees" to the
exclusions. Despite the fact that the complaint alleges as
appropriate a unit which includes office clericals, the
General Counsel, in his brief, argues that there are
reasons to exclude office clericals and that a unit without
office clericals may likewise be appropriate. True, office
clericals are sometimes excluded from department store
units.' However, since the General Counsel did not seek to
amend the complaint, since the case was tried without
clear notice to Respondent that a contention would be
made that a different unit should be found, and since I
find that the one alleged is an appropriate unit, I will not
deviate from the complaint even though a unit which
excludes office clericals might also be appropriate. The
fact that the Union described the smaller unit (without
office clericals) in its demand for recognition does not
invalidate its request to bargain, for the variation is a
minor one , the unit claimed was not an improper unit, the
Union held a sufficient number of cards to give it a
majority even in the larger unit,' and Respondent did not
refuse to bargain on the ground that the unit proposed by
the Union was improper.'
In its RM petition, Respondent stated the number of
employees in the unit to be 26, and in a letter dated
November 15 to a field examiner of the Board
Respondent listed 26 names of employees as on the
payroll for the period ending June 20, 1968. However, at
the hearing , Respondent contended that there was another
employee, Edna Weiss, who was on leave of absence from
May 3 to July 18, who should also be counted in the unit.
If included, that would make a total of 27.' But the
Respondent now argues in its brief to the Trial Examiner
that two other employees whose names were on the July
11 payroll, Darlene Millett and Karen Bishop,
"apparently were . . . employees" whose names should be
added to the June 20 list, and, if added, would make 29
employees in the unit as of June 20. This number would
reduce the Union's representation to less than half unless
the cards signed after June 19 were also to be counted.' I
'Stern 's. Paramus. 150 NLRB 799. See also cases cited in dissenting
opinion therein . However, office clericals are more frequently included
Kress & Co, 92 NLRB 15; May Department Store, Kaufmann Division,
97 NLRB 1007; J. W. Mays , Inc. 147 NLRB 968.
'On July 9, 1968, the Union signed a consent election agreement in
which the unit was described as in the Respondent 's RM petition
'See J. H. Rutter-Rex Mfg. Co. 164 NLRB No. 10, Ash Market and
Gasoline . 130 NLRB 641.
'A document produced by Respondent showed that Weiss had been
granted a leave of absence for pregnancy for a period beginning May 3 (or
possibly 13 - the first figure appears to have been erased) and ending July
18. This form contains a printed statement : "This Leave of Absence does
not guarantee re-employment . However , Manager's recommendation
indicates that employee's standard of work warrants re-employment at
termination of leave ." Following this statement on the front of the leave
slip is the parenthetical note: "(See regulation 6, reverse side )." Regulation
6 reads : "It is expected that full-time or part- time employment will be
available at termination of leave , but return to the same position, hours of
work, or salary cannot be assured. In no case can reemployment following
leave of absence be guaranteed (except only in case of employees drafted
into the Service of the United States Government , as provided by law) as
it is not possible to anticipate conditions which may exist at the expiration
of leave " From the foregoing , it would seem that employees on "leave" do
not retain their employee status but merely get preferential hiring rights.
'However, I find no need to consider whether or not the later signed
cards are authentic and should be counted , because I find that the unit
does not exceed 27 at the most.
W. T. GRANT COMPANY
find no evidence that makes it "apparent" that Millett
and Bishop were employees as of June 20. It seems just as
probable that they were new employees as that they were
employees returning from vacation or leave of absence.
Had they been employees on vacation or leave as of June
20, the Respondent could have shown their employee
status merely by producing payroll records of their
employment, but it failed to do so. In its brief,
Respondent attempts to place on the General Counsel the
burden of showing that Millett and Bishop were not
already employees before June 20. The General Counsel
proved a prima facie case as to employees on the payroll
and as to majority. The burden of showing that there were
additional employees not shown on the June 20 payroll
was on the Respondent. It was also incumbent on the
Respondent to show why it failed to include those
employees in its list of employees as of June 20 sent to the
Board' s agent as late as November 15. 1 therefore exclude
Millett and Bishop from the unit. Hence, it is not material
whether or not Weiss is counted, because even if there
were 27 in the unit , the Union held 14 applications for
membership as of the time of the request to bargain, and,
if they were all valid, 14 would have been a majority.
However, Respondent, in its brief, argues that even if
Bishop and Millett are not counted, "Ledford as a
non-supervisor would make the unit 28." Danny Ledford
was concededly either a management trainee or a division
merchandiser. The Respondent excluded management
trainees from the unit described in its RM petition. The
title "division merchandiser" is given to a management
trainee who has been promoted to a supervisory status. It
is a step before that to assistant manager . Management
trainees are hourly paid. Division merchandisers are
salaried. I note that on the June 20 payroll, Ledford is
shown as being on salary. Since Respondent conceded that
management trainee should be excluded from the unit (in
its RM petition), Ledford would be excluded from the unit
whether or not he was a supervisor. However, as I later
find, Ledford was a supervisor at that time and would
have been excluded as such in all events.
D. Authenticity of the Applications for Membership
The General Counsel established the following facts: At
a party on June 19 attended by 15 employees in the
appropriate unit, Loyd, on behalf of the Union, handed
out membership application cards to 14 employees, one
having departed before the cards were available, and he
collected 14 signed application cards back. These cards,
which were introduced in evidence, bear signatures in
individual handwriting. On June 20, Loyd presented those
14 cards to Manager Rhea and gave him an opportunity
to check the signatures if he so desired. Ten of the 14 card
signers (those who signed on June 19 ) testified and
,identified their signatures on the cards. The signatures of
three others who signed on June 19 were identified by
witnesses who testified to being familiar therewith. To
show authenticity of the fourteenth card, that of Jo Ann
Miland, the General Counsel, at the hearing, proposed a
comparison of the signature on Miland 's application card
with her signature on the tally of ballots (dated August 1)
where she admittedly signed as an observer for the
Employer. The signatures were clearly those of the same
person. I find the 14 cards to be properly authenticated.'
Within two days after June 19, three additional employees
signed applications for membership , 10 although these were
not shown to the Respondent at any time before June 26,
403
on which date the Respondent refused to recognize the
Union.
E. Respondent's Claim That Cards Were Procured by
Misrepresentation and by Improper Inducement;
Waiver of Initiation Fees
Respondent in its brief argues that the Union procured
its applications for membership through improper
inducement and through misrepresentation. The alleged
misrepresentation is claimed to be that the employees
were told, before they signed their application cards, that
an election would be held. The improper inducement,
Respondent argues, was a statement made by Loyd at the
June 19 meeting that, if the employees signed cards that
night, they would not have to pay an initiation fee.
1. Misrepresentation
The contention that the application cards were procured
by representation that an election would be held was
based on the testimony of Barbara Drummond, an
employee who attended the June 19 meeting. She was
asked on direct examination by counsel for the General
Counsel what Loyd had said at the June 19 meeting.
Drummond started to answer, "Well, my understanding
was by signing the cards ...." She was interrupted by
counsel for the General Counsel who asked not for her
understanding but for what was said. Drummond replied,
"I don't know exactly what was said." When asked to
give the substance of what Loyd had said, she answered:
"That by signing the cards we would then - they would
talk to the store then, though . . . there would be an
election held to vote the union in or out." Drummond also
testified on cross-examination by Respondent's counsel
that she would not have signed the card but for her belief
that there would be an election. Loyd testified that he told
the employees that, by signing the cards, they were
applying for membership in the union, that such
membership could not be granted unless and until the
union had obtained recognition and a collective bargaining
agreement , but that simply signing the card did not
guarantee them a contract and that the company would
probably insist upon an election.
I credit Loyd's testimony of what he told the employee
group not merely because his testimony was consistent
with that of most of the witnesses who testified to his
statements but also because I believe that a union
organizer , who is familiar with the topics spoken about
and with card- signing and election procedures, would be
more likely to remember what he had said than would
witnesses who were unfamiliar with the subject and with
organizing procedures. I find that Loyd made no
statement that would justify even an impression that the
purpose in signing applications for membership was to
bring about an election . Even Drummond, on whose
testimony Respondent relies, testified that the Union
would "talk to the store" after the applications were
signed . So she presumably understood that there was a
possibility that the Respondent might then recognize the
Union. Her memory was obviously poor and failed to
'See Hercules Packing Corporation , 163 NLRB No . 35 and cases cited
in Trial Examiner's decision . Although the Board reversed the Trial
Examiner on the issue of good-faith doubt , it did not disturb his findings
as to authenticity of cards. See also Henry Colder Company, 163 NLRB
No. 13; McEwen Mfg. Co. 172 NLRB No. 99.
"Respondent attacks the validity of each of these for a variety of
reasons
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
embrace connecting words or explanations for courses of
procedure. Her testimony that she would not have signed
an application card but for her belief that there would be
an election I find to be based either upon a mistaken
subjective understanding, not induced by a
misrepresentation, or based upon subsequently aroused
sentiments not entertained at the time of signing her
application card. In either event, I find no
misrepresentation which would invalidate the application
card either of Drummond or of any other employee who
signed a card at the meeting on June 19, 1968, and I find
no basis for the alleged understanding of Drummond.
2. Improper Inducement
The contention that the signing of applications for
membership was improperly induced by a promise of
benefit - waiver of initiation fee -- was based on the
testimony of former employee Evlyn Ahlstrom and that of
Loyd himself. Ahlstrom testified that she thought Loyd
had said, at the June 19 meeting, that "if the Union went
in, all those who signed cards that evening wouldn't have
to pay an entrance fee."
Loyd on cross-examination was asked, "Now, did you
tell the employees at this meeting [June 19] that if they
signed the cards that night you would waive . . . the
initiation fee?" Loyd replied, "I told them it was standard
procedure in organizing new stores to ask the Board [of
the Union] to either lower initiation fees or waive."
Counsel for Respondent then asked, "Your answer to my
question is, Yes?" and Loyd answered, "Yes." I am not
satisfied, however, that Loyd, in giving his final assent to
the question as put by counsel for Respondent, intended to
alter his answer to the previous question to mean that
signing on that particular evening , only, was a
requirement of a waiver of the initiation fee. That no such
understanding was given to the employees is evident from
the testimony of Sharal Gilman that Bobbetta Brown,
another employee, had solicited her signature on a
membership application card on June 20, the day after the
meeting, and had told Gilman that she should sign it
before Loyd came to see Manager Rhea, because if this
card was not in Loyd's hands "when the store went
Union , it would be held against me about the [initiation]
fees.""
The explanation in Loyd's statement about a waiver of
dues was one of general practice in organizing campaigns
and was, in its effect, no more coercive than a statement
such as that charter members ( i.e. those who compose the
membership when and if an organization comes into
being) do not pay initiation fees. On all the evidence in
the case, I find that the statement of Loyd, concerning
waiver of initiation fees was not intended to be, and was
not in fact, coercive. In any event, I find that this case is
controlled by the Board's decision in Fabricators,
Incorporated, 168 NLRB No. 21, where the Board
adopted, without modification, the findings and
conclusions of the Trial Examiner on this point.'2
"I have not counted , in the Union ' s majority , Gilman 's card, because
Loyd apparently did not have it when he made his claim to recognition
Although signing on June 20 would not , alone , disqualify Gilman 's card, I
have found it unnecessary to pass on cards signed after June 19 because
they were not required , in any event , in order to establish a majority
Hence , I find it unnecessary to decide whether or not Gilman's card would
otherwise be valid if judged by the Board 's reasoning in Sea Life , Inc . 175
NLRB No. 168.
"See also DIT-MCO, Inc ., 163 NLRB No 147 (unreported in published
volumes ); Gorbea , Perez, and Morell S en C, 142 NLRB 475; Gilmore
F. Respondent 's Good or Bad Faith in Re fusing to
Recognize the Union , Interference, Restraint and
Coercion
The question of Respondent's good faith in refusing to
recognize the Union or to bargain with it must be
determined on the basis of all the evidence, but pertinent
to the question are the Respondent's knowledge or lack of
knowledge of any facts that would justify a good faith
doubt of majority and the Respondent's conduct during
the period following the request to bargain with regard to
whether or not Respondent sought by interference,
restraint, or coercion to alienate the employees from the
U nion.
With respect to the Respondent's knowledge of any
facts that might raise a good faith doubt, the record
discloses nothing that would justify a reasonable doubt at
the time the Respondent refused the Union recognition.
The record rather creates the impression that the
Respondent, at the time it wrote its letter of refusal to
recognize the Union, hoped, first, in the period between
the request and the refusal to bargain, to turn up evidence
that might justify a good faith doubt, and, second, lacking
such evidence, to utilize the period between the date of its
refusal to bargain and the date of an election to change
the attitude of the employees toward the Union. Although
Respondent's filing of an RM petition for an election
appears, superficially, to be consistent with a good faith
desire to learn the wishes of the employees, the evidence
shows no reason why the Respondent should not credit the
signed applications for membership, and the evidence as a
whole indicates a utilization of the period of delay to
undermine the Union's majority status.
On June 20, shortly after Loyd had presented the
Union's demand for recognition and the cards signed by
the employees, Manager Rhea went to Marie Bigby, an
employee of 13 years, at her work station and asked,
"Marie, what about this union?" When Bigby replied,
"Yes, what about the union?" Rhea said, according to
Bigby, "You knew about it, didn't you? ... Your name's
on the list."" When Bigby conceded that she knew about
it, Rhea said, "Why did you do that to me? ... I have
always considered you a friend . . . and my right arm .. .
you know, this will mean my job." Rhea, according to
Bigby, said that there was a lump in his heart. Rhea did
not expressly deny Bigby's account, but when he was on
the witness stand for the Respondent, he was asked on
direct examination if he had ever had a conversation with
Bigby relating to his feeling bad or looking bad. Rhea
answered that it had occurred only once - that day or
the next - when Bigby told him that he looked bad and
should not take it so hard that the girls had done this, and
that he had commented that his ulcers were killing him
and "she made some mention about what effect this
[Rhea did not make it clear whether by "this" he meant
ulcers or Union] would have on my job, and I had been
assured by Mr. Wilkes and Mr. Brown and everybody else
that it would not have any effect on my job, which I told
her. I credit Bigby's version of the conversation. The fact
that Rhea should be reassured by so many people suggests
that he required reassurance . However, I infer from all the
evidence that he had not received such assurance by the
date of this conversation.
Industries , Inc. 140 NLRB 100, Amalgamated Clothing Workers v
NLRB , 345 F.2d 264 (C.A. 2); Amalgamated Clothing Workers v
N L R B . 334 F.2d 581 (C.A.D C)
"At the hearing , Rhea testified that the only name he noticed among the
W. T. GRANT COMPANY
On the morning of June 21, District Manager Wilkes
came to the store. Presumedly at Wilkes' request, Rhea
called into an area called "the lounge" several of the
women employees. Those named by Bobbetta Brown as
present were all card signers . When the employees were
assembled in the lounge , Wilkes told them that he had a
question on a slip of paper, which he wanted them to
answer "yes" or "no," that they were not to sign the slips,
and that he and Rhea would leave the room while they
answered. Wilkes then passed out pencils and slips upon
which was typed the question, "Did the Union tell you
that the only reason for you signing a card was to get an
election?" Wilkes, and Rhea then left the room. When the
girls were through, they left their folded slips on a table,
called Wilkes to tell him they were through, and returned
to work.
Wilkes later showed Rhea the slips. They all contained,
"No answer." That same day, Bigby, whose day off it
was, came to the store to pay her bill. While in the office,
Bigby was addressed by Rhea who told her that Wilkes
was there and would like to talk to her. Wilkes handed
Bigby a slip like the ones passed out to the group and
asked her to read it and give a "Yes" or "No" answer.
Bigby wrote "No" on the slip. The Respondent offered no
evidence to indicate that it had received any intimation
that the Union had told employees or any employee that
the only reason for their signing a card was to get an
election.
The General Counsel in his brief to the Trial Examiner
cites cases to support his assertion that the polling was not
done within the safeguards laid down by the Board for
employee polling in Struksnes Construction Co., Inc., 165
NLRB No. 102. However, at the hearing , counsel for the
General Counsel stated that the evidence of the polling of
the employees was offered only to rebut the Respondent's
contention that it had a good faith doubt of the Union's
majority and not to prove a violation of Section 8(a)(1) of
the Act, the polling incident not having been included in
the complaint with other allegations of interference,
restraint, and coercion. Wilkes was not present at the
hearing. Under the circumstances , I do not pass upon
such evidence as an independent violation of Section
8(a)(l) of the Act, but I find that the polling was a
"fishing expedition" conducted in the hope of finding a
basis for refusing to bargain which derogates from
Respondent's claim of good faith doubt of the Union's
majority.
At 5:30 p.m. that same day, June 21, at the end of the
shift, Rhea approached Bobbetta Brown in the
stockrooms, and said, according to Brown's undenied
testimony, "Bobby, I want to talk to you . . . Why are
you doing this to me." Brown asked, "Doing what, Mr.
Rhea." Rhea said, "You know." When Brown protested
that she did not know what he was talking about, Rhea
said, "Why did you join the Union? Why didn't you and
the girls come and talk to me about this?"" Rhea said
that he hoped the girls knew what they were doing and
said that it was possible he might lose his job. Brown said
that the company should take into consideration his
service and all he had done. Rhea replied, according to
Brown, "They are going to wonder what I was doing
while all of this was going on." Rhea added that if he lost
cards handed to him by Loyd on June 20 was that of Bobbetta Brown,
whose card was "on top." The evidence supports an inference that Rhea
knew the names of the card signers, whether from seeing the cards alone or
getting the names from another source . Rhea did not deny Bigby's
testimony as to this conversation.
405
his job, the company would send a "union manager" who
was familiar with a "union store" and the employees
would have a hard road to travel. This conversation lasted
for half an hour and Brown was given overtime pay for
that time. Rhea was not asked about this incident, so it
stands undenied.
In his statements to Bigby and Brown, Rhea left no
doubt that he considered their going to the Union to be an
unfriendly act. In intimating that he might lose his job,
Rhea was portraying the Respondent to the employees as
disposed to disapprove of unions and to take disciplinary
action against persons who were not active in their
opposition to it. His statement to Brown that a manager
familiar with union stores might be sent in and that the
employees would then have a hard time plainly portrayed
the Respondent as an employer who "cracked down" on
employees in a union store. I find that thereby
Respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in
Section 7 of the Act.
Rhea's statement to Bigby and Brown were only the
beginning of a campaign creating an atmosphere of fear
for the employees. Thereafter not only Rhea but his two
assistants , Samuel Kelly and Danny Ledford, made
statements to employees suggesting possible reprisals.
Respondent denied that Kelly and Ledford were
supervisors and, thus, denied that Respondent was
responsible for their statements. However, I find ample
evidence to establish that both were supervisors within the
meaning of the Act. Although Rhea, in his testimony,
sought to obfuscate the evidence of their status as salaried
employees in managerial positions at the time of the
incidents herein related, Respondent's answer to the
complaint admits that they were division merchandisers.
Furthermore, R. A. Brown, Respondent's
employee-and-labor-relations manager, on December 11,
1968, wrote to a Board investigator as follows:
Regarding your question as to the supervisory status of
S. L. Kelly: At all times pertinent, Mr. Kelly was a
Division Merchandiser. The steps leading to store
management are: Management Trainee, Division
Merchandiser, Assistant Manager, Store Manager. A
Division Merchandiser is paid a weekly salary. Absent
particular facts leading to a contrary conclusion, the
Company views Division Merchandiser as an
exempt-from-overtime-executive under FLSA. It is
unlikely that Mr. Kelly actually hired new employees.
While I know of no case in which Mr. Kelly effectively
recommended to the store manager that an employee be
terminated, as a general rule, Division Merchandisers
would have such authority. As indicated in Mr. Kelly's
affidavit, he was in charge of 14 sales departments,
including the employees who worked therein. It was to
Mr. Kelly that these employees would likely go to seek
changes in work assignments. While I know of no case
of Mr. Kelly himself granting such changes, as a
general principle, Division Merchandisers would have
the authority effectively to recommend such changes.
Both Kelly and Ledford had been management trainees
earlier in 1968 when Rhea had had an assistant manager.
When that assistant manager left, Kelly and Ledford were
promoted to Division Merchandisers and received a
weekly salary. Each had a key to the store, as the
assistant manager had had. Each had certain departments
he was assigned to supervise. They gave employees
"Rhea made a similar statement to Nona Boyle on one occasion
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assignments and saw to it that employees performed their
assigned tasks. That each could effectively recommend
termination of employment is evidenced not only by
Brown's letter, quoted above, but also by testimony of
Marie Bigby that , at a regular staff meeting on a
Saturday morning early in June 1968, Rhea spoke of the
termination of an employee named Mary Landry" (who
had apparently been terminated by Rhea upon the
recommendation of Kelly or Ledford) and said that Kelly
and Ledford were supervisors, that the girls would report
to them, and that "if one of the girls was fired he [Rhea]
might disagree with Mr. Ledford and Mr. Kelly, but the
girl was fired dust as much as if he had done it himself."
Rhea's testimony differs only slightly, but he admitted
that Landry had been terminated "upon the
recommendation of employees Mr. Ledford, Mr. Kelly
and myself."
According to employee Nona Boyle, Rhea, in a
conversation with her in mid-July, told her that he "felt
bad" about Mary Landry but that "Mr. Ledford is the
one who advised it and so that is why it was done." Rhea
testified that he made the "final" decision on Landry's
termination, but he did not expressly deny Boyle's or
Bigby's testimony.
On Sunday, June 23 (the store was open for certain
hours on Sundays), Kelly spoke with employee Evlyn
Ahlstrom in her department and, according to Ahlstrom,"
told her that, if they went ahead and joined the Union, it
would not be good for them, that they would lose their
company benefits, their meal allowance (employees who
worked on the 12 to 9 p.m. shift received an hour off and
$1.50 meal allowance ) and their insurance . According to
Ahistrom, Kelly was attempting to compare "company
benefits" with those of the Union. No explanation was
given as to how Kelly knew what "union benefits" would
be before the negotiation of a collective - bargaining
contract. Whatever the basis for Kelly's belief, the form of
his statement, in effect, was designed to carry the
implication that the Respondent would be unwilling to
continue such benefits and would withdraw them if the
Union came in. Although Ahlstrom's memory appeared to
be not overly sharp, she was a credible witness, and, with
no explanation from the Respondent as to Kelly's
statements, I attribute that implication to them and find
his statements to be coercive." Ahlstrom also quoted
Kelly as saying on another occasion that the girls that
started the Union would probably lose their jobs. This
statement likewise was coercive.
On the evening of June 26, Bigby's husband was present
while Bigby was on duty. Rhea approached and asked
Bigby if she were on her break. When she replied, "No,"
Rhea told Bigby's husband that he wished he would not
visit with his wife during working hours. The General
Counsel argues that this was the first occasion in the 5
years that Bigby's husband had visited his wife that Rhea
had objected to the practice. There is, however, no clear
evidence of the frequency of visits by Bigby's husband,"
and there was no evidence that Rhea had known that such
visits were frequent. Presumably after her husband had
left, Bigby asked Rhea what "brought that on." Bigby
quoted Rhea as replying that "he'd been on the phone to
"The June 19 meeting took place at a farewell party for Landry. The
evidence suggests that Landry's termination might have sparked interest in
the Union.
"Kelly was not called as a witness and no explanation was made as to
his unavailability.
"Block-Southland Sportswear. Inc , 170 NLRB No. 101.
New York and they had given him instructions as to how
to handle the situation ... that he had been told they had
to have Polaroid pictures of anyone that was caught
talking to us and to keep a notebook on who came in to
talk to us and also, if they found it necessary, to set up
tape recorders in the stockroom." Rhea denied having
been instructed to set up a tape recorder or take Polaroid
pictures and denied that he had said anything to Bigby
about it. Although I found that Rhea tended to skirt the
truth by his choice of language or by his interpretation of
questions of Respondent's counsel, I am not convinced
that Rhea would make a false positive denial under oath.
On the other hand, I am not prepared to find Bigby's
testimony of this incident to be a complete fabrication. I
believe it probable that Rhea might have said something
somewhat similar to this in connection with a later part of
a conversation hereinbelow related and that Bigby's
failure, initially, to recall the full conversation resulted in
her confusing the order or manner in which such
comments were made by Rhea and that this could have
distorted their meaning to a degree which leads me to
refrain from finding that Respondent was responsible for
the statements above-quoted which Bigby attributed to
Rhea.
On that same evening, however, Rhea told Bigby of an
incident which reputedly took place in another of
Respondent's stores - Bigby thought it was the one in
Concord, California - where "the girls had wanted to go
union . . . but management got word of it and sent in
another manager who fired all eight girls," meaning all
who were involved in the union movement. Rhea did not
deny this. Bigby passed this story on to other employees,
and it became generally known to the employees. I find
that tales of such an incident related by a management
representative, whether based on fact, rumor, or suspicion,
are calculated to arouse an atmosphere of fear - one in
which employees could not exercise a free choice as to
representation and that the telling of such a tale by an
agent of Respondent constituted interference, restraint,
and coercion by Respondent." Although this part of
Rhea's statements was not particularized in the complaint,
it was fairly receivable under Section VI(d) of the
complaint, and Respondent was not denied the privilege of
questioning Rhea, who testified after Bigby, about this
testimony.
On an afternoon, testified by Cynthia Silva to be about
July 8, but which I infer was earlier, Kelly approached
Silva at her post and asked her if she had signed anything.
When she admitted that she had, he asked if she had gone
to "the party [on June 19]." She answered that she had.
He asked if there was anything that he, Ledford, or Rhea
had done that made her want to do "this." When she
replied that none of them had done anything - that they
had always been fair with her, Kelly asked why she had
signed the card. Silva answered that it was for personal
reasons . Kelly asked Silva how many hours she worked a
week. She replied that she worked about 24 hours a week.
Kelly said that that meant she was part-time and asked
her if she did not know that that meant she could not vote
in the union [election], that she would not be covered by
the union contract. Silva told Kelly not to tell her about
"Rigby, asked how many times in the past her husband had visited her
at the store , answered , " I don't know. Numerous times." Counsel for the
General Counsel asked if it had happened several times and Bigby
answered , "Well, not several , but he had."
"House Manufacturing Corporation , 135 NLRB 7, and cases there
cited ; Sylgab Steel & Wire Corp. 162 NLRB 303, 313.
W. T. GRANT COMPANY
the Union because she had worked at a drive-in restaurant
and was "covered by the union" there. Kelly's question
was not a casual one but appears to have been part of a
systematic program of questioning . Such questioning
about attending a meeting at which a union was
organizing and about whether or not an employee has
signed a card for a union, under the circumstances, is
unlawful. It constituted interference, restraint and
coercion. 10
On July 8, at the end of the day, Rhea spoke to
Bobbetta Brown in his office where she had gone to
deliver her daily write-up. Rhea apparently looked at
them and then told Brown that she had made a mistake in
them. He said, according to Brown, that it was now
possible to talk to her about it, but "once the Union
comes in I will have to give you a pink slip, and three
pink slips and you will lose your job." Rhea did not deny
this. I find the statement, indicating a stricter application
of rules after the Union became the employees'
representative, to be coercive in character.:'
On July 9, while Brown was delivering some
merchandise on the floor of the store, Rhea approached
her and said, according to Brown, "Well, Bobby, you can
stop pushing the girls." Brown asked what he meant.
Rhea replied, "You know." When Brown said she did not
know what Rhea meant, that she had not pushed any of
the girls around that they had minds of their own,
according to Brown, Rhea said: "Anyway, you can stop
pushing them , because I have just been informed that an
election is going to be held on August I, and I happen to
know that you signed two girls up at the store. I have
sworn statements, one being Mildrene [Wright]." Rhea
went on to say that, if he wanted to fire Brown, he would
have reason to then. Even if there had been a rule against
solicitation or union activity, which was not shown, Rhea
did not differentiate between union activity on working
time and on nonworking time. I find, therefore, an
implicit threat in Rhea's remark which constituted
interference, restraint, and coercion within the meaning of
Section 8(a)(I) of the Act.
On the afternoon of July 11, Brown was in the
stockroom. Ledford was also there. Rhea came in and
told Brown with apparent relish, "Well, Bobby, one of the
girls told me that if she didn't vote 'yes' for the Union,
you are all going to lose your job[s] and I am afraid she is
right." When Rhea had left, Brown asked Ledford if he
had heard what Rhea had said. Ledford, according to
Brown (Ledford did not testify), said that Rhea had been
threatening and talking to all the girls like that . Rhea's
comment was patently coercive, even if Rhea may have
thought the remark funny, since Brown had no reason to
look upon the statement as a jest."
On August 12 (after the election and after Brown had
returned to work from a vacation), Rhea told Brown that
she had not appreciated the favors he had done her in the
past and that "from now on, you have new rules and
regulations and if you deviate from them one bit, I am
going to get your - [posterior] out the front door,"
meaning that he would discharge her. Among the new
rules Brown was going to have to adhere to were keeping
the freight door shut (she had left it open in the summer
because it was the only source of cool air.), not smoking
in the stock room , and not having unauthorized visitors.
At the same time, he told her that, if she made any
"Sanitary Laundry & Dry Cleaning Co., Inc., 171 NLRB No. 123.
" Maram , 139 NLRB 1040, 1044.
"A P. Green Firebrick Co., 140 NLRB 1067.
407
mistakes, he was going to give her a pink slip and that if
she got three pink slips he was going to terminate her.
While the Respondent would be justified in adopting
reasonable rules for purposes of efficiency or safety, there
was, in Rhea's tone, a note of retaliation for Brown's part
in the union movement. Because of this, I find that this
remark was prompted by Rhea's desire to retaliate
because of Brown's part in supporting the Union. Hence,
I find it, along with his remarks to Brown on July 8, 9,
and 11, constitutes a threat of hardship or discharge for
supporting the Union and to be violative of Section
8(a)(1) of the Act.
A few days before the August I election, Kelly
approached employee Helen Thatcher just after she had
checked out for the day and told her it was none of his
business and that she did not have to answer if she did not
wish to but he wanted to know why she had signed the
application card to join the Union. He said he knew she
had. He asked if she had any complaints about the way
she had been treated. Thatcher replied that she had no
complaints but that she had heard and seen some of the
problems of the other girls and she was going along with
them. Kelly said he had not known that Thatcher was that
stupid - that he thought she was smarter than to be a
follower. He asked if she did not have a mind of her own
and told her that the Union would not help her, that she
would be better off without it. Thatcher said that she did
not believe that, because she had belonged to the Union
and thought it was beneficial. Kelly then asked if she did
not know that if the Union went in and wages had to be
raised, since the store was not meeting its quota, that they
might have to cut down on the payroll and she would be
discharged since she was one of the last to be hired, and
he asked her what she would do then. Considering all the
evidence of this type, I find Kelly's remarks were an
attempt to brow-beat Thatcher and to make her
apprehensive. In the context of the general questioning
and in the atmosphere of fear already engendered, I find
Kelly's questioning and remarks to be violative of the Act."
At a regular staff meeting on a Saturday morning in
late July, attended by the regular employees working that
day, Rhea told the employees that he did not feel that
they needed a union (435) that the Union would not
benefit them, that he, himself, had a union card and that
he had never been benefited.=" He said that three or four
girls were "up for raises" but the raises had been frozen
because of the Union. I infer that Respondent was well
enough informed to know that wage increases based on
individual length of service or on merit are not deemed to
be illegal inducements.=s In fact, the withholding of such
increases because of a union's request for recognition has
been held, in itself, to be violative of the Act.36 I find,
therefore, that the Respondent, by Rhea's statement,
interfered with , restrained , and coerced its employees in
the exercise of their rights guaranteed in Section 7 of the
Act.17 Rhea further told the employees that the Union did
not have as good sick benefits as the Respondent's and if
"Crystal Tire Co. 165 NLRB No. 82
"Rhea had a card from a butchers' union . According to Rhea, what he
told the employees was in response to questions they put to hun. None of
the employees who testified mentioned any questions put by them . In view
of the tenor of some of Rhea's remarks , I find it immaterial whether or
not those remarks were prompted by questions.
"International Ladies Garment Workers ' Union , 143 NLRB 1168.
"International Ladies Garment Workers' Union . AFL-CIO, 142 NLRB
82.
"Since no evidence was adduced to show that Respondent , in fact,
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union went in there would be no pay for the first day
of sickness . However , Rhea testified that he had said
merely that he could not guarantee that the employees
would or would not receive pay for the first day of
sickness . Bigby quoted Rhea as saying this was "subject
to the Union ' s approval ." According to Bigby, Rhea said
that the Respondent had three contracts that they used in
negotiating with the Union and that one of those would be
chosen , presumably by the Union . Rhea added that the
Respondent , under its manual , was already authorized to
require a doctor ' s certificate , in any case of absence for
sickness . 29 In some form of language , Rhea said that, if
the Union went in , the employees would no longer receive
their dinner allowance . A number of employees testified to
this latter statement . In each instance , the statement
appeared to be unconditional . Rhea did not specifically
deny the statement . I consider it possible that Rhea had
seen a union contract , perhaps one of the three forms he
mentioned , and had seen no provision therein for dinner
money. However , as quoted , Rhea made a flat statement
that there would be no dinner money if the Union came
in. Since Rhea did not make an adequate explanation or
qualification of his statement , I find that the employees
were justified in interpreting his statement as a form of
reprisal and I find the statement to be coercive.
In the same meeting , Rhea stated that if the Union
went in and if the raises that the Union would demand
were not warranted by business conditions , the part-time
employees would be terminated and that this would mean
that the full -time girls would have to take over the time of
the part- time girls . I interpret this statement to be a mere
prediction of economic consequences and within the
bounds of free speech.
During the morning of that same day, after the
meeting , Rhea told Bigby that it was not too late to
change her mind and that , if she did , the list with her
name on it would be quashed . Rhea denied having told
Bigby this. Bigby asked whether "union agitator " followed
her name. Rhea laughed. The tenor of these remarks by
both Rhea and Bigby suggests banter. Whether or not
Rhea made such statements , I find no violation of the
Act.
G. Conclusions and Remedy
On the basis of the foregoing findings, I conclude that
by words and acts found herein to be coercive the
Respondent has violated Section 8(a)(1). I also find that
Respondent had no good-faith doubt of the Union's
majority and that by refusing to recognize the Union, the
Respondent rejected the underlying principles of the Act
in violation of Section 8(a)(5) thereof.
The objections to the election I find to be sustained to
the extent that I have herein found Respondent's conduct
to constitute interference, restraint, and coercion. Such
coercive conduct, I find, prevented the existence of an
atmosphere essential to an unrestrained exercise of the
rights guaranteed in Section 7 of the Act, and to a free
election. I shall recommend therefore that the results of
the election be set aside, that all proceedings in Case
20-RM-1083 be vacated, and that the petition of the
Respondent therein be dismissed.
withheld any merit or periodic wage increases, I refrain from ordering
payment thereof
"There is a suggestion in this that the Respondent had not required a
doctor's certificate in the past
Since I have found that Respondent engaged in certain
acts violative of Section 8(a)(l) and (5) of the Act, I shall
recommend an order that Respondent cease and desist
therefrom and take appropriate steps designed to
effectuate the policies of the Act.
Having found that the Union on June 20, 1968,
represented a majority of Respondent's employees in an
appropriate unit, that it requested recognition and
bargaining, and that the Respondent rejected such request
without having a good-faith doubt of the Union's majority
but having, on the contrary, a purpose to utilize the period
of delay before an election to undermine the Union's
majority, I shall recommend that Respondent be ordered
to bargain collectively with the Union upon request.29
Upon the foregoing findings of fact and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act
3. All full-time and regular part-time selling and
non-selling employees, including office clerical employees
and luncheonette employees of Respondent at its Oroville,
California, location, excluding the store manager, assistant
manager , division merchandisers , management trainees,
casual employees, professional employees, guards and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. On and at all times since June 20, 1968, the Union
was, and has been, the exclusive collective bargaining
representative of Respondent's employees in the foregoing
appropriate unit within the meaning of Section 9(a) of the
Act
5. By refusing upon request on and after June 20, 1968,
to recognize and bargain with the Union as the duly
designated representative of the employees in the
appropriate unit, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
6. By such refusal to bargain and by otherwise
interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the
Act, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. 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 foregoing findings of fact and conclusions of
law, and upon the entire record in the case I recommend
that the Board adopt the following order-
W. T. Grant Company, its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Retail Clerks
Union Local 17, Retail Clerks International Association,
AFL-CIO, as the exclusive representative of the
"N.L.R B v Gissel Packing Co , 394 U S 575; Bernel Foam Products,
Inc., 146 NLRB 1277, Thomas Jordan , Inc, 169 NLRB No. 98, Waltham
Lime & Cement Co., 170 NLRB No 64, Ayer Lar Sanitarium, 175
NLRB No. 119; No!! Motors. Inc, 168 NLRB No. 137
W. T. GRANT COMPANY 409
employees in the unit herein found appropriate.
(b) Expressly or impliedly threatening employees with
discharge or loss of employment or deprivation of existing
benefits because of their support of the Union.
(c) Coercively interrogating employees regarding their
signing of applications for membership in the Union or
regarding their union sentiments.
(d) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, designed to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union
as the exclusive representative of its employees in the
appropriate unit herein described and, if an understanding
be reached, embody such understanding in a signed
agreement.
(b) Post at its premises in Oroville, California, copies of
the attached notice marked "Appendix."" Copies of said
notice, to be furnished by the Regional Director for
Region 20 of the Board shall, after being duly signed by
an authorized representative of Respondent, be posted by
it immediately upon receipt thereof and be maintained by
it for a period of 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or coerced by any other material.
(c) Notify said Regional Director , in writing , within 20
days from the date of receipt of this Decision and
Recommended Order, what steps it has taken to comply
herewith."
IT IS FURTHER RECOMMENDED that the complaint be
dismissed as to any allegations not found herein to
constitute an unfair labor practice.
IT IS FURTHER RECOMMENDED that Respondent's
Petition for an election in Case 20-RM-1083 be dismissed
and that the results of the election and all proceedings
therein be vacated.
"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."
"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 20, in writing , within 10 days from the date of this Order, what
steps it has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT refuse to bargain with Retail Clerks
Union, Local 17, affiliated with Retail Clerks
International Association, AFL-CIO or with any other
labor organization which represents a majority of our
employees in an appropriate unit.
WE WILL NOT coercively question our employees
about their union membership, activities, or sentiments.
WE WILL NOT threaten to withdraw or actually
withdraw any benefits or privileges or adversely to
affect employment in reprisal for our employees'
joining or supporting a labor organization.
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of the right 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 to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in Section
8(a)(3) of the Act.
WE WILL, upon request, bargain collectively with
Retail Clerks Union, Local 17, affiliated with Retail
Clerks International Association, AFL-CIO, and, if an
understanding is reached, we will embody such
understanding in a signed agreement. The
collective-bargaining unit is:
All full-time and regular part-time selling and
nonselling employees, including office clerical
employees and luncheonette employees of Respondent
at its Oroville, California, location, but excluding the
store manager, assistant manager, division
merchandisers, management trainees, casual
employees, guards and supervisors as defined in the
Act.
Dated By
W. T. GRANT COMPANY
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 13040 Federal
Building , 450 Golden Gate Avenue, Box 36047, San
Francisco, California 94102, Telephone 556-0335.