Wrangler Wranch

National Labor Relations Board - Board Decisions

Sep 28, 1977

232 N.L.R.B. 527 (N.L.R.B. 1977)

WRANGLER WRANCH
Goodfriend Western Corp., d/b/a Wrangler Wranch
and Local 1291, Retail Store Employees Union,
a/w Retail Clerks International Association, AFL-
CIO. Case I-CA-I 1087
September 28, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On June 9, 1977, Administrative Law Judge Robert
A. Giannasi issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs, and the Respondent filed an answering brief
to the exceptions of the General Counsel and the
Union, and cross-exceptions to the Administrative
Law Judge's Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
We agree with the findings of the Administrative
Law Judge that the extent and character of the
Respondent's misconduct makes a bargaining order
the appropriate remedy in this case. We also agree
with the findings of the Administrative Law Judge
that at the time the Union, Local 1291, made its
demand for recognition on September 30, 1975, it
had obtained valid signed authorization cards from
10 of the 15 employees in the appropriate unit in the
Respondent's Washington Street store.
However, we are unable to agree with the findings
and conclusions of the Administrative Law Judge
that the Respondent is excused from its bargaining
obligations because, several months subsequent to
the demand for bargaining, Local 1291 merged with
three other local unions of the International into
Local 1445 and does not currently exist as a separate
entity. The Administrative Law Judge held that even
though the Respondent violated Section 8(a)(5) and
(1) of the Act by failing to bargain with the Union on
and after October 1, 1975, a bargaining order should
not issue in this case since such an order would run
in favor of Local 1445, the successor local, after an
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
232 NLRB No. 89
election in which the signers of the authorization
cards had no opportunity to voice their choice.
The record shows that Local 1291 began orga-
nizing the Respondent's Washington Street store the
beginning of September 1975. By the end of
September it had obtained 10 signed cards from unit
employees. Eight of the 10 signed authorization cards
bore a heading which included the title: "Retail
Employees Union Local 1291, RCIA, AFL-CIO."
The text of the cards provided a broader authoriza-
tion for representation and stated that the signer
authorized:
Retail Clerks International Association, AFL-
CIO, or its chartered Local to represent me for
purposes of collective bargaining ....
Two of the authorization cards did not have the
name of a local in its heading, but only the name of
the "Retail Clerks International Association," and
similarly provided that the International or its
chartered local union was authorized to represent the
employee who had signed the card for collective-
bargaining purposes.
The Respondent not only refused to recognize the
Union, but, a few days later, as fully discussed in the
attached Decision, discriminatorily discharged 11
employees in the appropriate unit in violation of
Section 8(aX3) and (1) of the Act.
Almost a year after the above demand for
recognition, four local unions of the Retail Clerks
International Association in the Commonwealth of
Massachusetts, including Local 1291, decided to
merge. The largest of the four, Local 1445, was to
survive. A notice was sent to all members of the
Union and the members voted overwhelmingly by
secret ballot to merge into a single local, Local 1445.
Before the merger, Local 1291 had approximately
1,300 members. The surviving Local 1445 now has
about 13,000 members. There is no contention that
the merger election was contrary to the Union's
constitutional requirements and bylaws, or that
proper notice was not given to all members of the
locals, or that all eligible members were not given full
opportunity to vote. It is also undisputed that the 10
employees who had signed authorization cards were
not given notice and in any event would not have
been eligible to vote in the merger election since they
were not and could not have been members of the
Union because of their unlawful discharges by
Respondent.
Contrary to the Administrative Law Judge we are
unable to agree that the merger of Local 1291 into
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), cnfd. 188 F.2d 362 (CA. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
527
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 1445, 1 year after Local 1291's bargaining
demand and its apparent loss of identity, voids the
authorization cards and undermines the basis for the
Union's claim of majority status. While we agree that
in the usual merger situation all eligible employees
should be notified and have the opportunity to vote,2
here it was the Respondent's unfair labor practices,
not the Union's bylaws or procedures, which pre-
vented the employees from becoming union members
and receiving the same rights and privileges as
members of the four locals in question. At the time
the Union made its demand, clearly supported by a
majority of the employees in the appropriate unit,
Local 1291 was the bargaining representative and
remained so for over a year. To disregard the
intentions of the employees in the circumstances of
this case would permit the Respondent to benefit as
the result of its unfair labor practices.3
In reaching our conclusion, we are also persuaded
by the language of the cards which does not narrowly
limit the authorization to bargain to Local 1291. As
noted above, the cards designate the "Retail Clerks
International Association, AFL-CIO," or "its char-
tered Local Union" to represent the employees for
purposes of collective bargaining. We interpret such
general designation to indicate approval of a valid
successor local. Particularly is this so because the
record shows that the former president of Local 1291
continues to be in charge of servicing the type of
retail store unit involved herein and the day-to-day
relationship between the employees in the Washing-
ton Street store and the Union will continue in most
major respects unchanged by the merger.
Additionally, we have considered the problems of
requiring unions to give notice and the right to vote
to employees who have authorized one local to
represent them when that local merges with another
local a year after the original bargaining demand and
after the majority of the employees who have signed
authorization cards have been discriminatorily dis-
charged. Under the unusual circumstances of this
case, it would not be practical or reasonable to
require or allow such employees whose status is in
litigation, and indeed whose whereabouts may not be
known, to participate in the merger vote.
For the above reasons, we do not adopt the
Administrative Law Judge's recommendation that
the 8(a)(5) and (1) allegations concerning the merger
be dismissed, and, as provided below, shall order the
Respondent, upon request, to recognize and bargain
with Local 1445, the successor to Local 1291, as the
2 Cf. Amoco Production Company, 220 NLRB 861 (1975).
3 Were the propriety of the merger of the locals directly in issue, Member
Jenkins, in accordance with his dissent in North Electric Company, 165
NLRB 942 (1967), would not regard it as valid because only union members
were allowed to vote on the merger. But in this situation, where the unlawful
exclusive representative of the employees of the
appropriate unit in the Respondent's Washington
Street store.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the Administrative
Law Judge's Conclusions of Law 4 and 5:
"4. By failing and refusing to bargain with Local
1291 on September 30, 1975, and until its merger
about January 1977 into Local 1445, Respondent
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the Act."
"5. By failing and refusing to bargain collectively
with Local 1445, successor to Local 1291, after
approximately January 1977, Respondent engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the Act."
THE REMEDY
Having found that the Respondent has refused to
recognize and bargain with Local 1291 and its
successor Local 1445 of the Retail Store Employees
Union, a/w Retail Clerks International Association,
AFL-CIO, we shall order it, upon request, to
recognize and bargain with Local 1445 as the
exclusive representative of all employees in the
appropriate unit set forth in the Administrative Law
Judge's Decision and, if an understanding is reached,
embody such understanding in a written signed
agreement.
Having also found that Respondent discriminatori-
ly terminated 11 of its employees in October 1975, we
shall order it to offer them immediate, full, and
unconditional reinstatement to their former jobs or,
if these jobs no longer exist, to substantially
equivalent ones without prejudice to their seniority
and other rights and privileges, and to make them
whole for any loss of earnings suffered by reason of
such discrimination, by paying them sums of money
equal to the amount they would have earned from
the date of the discrimination against them to the
date of Respondent's offer to reinstate them as
aforesaid, less their net earnings during that period,
in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with
interest thereon, calculated in the manner set forth in
conduct of Respondent precluded voting by the affected employees, it is
more important in effectuating the policies of the Act that the Respondent
not be allowed to profit by its own breach of the law, and he therefore joins
in this decision.
528
WRANGLER WRANCH
Isis Plumbing & Heating Co., 138 NLRB 716 (1962),
and Florida Steel Corporation. 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Goodfriend Western Corp., d/b/a Wrangler
Wranch, New York, New York, its officers, agents,
successors, and assigns, shall take the action set forth
in the recommended Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer to Maria Cammarata, John Clinton,
Steve Cole, Everett Hoag, Eros Lamb, Emery
Nesmith, Robin Smith, Phillip Lanigan, Curtis Boyd,
George Terzis, and Michael Thompson, if this has
not already lawfully been accomplished, immediate
and full reinstatement to his or her former position
or, if that job no longer exists, to a substantially
equivalent one, without prejudice to the seniority and
other rights and privileges previously enjoyed by
each of them; and make each whole for any loss of
pay, including any raises which may have been given
to employees, that he or she may have suffered by
reason of their unlawful discharge, with interest
thereon."
2. Insert the following as paragraph 2(b) and
reletter the subsequent paragraphs accordingly:
"(b) Upon request, recognize and bargain with
Local 1445, the successor to Local 1291, as the
exclusive representative of all part-time and full-time
employees at Respondent's Washington Street, Bos-
ton, Massachusetts, store, excluding management
trainees, guards, and supervisors as defined in the
Act, and,5 if an understanding is reached, embody
such understanding in a written signed agreement."
3. Substitute the attached notice for that of the
Administrative Law Judge.
' In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods pnor
to August 25. 1977, in which the "adjusted pnme interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
I The General Counsel and the Union contend that the bargaining order
should run to the Respondent's three-store Boston operations on the theory
that this would have been the normal accretion if the Respondent had not
engaged in its illegal practices. The issue was not fully litigated and we find
that there is insufficient basis for making such a finding.
APPENDIX
NOncE 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 employ-
ees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all these things.
WE WILL NOT do anything that interferes with,
restrains, or coerces employees with respect to
these rights.
WE WILL NOT interrogate employees concern-
ing their union membership, activities, or sympa-
thies or those of other employees.
WE WILL NOT threaten employees with dis-
charge or other reprisals if they select any labor
organization as their collective-bargaining repre-
sentative or engage in any other union activities.
WE WILL NOT promise benefits to employees for
giving up union activities or union support.
WE WILL NOT discharge employees because
they engage in union activities.
WE WILL NOT discourage employees from
supporting or joining any labor organization by
any discrimination affecting their tenure or
conditions of employment.
WE WILL NOT refuse or fail to bargain collec-
tively in good faith with Local 1445, Retail Store
Employees Union, a/w Retail Clerks Internation-
al Association, AFL-CIO, successor to Local
1291, as the exclusive representative of all
employees in the following appropriate unit:
All full-time and part-time employees em-
ployed at the Respondent's Washington
Street, Boston, Massachusetts, store, exclud-
ing management trainees, guards, and super-
visors as defined in the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed them by Section 7 of
the National Labor Relations Act.
WE WILL, upon request, recognize and bargain
with Local 1445, the successor to Local 1291, as
the exclusive representative of all employees in
the above-described appropriate unit and, if an
529
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
understanding is reached, embody it in a signed
written agreement.
WE WILL offer Maria Cammarata, John Clin-
ton, Steve Cole, Everett Hoag, Eros Lamb, Emery
Nesmith, Robin Smith, Phillip Lanigan, Curtis
Boyd, George Terzis, and Michael Thompson full
and immediate reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent ones without prejudice to their seniori-
ty or other rights and privileges, and WE WILL
make them whole for any earnings they lost
because of our discrimination, with interest.
GOODFRIEND WESTERN
CORP., D/B/A
WRANGLER WRANCH
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge: This
case was heard before me in mid-February 1977, in Boston,
Massachusetts, upon a complaint which issued originally
on December 3, 1975. The complaint alleges that Respon-
dent violated Section 8(a)(1) of the National Labor
Relations Act, as amended, by various acts of coercion and
Section 8(a)(3) and (1) by discriminatorily discharging
employees for antiunion reasons and that its refusal to
bargain with the Union 1 which was designated as bargain-
ing agent by a majority of the employees was, when
considered together with its other unfair labor practices,
violative of Section 8(a)(5) and (1) of the Act and such
conduct requires a remedial bargaining order. The com-
plaint was amended in several particulars. 2 Respondent
denied the critical allegations of the complaint. Both
Respondent and the General Counsel filed proposed
findings of fact and conclusions of law and supporting
briefs. 3
Upon the pleadings, the entire record in this case and
from my observation of the witnesses and their demeanor, I
make the following:
FINDINGS OF FACT
I. LABOR ORGANIZATION AND BUSINESS OF
RESPONDENT
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
'Local 1291, Retail Store Employees Union, a/w Retail Clerks
International Association, AFL-CIO.
2 One of the amendsments involved an additional violation by virtue of
the discriminatory discharge of employee John Cyrus. The other two dealt
with the proposed bargaining order: one sought the bargaining order either
in a three-store .unit of Respondent's employees or the one-store unit
mentioned in the original complaint; another sought to have the order run
in favor of Local 1445 of the Retail Clerks International Association which
had, by the time of the hearing, taken over the Union by merger.
3 After the issuance of the original complaint on December 3, 1975,
Respondent sought investigatory material from the General Counsel under
Respondent is a New York corporation with its principal
office and place of business located at 381 Park Avenue
South, New York, New York. Respondent operates three
retail stores in Boston, Massachusetts. Respondent annual-
ly sells goods valued in excess of $50,000 which it
purchases from suppliers outside the Commonwealth of
Massachusetts. Accordingly, I find, as Respondent admits,
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Facts
I. Background
Respondent's first retail venture in the greater Boston
area was the Wrangler Wranch store which opened at 349
Washington Street, Boston, in August 1974. It was opened
and managed by Irving Shapiro who is now Respondent's
area manager. Shapiro hired a number of employees at the
time. Louis Barbaro, Sterling Dunn, and Malcolm Free-
man were hired with the potential, announced to them by
Shapiro at the time, of becoming managers at any new
stores which might open. Plans for two new stores became
definite in June or July 1975. They were located at 651
Boylston Street, Boston (the Copley Square store), and 57
Boylston Street, Cambridge (the Harvard Square store).
The construction and renovation necessary to prepare the
new stores was contracted out to another firm; Shapiro
kept abreast of the progress of the construction and visited
the sites periodically. The stores were originally scheduled
to open in August 1975, but they were not in fact opened
until mid-October. The Harvard Square store opened on
October 16, 1975, and the Copley Square store opened on
October 23. As area manager, Shapiro now has general
authority over all three Boston area stores. Barbaro
became the manager of the Washington Street store in mid-
September 1975; Freeman of the Cambridge Square store
and Dunn of the Copley Square store on or about October
6, 1975.
In late August and September 1975, Respondent began
hiring employees at the Washington Street store in addition
to the existing staff. These employees worked primarily on
the second floor where they unpacked, ticketed, and sorted
the merchandise which had been sent to the Washington
Street store but was to be shipped to the new stores as they
opened. Some of these employees also worked on the sales
floor of the Washington Street store as clerks and in the
basement storage areas; also, at times, the regularly
assigned salesclerks worked on the second floor preparing
merchandise for the new stores. 4
the Freedom of Information Act. After demnal by General Counsel,
Respondent filed a complaint in Federal distnct court seeking an injunction
requinng the Board to produce the material and prohibiting further Board
proceedings pending production of the material. The district court granted
the injunction. Subsequently, the United States Court of Appeals for the
First Circuit reversed the district court and Respondent petitioned for
certiorari. The petition was denied on October 18, 1976.
4 On or about September 30, 1975, in addition to Shapiro, the following
were on the payroll at the Washington Street store: Louis Barbaro, Malcolm
Freeman, and Sterling Dunn who the General Counsel alleges were
supervisors within the meaning of the Act; Terence Westgate, Gene
530
WRANGLER WRANCH
The additional employees, who worked primarily on the
second floor, were hired by Sterling Dunn and Malcolm
Freeman. Each hired about six or seven employees. They
also had the authority to fire these employees.5
I reject Shapiro's conclusionary and self-serving testimo-
ny that the employees hired by Dunn and Freeman and
carried on Respondent's Washington Street store payroll
were, in his words, "temporary" employees. I did not find
Shapiro to be a reliable witness on this or any other
disputed issue in this case. For example, his testimony on
the temporary employee issue was accompanied by
gratuitous, self-serving statements. The second floor em-
ployees, who were hired by Dunn and Freeman, were not
told that they were hired as temporary employees simply to
do "stock work" at the Washington Street store as Shapiro
implied. Their testimony indicates that they fully expected
to be employed indefinitely and to transfer to the new
stores when they opened. And neither Dunn nor Freeman
was called as a witness to rebut their testimony. Moreover,
Shapiro also conceded-albeit grudgingly-that these
employees were hired with the possibility that they would
be placed in the new stores. His affidavit was less
ambiguous. It states:
Freeman and Dunn engaged in the hiring of employees
during the months prior to the discharges early in
October in order to choose their own staff for the new
stores which they would be managing.
Shapiro recanted a bit on the witness stand by stating that
the use of the word "staff" was incorrect. It is clear,
however, that Freeman and Dunn had authority to hire
and supervise employees even though the two new stores
had not yet opened. It is likely that they had this authority
in order to choose their own staffs after the new stores
opened. Finally, it is implausible that the second floor
employees were hired by Respondent solely as temporary
help in view of its contemporaneous use of other temporary
help not carried on its payroll. Shapiro hired temporary
employees on a daily basis from the Handy Andy Olsten
Temporary Services. Shapiro estimated that he would
utilize about five or six Handy Andy employees daily
during September 1975.
In short, there was no credible evidence that a definite
terminal date was imposed on the employment of the so-
called second floor employees. Thus, in accordance with
the testimony of employees and contrary to Shapiro's
testimony, I find that the employees hired by Dunn and
Freeman, who were carried on Respondent's payroll and
who worked on the second floor of the Washington Street
store preparing merchandise for the new stores, were
Morand. and Michael Guiken who the General Counsel asserts were
management trainees; Phillip Lanigan. Michael McLeod, Curtis Boyd, and
Emery Nesmith who Respondent contends were salesclerks at the Washing-
ton Street store; Ida Hone, the cashier who worked 25 hours per week; and
Stephen Cassis. a regular part-time employee who worked only on
Saturdays. The other employees, who worked primarily on the merchandise
on the second floor, but some of whom also worked on the sales floor were
George Terzis. John Clinton, Stephen Cole. Robin Smith, Eros Lamb.
Michael Thompson. Everett Hoag, and Maria Cammarata. Kevin White-
house, another employee, was on sick leave at the time. Another employee.
John Cyrus, a salesclerk, was employed from about August 20 until
September 19, 1975, when he was discharged.
regular, full-time employees, not temporary employees. See
M. J. Pirolli & Sons, Inc., 194 NLRB 241, 250 (1972).
2. The Union's organizational campaign
Union Organizer Robert Lamothe visited the Washing-
ton Street store on September 5, 1975, and spoke to
employees M-Leod, Westgate, Morand. and Boyd. La-
mothe returned on September 8 and I I with other union
organizers. They passed out union literature to the
employees and Lamothe and another organizer spoke to
Shapiro. Shapiro told them he did not think they should be
in the store bothering his employees but suggested that the
Union post a notice in the store notifying employees of a
scheduled union meeting. Lamothe and another union
representative returned the next day with the notice for the
meeting, which was to be held on September 18. Shapiro
posted it in the store.
The union meeting was held on September 18 at the
Union's office in Boston. Four employees, Cyrus, West-
gate, McLeod, and Nesmith, attended the meeting and
signed union authorization cards at this time. As Westgate
walked from the store to the meeting place, he was
accompanied part of the way by Supervisor Barbaro who
was making the night deposit at a bank near the site of the
union meeting. They walked within view of the other
employees who were attending the meeting.
The day after the union meeting, Barbaro asked
employee Ida Horne if she had signed a union card and if
she knew who had attended the meeting. She replied that
she had not signed a card and that she did not know who
had attended the meeting.
On September 29, Lamothe was standing on the sidewalk
outside the Washington Street store. There is conflicting
testimony as to whether Lamothe was on the sidewalk
some distance away from the store's entrance or actually at
the entrance. In any event, Supervisor Malcolm Freeman
came outside and asked Lamothe whom he was waiting
for. Freeman told Lamothe that he did not want him
"hanging around harassing employees' and that "he was
going to harass" Lamothe. Freeman then went inside the
store and came outside again with Hoag and he asked
Hoag what conversations he had had with Lamothe. Hoag
replied that he asked Lamothe for union literature to read
and distribute to other employees. Lamothe protested
Freeman's interrogation of Hoag. Another employee,
George Terzis, walked out of the store about this time.
Lamothe asked Terzis if they could meet to discuss the
Union. Freeman broke in, telling Terzis that he did not
want Terzis meeting Lamothe outside the store. He told
s The parties stipulated as to the supervisory status of Louis Barbaro.
Respondent, however, denied supervisory status as to Freeman and Dunn
before they became managers of the Copley Square and Harvard Square
stores. Shapiro was very evasive in his testimony about their supervisory
status. but he finally admitted that in September they had authority to hire
and fire employees. They actually did hire employees in September. Neither
Freeman nor Dunn testified, but many employees testified that the)
directed employees in what I find to be an independent and responsible
manner. Accordingly, I find that Freeman and Dunn were supervisors
within the meaning of the Act at all material times in September 1975. and
thereafter
531
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them to meet at some other time and some other place.
Terzis and Lamothe met later that day at lunch.
Shortly after this incident, Barbaro asked Hoag to act as
liaison between Lamothe and the store employees in order
to avoid a further disturbance. Hoag refused. Later the
same afternoon, Freeman talked to Hoag about the Union.
He told Hoag that if the Union got in "we would not be
allowed breaks that we had had in the store, an extra
fifteen minutes at lunch, no kind of coffee breaks, because
the breaks would be regulated by the Union." He also
stated the Union "would regulate our wages and raises, our
pay scale raise, and that there would be no room for
advancement and there would be no chance of getting into
management if we joined the Union."
3. The Union's demand for recognition and
Respondent's termination of II employees
On September 30, 1975, Lamothe and Union Organizer
Bob Patterson returned to the store with a letter demand-
ing recognition which they presented to Shapiro. They
offered to submit to a voluntary card check which Shapiro
refused. Shapiro read the letter and then told Lamothe and
Patterson that the employees then working in the store
probably would not be there after Thursday, October 2.
The Union's letter asserted a majority and demanded
recognition in the following unit: "All full and part-time
employees working in the employer's, Wrangler Wranch
store located at 349 Washington Street, Boston, Massachu-
setts, and excludes Store Manager, Supervisor and guards
as defined in the LMRA of 1947 as amended."
Shapiro sent the letter to the Respondent's corporate
counsel in New York, who responded with a letter dated
October 6, 1975, requesting the Union to submit a list of all
employees who had signed cards to counsel for verification.
The next day, October 1, Barbaro approached employees
Westgate and Horne at the sales desk and said to them, "I
hope none of you people signed those cards because if you
did you're out of here. . . You didn't sign cards, did you?"
They denied that they did. Barbaro also told Home that it
was a good thing that she did not have any involvement
with the Union because "Mr. Shapiro was very ner-
vous. . .[about] union activities regarding the employees
and the Union. And that everyone was going to be
terminated." Later that afternoon, Barbaro remarked to
Westgate, "I really hate to let those people go. You know
there are some really good people. I hate doing Irving
Shapiro's dirty work."
On October I and 2, 1975, Shapiro laid off or terminated
employees Boyd, Hoag, Nesmith, Lanigan, Clinton, Cole,
Smith, Terzis, Cammarata, Lamb, and Thompson. Accord-
ing to Shapiro, McLeod, Boyd, Lanigan, and Nesmith were
salesclerks assigned to the Washington Street store; the
others were hired by Dunn and Freeman to stock
merchandise for the new stores. Shapiro also testified that
he talked to Respondent President Steven Goodfriend on
8 This is based on the testimony of Lanigan whom I credit over Shapiro
who denied he mentioned the Union in his conversation with Lanigan.
Shapiro did not impress me as a reliable witness and Lanigan, whose
testimony is consistent with Nesmith's uncontradicted and credible
testimony with respect to the real reason for the layoffs, had the least to gain
this date about being overstocked at the Washington Street
store, but did not discuss the layoffs or terminations.
Everett Hoag was the first of the employees to be
discharged. When he finished work on the evening of
October 1, Barbaro called him into the office and explained
that he was being laid off for economic reasons.
On the next day, October 2, Nesmith, Boyd, Lanigan,
Clinton, Cole, Smith, Terzis, Cammarata, Lamb, and
Thompson were laid off or discharged. Nesmith was first
told of his termination by Malcolm Freeman. Freeman
asked him if he signed a card. When Nesmith responded
affirmatively, Freeman told him that this was the reason he
was being let go. Freeman told Nesmith that if he had not
signed the card, Freeman would have hired him in the
Cambridge store. Freeman told Nesmith that he should
"learn to kiss ass a little." Shapiro later called Nesmith into
the office and told him he was being let go for economic
reasons.
Lanigan was notified of his termination by Shapiro.
Shapiro told him that the layoffs were because of the
Union. Lanigan protested that he "hadn't gotten involved
with the Union." Shapiro then told Lanigan to get in touch
with him the following week. Lanigan did and he began
working again at the Washington Street store on or about
Wednesday October 8.6
By the end of the day, the only personnel remaining in
the Washington street store were Supervisors Barbaro,
Dunn, and Freeman, and Westgate, Guikeri, and Morand,
who General Counsel asserts, and I find infra, were
management trainees, and part-time employees Stephen
Cassis and Ida Home.
Two temporary employees from Handy Andy were
called in to work at the Washington Street store on October
3, 1975. On October 2, Shapiro asked Terry Westgate if he
wanted to work overtime that weekend to move merchan-
dise from the second floor and basement storerooms at the
Washington Street store to storerooms newly available at
the Copley Square and Harvard Square stores. Westgate
declined. On October 4 and 5, Saturday and Sunday,
Respondent hired nine additional employees from Handy
Andy and, using a rented truck, they began moving
merchandise to the new stores in preparation for their
opening.
During the next week, Shapiro hired 13 additional
Handy Andy temporaries for varying amounts of time.
These employees were paid at a flat rate of about $3.40 per
hour.7 The Handy Andy employees worked for about 2 or
3 weeks after October 6 at the rate of 10 or 11 per day.
They unpacked merchandise for the new stores.
Shapiro testified that, in early October 1975, two
employees were transferred to the Washington Street store
from Respondent's headquarters in New York. The payroll
records for the week ending October 9, 1975, list five new
employees not counting Lanigan who returned to work on
October 8. Shapiro testified that both Dunn and Freeman
began hiring new employees for the new stores on October
6. Since these stores did not actually open until later in
among the discriminatees in terms of backpay. Moreover, he did return to
work on or about October 8, thereby giving credence to his testimony about
what Shapiro had told him.
7 The terminated employees who had been working on the second floor
preparing merchandise for the new stores were paid $2.50 per hour.
532
WRANGLER WRANCH
October, the new employees presumably unpacked, sorted,
and hung merchandise. Shapiro also testified that Barbaro
began recalling the four laid-off Washington Street em-
ployees, Boyd, McLeod, Lanigan, and Nesmith, on
October 6, 1975. Nesmith testified, credibly in my view,
that he was never recalled.8
4. Additional instances of coercion by
Respondent
One of the Handy Andy temporaries, Geneva Ward,
approached cashier Ida Horne sometime in October to
inquire about possible permanent employment. Horne
directed her to Barbaro who did not hire Ward. Barbaro
later gave Horne an explanation, saying that Shapiro did
not want to hire Ward because "she was too old ... she
was not a pretty boy" and "her ass was too close to the
Union."
Ida Horne also testified that, on October 3, the day after
the discharges, which had occurred on her day off, Irving
Shapiro asked her whether she had signed a union
authorization card or talked to union representatives. She
said she did not. She later asked Barbaro why Shapiro had
questioned her. He told her that if Shapiro had learned she
had signed a card she "would have been out the door with
everyone else." Several days later, Barbaro told her that if
she "ran into Emery . . .or Robin . . . or Curtis Boyd,
that I should tell them that if they left their union
associations alone that they would be rehired." 9
Westgate talked to Barbaro in the week following the
discharges about rehiring some of the former employees
because the store was so short of help. They discussed
Lanigan, and Westgate told Barbaro that Lanigan's
involvement with the Union was minimal. Two weeks later
they had a similar discussion about Hoag. Barbaro told
Westgate he would not rehire Hoag because he "felt Hoag
was too involved with the Union." 'o
s Barbaro contradicted the thrust of Shapiro's testimony by testifying
that he did not recall McLeod but simply ran into him sometime in
November at a subway station and told him that there was a "possibility" he
could put him back to work. He also said he never tried to contact or recall
Nesmith and he was able to provide no iniormation concerning the alleged
recall of Boyd. The above provides an additional reason in support of my
reluctance to accept or credit any part of Shapiro's self-serving testimony on
any crucial issue in this case.
9 Shapiro denied he questioned Home. I credit Home. She impressed me
as a candid and truthful witness who had not supported the Union in the
campaign and thus could be relatively objective in her testimony. Barbaro
did not specifically contradict Home's testimony concerning their conversa-
tions.
i' The above findings of fact are based primarily on the testimony of
employees Westgate, Horne. Nesmith, Hoag, and Lanigan whom I found to
be candid and reliable witnesses. In some instances their testimony was
uncontroverted. To the extent that there are conflicts, I reject the testimony
that is contrary to that I have credited and set forth in the statement of facts.
I specifically reject the testimony of Shapiro. He did not impress me as a
reliable witness. Shapiro was evasive in much of his testimony and was
contradicted by Barbaro on several occasions as to whether and when
certain employees were recalled after their discharge. Barbaro also
contradicted Shapiro on the issue of who was a temporary and who was a
regular employee. For example. Barbaro claimed that he hired Clinton for
work on the selling floor and that Boyd and Nesmith worked "mostly" on
the second floor doing stockwork. I have detailed more precisely some of the
other reasons for rejecting Shapiro's testimony elsewhere in this decision.
Barbaro did not deny many of the specific remarks attributed to him by
employees. On cross-examination, he made general denials that he talked to
B. Discussion and Analysis
1. The 8(aXl) violations
Based on the credited testimony set forth above, I find
that Respondent violated Section 8(aX I) of the Act by the
following conduct:
(a) The interrogation by Supervisor Barbaro of employee
Ida Home on September 19, 1975, as to whether she signed
a union card and whether she knew who had attended the
union meeting the night before.
(b) The interrogation by Supervisor Freeman of employ-
ee Hoag on September 29 as to what conversations he had
with Union Representative Lamothe.n
(c) The statements of Freeman to Hoag on or about
September 29 that if the Union came in there would be no
breaks and no chance of getting into management. These
were threats of reprisal.
(d) The threats on October i, 1975, against employees
Westgate and Home by Barbaro that if employees signed
cards or were involved with the Union they would be
terminated.
(e) The interrogation of employee Nesmith by Freeman
on October 2 as to whether he signed a card and the
contemporaneous statement that he was being let go
because he signed a card which I find to be coercive and a
threat of reprisal.
(f) The statement by Barbaro to Ida Horne sometime in
October that a Handy Andy temporary employee, Geneva
Ward, was not hired by Respondent because she was "too
close to the Union." This is coercive and a threat of
reprisal.
(g) The interrogation of Horne by Shapiro on October 3
as to whether she had signed a union authorization card.
(h) The statement by Barbaro to Horne later on October
3 that if she had signed a card she would have been
discharged with everyone else. This was a threat of reprisal.
any employees about signing union cards and only had one discussion about
union cards and that with Westgate who brought up the subject. I found
Barbaro to be evasive in his testimony on this issue and do not credit his
denials.
n' I do not believe that an isolated, apparently noncoercive inquiry by
Barbaro of Hoag on September 26 as to whether Lamothe had ever shown
employees his credentials was unlawful.
The General Counsel also alleges that Freeman's denial of access by
Union Organizer Lamothe to employees outside the store on September 29
was unlawful. The evidence indicates that Lamothe was standing outside the
store and that Freeman brought Hoag outside to talk to Lamothe and, as I
have found, unlawfully interrogated him; this appears to have been on
Hoag's worktime and I do not consider Freeman's conduct to have
constituted a denial of access. The only other specific example of
interference was Freeman's statement that he did not want employee Terzis
to meet Lamothe outside the store. It is unclear as to whether this
confrontation took place during Terzis' working time. Later that day, Terzis
and Lamothe met for lunch. My reading of the record leads me to conclude
that Freeman's objection to Lamothe's speaking to employees was based on
the fact that they may have been on their worktime when they came outside
the store to talk to Lamothe. Earlier in September union representatives
were permitted to come into the store to talk to employees and Shapiro had
objected to this interference with their work. Since Hoag was called outside
by Freeman, the only employee who was prevented from talking to Lamothe
was Terzis. Terzis did not testify. In these circumstances. I do not believe
that the General Counsel has shown by a preponderance of the evidence
that Respondent violated the Act by denying Lamothe access to employees
outside the store on September 29.
533
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(i) The statement several days later of Barbaro to Horne
that Nesmith, Smith, and Boyd would be rehired if they
"left their union associations alone." This was a promise of
benefit for foresaking union activities.
(j) The statement in early October by Barbaro to
Westgate that Hoag would not be rehired because he was
"too involved with the Union." This was threat of reprisal.
2. The discriminatory terminations on October I
and 2, 1975
The General Counsel asserts that employees Nesmith,
Boyd, McLeod, Lanigan, Terzis, Clinton, Cole, Smith,
Lamb, Thompson, Hoag, and Cammarata were terminated
on October 1 and 2, 1975, because the Union sought to
represent the Respondent's employees. Respondent claims
that Nesmith, Boyd, McLeod, and Lanigan were laid off
because of declining sales at the Washington Street store
and the rest were terminated because they were hired only
for a temporary period and were no longer needed and
because they were not good workers. I reject Respondent's
reasons and find that the terminations were motivated by
Respondent's desire to rid itself of the Union which had
sought recognition.
Respondent's antiunion posture and knowledge of the
Union's organizing efforts is clear.' 2 The timing of the
terminations without advance warning, a day or two after
the Union's demand, is powerful evidence that this was the
prime motivation for the Company's action. Indeed, some
of the employees had just been hired days before in mid
and late September. And the only remaining employees
after the terminations were supervisors, managerial train-
ees, and part-time employees. The inference is made all but
conclusive when the credited testimony of Horne, Nesmith,
Lanigan, and Westgate concerning conversations with
management officials before and after the terminations is
considered. Horne and Westgate were threatened with
discharge if they signed cards or engaged in union activity.
Barbaro said that Shapiro was "very nervous" about the
union activities. Freeman actually told Nesmith he would
have been retained if he had not signed a card. After the
terminations, Horne was told by Barbaro that fired
employees would be rehired if they gave up their "union
associations." Lanigan was told the layoffs were because of
the Union and he was in effect rehired after he told Shapiro
he was not involved with the Union. And Westgate was
told specifically by Barbaro that Hoag had been dis-
charged because of his union activity. This is direct
evidence of antiunion motivation on the part of manage-
ment representatives who actually participated in the
discharges.
Further support for the finding of discrimination is
shown by Respondent's conduct after the terminations.
Immediately after the Union's demand, it hired Handy
Andy temporaries to move the second floor merchandise to
the new stores even though they were not ready to open for
several weeks. This was done furtively on a weekend.
Shapiro's feeble explanation that he was suddenly in-
formed that construction had progressed to such an extent
12 Respondent's contention that there was no specific evidence of
knowledge of the union activity of each of the discnminatees is unavailing.
Respondent sought to rid itself of the Union by wholesale discharges and
that the merchandise could be moved to portions of the
new stores is discredited. No corroborative evidence-
either testimonial or documentary-was offered in support
of Shapiro's testimony. In addition Respondent actually
hired an essentially equivalent number of temporary
employees from Handy Andy within days after the
terminations to unpack and sort merchandise in the new
stores and began hiring from the street the very next week.
Indeed, Freeman and Dunn began hiring new employees
the Monday after the terminations. Moreover, the work
force at the Washington Street store was augmented by two
employees from corporate headquarters in New York
about whom both Shapiro and Barbaro were secretive or
unknowledgeable in their testimony. This evidence indi-
cates that, even assuming that some of the employees were
doing only stockwork in the Washington Street store, the
same kind of work was being done in the new stores by new
employees and even temporary day workers whose compe-
tence was obviously untried and risk-laden. An employer
would not normally operate this way unless there was a
pressing and overriding reason for the wholesale termina-
tion of an existing work force. On this record that reason
was the Union's successful campaign to organize the
employees.
The Respondent's reasons for the terminations are
unpersuasive. They are based primarily on the testimony of
Shapiro who did not impress me as a reliable witness. As I
have indicated, the second floor employees were not
temporary employees as he asserted. He also added as a
reason for their termination their poor work performance.
Yet he was unable to give specifics as to the inadequacies
of the particular employees and neither Dunn nor Free-
man, their immediate superiors, testified. Furthermore,
except in one instance, involving Clinton, none of the
employees were told that poor performance was a factor in
their termination. It is clear that Clinton was part of the
mass termination and Respondent's real reason for his
termination is the same as that for other employees
terminated at the same time. Indeed, Respondent's wit-
nesses gave contradictory testimony on this issue. For
example, Morand, whom I do not credit, corroborated
Barbaro's testimony as to poor work performance, but he
pointed out that Nesmith made many errors. Yet Shapiro
testified that Respondent attempted to recall Nesmith who
he stated was a regular sales employee. Barbaro testified
that he did not recall Nesmith.
Respondent's contention that the regular Washington
Street sales staff was cut because of slack sales is likewise
unpersuasive. The parties stipulated that sales dropped
from about $20,000 per week on September 11, 1975, to
about $12,000 per week in October 2, 1975. However, sales
continued at this level for 6 successive weeks subsequent to
October 2. I reject this as the motivating reason for
Respondent's termination of the four so-called regular
Washington Street employees, Boyd, McLeod, Nesmith,
and Lanigan. There was no advance warning of layoffs for
economic reasons as there would have been had this been
Respondent's sole motive. Two New York employees were
thus there is no requirement that there be "direct evidence that the employer
know [the union) and was displeased or wanted to make an example of
them." N. LR.B. v. Link-Belt Co., 311 U.S. 584, 602 (1941).
534
WRANGLER WRANCH
transferred to the Washington Street store immediately
after the alleged layoffs and Lanigan recalled the very next
week. Shapiro's testimony on the two New York transfers
was particularly evasive and unimpressive. Finally, there is
no logical reason why these so-called regular employees
who Respondent asserted were laid off and intended to
recall could not be utilized at the new stores instead of the
temporary and new help used the very next week. The
failure to recall Nesmith and the accidental confrontation
with McLeod in November when he was told he might
have his job back indicate that the four employees were
terminated and not laid off subject to recall. Indeed,
Barbaro's testimony conflicts with that of Shapiro since
Barbaro seems to categorize Nesmith and Boyd as
primarily second floor and thus not Washington Street
employees.
In short, Respondent's defenses are far from sufficient to
overcome the overwhelming evidence that I I Washington
Street employees were discriminatorily discharged in
October 1975, in violation of Section 8(aX3) and (I) of the
Act.
3. The 8(a)(5) violation and the bargaining order
remedy
The General Counsel asserts that, as of September 30,
1975, the date of the Union's demand for recognition, the
Union represented a majority of Respondent's employees.
The General Counsel also asserts that because Respondent
thereafter undertook a course of unlawful conduct to
defeat the Union's representative status, Respondent's
failure to bargain with the Union violated Section 8(aX5)
and (1) of the Act requiring a bargaining order remedy
under the principles set forth in N.LR.B. v. Gissel Packing
Co., Inc., 395 U.S. 575 (1969), and Trading Port, Inc., 219
NLRB 298 (1975). General Counsel also asserts that the
bargaining obligation should extend to the three-store unit
of Respondent's stores in the Boston area, rather than the
single-store unit in which the Union made its demand.
As of September 30, Respondent employed some 18
employees at the Washington Street store, many of whose
unit placement is contested by the parties. Both parties
agree that employees Home, Lanigan, McLeod, Boyd,
Whitehouse, and Clinton are properly included in the
unit.'3
Respondent seeks to exclude employees Lamb, Thomp-
son, Hoag, Smith, Cole, Nesmith, Terzis, and Cammarata
because it asserts that they were temporary employees. I
reject this contention which is based primarily on the
discredited testimony of Shapiro that these employees were
hired by Dunn and Freeman for second floor stockwork,
specifically as temporary employees. As I have indicated,
Dunn and Freeman did not testify but some of these so-
called temporary employees did. None were told that they
were hired for a temporary period and some testified that
they expected to be employed at the new stores when they
opened. No terminal date was set as to their employment.
In these circumstances, the employees were not temporary
employees and they are properly included in the unit total.
1:s Cyrus is not included in the unit because he was not unlawfully
discharged as alleged by General Crounlsel and thus not an employee or
entitled to reinstatement as of September 30.
The General Counsel urges that three employees,
Guikeri, Westgate, and Morand, were management train-
ees and thus excluded from the unit total. These employees
assisted the store manager, were salaried and paid more
than other employees, and had some limited authority to
direct other employees. They were hired with the expecta-
tion that they would move into management positions and
all eventually did so after Respondent opened the new
stores and discriminatorily terminated a good part of its
work force. It is thus clear that these employees exhibited
little community of interest with other rank-and-file
employees in the unit and should be excluded from the
unit. See The Dayton Tire & Rubber Company, 206 NLRB
614, 618 (1973), affd. 503 F.2d 759 (C.A. 10, 1974).
The General Counsel also asserts that part-time employ-
ee Stephen Cassis should be excluded from the unit total
because he is a guard. Cassis works as a fitting room
checker on Saturdays. He performs no selling functions.
He observes customers to insure that no garments are
stolen by persons in the fitting rooms. He also returns
garments left in the fitting rooms to the selling floor. Cassis
had no authority to enforce rules against other employees
and there is no possibility that because of his duties his
inclusion in the unit would present a conflict of loyalties
which would justify his exclusion. In these circumstances,
Cassis was not a guard within the meaning of the Act and
he should be included in the unit total.
In view of the above, I find that the Respondent
employed 15 employees on September 30, 1975, the date of
the Union's demand. The evidence also shows that the
Union obtained signed authorization cards from 10 of
these employees: Hoag, Boyd, Clinton, Cammarata,
Lanigan, Smith, Whitehouse, Cole, Nesmith, and McLeod.
Their cards were identified and authenticated either by the
employees themselves or by union representatives who
solicited their signatures or were present when the cards
were signed. Despite attempts by Respondent to show
misrepresentations by union solicitors that the employees
were told that the cards would be used for an election, it is
clear from the testimony that the employees were told that
the cards would be used to present to Respondent for
collective bargaining and, if that failed, for an election. At
no time were employees told that the cards would be used
solely for an election. In these circumstances, it is clear that
a majority of Respondent's employees as of September 30,
1975, had properly selected the Union as their bargaining
representative.
In view of Respondent's unfair labor practices as
detailed above including the discriminatory termination of
most of the unit employees shortly after the Union's
demand for recognition and the other 8(a)() violations, I
would find that a bargaining order would be the only
appropriate remedy in this case under the principles of the
Supreme Court's Gissel decision cited supra Because of the
character of Respondent's misconduct, the passage of time,
and the absence of any indication from Respondent that
such misconduct would not recur, a free election is
impossible and traditional remedies would not be sufficient
to remedy the Respondent's misconduct. Thus, under
535
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
either of the standards set forth in Gissel, supra, a
bargaining order would be required to remedy Respon-
dent's violations; and, under Trading Port, supra, the
Respondent violated Section 8(a)(5) and (1) of the Act as of
October 1, 1975, when it undertook its course of unlawful
conduct.
The General Counsel asserts that despite the fact that, as
of September 30, 1975, Respondent only operated one store
in the Boston area, the evidence indicates that two other
stores were going to and did open shortly after the events
herein. He thus urges that the bargaining order should
cover the three-store unit which he alleges is an appropriate
unit for bargaining. Assuming arguendo that either the
single-store unit or the three-store unit would be appropri-
ate,' 4 in the circumstances of this case, the bargaining
order would run only to the single-store unit. The Union's
demand and its arithmetic majority were both in the single-
store unit. All employees were carried on the Washington
Street store's payroll. The other two stores were not open
or fully staffed as of the time of the Union's demand. The
evidence is unclear as to the full staffing of the new stores
and thus it would be speculative to presume that the 15
employees working at the Washington Street store in
September 1975 were representative of the full complement
of employees eventually employed by the three stores.
Compare: Clement-Blythe Companies, A Joint Venture, 182
NLRB 502 (1970). Accordingly, the bargaining order, if
any should be issued herein, would cover only the single-
store unit.
The pivotal question concerning the proposed bargaining
order remedy concerns the fact that, as revealed during the
second day of this hearing, the Union herein, which was
selected by the employees, merged into Local 1445, another
local of the Retail Clerks International Association, in
January 1977. The General Counsel sought to show that
that merger was valid and that Local 1445 succeeded to the
bargaining rights of the Union with respect to Respon-
dent's employees. However, I must conclude, on the basis
of the evidence and the applicable authorities, that Local
1445 did not succeed to the bargaining rights of the Union
in this particular unit.
The evidence shows that, in September 1976, four local
unions of the Retail Clerks International Association in
Massachusetts decided to merge. One of those was the
Union herein. The largest of the four, Local 1445, was to
survive. A notice was sent to all members of the Union in
October 1976, and the members thereafter voted over-
whelmingly by secret ballot to merge into a single local,
Local 1445. The merger became effective January 1, 1977.
The Union herein, Local 1291, was dissolved and does not
currently exist as a separate entity. Local 1445 had about
4,500 members before the merger. The Union herein had
approximately 1,300 members. The surviving Local 1445
now has about 12,500 or 13,000 members.
Only members of the Union were eligible to vote in the
merger election. The evidence also shows that employees
must actually apply for membership before becoming
members and this procedure is separate and apart from the
i' A single-store unit is presumptively appropriate but the evidence
shows that the three stores herein are geographically proximate and Shapiro,
as area supervisor, has considerable authority over the individual store
managers, particularly in personnel and payroll matters.
signing of an authorization card. There is no provision
made in the merger election for those people who have
signed authorization cards in existing organizational
campaigns. Consequently, the Respondent's employees
who signed authorization cards were not eligible to vote in
the merger election.
The evidence also indicates that the surviving union has
an expanded executive board made up of board members
from the merged locals. The only officer of the Union who
is now an officer of the surviving union is its former
president who is now a vice president of Local 1445 and
heads the department store-mercantile division of Local
1445. The Union represented primarily department store
and mercantile employees. Local 1445 now represents
some 6,000 department store or mercantile employees. The
assets of all four unions party to the merger are now
combined. And the same personnel administer the con-
tracts now covered by the surviving union as administered
them under the constituent locals.
In deciding whether a union is a successor to another
union in any particular unit, the Board "looks to a number
of factors, including whether democratic procedures have
been followed in any vote on affiliation or merger, whether
the new organization has succeeded to the assets and
liabilities of the predecessor, whether the employees in the
bargaining unit have had an opportunity to register their
desires and whether there is a continuity in the leadership
and representation of the employees in the bargaining
unit." Local 294, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Gene
Graham Ford, Inc.), 188 NLRB 515, 518 (1971). The Board
has indicated that whether the employees in the unit have
had an opportunity to pass on the change of representative
is "the primary concern" in such cases. Newspapers, Inc.,
Publishers of the Austin American and the Austin Statesman,
210 NLRB 8, 9, fn. 4 (1974), affd. 515 F.2d, 334 (C.A. 5,
1975). See also William B. Tanner Company, (Formerly
Pepper & Tanner, Inc.) 212 NLRB 566, 567 (1974),
enforcement denied 517 F.2d 983 (C.A. 6, 1975), and
Factory Services, Inc., 193 NLRB 722 (1971).
In the instant case, it is clear that the employees who had
selected the Union to represent them did not vote in the
merger election and, since they were not members of the
Union, they were not eligible to vote. It is quite clear
therefore that they were not given proper notice and an
appropriate opportunity to vote on the change in represen-
tative within the meaning of the above authorities.
The General Counsel did not specifically discuss the
above infirmity or the adverse case law in his brief. The
General Counsel does state, however, that, but for the
Respondent's unfair labor practices, the Respondent's
employees would have become members of the Union and
would have been afforded a full opportunity to vote on the
merger since Respondent was bound to bargain with the
Union as of October 1975. It is obvious, of course, that
authorization for representation by a union is different
than union membership. 5s Although, under Gissel and
other authorities, the Respondent may have been obligated
1i See Terrell Machine Company, v. N. LR.B., 427 F.2d 1088 (C.A. 4,
1970), cert. denied 398 U.S. 929 (1970).
536
WRANGLER WRANCH
to bargain with the Union as of October 1, 1975, and
violated the Act by failing to do so, the Respondent's
misconduct did not preclude the employees from partici-
pating in the merger vote. The Union's rule that only
members could vote in a merger election was the disquali-
fying factor. There was no guarantee that a contract would
be signed with Respondent or that a union-security
provision would be included in such a contract so as to
assure that the employees herein would become members
and thus eligible to vote in the merger election. Thus, the
evidence on this record does not permit the inference that,
but for Respondent's misconduct, the employees herein
would have become members of the Union. Nor does the
evidence permit the inference that the employees who
selected the Union would have been satisfied with the
successor union. The Union itself apparently had no
procedure to cover nonmembers who had signed authoriza-
tion cards in the merger vote and the employees were never
contacted concerning their desires. Although this factor
alone probably would not have defeated a successorship
finding, Local 1445 was a much larger, different union than
that which the employees had selected. It cannot be
presumed that the Respondent's employees would have
approved of this change. In these circumstances, I cannot
conclude that Local 1445 succeeded to the bargaining
rights of the Union, which is now dissolved, on behalf of
the Respondent's employees.
Accordingly, I find that even though Respondent
violated Section 8(a)(5) and (1) of the Act by failing to
bargain with the Union on and after October 1, 1975, a
bargaining order should not issue in this case in favor of
Local 1445, a union which the bargaining unit employees
did not select and had no notice or opportunity to select in
the election wherein the Union was merged into Local
1445.16
4. The alleged timing of employees and
elimination of breaks
About a week after the union meeting on September 18,
1975, Barbaro called employee Nesmith and other employ-
ees aside and announced that there would be changes
made in the operation of the store and that the employees'
work would be timed. The employees were thereafter
timed. The timing was instituted to increase efficiency and
lasted only a short period. Westgate testified that manage-
ment tightened up its supervision of employees at this time
and that employees' breaks were limited. Barbaro testified
that the store's policy was "no breaks" other than lunch
hours. He was corroborated by Morand and Shapiro.
Westgate testified that in September 1975 "we paid a lot
more attention to breaks, lunch breaks and coffee
breaks ... " Employee Hoag testified that he did not
recall that breaks were more strictly enforced after the
union meeting. Nesmith testified that on one occasion
Malcolm Freeman refused to permit Nesmith and Guikeri
i6 The General Counsel also argues that the authorization cards
designated the bargaining representative as the International Association or
"its chartered local" and suggests that the employees validly designated
Local 1445 and that a bargaining order should be issued in favor of that
union. I reject this argument. The employees intended to designate Local
1291, the Union herein, whose officials solicited their signatures. There is no
to leave the floor to get a drink of soda. As Nesmith
testified, "Freeman said that I have-I want the Union.
What more do I want?"
The General Counsel asserts that the above evidence
supports the complaint allegation that Respondent timed
employees and eliminated breaks after the onset of the
Union-particularly after the union meeting of September
18-in order to interfere with the lawful union activity of
employees. I will dismiss this aspect of the complaint. The
evidence is unclear as to the denial of breaks. During much
of September, Respondent did permit union representa-
tives to come into the store to talk to employees. That
policy ceased, but, of course, Respondent was not obligat-
ed to permit this activity in the first place. Except for
Nesmith's example, there is no specific evidence as to the
denial of breaks and even that specific example does not
show that breaks were generally denied for union reasons.
Indeed, the evidence is unclear as to Respondent's policy
on breaks or whether breaks were permitted at any time
before the union campaign. Furthermore, even though
there is testimony that employees were timed after the
union meeting, there is no evidence to show that this
measure was instituted for union reasons. Nor is there any
evidence to indicate that the effect of this measure on
employees would coerce or restrain them with respect to
protected activity. In short, the General Counsel has not
shown by a preponderance of the evidence that Respon-
dent interfered with union activity or coerced or restrained
employees from engaging in union activity by timing
employees or eliminating breaks in violation of the Act.
5. The discharge of John Cyrus
John Cyrus began working for Respondent as a full-time
employee on or about August 20, 1975. He worked on the
second floor preparing merchandise for the new stores as
well as on the selling floor of the Washington Street store.
He attended the union meeting on September 18, 1975, and
signed a union authorization card on that date. Cyrus was
a diabetic and he had been absent frequently during the
period he worked at the Washington Street store. He
testified that he had to leave work when he was having an
insulin reaction and that he remembered that this occurred
about 6 to 9 days during his employment. He reported to a
supervisor as he was leaving. He also testified that no store
manager spoke to him about these absences. On September
19, Cyrus suffered an insulin reaction before work, called
in and spoke to Shapiro. Shapiro told him not to bother to
come in and that he was no longer needed.
Shapiro testified that he did not know about Cyrus'
diabetes, but he was aware that Cyrus was often absent. He
testified that he authorized Store Manager Barbaro to
discharge Cyrus on September 19 because of excessive
absenteeism and the decision was made on that date. The
payroll records indicate that Cyrus worked 28 hours the
week ending August 28; 28-1/2 hours the week ending
evidence that they meant to designate another local or any local assigned to
them by the International. Indeed, the demand for recognition was made by
the Union, not the International on behalf of its local, and the General
Counsel never suggested that the bargaining order should run in favor of the
International.
537
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 11; and 27-1/4 hours the week ending Septem-
ber 18, 1975.
In support of his allegation that Cyrus was unlawfully
discharged, the General Counsel relies principally on two
pieces of evidence, together with the fact that the discharge
occurred the day after Cyrus attended the union meeting
and signed a card. The General Counsel alleges, first, that
Manager Sterling Dunn, who did not testify, interrogated
Cyrus about his union activity, and, second, that Respon-
dent, through its supervisor, Barbaro, admitted that the
discharge was unlawfully motivated in a conversation at a
bar subsequent to the discharge.
Cyrus first testified that he had a conversation with
Sterling Dunn between September 5 and 18 where he asked
Cyrus if he had been to the union meeting and signed a
card and that Cyrus replied that he had. After stating that
the conversation occurred during the working day and that
the union meeting was after the end of work, Cyrus was
questioned further on this matter. He then testified that
Dunn asked him if he was going to the union meeting and
asked how involved he was with the Union. Cyrus told him
he was in favor of the Union. Cyrus' testimony was quite
confusing on this issue, but Dunn did not testify, and I am
inclined to believe that Dunn did interrogate Cyrus as he
testified last, i.e., was he going to the union meeting and
how involved was he in the Union. There was a notice
posted at the store concerning the meeting and there was
much discussion in the store about the Union. Cyrus was
confused as to whether Dunn's inquiry was about a past or
future union meeting, but he was quite sure that the date
was before the union meeting. Although the issue is a close
one, even on Cyrus' own testimony, I find that Cyrus was
questioned prior to the union meeting by Dunn and that he
told Dunn that he favored the Union.1 7
The second more crucial piece of evidence is the subject
of conflicting testimony.
Gary Dotterman, Cyrus' roommate, testified that he
called the store the day after Cyrus' termination. He asked
to speak to Barbaro, whom he knew personally. Barbaro
told him that the reason Cyrus had been fired was his
union activity and that his absenteeism "was just an excuse
on the surface." Dotterman asked Barbaro to meet with
him later to discuss the discharge. The following Wednes-
day, September 24, the two men met for a drink at the bar
where Dotterman worked. Dotterman asked, "Do you
really take the Union as that serious a threat?" According
to Dotterman, Barbaro replied, "No, but Johnny was vocal
about it and it didn't help the situation. And he'd been
absent so they had a reason to get rid of him."
Barbaro denied that this conversation had taken place.
Donald Richard, the proprietor of the bar in which the
conversation was alleged to have occurred, testified that he
remembered seeing Barbaro in the bar on a Wednesday
evening in mid-September. Richard also testified that
Dotterman told him, in Barbaro's presence, that Barbaro
had fired Cyrus because of his union activity and that
Barbaro did not respond to this statement.
I do not credit Dotterman's testimony that Barbaro
admitted firing Cyrus for his union activity. First, Dotter-
" The General Counsel has not specifically alleged that this interroga-
tion violated the Act.
man's close relationship with Cyrus makes his testimony
suspect. Second, there is no corroborating evidence to show
that Cyrus was a "vocal" union supporter, as Dotterman
testified Barbaro stated. Cyrus testified that he simply had
some "casual" conversations with Respondent's supervi-
sors. Moreover, Dotterman sought to embellish the
Barbaro conversation by adding his own words "and he
wore the button [presumably a union button] into the
store," a fact which was not corroborated by Cyrus or any
other witness. Finally, Dotterman testified that he encour-
aged Cyrus to "go to the Union and call for a strike" and
that he mentioned a possible strike to Barbaro. Cyrus did
not testify about Dotterman's alleged suggestion. And this
apparent intensity of feeling is belied by the fact that no
charge of a violation concerning the termination was filed
and only I year later was the matter added to the
complaint herein. Richard's testimony simply confirms
that Dotterman expressed his views to Barbaro that Cyrus
was fired for union activity and it is not probative as to
Barbaro's remarks or the Respondent's motivation.
Thus the evidence as to the discharge of Cyrus shows as
follows: Cyrus expressed his support of the Union to
Supervisor Dunn in response to the latter's question as to
whether he was going to attend the union meeting and how
involved he was with the Union. This conversation
probably took place sometime in September before the
union meeting. Cyrus was discharged the day after the
union meeting, after he called in absent. Balanced against
this evidence is the fact that Cyrus, by his own testimony,
was absent some 6 to 9 days and that he had only been
working for Respondent for about 1 month. The record
does not show that Respondent exhibited any union
animus toward Cyrus or that he was particularly vocal or
active on behalf of the Union. Moreover, when Cyrus was
discharged, the Union had not attained majority status and
Respondent had not yet perceived the threat caused by the
Union's obtaining majority support. This had been the
trigger for the mass discharges of October 1 and 2. Indeed,
Respondent had permitted a notice to be posted in the
store announcing the union meeting and apparently let
union organizers openly solicit employees inside its store.
Finally, other employees who attended the union meeting
were not singled out at this time. Accordingly, I am not
convinced that the General Counsel has sustained his
burden in proving by a preponderance of the evidence that
Respondent's discharge of Cyrus on September 19 was
discriminatorily motivated and I shall dismiss this aspect of
the General Counsel's complaint.
CONCLUSIONS OF LAW
I. By interrogating employees concerning their union
activities and those of other employees, threatening
employees with reprisals, including discharge, for engaging
in union activities, and by promising benefits for refraining
from supporting the Union, Respondent engaged in unfair
labor practices affecting commerce in violation of Sections
8(a)(l) and 2(6) and (7) of the Act.
538
WRANGLER WRANCH
2. By discriminatorily discharging employees Nesmith,
Boyd, Lanigan, McLeod, Clinton, Cole, Smith, Terzis,
Cammarata, Lamb, and Thompson, Respondent commit-
ted unfair labor practices affecting commerce within the
meaning of Sections 8(aX3) and (1) and 2(6) and (7) of the
Act.
3. The Union represented a majority of Respondent's
employees in an appropriate unit-all part- and full-time
employees at its Washington Street, Boston, store, exclud-
ing supervisors and guards-as of September 30, 1975.
4. By failing and refusing to bargain with the Union
after October 1, 1975, and until its merger and final
dissolution in or about January 1977, Respondent engaged
in unfair labor practices affecting commerce within the
meaning of Sections 8(aX5) and (1) and 2(6) and (7) of the
Act.
5. A bargaining order is not warranted in favor of
Local 1445, Retail Clerks International Association, the
successor to the Union herein, because it did not succeed
to the bargaining rights of Respondent's employees in any
appropriate unit.
6. Respondent has not otherwise violated the Act.
THE REMEDY
I shall recommend that Respondent be required to cease
and desist from its unlawful conduct and take certain
affirmative action which is necessary to effectuate the
policies of the Act.
Having also found that Respondent discriminatorily
terminated II of its employees in October 1975, 1 shall
recommend that it be required to offer them immediate,
full, and unconditional reinstatement to their former jobs
or, if these jobs no longer exist, to substantially equivalent
ones, without prejudice to their seniority and other rights
and privileges, and make them whole for any loss of
earnings suffered by reason of such discrimination, by
paying them sums of money equal to the amount they
would have earned from the date of the discrimination
against them to the date of Regpondent's offer to reinstate
them as aforesaid, less their net earnings during that
period, in accordance with the Board's formula set forth in
F. W. Woolworth Company, 90 NLRB 289 (1950), with
interest thereon at the rate of 6 percent per annum, as set
forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record herein, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 18
The Respondent, Goodfriend Western Corp., d/b/a
Wrangler Wranch, New York, New York, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
IR In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, 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.
(a) Interrogating its employees regarding their union
activity and that of other employees.
(b) Discharging employees because they engage in union
activities or support a union.
(c) Discouraging employees from support of or member-
ship in the Union or other labor organization by discharge
or any other discrimination affecting their tenure or
condition of employment.
(d) Threatening employees with reprisals including
termination because of their union activities or because the
Union is selected as their bargaining representative or
promising benefits for employees who forsake union
activities.
(e) Refusing or failing to bargain with a union which has
the support of a majority of its employees in an appropriate
unit by engaging in unfair labor practices which destroy
the union's majority or make a free election impossible.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to Maria Cammarata, John Clinton, Steve Cole,
Everett Hoag, Eros Lamb, Emery Nesmith, Robin Smith,
Phillip Lanigan, Curtis Boyd, George Terzis, and Michael
Thompson, if this has not already lawfully been accom-
plished, immediate and full reinstatement to their former
positions or, if they no longer exist, to substantially
equivalent ones, without prejudice to the seniority and
other rights and privileges previously enjoyed by them, and
make them whole for any loss of pay, including any raises
which may have been given to employees, that they may
have suffered by reason of their unlawful discharge, with
interest thereon of 6 percent per annum.
(b) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records and reports and all other records required
to ascertain the amount, if any, of backpay due under the
terms of this Order.
(c) Post at its Washington Street store in Boston,
Massachusetts, copies of the attached notice marked
"Appendix." 19 Copies of said notice, after being duly
signed by its representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herein.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges unfair labor practices not
found herein.
19 In the event 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
539