Alberts, Inc.

National Labor Relations Board - Board Decisions

Sep 27, 1974

213 N.L.R.B. 686 (N.L.R.B. 1974)

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alberts, Inc. and Retail and Department Store Employ-
ees, Amalgamated Clothing Workers of America,
AFL-CIO
Alberts, Inc., and Detroit Shoe Company and Retail
and Department Store Employees , Amalgamated
Clothing Workers of America, AFL-CIO. Cases 7-
CA-10399, 7-CA-10384, 7-CA-10411, 7-CA-
10439, 7-CA-10489, 7-CA-10563, and 7-CA-
10625
September 27, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On March 29, 1974, Administrative Law Judge Ar-
nold Ordman issued the attached Decision in this
proceeding. Thereafter, Respondents and the Charg-
ing Party filed exceptions and supporting briefs, and
Respondents filed a brief in answer to the Charging
Party's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and to
adopt his recommended Order.
We find, in agreement with the Administrative Law
Judge, that the no-solicitation rule promulgated by
Respondent Alberts in February 1973 was adopted
for a discriminatory purpose. However, we disagree
with his preliminary finding that the rule is presump-
tively valid on its face, inasmuch as, in our view, the
rule fails to clearly and unambiguously convey to em-
ployees the valid restrictions on their organizing activ-
ities.
The rule provides:
During the time that the union is trying to
organize the employees, the company will expect
employees to render their usual good service to
the company and union organizers will not be
allowed to discuss the union during working
hours on company property. Employees who de-
sire to discuss the union between themselves may
do so during non-working hours, making sure
that their discussions do not interrupt their nor-
mal work.
As written, the rule contains inherent ambiguities.
First, it fails to specify whether the term "union or-
ganizers" refers to employee organizers or only to
nonemployees. A prohibition against union solicita-
tion by employees "during working hours on compa-
ny property" is clearly unlawful.' Accordingly, as the
term "union organizers" could be construed to en-
compass employees who engage in union organizing
activity, we find this portion of the rule to be ambigu-
ous and, therefore, invalid.
The last sentence of the rule is also confusing.
While rules which prohibit solicitation during "work-
ing hours," as this rule apparently does, are generally
presumptively invalid,' an exception to this policy is
made in the case of retail establishments, which, be-
cause of the nature of their business, may prohibit
solicitation, even during break and lunch periods, on
the selling floor.' The instant ban on union solicita-
tion, however, is not limited to the selling floor or to
other public areas of the store and therefore, in our
view, renders the rule invalid on its face.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge, and hereby
orders that Respondents, Alberts, Inc., and Detroit
Shoe Company, Detroit, Michigan, their officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
1 The Respondents and Charging Party have 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
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 We agree with the Administrative Law Judge that the promise by agents
of the Union that initiation fees would be waived if the Union became
bargaining representative did not taint the results of the election conducted
at the Universal Mall store on May 10, 1973 . See Irwindale Division, Lau
Industries, A Division of Phillips Industries, Inc., 210 NLRB No. 42 (1974).
3 Pepsi-Cola Bottling Co. of Los Angeles, 211 NLRB No. 132 (1974).
Essex International, Inc., 211 NLRB No. 112 (1974). Members Fanning
and Jenkins , while dissenting in Essex, agreed with the majority that the term
"working hours" is ambiguous and that a rule utilizing that term is presump-
tively invalid.
5 Montgomery Ward & Co., Inc., 145 NLRB 846 (1964), modified in other
respects 339 F.2d 889 (C.A. 6, 1965).
DECISION
STATEMENT OF THE CASE
ARNOLD ORDMAN, Administrative Law Judge : Between
May 14, 1973, and July 23, 1973, the Charging Party, Retail
and Department Store Employees, Amalgamated Clothing
Workers of America, AFL-CIO, herein called the Union,
filed a series of unfair labor practice charges alleging viola-
tions of the National Labor Relations Act, as amended, by
213 NLRB No. 94
ALBERTS, INC.
Alberts, Inc., and Detroit Shoe Company, herein referred to
separately as Respondent Alberts and Respondent Detroit
Shoe , and referred to together as Respondents . On the basis
of these charges , Cases 7-CA-10384, 7-CA-10399, 7-
CA-10411, 7-CA-10439, and 7-CA-10489, a consolidated
complaint dated July 31, 1973, issued in the designated
cases alleging that Respondents had violated Section
8(a)(1), (3), and (5) of the Act in specified respects . Respon-
dents filed an answer to the consolidated complaint dated
August 8, 1973.
On August 24, 1973, the Union filed an additional unfair
labor practice charge against Respondents , Case 7-CA-
10563 , pursuant to which an amended consolidated com-
plaint issued dated September 5, 1973, incorporating new
matter . On September 14, 1973, Respondents filed an an-
swer to the amended complaint . As in the answer to the
original complaint , the answer to the amended complaint
admitted certain allegations , but denied the commission of
unfair labor practices and prayed for dismissal of the mat-
ter.
A hearing on the controverted issues , with all parties
present and represented , was conducted before me in De-
troit, Michigan , on September 18-21, 1973. Following the
close of this hearing the Union on September 24, 1973, filed
an additional unfair labor practice charge , Case 7-CA-
10625, averring that Respondent Alberts had laid off em-
ployee Joseph Frezza on or about May 12, 1973, and had
refused to reinstate him in violation of Section 8(a)(1) and
(3) of the Act. Complaint issued on this charge on October
15, 1973. Respondent Alberts filed an answer to this com-
plaint on October 22, 1973, again denying the commission
of an unfair labor practice.
In the meantime , on October 15, 1973, the same day the
complaint in Case 7-CA-10625 issued , counsel for General
Counsel filed a motion to reopen the record in the cases
previously described in which the hearing had been closed,
to consolidate those cases with the newly issued complaint
and to take evidence with respect to the issues set forth in
said complaint . On December 6, 1973, the National Labor
Relations Board granted this motion and on December 19,
1973, denied Respondents ' motion for reconsideration of its
ruling.
Accordingly, the record was reopened and further hear-
ing was conducted before me in Detroit, Michigan , on Feb-
ruary 7, 1974, again with all parties present and represented.
A separate motion to dismiss the allegations of a violation
of Section 8(a)(5) of the Act, predicated on an intervening
decision of the Supreme Court in N.L.R.B. v. Savair Manu-
facturing Co., 414 U.S. 270 (1973), was submitted by Re-
spondents at this reopened hearing. Ruling thereon was
reserved and will be disposed of hereunder.
Comprehensive briefs and supplemental briefs have been
filed by the Charging Party and by Respondents . General
Counsel filed a response to Respondents' motion to dismiss
the 8(a)(5) allegations . All submissions have been carefully
considered.
Upon the entire record in these consolidated proceedings,
I make the following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
687
Respondent Alberts is a Delaware corporation with its
general office and warehouse in Ferndale , Michigan, and
operates a chain of about 48 retail stores in a three-state
area , including about 24 stores in the Greater Detroit metro-
politan area where it sells women 's clothing at retail . During
its 1972 operations Respondent Alberts sold goods valued
in excess of $500 ,000 and purchased goods valued in excess
of $50,000 from sources outside Michigan, which goods
were shipped to its warehouse in Ferndale.
Respondent Detroit Shoe is a Michigan corporation with
its principal office and place of business in Detroit, Michi-
gan, and is engaged in the retail sale of women 's shoes.
Pursuant to lease agreements with Alberts , Respondent De-
troit Shoe maintains at least 10 selling locations in the
Greater Detroit metropolitan area stores owned by Alberts,
including the Universal Mall and Lincoln Park stores. Dur-
ing the calendar year 1972 Respondent Detroit Shoe sold
products valued in excess of $500 ,000, and purchased from
sources outside Michigan goods valued in excess of $50,000,
which goods were shipped to its Michigan operations.
I find on the foregoing facts of record that Respondent
Alberts and Respondent Detroit Shoe are each employers
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
I find further , and it is undisputed , that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
Accordingly , I find that jurisdiction is properly asserted
herein.
II. THE UNFAIR LABOR PRACTICES
A. Background and Statement of Issues
Early in 1973 organizational activity began among the
employees in stores comprising the Greater Detroit metro-
politan area stores operated by Alberts, and so listed in the
consolidated complaint . Among these stores are the Lincoln
Park store , the Northland store , and the Universal Mall
store , the latter also identified in the record as the Universal
City Shopping Center store . Pursuant to a representation
petition filed by the Union relating to the Universal Mall
store, the Regional Director for Region 7 in April 1973
issued a decision and direction of election to determine
whether the employees in the appropriate unit , hereinafter
defined, desired to be represented by the Union . The Re-
gional Director , over the objection of Respondents, found
that a single store unit was appropriate and defined the
appropriate unit as follows:
All full-time and regular part-time selling and nonsell-
ing employees employed by the Employer [Alberts] at
its Universal City Shopping Center store , including em-
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees of Detroit Shoe Company; but excluding pro-
fessional employees , guards and supervisors as defined
in the Act.'
Respondents' request for review of the decision and direc-
tion of election was denied by the Board on May 1, 1973,
on the ground that it raised no substantial issues warranting
review . I find that the unit as described herein is appropri-
ate.
The election was conducted on April 10, 1973, and the
Union prevailed by a vote of 17 to 5. Respondents filed
objections to the election including , inter alia, a claim that
the election was tainted because of the Union 's alleged
waiver of the payment of initiation fees by unit employees.
The Regional Director in a supplemental decision , issued
early in July 1973, on the basis of an investigation, found
the objections in their entirety to be without merit and
certified the Union as the exclusive representative of the
employees in the unit already set forth . A request for review
of this decision and certification was likewise denied by the
Board on July 30, 1973, on the ground that no substantial
issues warranting review were raised.
As already indicated, the complaints in the instant pro-
ceeding allege , in sum , that Respondents engaged in viola-
tions of Section 8(a)(1), (3), and (5) of the Act. More
specifically , the complaints allege that Respondents violat-
ed Section 8(a)(1) of the Act by certain pre- and postelec-
tion conduct, consisting of the promulgation of a no-solici-
tation rule, interrogation, threats, promises of benefit,
solicitation and promised resolution of grievances, surveil-
lance, and the grant of wage increases; violated Section
8(a)(3) and (1) of the Act by changing various working
conditions by enforcing an invalid no-solicitation rule, and
by discharging and refusing to reinstate employees Rose
Jackson, Deborah Rowan, and Joseph Frezza; and violat-
ed Section 8(a)(5) and (1) of the Act by refusing to bargain
with the Union with respect to the Universal Mall employ-
ees; by refusing to furnish the Union with relevant data
concerning working conditions; and by the unilateral
changes of existing working conditions.
Respondents deny generally and specifically the commis-
sion of the alleged unfair labor practices . Respondents deny
also that they were joint employers as alleged in the com-
plaint . Counsel representing both Respondents throughout
the instant proceeding was the same counsel . With specific
reference to the allegations of refusal to bargain , Respon-
dents adhere to defenses considered and rejected in the
representation proceeding heretofore described: (1) that the
single-store unit at the Universal Mall store in which the
election was directed was not appropriat e for bargaining;
and (2) that the objections predicated on the preelection
1 The Decision and Direction of Election is captioned "Alberts, Inc., De-
troit Shoe Company," and contains the following footnote:
The name of the Employer is set forth as it was amended at the hearing.
Detroit Shoe Company is a lessee at various Alberts, Inc. stores. Al-
though it was not served with the Notice of Hearing, the attorney for
Alberts, Inc. entered an appearance for Detroit Shoe Company and
represented it in the proceedings. The parties agreed that any election
directed should include employees of Detroit Shoe Company.
conduct of the Union were erroneously dismissed . Accord-
ingly, Respondents urge that there was no obligation to
bargain and that the refusal to bargain was lawful.
The specific allegations of unfair labor practices and the
defenses thereto are considered hereunder seriatim. Prelimi-
narily , however , the question of the joint employer status of
Respondents will be considered.
B. The Joint Employer Status of Respondents
It is admitted that Respondent Detroit Shoe maintains
selling locations for the sale of women 's shoes in at least 10
of Respondent Alberts' stores in the Greater Detroit metro-
politan area . These retail selling locations , which include,
inter alia, the Universal Mall and Lincoln Park stores of
Alberts, are operated pursuant to lease arrangements with
Alberts as lessor and are part of the latter 's retail store
operations . The evidence is undisputed that , with respect to
the locations here involved, Respondents hold themselves
out to be one integrated operation and there is no indication
to the general public that the retail shoe department is not
part of Alberts ' total operation . The same cash registers are
used, Detroit Shoe merchandise is packed in Alberts wrap-
pers, and the sales slips are Alberts sales slips . All sales
income from Detroit Shoe is turned over to Alberts, which
deducts from that sum all expenditures made in Detroit
Shoe 's behalf including the wages paid the Detroit Shoe
employees.
So far as labor relations are concerned , Detroit Shoe
employees are subject to the rules and regulations of con,
duct and the general working conditions established by Al-
berts. Indeed, William B. Klinsky, president of Alberts,
acknowledged that he possessed a substantial degree of con-
trol over the hiring and firing of Detroit Shoe employees.
Significant also in this regard is the circumstance , already
noted , that in the representation proceeding , previously de-
scribed , both enterprises , represented by the same counsel,
agreed that any election there directed should include in any
appropriate unit found the employees of both Alberts and
Detroit Shoe.
In the instant proceeding General Counsel alleged that
Alberts and Detroit Shoe were joint employers with respect
to the employees here involved. Respondents , represented
in this proceeding also by identical counsel, took the posi-
tion both before and during the hearing that they were not
joint employers. In the briefs filed by Respondents follow-
ing the close of the hearing, however , only casual reference
is made to this issue.
In all these circumstances I conclude and find that Re-
spondent Alberts and Respondent Detroit Shoe are joint
employers of the employees under consideration here. The
uncontradicted evidence here adduced regarding the com-
plete integration of the two enterprises in the subject stores
and the substantial control exercised by Alberts over the
labor relations and terms and conditions of employment of
the Detroit Shoe employees amply warrants this finding
even without reference to the prior representation proceed-
ing and the determinations made therein . See Checker Cab
Company and its Members, 141 NLRB 583 (1963); Frostco
Super Save Stores, Inc., 138 NLRB 125 (1962); Thriftown,
Inc., d/b/a Value Village, et al., 161 NLRB 603 ( 1966).
ALBERTS, INC.
C. The Allegations of 8(a)(1) Violations
1. Surveillance
On the evening of May 4, 1973, the Union held a meeting
for Respondents' employees at the Froling Bowling Lanes
located near Respondents' Universal Mall store. During the
course of that day Lena Barone and Gloria Blank, who
serve as dress buyers and merchandisers for all of Respon-
dent Alberts' stores, learned that a union meeting was
scheduled for that evening. Accordingly, after the Universal
Mall store, where Barone and Blank had been working that
day, closed, the two of them drove over and parked in front
of the bowling alley, admittedly, according to Blank's testi-
mony, to "look and see" what was happening at the union
meeting. Sometime after they parked, and while employees
were gathering at the meeting, they were spotted by union
organizers who approached them and took a photograph.
Barone and Blank took off hurriedly. Blank called President
Klinsky and reported what she had done. Klinsky criticized
Blank for her actions. However, Respondents never in-
formed the employees that the actions of Barone and Blank
were unauthorized.
On undisputed facts, therefore, it is apparent that Barone
and Blank did engage in surveillance of union activity and
that the employees were aware of that surveillance. Respon-
dents defend, however, on the ground that Barone and
Blank had no supervisory authority, that their actions were
not pursuant to Respondents' direction or orders, that Re-
spondents did not approve of such actions, and that Re-
spondents were not answerable therefor. The short answer
to the foregoing is, as William Klinsky, president of Alberts,
volunteered, that Barone and Blank were part of manage-
ment, and received the same range of pay as managers for
Alberts. The record is clear that the employees also consid-
ered Barone and Blank as part of management. Nor were
the employees ever told that the actions of Barone and
Blank were unauthorized. In these circumstances the sur-
veillance in which Barone and Blank engaged plainly con-
stituted interference, restraint, and coercion of employees in
the exercise of their organizational rights, a violation of
Section 8(a)(1) of the Act. Intertype Company, a Division of
Harris-Intertype Corporation v. N.L.R.B., 371 F.2d 787 (C.A.
4, 1967); N.L.R.B. v. A. R. Gieringer Tool Corp., 314 F.2d
359, 362-363 (C.A. 7, 1963).
I so find.
On the other hand, I find inadequate evidence to support
the allegation that Patrick Casey, a supervisor for Detroit
Shoe, engaged in unlawful surveillance of a union meeting
held at the Four Vees Lounge in Dearborn, Michigan, on
the evening of April 12, 1973. It is established that a union
meeting was held on that occasion and that Patrick Casey,
his wife, and Marlene Germeuth, a secretary and handbag
buyer for Detroit Shoe, were present at the lounge during
the meeting. It is also established that Patrick Casey advised
his superiors of the meeting. On the other hand, Patrick
Casey credibly testified that he was a very frequent visitor
at the lounge, and that he came to the lounge on the evening
of April 12 to celebrate the birthdays of his wife and secre-
tary. That testimony was unshaken on cross-examination.
There is no independent evidence to establish any reason
689
for the presence of Casey and his companions that evening
other than the one which Casey gave. Absent such evidence
neither a finding of unlawful surveillance or of creating an
impression of such surveillance is warranted. Atlanta Gas
Light Company, 162 NLRB 436, 438 (1966).
Accordingly, I conclude and find that General Counsel
has not sustained the allegation of the complaint that Pat-
rick Casey engaged in unlawful surveillance.
2. The grant of wage increases
The relevant allegation here, denied by Respondents, is
that Respondents between March 1 and May 10, 1973,
granted certain of its employees in the Universal Mall store
wage increases timed to dissuade employees from support-
ing the Union and to vote against the Union. The Board-
conducted election among the Universal Mall store employ-
ees was held on May 10, 1973.
Tonda Thayer, a Universal Mall store employee, testified
that she received a 10-cent-per-hour raise in March 1973.
She had never received a raise during her prior employment
and had not requested the March 1973 increase. According
to Thayer, Tlumak, manager of the store, who gave her the
raise , commented at the time that the raise "didn't have
anything to do with, you know, what was going on."
Juliette Dickason, a 4-year employee at Universal Mall,
testified that she had gotten two raises in previous years
which she had requested but that in the first or second week
of March 1973 she had gotten two successive weekly hourly
raises of 5 cents each which she had not requested.
Helen Pochinco, a Universal Mall salesgirl since 1965,
testified that she received a 5-cent hourly raise in April or
May of 1973. Pochinco had received raises in earlier years.
Unlike Thayer and Dickason, Pochinco had made a request
for the 1973 raise.
Margaret Prano, a cashier at Universal Mall, who was a
union observer at the May 10 election, testified that she had
asked for and received a wage increase in March 1973. Her
hourly increase amounted to 10 cents an hour.
Sharon Lee Duncan worked at the Universal Mall store
for only a brief period, from February to June 1973. She
recalled that she had asked for and received a small increase
in May but only after some discussion among management
representatives as to her sympathies in the ongoing organi-
zational campaign.
Respondents contributed to the evidentiary material here
relevant by introducing into evidence two weekly payroll
timesheets from its Universal Mall business records, one
sheet for the week ending February 24, 1973, and the other,
for the week ending March 3, 1973. The timesheet for the
week ending February 24, 1973, reveals 5-cent increases for
Dickason and Pochinco but no increases for anyone else on
the roster. The timesheet for the following week ending
March 3, 1973, reveals another 5-cent increase for Dicka-
son, a similar raise for Thayer, and 10-cent raises for three
of the remaining 18 or so employees on the roster.
I credit the testimony of Tonda Thayer except that I find
the raise actually given her as shown by the timesheet was
for 5 cents, not 10. I credit the testimony of Dickason except
that I find on the basis of the timesheets that her successive
5-cent increases were for the weeks ending February 24 and
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 3, respectively. I credit the testimony of Pochinco
except that I find that the last 5-cent increase to which she
testified, the only one she received in 1973, was granted in
the latter part of February 1973 as the February 24 time-
sheet shows rather than in April or May of 1973 as she
recalled. Finally, I credit the testimony of Prano and Sharon
Lee Duncan as to the amount and timing of their increases.
Significantly, Respondents did not put into evidence time-
sheets to challenge the testimony of Prano and Duncan;
the only timesheets put into evidence were the two already
described.
The burden of proof that the foregoing raises had the
illicit objective or effect of alienating the employees from
the Union rests, of course, upon General Counsel. In this
respect certain matters are clear. First, the raises were grant-
ed during the critical preelection period when the organiza-
tional campaign among the Universal store employees was
at its height and Respondents were bending their every
effort to defeat unionization. The recipients of the raises
here under consideration were the targets of Respondents'
attentions not only with respect to the raises but also with
respect to other techniques employed by Respondents and
described in more detail in this Decision.
As the Supreme Court said a decade ago, "The danger
inherent in well-timed increases in benefits is the suggestion
of a fist inside the velvet glove. Employees are not likely to
miss the inference that the source of benefits now conferred
is also the source from which future benefits must flow and
which may dry up if it is not obliged." N.L.R.B. v. Exchange
Parts Co., 375 U.S. 405, 409 (1964). In this context and
against the background of a hotly contested preelection
campaign, the otherwise cryptic remark of store manager
Tlumak to Tonda Thayer that the raise given the latter did
not "have anything to do with, you know, what was going
on" takes on added significance. And more directly in point
is the discussion among management representatives in
connection with the raise given Duncan as to where her
sympathies lay in the ongoing union campaign.
The inference of the illicit purpose motivating the raises
is strengthened by the frailty of Respondents' defenses in
this regard. See N.L.R.B. v. Bird Machine Company, 161
F.2d 589, 592 (C.A. 1, 1947), and cases there cited. Thus,
Respondents contend that "the initial wage increases were
processed and given before they were aware of the Union
organizing campaign" and that "the additional wage in-
creases which may have been processed after knowledge of
the Union campaign were granted the following week in
order to raise all employees to the level established by the
initial increases." The reference to "the inital wage increas-
es" is apparently to the raises given to Dickason and Po-
chinco, the only two raises appearing on the timesheet for
the week ending February 24, 1973. Respondents' protesta-
tion that this occurred before knowledge of the union cam-
paign is somewhat suspect inasmuch as President Klinsky
candidly acknowledged that the union activity came to his
attention "in the later part of February." Even assuming
that the two raises given to Dickason and Pochinco for the
week ending February 24, 1973, antedated Respondents'
knowledge, certainly the later raises, including an addition-
al raise given Dickason, postdated that knowledge. The
handful of raises given for the week ending March 3, 1973,
hardly demonstrates an effort "to raise all employees to the
level established by the original increases." For the greater
number of employees listed on the payroll sheet for that
week were not given raises at all, and the failure of Respon-
dents to produce any later payroll sheets cogently suggests
that such sheets would not support the position they pres-
ently urge.
Respondents argue, correctly, that it is not an unfair labor
practice to implement wage increases during an organiza-
tional campaign where the wage increase policy or program
had been decided upon prior to the organizational cam-
paign. But this defense, too, does not withstand scrutiny. No
probative evidence sufficient to establish such a predeter-
mined policy or program was submitted.
Accordingly, I conclude and find that Respondents vio-
lated Section 8(a)(I) of the Act by granting wage increases
to dissuade employees from supporting the Union and to
influence their votes in the forthcoming election.
3. Coercive interrogation , threats , and other unlawful
interference
Deborah Anne Rowan, an employee at the Lincoln Park
store, was active in the union campaign and attended the
April 12 meeting at the Four Vees Lounge at which Patrick
Casey was present. Her union activities were known to Re-
spondents. On the day after the Four Vees meeting, Rosario
Criscuolo, manager of the Detroit Shoe department at the
Lincoln Park store, told Rowan he knew about the meeting
and advised her not to get mixed up with the Union. About
a month or more later, Martin Felder, recently appointed
personnel director for Alberts, came to the Lincoln Park
store. Rowan was summoned to meet with Felder in the
store lounge. Felder told Rowan that Alberts was a grow-
ing business and that the employees had been neglected but
that was now changed. Felder explained the benefits the
employees were receiving. According to Rowan, Felder
then asked her if she had any problems, asked her to submit
her problems to him, and stated that he was so advising all
the other employees in the store.
Hyman Tlumak became manager of the Universal Mall
store in July 1972. Immediately after the May 10, 1973,
election, Tlumak held two meetings with the employees re-
lating to working conditions, a matter discussed in more
detail hereunder. At the first meeting, according to Tonda
Thayer, Tlumak announced that the Union was not in yet
and he was still manager. Helen Pochinco testified that at
this same meeting Tlumak stated that if the Union got in
things would be "pretty rough," that the employees had
"asked for it," and that is "what you're going to get." Tlu-
mak went on to discuss the new working conditions. I credit
the testimony of Thayer and Pochinco and find that Tlumak
did make the remarks attributed to him .3
Margaret Prano, who worked at Universal Mall, testified
2 Felder confirmed that he met with Rowan in the store lounge and dis-
cussed company benefits with her . He testified that the meeting took place
in May. In either event, the discussion took place against the background of
an active organizational campaign which embraced the Lincoln Park store
also.
3 Tlumak did not testify at the initial hearing. He was called as a witness
Continued
ALBERTS, INC.
that on or about May 5, shortly before the election, Lena
Barone, already identified as part of management, took her
to lunch, asked her if she was mixed up in the Union " mess,"
and, when Prano indicated she was for the Union, sought
to persuade Prano to take her problems to management
instead. Lena Barone was not called as a witness . Prano's
testimony is uncontradicted and I credit that testimony.
Joseph Lee Frezza was hired as a part-time stockboy at
the Universal Mall store in March 1973 and worked there
until very shortly after the election, when he was dis-
charged. Frezza credibly testified that on May 2, 1973,
Manager Tlumak called him aside for a talk and told him
that he, Frezza, and the other stockboy, Jim Bromm, would
soon be made assistant managers, but that if the Union got
in, that would not be possible.'
Within a few days after this May 2 conversation between
Frezza and Tlumak, the latter informed Frezza that Presi-
dent Klinsky wanted to see Frezza at Alberts ' main office
in Ferndale. Tlumak drove Frezza to that office. On the way
Tlumak asked Frezza about a union meeting held the night
before and also asked who was in attendance. Frezza did
not reply. When Tlumak and Frezza arrived at Klinsky's
office, Klinsky opened the conversation by asking if Frezza
had any questions about the Union. Frezza had none. Ac-
cording to Frezza, Khnsky then stated that Alberts would
not be able to employ any more part-time help, would not
be able to pay them union wages, and would rather hire
older, more experienced men for that work. The meeting
took about half an hour. Klinsky did state in the course of
the discussion that no action would be taken against anyone
who voted for the Union, that no one would be fired if the
Union was voted in, and that it was the choice of the em-
ployees as to whether they wanted the Union.
William Klinsky's version of the conversation differed in
only minor respects. According to Klinsky, the meeting re-
sulted from a telephone call he received from Tlumak who
said that Frezza wanted to see Klinsky. Klinsky confirmed
that the meeting took place on a Saturday morning early in
May. He confirmed also asking Frezza if the latter had any
questions about the Union. According to Klinsky, Frezza
replied that he knew the Union side of the story and wanted
to hear the Company' s side . Klinsky testified that he replied
that Respondents really didn't need a union; that a union
would not be in Frezza's best interests, or in the best inter-
ests of student learners , part- time people, and young adults;
and that union wage rates discouraged employers from hir-
ing young people; but that Frezza could do what he wanted.
The respective versions given by Frezza and Klinsky are
in large part consistent. However, I deem it quite unlikely
and do not believe that Frezza, a new and young part-time
stockboy, would have requested a meeting with the presi-
dent of Alberts, as Tlumak purportedly reported to Klinsky.
Rather, it would appear, and I find, that the conference with
at the reopened hearing relating to the discharge of Frezza and confined his
testimony almost exclusively to that subject matter
4 Frezza testified as a witness for General Counsel at the opening stages
of the hearing. The legality of his discharge was not put in issue until after
the initial hearing terminated It was the later allegation that Frezza was
discnmmatorily discharged which led to the reopening of the hearing
5 Throughout this initial hearing Bromm was erroneously designated as
Brown
691
Frezza was utilized by Respondents as one more technique
in combatting unionization. Notwithstanding somewhat
guarded language, I believe the net of Klinsky's remarks
appraised either on Frezza's version or Klinsky's own ver-
sion, was that unionization would have an adverse impact
on the employees, particularly young and part-time employ-
ees. Such a message simply emphasized Tlumak's earlier
declaration that Frezza's promotion to assistant manager
would be endangered by unionization.
A month after the election, the antiunion campaign still
had not abated. On or about June 12, according to the
credited testimony of Juliette Dickason, Tlumak talked to
a group of the Universal Mall employees on the store floor.
He advised them that four girls who were Union adherents
had quit and asked who would be next. Tlumak added that
the Union the employees had picked was no good, would
not get them anything, and was a sorry union. He stated also
that if there had to be another election (objections had been
filed to the May 10 election), the employees would lose out
because the girls were forced into it and part-time employ-
ees had nothing to gain from unionization.
Based upon the foregoing evidence, I am satisfied and
find that Respondents through their officers and agents
engaged in coercive interrogation, threats, and promises of
benefit directed to their employees, that they further created
the impression that the employees' organizational activities
were being subjected to surveillance, and that they solicited
the submission of grievances to management rather than to
the union, all to the end of discouraging unionization.
I find further that this conduct was violative of Section
8(a)(1) of the Act.'
4. The promulgation and enforcement
of a no-solicitation rule
As soon as Respondents learned of the organizational
campaign, on their own admission in late February 1973,
Respondents promulgated and enforced a no-solicitation
rule.
This rule was embodied in a two-page written memoran-
dum, prepared after consultation with counsel, which was
published and distributed to the employees. The memoran-
dum generally advised employees of their rights and stated
Respondents' intention to comply with the law, but in-
formed the employees that in Respondents' view they would
be better off without a union.
With particular reference to the issue here under consid-
eration, the memorandum stated:
During the time that the union is trying to organize
the employees, the company will expect employees to
render their usual good service to the company and
union organizers will not be allowed to discuss the
union during working hours on company property.
Employees who desire to discuss the union between
themselves may do so during non-working hours, mak-
6 Respondents argue , inter alga, that at least their preelection conduct
could not in any event be found to constitute unlawful interference because
they obviously failed to prevent a union victory in the Board -conducted
election So far as I am aware , the touchstone of unlawful conduct in this
regard has never been the degree to which that conduct succeeded or failed
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing sure that their discussions do not interrupt their
normal work.
Klinsky, president of Alberts, Inc., acknowledged that no
rule of this kind had ever been put in writing before the
instant organizational campaign but testified further that
the published rule was merely a restatement of a previously
unwritten policy of management prohibiting solicitation or
other work-interrupting activity on the selling floor. Ac-
cording to Klinsky, publication and distribution of the no-
solicitation rule was prompted by his concern that disrup-
tion of operations and "disservice to customers" might arise
from union organizing activity.
Notwithstanding the asserted preexisting policy, credited
testimony establishes that considerable latitude had always
been extended to sales personnel to talk to each other while
at work and that employees were not reprimanded for such
conduct. By way of contrast, after publication of the rule,
Rose Jackson, an active and known union adherent, subse-
quently discharged, was reprimanded for talking about
union matters on the selling floor.
Also, the record affords considerable evidence, which I
credit, that employees not infrequently made collections on
selling floors during working hours for such occasions as
birthdays, anniversaries, and church raffles, and that among
the people solicited on such occasions were Marvin Finkel,
manager of the Northland store, and Mrs. Cramer, assistant
manager at Northland .1 In fact, President Klinsky acknowl-
edged that the asserted policy antedating the published rule
was one of "reasonableness."
Nonetheless, against this factual background, Respon-
dents argue, quite correctly, that the published rule is on its
face presumptively valid. Respondents argue further, and
cite authorities which establish, that the mere fact that such
a rule is promulgated at the start of a union campaign or
that other than union solicitations took place on occasion
during the pendency of the rule does not, of itself, destroy
the presumption of validity.8
Not gainsaying these settled principles, it is equally well
settled that the presumptive validity of an otherwise proper
no-solicitation rule can be and is destroyed where affirma-
tive evidence demonstrated that it was adopted and/or pro-
mulgated for a discriminatory purpose. See Star-Brite In-
dustries, Inc., supra at fn. 8; State Chemical Company, 166
NLRB 455 (1967). Thus, in State Chemical the Board found
that an otherwise valid no-solicitation rule was discrimina-
torily promulgated and enforced in violation of Section
8(a)(1) of the Act. In so finding the Board relied on three
factors: (1) that the rule was promulgated at a time of inten-
sive union activity and was specifically directed in the first
instance at a known union adherent; (2) that the employer
permitted solicitations of other kinds during worktime; and
(3) that the employer was hostile to union organizational
efforts as reflected by other conduct found violative of the
7 Despite extensive testimony by Finkel this evidence is uncontradicted.
Mrs. Cramer did not testify at all.
8 See, e .g., Star-Brite Industries, Inc., 127 NLRB 1008 (1960); The Perm-
ian Corporation, 189 NLRB 860 (1971); Atkins Pickle Company, Inc., 181
NLRB 935 (1970); Veeder Root Company, Altoona Division, 192 NLRB 973
(1971); Sequoyah Spinning Mills, Inc., a Wholly Owned Subsidiary of Sequo-
yah Industries, Inc., 194 NLRB 1175 (1972).
Act. In such circumstances , the Board held, it was incum-
bent upon the employer to establish that the rule , though
limited to union talk and solicitation , was nevertheless re-
quired in order to maintain production or discipline. In
State Chemical, the Board found that the employer had not
done so.
In appraising the relevant authorities and with due regard
for the precedents cited, I conclude and find that the facts
in the instant case fall in the category of conduct controlled
by State Chemical. As in State Chemical, the no-solicitation
rule here was promulgated at a time of intense union activi-
ty and was specifically directed in the first instance at em-
ployee Rose Jackson , a union adherent who was
subsequently discharged . The record evidence clearly estab-
lishes that prior to the promulgation of the written rule here
under consideration, discussions among sales personnel
were openly tolerated on the selling floor during working
hours and that collections for special purposes were likewise
allowed under the circumstances . Management officials
were not only aware of these activities but even participated
in them . On President Klinsky's own admission , the preex-
isting policy , to the extent such a policy existed , was one of
"reasonableness ," and the record is devoid of evidence of
any past reprimands for infractions of such policy . Finally,
the record affords ample evidence , much of which has al-
ready been summarized herein and more to be detailed
hereunder , of adamant hostility to unionization . Yet Re-
spondents , apart from asserting an unsubstantiated appre-
hension that union solicitation might result in disruption of
operations or "disservice to customers ," made no showing
that the published rule was necessary to maintain produc-
tion or discipline ; prior experience under the asserted preex-
isting policy points to a contrary conclusion.
Accordingly , I conclude and find that , notwithstanding
the presumptive validity of the published no-solicitation
rule, that rule was actually promulgated and enforced "not
by a purpose to maintain production and discipline, but by
a purpose to interfere with the employees ' right of self-
organization and thus violated Section 8(a)(1) of the Act."
State Chemical Corp., supra at 456 , and cases there cited.
D. The Unilateral Changes in Working Conditions
Immediately after the union victory in the May 10 elec-
tion at Universal Mall, Tlumak, manager of the store, held
two meetings with the employees to announce changes in
working conditions. More stringent conditions were im-
posed. No longer were employees permitted to have cof-
fee or smoke behind the wrapping desk whenever they were
not busy. Instead, they were given two short breaks for that
purpose, one in the morning and one in the afternoon. Tele-
phone privileges-occasional personal calls had previously
been permitted-were abolished. Chairs on which employ-
ees had formerly been permitted to sit when they were not
busy were removed. The former practice of permitting em-
ployees to trade days off or switch schedules was eliminat-
ed. Personal favors would no longer be granted. In addition,
a new dress code was imposed. Salesgirls' attire, before,
merely had to comply with a standard of reasonableness.
The new code allowed only dresses or pantsuits.
It was at these meetings that Tlumak, as already noted,
ALBERTS, INC.
told the employees, in relation to the union election, that
things would be "pretty rough," that the employees had
"asked for it," and were "going to get" it.
Respondents, however, seek to explain these changes in
terms and conditions of employment on the basis that Presi-
dent Klinsky, who was in the store on the day of the elec-
tion, had instructed Tlumak to remedy what he considered
to be a haphazard and substandard store operation adverse-
ly affecting sales . Respondents argue also that except for the
change as to coffee and cigarette breaks, the other admitted-
ly announced changes were not actually enforced.
The fact of the matter is, however, that even by Respon-
dents' version changes were made. More importantly, Tlu-
mak, whatever his instructions from Klinsky, made it
indelibly clear to the employees why the changes were being
made.
In these circumstances it is clear and I find that Respon-
dents by announcing and making the changes in working
conditions here found and in the manner and for the pur-
pose here found violated Section 8(a)(1) and (3) of the Act.
Robert G. Purcell, et al., d/b/a Finnical Tire Company, 171
NLRB 242, 245 (1968); A. S. Beck Shoe Corporation, 92
NLRB 1457, 1458 (1951); Buddies Supermarkets, Inc., 192
NLRB 1004, 1012 (1971).
I find further that this same conduct violated Section
8(a)(5) of the Act as alleged. It is undisputed that Respon-
dents made these changes unilaterally and without consul-
tation or bargaining with the Union, which had just been
designated by the employees in a Board-conducted election
as their bargaining representative. It is immaterial in this
connection that the Union had not yet been formally certi-
fied. Respondents were aware, when they took their unila-
teral action, of the Union's majority status . They were
thereby precluded from taking action respecting terms and
conditions of employment in disregard of their lawful bar-
gaining obligation. Fleming Manufacturing Company, Inc.,
119 NLRB 452,464 (1957). And see especially Mike O'Con-
nor Chevrolet-Buick-GMC Co., Inc., 209 NLRB 701 (1974).
E. The Discharges
1. Rose Jackson
Rose Jackson was an employee at the Northland store.
Her employment began on September 11, 1972, and contin-
ued through May 23, 1973. From September 1972 through
February 1973, her work record was excellent. Marvin
Finkel, manager of the Northland store, conceded that she
was a "good" or "okay" employee throughout these months.
Consistent with that appraisal was Rose Jackson's testimo-
ny, which I credit, that Finkel told her at the end of that
period that she was the top salesgirl in the store despite the
fact that she had other duties also, and that Finkel wanted
her from then on to devote herself exclusively to sales.
Beginning in March 1973, however, management sudden-
ly began to find fault with Rose Jackson's work perfor-
mance. By that time management also knew, as shown by
the testimony of Irving Mendelson, Alberts' area supervisor,
and by the testimony of Marvin Finkel, that Rose Jackson
was active in the Union. Indeed, she was an immediate
target when the no-solicitation rule was promulgated.
693
Rose Jackson's discharge took place on the morning of
May 23, when Irving Finkel handed her a termination slip
which he had prepared. The slip contained a notation that
Jackson had been the recipient of several prior warnings,
the first of which was dated 3-12-73. Under the heading
"Reason for Termination" the following entry appeared:
Rose Jackson scheduled to work Sat. 5-19-73. She had
said she would be a little late but would be in 1 p.m.
the latest-she called at 1 p.m. to tell me a big luncheon
was planned until 4 or 5 p.m. which she didn't know
about. She said it wouldn't pay for her to come in since
she was scheduled until 6 p.m. The regular girls work
every other Sunday. It was Rose Jackson's turn Sun.
5-20-73. Said she was sorry but couldn't work Sunday
either.
The evidence as to the incident which was assigned as the
"Reason for Termination" was not in substantial conflict.
Summarizing it in brief, Rose Jackson testified that she had
about 2 weeks before the event notified Finkel that a Bar
Mitzvah was scheduled for her nephew on the weekend of
May 19 and 20 and that she wanted that Saturday and
Sunday off. Finkel agreed and asked Jackson to remind him
later so he could set up the work schedule accordingly.
Jackson did remind him several days later and Finkel asked
Jackson to come in on Saturday as soon as she could after
the religious services were over. When Jackson left at the
end of her work on Friday, May 18, the new work schedule
had not yet been posted. The religious services on Saturday
concluded at 1 p.m. and Jackson learned that morning that
a family luncheon was scheduled thereafter. Accordingly,
Jackson called Finkel and told him that she would not be
in. Finkel remonstrated and told her he had planned on her
coming in. Finkel also informed Jackson in this conversa-
tion that he had scheduled her for work that Sunday. When
Jackson reminded Finkel that she had told him a few weeks
earlier she could not work that Sunday, Finkel replied that
he could not rearrange the work schedule.
Jackson did not report to work that Saturday or Sunday.
She did report to work Monday morning and nothing was
said to her about her absence the previous 2 days. Tuesday
was Jackson's day off. The following morning, May 23,
Finkel summarily discharged Jackson right after she report-
ed for work for her 2-day absence and, when Jackson pro-
tested, added the phrase and for "other violations, too."
Finkel's version of these events, as indicated, was largely
consistent. Finkel agreed that he had given Jackson permis-
sion to have Saturday morning off and stated that he had
told her to come in at 1 p.m. Finkel confirmed also that
Jackson called him on Saturday to state that she could not
come in because of a scheduled luncheon that afternoon.
Finkel testified that he objected to this and that he alsq told
Jackson she was scheduled to work the following day, Sun-
day. Jackson explained that she could not come in Sunday.
According to Finkel, he was upset by this situation and
informed his area supervisor, Irving Mendelson, that he
wanted to fire Jackson. Over the next few days there was
some additional discussion with Martin Felder, personnel
director for Alberts; permission was granted for Finkel to
fire Jackson and the discharge took place on Wednesday
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
morning, as already described.
Respondents were obviously concerned at the hearing as
was Finkel at the time of the discharge itself that the as-
signed reason for termination, namely , the "Bar Mitzvah"
absence, was a less than plausible explanation for the dis-
charge of a top salesgirl . Accordingly, they sought to but-
tress their position by marshalling what they, not ineptly,
describe as a "litany" of offenses to justify the discharge of
Jackson. Thus, Respondents point out that Jackson was
reprimanded on March 12, 1973, for trying on clothes in an
unauthorized area ; on March 26, 1973, for punching the
timeclock improperly; on March 25, 1973, for again trying
on clothes in an unauthorized area ; on March 31, 1973, for
engaging in union solicitation on the selling floor; on April
6, 1973, for leaving the store through the wrong exit; on
May 12, 1973, for again punching her timecard improperly;
and, also, on May 12, 1973, for disobeying the order of a
supervisor.
Extended discussion of this "litany" of offenses would be
superfluous. Suffice it that considerable evidence was ad-
duced to show that these offenses, to the extent they oc-
curred at all, were inconsequential and not atypical in that
other employees also engaged in them. The fact is that these
asserted derelictions, advanced to buttress the asserted
ground for discharge, had never been considered, either
individually or collectively, as warranting anything more
than a reprimand, often merely an oral reprimand. More-
over, what cannot be overlooked is that all of the asserted
derelictions allegedly occurred and were noted only after
the onset of organizational activities in which Jackson ad-
mittedly participated. Indeed, Irving Mendelson , as area
supervisor of the Northland store among others, testified
that he learned of Jackson's offenses only after he had
knowledge of her union activities and had heard no com-
plaints about Jackson before then. Apparently, whatever
offenses Jackson may have committed became serious only
after her union activities became known.
To be sure, it is not Respondent's burden to establish the
legality of Jackson's discharge. Any reason or no reason at
all is sufficient . The burden of illegality is for General Coun-
sel to establish and the critical question is not whether the
asserted grounds for discharge were sufficient to justify the
discharge but rather whether they were the true reason for
the discharge. Conversely, the question is whether the dis-
charge was really motivated by Respondent's antipathy to
the organizational campaign and Jackson's role therein.
Based on the foregoing analysis and on all the evidence
of record, I conclude that the variety of grounds asserted for
Jackson's discharge were really pretexts, contrived to mask
the real reason for the discharge. The insubstantial nature
of those grounds and the fact that Jackson's work perfor-
mance, unimpeachable before union activities began, sud-
denly became subject to frequent lapses thereafter, cogently
support the inference that the real reason for the discharge
lay in her union activities. The discharge occurred on May
23. At that point the organizational campaign was making
headway. On May 10 the Union had won an election in the
neighboring Universal Mall store. Action had to be taken
to stem the organization effort.
Accordingly, I conclude and find that the discharge of
Rose Jackson was to discourage Union activity and was
violative of Section 8(a)(3) and (1) of the Act.
2. Deborah Rowan
Deborah Ann Rowan worked at the Alberts Lincoln Park
store from the summer of 1971 until her discharge on May
29, 1973. Rowan started as a salesgirl for a brief period, then
worked as a checker in the fitting room, and during the last
year of her employment worked in the stockroom as a part-
time employee. Until April of 1973, Mannino was manager
of the Lincoln Park store and Sophie Fields was assistant
manager . Thereafter Mannino left and Fields took over as
manager.
It is undisputed that Rowan was quite active in behalf of
the Union during the organizational campaign and that
management was aware of her activity in that regard. Row-
an was among the employees present at the April meeting
in the Four Vees lounge and was seen there by Patrick
Casey. As already noted also, Rosario Criscuolo, manager
of the Detroit Shoe department at the Lincoln Park store,
advised Rowan that he knew of her union activity and told
her not to get mixed up in it. Fields also admitted that she
was aware of Rowan's union activity when she discharged
Rowan.
The circumstances attending Rowan's discharge are also
not in dispute. Rowan testified that she had decided to take
off on the Memorial Day weekend. Accordingly she did not
report to work on Saturday, May 26. Sunday was not a
scheduled workday for Rowan. Rowan, according to her
testimony, went up north for the weekend, called her moth-
er from there, and told her mother to report to the store that
she was sick. Rowan admitted that this was a lie; she was
not ill. Rowan further testified that she returned home Sun-
day night but was unable to reach Fields. The store was
closed on Monday because of the holiday. Rowan did reach
Fields by telephone on Tuesday. According to Rowan,
Fields told her in that conversation that she was being let
go because Fields wanted a full-time employee instead of a
part-time employee. Rowan suggested that she could work
full-time because she got home from school by 12:30 p.m.
and could then go directly to work, to which Fields re-
sponded that Rowan was going to be let go anyway. After
wishing her a speedy recovery from her illness Fields termi-
nated the conversation. Except for an occasional shopping
trip, Rowan has not returned to the Lincoln Park store.
Fields confirmed that she had terminated Rowan's em-
ployment in a telephone conversation on Tuesday morning,
May 29. Fields explained that the other stockgirl in the
store, also a part-time employee, Sandy Bordeau, had quit
a week earlier and that a part-time stockboy who did the
same kind of work had quit about the same time. Fields
testified further that Rowan did not do her work properly
and that she, Fields, had frequent occasion to speak to
Rowan on that subject dating back to the time she, Fields,
was assistant manager. Rowan also had a record of absen-
teeism , much of it due to illness. Fields confirmed that she
had received a call from Rowan's mother on the Memorial
Day weekend reporting that Rowan was ill and that Rowan
herself called in on Tuesday morning. According to Fields,
she told Rowan that she had already planned on terminat-
ing Rowan's employment, that the other part-time girl had
ALBERTS, INC. 695
quit, and that she had decided to replace both part-time girls
with a full-time employee. Fields testified that Rowan re-
plied, "all right." Thereafter, Fields did hire a full-time em-
ployee who was still working at the Lincoln Park store as of
the time of the hearing.
Respondents do not seize upon Rowan's unjustified ab-
sence on the Memorial Day weekend and her admitted
falsification in that regard to justify Rowan's discharge.
Instead, Fields candidly admitted that the decision to termi-
nate Rowan antedated that incident. The reasons given for
the discharge were twofold: (1) that Rowan was not per-
forming her job properly; and (2) that it was decided to hire
a full-time employee to replace Rowan and the other part-
time employee who had quit.
So far as Rowan's work performance was concerned it
does not appear that she had received any written repn-
mands. However, on cross-examination, Rowan acknowl-
edged that her work had been frequently the subject of
criticism not only from Fields but also from the new assis-
tant manager of the store. Her record of absenteeism was
also a major factor notwithstanding that, in many instances,
the absences were genuinely due to illness. The decision to
hire a full-time girl to replace Rowan and the other part-
time stock employee is certainly explicable in view of the
situation that arose when one of two quit and the other had
a record of absenteeism and poor work performance.
Certainly here, as in the case of Rose Jackson, Respon-
dents' antipathy to unionization and the knowledge that
Rowan was active in that regard prompts the idea that this
may have been in whole or in part the motivation for her
discharge. However, in Rowan's case, unlike Jackson's case,
such an inference would be strained. Jackson was a top
performer. Rowan was not. The reasons advanced to justify
Jackson's termination were vulnerable. Not so in Rowan's
case. Certainly, the quitting of the other part-time stock
employee was not contrived. Nor can the business judgment
to replace two part-time stock employees with one full-time
stock employee be challenged. Indeed, this is precisely what
was done.
Under all the circumstances and notwithstanding the fact
that Respondents may have welcomed the termination of an
active union adherent, I find inadequate evidence to estab-
lish that Rowan's union activities played a role in her termi-
nation. Accordingly, I conclude and find that a violation of
Section 8(a)(3) or (1) of the Act with respect to the discharge
of Rowan has not been established.
3. Joseph Frezza 9
Joseph Frezza was hired as a part- time stock employee at
the Universal Mall store in March 1973 and remained in
that position until May 1973. The only other employee at
that store who did stock work exclusively was James Bromm
who had been hired a month before Frezza and was also a
part-time employee. Frezza was discharged a few days after
the May 10 election at the Universal Mall store.
9 As indicated at the outset, the legality of the discharge of Joseph Frezza
General Counsel takes the position that Frezza was dis-
charged and later refused reinstatement because he en-
gaged in Union and other protected activities. In that re-
gard the record establishes, and I find, that Tlumak, the
Universal Mall store manager, and, President Klinsky also,
had strong reasons to believe that Frezza was a union
adherent.10 Certainly this belief, against the background of
Respondent's demonstrated animosity towards unioniza-
tion, affords basis for speculation that Frezza's discharge
may have been motivated by his union sympathies.
On the other hand, there is undisputed evidence, which
I credit, that the discharge took place around Mother's Day,
that there is a normal seasonal business decline in the vol-
ume of goods shipped into the store during this period be-
cause the store has been fully supplied with stock for the
new season, and that there was not enough work during the
Mother's Day period to warrant the retention of the two
stock employees.
Frezza was the junior employee of the two in terms of
seniority and he was scheduled for layoff. The testimony of
both Tlumak and Frezza is in accord that Tlumak told
Frezza he was being let go because of a shortage of work
and that Tlumak would recall him when his further services
were required. No claim was or is made that Frezza's work
was unsatisfactory. Both Frezza and Bromm were regarded
as satisfactory workers.
Bromm, the other part-time stockboy, quit his employ-
ment voluntarily about a month after Frezza was let go. For
more than a month thereafter the store had no stockboys
and what stock work had to be done was done by other
employees and by Tlumak himself. Tlumak did not seek to
recall Frezza because, as Tlumak testified, he had been
informed by one of the other employees that Frezza was
already working elsewhere. Tlumak made no effort to verify
this report. But he did call Martin Felder, personnel director
for Alberts, about finding a replacement to do the stock
work. The result of discussions with Felder was that a deter-
mination was finally made not to replace the two part-time
stockboys at all but, instead, to hire one full-time maid. The
reason for this decision was that a full-time maid could do
much of the stock work and, in addition, service the ladies'
fitting rooms and lounges, a function male employees could
not perform. The use of a maid instead of stockboys had
already been applied in other stores in the Alberts chain.
Tlumak followed this procedure. A full-time maid was
hired. No stockboys have since been hired to replace either
Frezza or Bromm.
In this state of the record it is urged, nonetheless, that the
real reason for discharging Frezza was because of
Respondent's antipathy to his union sympathies and that,
even assuming an otherwise valid business reason for the
termination, if the evidence warrants a determination that
Frezza's Union activities entered to any extent into the
discussion to discharge him, that discharge is violative of
the Act. Additionally, it is argued that even if Frezza's dis-
charge was lawful the failure to recall him and the ready
acceptance, without verification, of the report that Frezza
was working elsewhere were prompted by Frezza's known
was not in issue at the initial stages of this proceeding . It became an issue 10 It is unnecessary to recapitulate here the discussions between Tlumak
when a new complaint was issued and by order of the Board consolidated and Frezza and between Klinsky and Frezza which provide the basis for this
with the earlier proceeding finding.
6% DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union sympathies and hence a finding of unlawful refusal
to reinstate is called for.
These contentions, if supported by the evidence, certainly
have warrant in the law. But in my view here, as in the case
of Deborah Rowan, while the record certainly affords
ground for suspicion, the burden of proof which lies on
General Counsel has not been fulfilled. It is undisputed that
there was a shortage of stock work at the time of Frezza's
termination and he was the junior of the two stockboys,
both of whom, as Respondents concede, were satisfactory
employees. The later choice to replace both part-time stock-
boys with one full-time maid had valid business reasons to
support it and was a procedure previously adopted by Al-
berts in other stores. Tlumak's failure to recall Frezza when
Bromm quit, or to seek to verify the report that Frezza was
working elsewhere, might be blameworthy but there is insuf-
ficient probative evidence to establish that this failure and
omission were attributable to Frezza's union activities or
sympathies. Mere suspicion is not enough.
In sum, I conclude and find that the record does not
establish by a preponderance of the evidence that the dis-
charge of Frezza and the refusal to reinstate him were viola-
tive of Section 8(a)(3) and (1) of the Act.
F. Respondents' Refusal to Bargain and to Furnish
Relevant Information
As already noted herein, the Union was certified on July
2, 1973, as the exclusive bargaining representative of Re-
spondents' employees at the Universal Mall store compris-
ing an appropriate unit as hereinbefore described.
Following that certification the Union requested Respon-
dents to bargain concerning those employees and also made
a request that Respondents furnish the Union with relevant
data concerning the wages, hours, and other terms and con-
ditions of employment of those employees. Respondents
admit that they denied both requests.
The issue is purely one of law. The certification estab-
lishes the legal obligation of Respondents to respond affir-
matively to both requests. Respondents do not question this
proposition of law, but they urged at the instant hearing that
the certification was invalid and hence that they had no
lawful obligation to bargain or to furnish the information
sought. Respondents predicate this defense on two grounds:
(1) that the unit certified was not an appropriate unit; and
(2) that Respondent's objection to the election, based on the
Union's preelection promise to waive initiation fees if the
Union became the bargaining representative, was errone-
ously rejected.
With respect to the first ground, the record shows that the
Regional Director found a single-store unit as hereinbefore
described appropriate and the Board thereafter denied Re-
spondents' request for review of that determination because
no substantial issue warranting review was presented. Re-
spondents present no newly discovered evidence relevant to
that determination but merely repeat their position, previ-
ously litigated in the representation hearing, that the unit
described is not appropriate. Respondents acknowledge
their awareness of the well-settled rule against relitigation of
representation issues in subsequent 8(a)(5) proceedings but
assert that there are special circumstances here present
which warrant relitigation. Respondents adduce no showing
of special circumstances to support this naked assertion.
The Board's prior determination is binding on me. The
objection based on the inappropriateness of the unit is re-
jected.
The second ground on which Respondents rely is their
claim that the May 10 election was tainted because the
Union promised in its preelection propaganda to waive ini-
tiation fees if the Union became the bargaining representa-
tive. In that respect, too, the Regional Director in the
representation proceedings had found Respondents' claim
to be without merit and Respondents' request for review
was again denied by the Board for want of a substantial
issue.
The rule barring relitigation of representation issues, pre-
viously described, would normally be applicable here also.
However, in the instant case between the close of the first
phase of the hearing herein and the reopened phase of the
hearing, the Supreme Court on December 17, 1973, issued
a decision in N.L.R.B. v. Savair Manufacturing Co., 414 U.S.
270. Respondents now rely on that decision to renew their
objection that the Union acted improperly in offering a
waiver of initiation fees and have filed a "Motion to Dismiss
8(a)(5) charge." General Counsel, in turn, has filed a re-
sponse opposing that motion.
Analysis of the Savair decision, in my view, gives no
support to Respondents' contention. The question present-
ed in Savair was "whether the Board properly concluded
that a union's offer to waive initiation fees for all employees
who sign union authorization cards before a Board represen-
tation election, if the Union wins the election, does not tend
to interfere with employee free choice in the election." Id.
at fn. 4. The Supreme Court held, contrary to the Board,
that such conduct did tend to interfere with a free election.
It is this holding on which Respondents rely for support of
their motion to dismiss the refusal-to-bargain allegations.
It appears, however, that Respondents overstate the Sa-
vair holding when they argue that the Supreme Court "held
that a promise of waiver of initiation fees by a union is
coercive and taints election results." As shown by the ques-
tion presented and by the majority opinion, the gravamen
of the offense in Savair in the Court's view lay in the fact
that the union gave a special inducement to those employ-
ees, and those employees only, who signed authorization
cards before the election, and that employees who failed to
do so could presumably be subject to the payment of initia-
tion fees. The Court read this disparate treatment as having
an effect of forbidden interference with the election. Indeed,
in the closing paragraph of footnote 4, the Court suggests
that the situation in Savair itself could have been remedied
by making the waiver of initiation fees "available not only
to those who have signed up with the union before an elec-
tion but also to those who join after the election." That was
precisely the situation in the instant case.
In the instant case there was no disparate treatment. If the
Union lost the election, none would be required to pay
initiation fees; if the Union won the election, none would
be required to pay initiation fees. Indeed, the evidence sub-
mitted revealed that this was the Union's policy not only in
the instant organizational campaign but in all instances
where the Union was the beneficiary of a certification. In
ALBERTS, INC 697
these circumstances, I find no basis for a finding that the
Union's conduct in telling the employees before the election
that their initiation fees would be waived in any way tainted
the May 10 election.'
Accordingly, I conclude and find that the objection based
on the Union's waiver of initiation fees is without merit and
that Respondents' motion to dismiss )he allegations of Sec-
tion 8(a)(5) should be, and hereby is, denied. I find further
that the valid certification here issued created a lawful bar-
gaining obligation binding on Respondents and that.Re-
spondents' admitted failure to bargain and to furnish wage
and other relevant data concerning the employees in the
appropriate unit violated Section 8(a)(5) and (1) of the Act.
This holding is dispositive of the matter and makes it
unnecessary to deal at any length with General Counsel's
alternative contention that, even absent a valid certification,
a bargaining order is warranted here under the guidelines
set forth in N.L.R.B. v. Gissel Packing Co., 395 U.S. 595
(1969). In sum, it is General Counsel's position that the
broad pattern of unfair labor practices engaged in by Re-
spondentsjustifies a bargaining order here even without an
election. In this connection, General Counsel cites the
Board's recent decision in Joseph J. Lachniet, d/b/a Honda
of Haslett, 201 NLRB 855 (1973). In that case the Board
issued a bargaining order notwithstanding that a prior elec-
tion which the union won had been set aside, in part because
of improper conduct by a union observer.
What General Counsel overlooks, however, is that the
record in Lachniet contains an independent showing of ma-
jority status which is based on valid authorization cards,
and hence reliance on the results of the election to demon-
strate majority status was unnecessary. In these circum-
stances the Board concluded that the gravity and
pervasiveness of the employer's unfair labor practices war-
ranted a bargaining order.
This case is quite different. The record here contains no
independent evidence, and General Counsel tendered none,
to show that the Union was the designated choice of the
majority of the employees in the appropriate unit. That
showing derives only from the results of the election. As-
suming , arguendo, that the election was tainted, as Respon-
dents argue, not only would the certification flowing from
the election be invalid, but so, too, would any showing of
majority predicated on that election. General Counsel cites
no case , and I am aware of none, in which the Board has
issued a bargaining order where the majority status of the
bargaining representative has not been established. I find
General Counsel's alternative basis for a bargaining order
without basis in the record.
CONCLUSIONS OF LAW
1. Alberts, Inc., and Detroit Shoe Company are, and
have been at all times relevant here, joint employers of the
employees in those stores of Alberts, Inc., in the Greater
Detroit Metropolitan area in which the Detroit Shoe Com-
ii I deem it unnecessary , in view of the discussion in the text , to consider
the argument that the instant case where the employees chose the Union by
a substantial margin is further distinguishable from Savair where the Court
repeatedly notes that the union 's victory there was by a single vote
pany has selling. locations.
2. Retail and Department Store Employees , Amalgamat-
ed Clothing , Workers of America , AFL-CIO, is, and has
been at all times here relevant ,, the exclusive bargaining
representative of.all full -time and regular part-time selling
and nonselling employees employed by Alberts, Inc., at its
Universal City Shopping Center Store , including employees
of Detroit Shoe Company, but excluding professional em-
ployees, guards and supervisors as defined in the Act.
. 3. By engaging in surveillance of a union meeting at Frol-
ing Bowling Lanes on or about May 4, 1973, Respondents
violated Section 8(a)(1) of the Act.
4. Respondents did not engage in unlawful surveillance
at the Four Vees lounge on or about April 12, 1973.
5. By granting wage increases to employees to dissuade
them from supporting the Union and to influence their
votes in a forthcoming election , Respondents violated Sec-
tion 8 (a)(1) of the Act.
6. By coercively interrogating employees by threats and
promises of benefit, by creating the impression of surveil-
lance of Union activities , and by soliciting employees to
submit their grievances to management and not to the
Union , all to the end of discouraging unionization , Respon-
dents violated Section 8 (a)(1) of the Act.
7. By promulgating and publishing an otherwise valid
no-solicitation rule for the purpose of interfering with the
employees ' right of self-organization , Respondents violated
Section 8(a)(1) of the Act.
8. By unilaterally changing working conditions of em-
ployees following an election in which the employees desig-
nated the Union as their bargaining representative,
Respondents violated Section 8(a)(1), (3), and (5) of the Act.
9. By discharging and refusing to reinstate employee
Rose Jackson because she engaged in union activities, Re-
spondents violated Section 8(a)(3) and ( 1) of the Act.
10. The preponderance of the evidence does not warrant
a finding that Respondents violated Section 8(a)(3) and (1)
of the Act by discharging and refusing to reinstate employ-
ees Deborah Rowan and Joseph Frezza.
11. By refusing to bargain collectively with the certified
Umon upon request and by rejecting the Union 's request for
information as to wages and other relevant data concerning
the employees which the Union represented, Respondents
violated Section 8(a)(5) and ( 1) of the Act.
12. The unfair labor practices found herein affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
To effecutate the policies of the Act and to enforce its
mandate, I will direct Respondents to cease and desist from
the several unfair labor practices found. Because of the
varied character and broad scope of these unfair labor prac-
tices, a broad remedial order is warranted and I shall direct
that Respondents cease and desist from trenching in any
manner upon the rights guaranteed their employees under
Section 7 of the Act.
Appropriate affirmative action will also be directed. In
respect to Rose Jackson, I shall direct that she be reinstated
in the manner customarily prescribed by the Board and with
no prejudice to any rights, benefits, or privileges she for-
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merly enjoyed. I shall further direct that she be made whole
for lost earnings, computed on a quarterly basis with inter-
est at 6 percent as prescribed in F W Woolworth, Co., 90
NLRB 289 (1950), and in Isis Plumbing & Heating Company,
138 NLRB 716 (1962). The usual provisions regarding rec-
ordkeeping, reporting requirements, and notice posting will
also be included
Inasmuch as Respondents here are involved in multistore
operations, the problem of the posting of notices is more
than routine. Alberts, Inc., has a three-state operation.
However, the organizational campaign here was confined to
stores in the Greater Detroit metropolitan area and in these
circumstances a prudent discretion would counsel against
the necessity or propriety of posting notices in Alberts, Inc.,
stores throughout the three-state area. The record also does
not show, with any specificity, to what extent the organiza-
tional campaign of the Union and Respondents' campaign
affected all 24 stores, which General Counsel alleges and
Respondents admit, comprised the Greater Detroit metro-
politan area stores. Moreover, it is clear that, as of time of
the instant proceedings, Detroit Shoe Company had selling
locations in only about 10 of these 24 stores. Nevertheless,
insofar as Alberts, Inc., is involved in the commission of
unfair labor practices here found, and its role in that regard
is substantial, it is reasonable to infer that this information
would have reached employees in all the stores in the Great-
er Detroit metropolitan area which are geographically quite
contiguous. These employees could and would be, quite
naturally, apprehensive as to their security against interfer-
ence with the exercise of their statutory rights to organize
and bargain collectively. Accordingly, I deem it appropriate
to, and will, direct that the notices herein directed be posted
in all of the Alberts, Inc., stores located in the Greater
Detroit metropolitan area.
Nothing in the Order, however, shall be construed as
requiring Respondents to withdraw from employees any
increases which it unilaterally granted them.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I shall recommend the following:
ORDER 12
Respondents Alberts, Inc., and Detroit Shoe Company,
their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Engaging in surveillance of employees in the exercise
of their rights to self-organization as guaranteed in Section
7 of the National Labor Relations Act, as amended.
(b) Granting wage increases to employees to discourage
their union or other protected activities.
(c) Coercively interrogating employees concerning their
union or other protected activities.
(d) Threatening, or promising benefits to, employees in
12 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall, as provided in Section
102 48 of the Rules and Regulations be adopted by the Board and become
its findings , conclusions and Order, and all objections thereto shall be
deemed waived for all purposes.
derogation of the rights guaranteed them in Section 7 of the
Act.
(e) Creating the impression among the employees that
their union or other protected activities are under surveil-
lance by management.
(f) Soliciting employees to bypass the Union in their pre-
sentation of grievances and to bring their grievances directly
to management.
(g) Promulgating and enforcing a no-solicitation rule for
the purpose of interfering with organizational rights of em-
ployees.
(h) Unilaterally changing working conditions of employ-
ees without consulting or bargaining with the designated
representative of the employees.
(i) Discouraging membership in Retail and Department
Store Employees, Amalgamated Clothing Workers of
America, AFL-CIO, or in any other labor organization, by
discharging or otherwise discriminating against any person
in regard to hire or tenure of employment or any term and
condition of employment.
(j) Refusing to meet and bargain collectively concerning
wages , hours, and other terms and conditions of employ-
ment with the above-named Union as the exclusive bargain-
ing representative of all the employees comprising the unit
described hereunder:
All full-time and regular part- time selling and nonsell-
ing employees employed by Alberts, Inc., at its Univer-
sal City Shopping Center Store, including employees of
Detroit Shoe Company, but excluding professional em-
ployees, guards and supervisors as defined in the Act.
(k) Refusing to furnish data requested by the above-
named Union relating to wages, hours, and other terms and
conditions of employment of the employees comprising the
above-described unit.
(1) In any other manner interfering with , restraining, or
coercing employees in the exercise of rights guaranteed un-
der Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the National Labor Relations Act, as amended:
(a) Offer Rose Jackson immediate reinstatement to her
formerjob or, if that job no longer exists, to a substantially
equivalent job, without prejudice to her seniority or other
rights and privileges, and make her whole for lost earnings
in the manner set forth in the portion of this Decision enti-
tled "Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records, and reports, and all other records necessary to
compute the amount of lost earnings due Rose Jackson
under the terms of this Order.
(c) Rescind the rule against solicitation herein found to
have been discriminatorily promulgated and enforced, and
expunge from the personnel records of Rose Jackson any
reference to warnings or reprimands directed to her for
violation of this rule.
(d) Upon request, bargain collectively with the above-
named labor organization as the exclusive bargaining repre-
sentative of the employees in the unit described above with
ALBERTS, INC. 699
respect to rates of pay, wages, hours, and other terms and
conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(e) Upon request furnish the above-named labor organi-
zation with appropriate data concerning wages , hours, and
other terms and conditions of employment of the employees
comprising the appropriate unit described above.
(f) Post at all Alberts, Inc., stores in the Greater Detroit
metropolitan area copies of the attached notice marked
"Appendix." 13 Copies of the notice, on forms provided by
the Regional Director for Region 7, after being duly signed
by authorized representatives of Respondents, shall be post-
ed by Respondents immediately upon receipt thereof, and
be maintained for 60 consecutive days thereafter, in con-
spicuous places, including places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by Respondents to insure that the notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director for Region 7, in writing,
within 20 days of the date of this Order, what steps Respon-
dents have taken to comply wherewith.
IT IS ALSO ORDERED that the complaint herein be dismissed
insofar as it alleges unfair labor practices not found herein.
13 In the event that the Board's Order is enforced by a Judgment of the
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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unilaterally , and without consulting
with your bargaining representative , change your
working conditions.
WE WILL NOT discharge or otherwise discriminate
against any of you to discourage you from engaging in
union activities.
WE WILL offer Rose Jackson her old job back and we
will pay her for earnings she lost as a result of her
discharge.
WE WILL expunge from Rose Jackson 's record any
reference to violation of our no -solicitation rule.
WE WILL meet and bargain upon request with Retail
and Department Store Employees , Amalgamated
Clothing Workers of America , AFL-CIO, as the exclu-
sive bargaining representative of all our employees in-
cluded in the description below about their wages,
hours and working conditions and, if agreement is
reached, we will sign such an agreement.
The bargaining unit is:
All full-time and regular part-time selling and non-
selling employees employed by Alberts, Inc., at its
Universal City Shopping Center Store , including em-
ployees of Detroit Shoe Company, but excluding
professional employees , guards and supervisors as
defined in the Act.
WE WILL, upon request, furnish data to the above-
named labor organization relating to wages, hours,
and other terms and conditions of employment of the
employees covered in the above description.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in your rights guaranteed by Sec-
tion 7 of the National Labor Relations Act as
amended.
ALBERTS, INC.
(Employer)
WE WILL NOT engage in surveillance of your activities
with respect to your right to organize and bargain col-
lectively or to refrain therefrom.
WE WILL NOT create the impression that we are engag-
ing in such surveillance.
WE WILL NOT grant wage increases to discourage
union or other protected activities.
WE WILL NOT question you concerning union matters.
WE WILL NOT threaten, or promise benefits to, you in
derogation of your right to organize and bargain collec-
tively, or to refrain therefrom.
WE WILL NOT Solicit you to bypass your bargaining
representative in the presentation of grievances and to
bring your grievances directly to us.
WE WILL NOT promulgate or enforce a no-solicitation
rule for the purpose of obstructing your organizational
and collective-bargaining rights.
Dated By
Dated By
(Representative) (Title)
DETROIT SHOE COMPANY
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 1249 Washington Boulevard, De-
troit, Michigan 48226, Telephone 313-226-3210.