Berenson Liquor Mart

National Labor Relations Board - Board Decisions

Apr 29, 1976

223 N.L.R.B. 1115 (N.L.R.B. 1976)

BERENSON LIQUOR MART 1115
South Station Liquor Store, Inc. d/b/a Berenson Li-
quor Mart and Retail Store Employees ' Union, Lo-
cal 1291 , Retail Clerks International Association,
AFL-CIO. Case 1-CA-10180
April 29, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS PENELLO AND
WALTHER
On October 8, 1975, Administrative Law Judge
Arnold Ordman issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed cross-exceptions and a supporting brief.
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 of the Administrative Law Judge to the
extent consistent herewith and to adopt his recom-
mended Order as modified herein.
We agree with the Administrative Law Judge's
findings that the Respondent violated Section 8(a)(1)
of the Act by interrogating employees concerning
their union sympathies and activities;' soliciting
grievances from its employees with the implied
promise of improving their working conditions; an-
nouncing, and thereafter granting, employee bene-
fits; and granting numerous wage increases to its em-
ployees, all for the purpose of discouraging them
from supporting the Union. We also agree with the
finding of the Administrative Law Judge that Re-
spondent violated Section 8(a)(1), (3), and (4) of the
Act by discriminatorily canceling the privilege previ-
ously granted to employee Robert Lamothe to work
through his lunch period thereby permitting him to
complete his workday a half hour earlier.
As part of his remedy, the Administrative Law
Judge ordered Respondent to bargain with the
Union in a bargaining unit consisting of all retail
sales employees and warehouse employees employed
by Respondent at its three retail stores and ware-
house located in Boston, Massachusetts, excluding
office clerical employees, telephone sales employees,
administrative and wholesale employees, guards and
supervisors as defined in the Act. The General Coun-
sel has filed exceptions contending that the Adminis-
trative Law Judge should have found, sua sponte, that
Respondent also violated Section 8(a)(5) of the Act
in view of the Board's recent decision in Trading
Port, Inc., 219 NLRB 298 (1975)2
Respondent has also filed exceptions contending,
inter alia, that the only appropriate unit is a single
overall unit consisting of selling and nonselling retail
and wholesale employees. Since the General Counsel
failed to establish the Union's majority status in the
overall unit, Respondent argues that a remedial bar-
gaining order is not warranted. For the reasons set
forth below, we agree with Respondent.
Respondent operates three retail stores and one
warehouse, all of which are located in Metropolitan
Boston, Massachusetts. The location at One Win-
throp Square contains both a retail store and
Respondent's executive offices.' The retail store is on
the main floor. Offices are located in an area directly
adjacent to the retail store and in a mezzanine area.
Respondent has two other retail stores, one located
in Prudential Plaza in Boston, and the other on Bea-
con Street in nearby Brookline. Respondent's ware-
house is located on Beacon Street in Allston.'
' The complaint was amended at the hearing to allege that Edward Levitt,
president and owner of the Respondent , interrogated employees on two
separate occasions concerning their union activities and sympathies during
September 1974. While the Administrative Law Judge concluded that the
Respondent violated the Act with respect to interrogations conducted by
James Barker , he made only one passing reference to the alleged interroga-
tions by Levitt and never made any formal findings or conclusions in this
regard.
Uncontradicted testimony indicates that shortly after the union meeting
on September 18, 1974, Levitt asked employee Robert Lamothe whether he
was employed by the Union. However, the testimony with respect to the
other interrogation is contradictory. Employee Richard Kiley testified that
in late September Levitt asked him whether he had attended a union meet-
ing. In his testimony, Levitt denied ever asking Kiley if he attended a union
meeting.
We conclude that the Respondent violated Sec. 8(a)(1) of the Act by
Levitt's interrogation of Robert Lamothe concerning his union activities.
However , since the evidence with respect to Levitt's alleged interrogation of
Kiley would require our making a credibility resolution, and since any find-
ing of unlawful conduct would in any event be cumulative and not affect
the remedy , we find it unnecessary to make any finding concerning Levitt's
alleged interrogation of Kiley.
Retail Store Employees and Warehouse Employees
In the retail stores there are sales personnel who
engage in the sale of liquor to the public, cashiers,
and stock clerks who are responsible for keeping
merchandise stocked on the shelves. Also, there is a
full-time courier who drives between the retail stores
2 The charges filed in this case alleged , inter alia, a violation of Sec. 8(a)(5)
of the Act. However, according to counsel for the General Counsel, the
complaint did not allege any violation of Sec . 8(a)(5) because of our recent
decision in Steel-Fab, Inc., 212 NLRB 363 (1974).
3 This location replaced a former location at 70 Summer Street which
contained a retail store , executive offices, and a small warehouse. The
change of location occurred in November 1974. At the time of the recogni-
tion demand , discussed in detail infra, the Respondent was using the Sum-
mer Street location.
" Respondent formerly had a warehouse on Gerald Street in Roxbury but
changed its warehouse to the Beacon Street location in August or Septem-
ber 1974.
223 NLRB No. 159
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the warehouse twice a day. In the warehouse,
there are warehousemen who are responsible for
stocking and retrieving cases of liquor, and drivers
who unload trucks and transport liquor to and from
the warehouse and between the stores. There is a
dearth of record evidence with respect to two outside
wholesale salesmen.
Personnel policies and fringe benefits are uniform
for all employees. All of the administrative responsi-
bilities for both the retail and warehouse employees
are performed at the executive offices. There is one
payroll for all-employees which segregates employees
on the basis of job function rather than on the basis
of location.
We agree with the Administrative Law Judge that
a unit including sales personnel , cashiers , and stock
clerks at all of the Employer 's retail stores , the couri-
er, the warehousemen , the drivers , and the outside
wholesale salesmen is appropriate for purposes of
collective bargaining. The Union, the General Coun-
sel, and the Respondent all agree that this is the min-
imum core group of employees which constitute an
appropriate bargaining unit . In addition , these em-
ployees all share a community of interest by virtue of
the fact that they are all subject to the same labor
policies and procedures and they share the same
fringe benefits. Cf. Gourmet, Inc., d/b/a Jackson's Li-
quors, et al., 208 NLRB 807, 809 (1974). Finally, Sec-
tion 9(b) of the Act expressly sanctions employer-
wide bargaining units.'
Clerical Employees
A. Office Clericals
There are five office clerical employees. Karen
Berman is a secretary -typist ; Ann Jaime is responsi-
ble for accounts payable ; and Verna Wilson is in
charge of cash receipts , accounting, and payroll. All
three report to Office Manager Herbert Snow. Janice
Lieberman is responsible for imports and overseas
shipments and her supervisor is General Manager
Richard Hoag . Finally, Martha Battenfield performs
bookkeeping and credit functions and is supervised
by Credit Manager Richard Miller . Berman and
Jaime are paid on an hourly basis while the other
clericals are on salary.
When the 70 Summer Street location was opera-
tional , Lieberman , Jaime, Wilson , and Berman all
worked in the mezzanine section of the store . Batten-
5In its brief, Respondent takes the position that the outside wholesale
salesmen could be included or excluded from the overall unit of retail store
and warehouse employees. We shall include them in the unit since the
Union sought to represent , inter alia. "all sales employees ," and should they
be excluded they would be the only unrepresented sales employees.
field worked on the fourth floor with her supervisor,
Richard Miller. At the One Winthrop Square loca-
tion, all of the office clericals work in the office area
adjacent to the retail store.
The office clerical employees do upon occasion go
into the retail store to perform clerical work. During
holiday seasons when sales are heavy, some of the
clericals are temporarily transferred to sales posi-
tions.
B. Telephone Sales Employees
Catherine Stennis and Margaret Warren are tele-
phone sales employees . They take orders over the
telephone-as well as in person-from customers,
and type , process , and price orders . They work in the
retail store at Winthrop Square.
C. Wholesale Clerical Employees
There are two wholesale clerical employees, Jane
Hoey and Justine Kanodia. They take wholesale
phone orders, process invoices, and do billing. Jane
Hoey testified she infrequently engaged in retail
sales . Hoey and Kanodia work on the mezzanine
outside the executive office at Winthrop Square.
D. Discussion
Unlike the Administrative Law Judge, we find that
the five office clerical employees, two telephone sales
employees, and two wholesale clerical employees
should be included in the bargaining unit.
It is established Board policy to include such cleri-
cals in small retail bargaining units. G. C. Murphy
Company, 171 NLRB 370, 371 (1968); affd. 422 F.2d
685, 691-692 (C.A.D.C., 1969); Heck's Inc., 170
NLRB 178, 188 (1968), affd. with modification on
grounds not apposite here, 418 F.2d 1177 (C.A.D.C.,
1969); Heck's Inc., 159 NLRB 1151, 1152, fn. 1
(1966), affd. 387 F.2d 65 (C.A. 4, 1967). In G. C.
Murphy, supra, the Board included 5 office clerical
employees and 3 merchandise girls in a small bar-
gaining unit consisting of 92 selling and production
employees. While noting that the distinction between
"large" and "small" retail stores is unclear, the Dis-
trict of Columbia Circuit found that the distinction is
not irrational and affirmed the Board's inclusion of
the clerical employees in the selling and production
unit.
All nine clerical employees share a community of
interest with the other unit personnel. Respondent's
employee complement is small . Even with the 9 cleri-
cals included, the bargaining unit encompasses less
than 40 employees-considerably smaller than the
BERENSON LIQUOR MART 1117
unit in G. C. Murphy. The two telephone sales em-
ployees and two wholesale clerical employees per-
form work which is similar to, and occasionally the
same as , the retail store employees . As noted, the five
office clerical employees and the two telephone sales
employees also will , on occasion , do sales work in the
retail section of the Winthrop Square store . In addi-
tion , the two wholesale clerical employees and five
office clerical employees perform their normal work
functions in areas which are immediately adjacent to
the retail store area.
Finally , in its recognition demand the Union
sought to represent all employees including "office
clerical employees ," and no union seeks to represent
the clericals in a separate unit . For the foregoing rea-
sons , we will include the nine clerical employees in
the bargaining unit . G. C. Murphy, supra.
create the requisite community of interest with the
regular employees. In accord with the finding of the
Administrative Law Judge, we shall exclude them
from the unit. De Luca Brothers, Inc., 102 NLRB 327,
330 (1973); Georgia-Pacific Corporation, 195 NLRB
258, 259 (1972), and cases cited therein.
Casual Employee
Employee Jean Ricen is a woman in her mid-90's,
the aunt of Respondent's previous owner. Her em-
ployment was contractually obligated at the time of
the sale of the business. She works irregular hours.
We agree with the Administrative Law Judge that
she is a casual employee and thus should be excluded
from the unit. M. J. Pirolli & Sons, Inc., 194 NLRB
241, 249 (1972).
Assistant Store Managers
Richard Kiley, Charles Eldred, and Helen Doherty
are assistant store managers . Levitt's testimony
would seem to indicate that they have broad supervi-
sory authority. Thus, he testified that they are au-
thorized , inter alia, to make employment decisions
and take charge of stores during periods when the
managers are away on business or are on vacation.
They are paid on a salary basis.
On the other hand, it appears from the record that
the assistant store managers are not aware of, nor
have they ever exercised, the authority which Levitt
attributes to them. On his union authorization card,
for example, Kiley indicated that he was a wine
salesman , not an assistant store manager . Levitt him-
self could not recall whether Eldred had ever exer-
cised any supervisory authority. Employee Robert
Lamothe testified that Store Manager Marshall told
him Supervisor Nadeau rather than Assistant Store
Manager Eldred would be in charge of the store
while Marshall was on vacation.
We agree with the Administrative Law Judge that
Kiley, Eldred, and Doherty should not be excluded
as supervisors . There is insufficient evidence that
either they or the employees with whom they worked
were aware of their alleged supervisory authority. In
addition, there is no evidence that they ever exercised
such alleged supervisory authority. Cf. Gourmet, Inc.,
supra at 808, 809.
Summer Students
Two employees, Stephen Katz and Thomas Sav-
age, are full-time law students . They are employed by
Respondent only during the summer. Therefore, they
do not enjoy a regularity of employment sufficient to
Supervisors
The parties agree that the following individuals are
supervisors within the meaning of the Act: adminis-
trative personnel-Richard Berenson, Richard Hoag,
Richard Miller, Julian Nadeau, Herbert Snow, and
Edward Levitt; store managers-Christopher Mar-
shall, Henry Mansour, and Nathan Warren; Ware-
house Manager William Blydenberg; Operations
Manager James Parker; and Sales Manager James
Silo. In accord with the parties and the Administra-
tive Law Judge we find that Berenson, Hoag, Miller,
Nadeau, Snow, Levitt, Parker, Silo, Marshall, Mans-
our, Warren, and Blydenberg are supervisors and
should be excluded from the unit for this reason.
In view of the above, the unit appropriate for the
purpose of bargaining is:
All retail sales employees, warehouse employees,
office clerical employees , telephone sales em-
ployees, wholesale clerical employees, and out-
side wholesale salesmen employed by the Re-
spondent at its three retail stores and warehouse
located in metropolitan Boston, Massachusetts,
but excluding administrative employees, guards,
and supervisors as defined in the Act.
In order for this Board to issue a remedial bargain-
ing order, it must first be established that the Union
represented a majority of employees in the appropri-
ate bargaining unit.
The Union has never represented a majority of
employees in the unit which we have found appropri-
ate. Examination of the Respondent's payroll records
for the week ending September 13, 1974, indicates
that there were 34 employees in the unit which we
have found appropriate. As of that date, the Union
had authorization cards from only 16 of the 34 em-
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees.6 Therefore, on September 13, the Union did
not represent a majority of employees in the appro-
priate unit.
Respondent's payroll records for the week ending
September 20,1974, indicate that there were 38 em-
ployees in the unit.' As of this date, however, the
Union had authorization cards from only 18 of the
38 employees, and therefore still did not represent a
majority.'
Since the General Counsel has failed to prove that
the Union has at any time represented a majority of
Respondent's employees in the unit found appropri-
ate for the purposes of collective bargaining, the im-
position of a bargaining order is not warranted.
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, South
Station Liquor Store, Inc. d/b/a Berenson Liquor
Mart, Boston, Massachusetts, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
1. Delete paragraph 2(b) and reletter paragraph
(c) as (b).
2. Substitute the attached appendix for that of the
Administrative Law Judge.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following Conclusions of Law 6
and 7 for those of the Administrative Law Judge:
"6. The following is an appropriate unit for the
purpose of collective bargaining within the meaning
of Section 9(b) of the Act:
All retail sales employees, warehouse employees,
office clerical employees, telephone sales em-
ployees, wholesale clerical employees, and out-
side wholesale salesmen employed by the Re-
spondent at its three retail stores and warehouse
located in metropolitan Boston , Massachusetts,
but excluding administrative employees, guards,
and supervisors as defined in the Act.
"7. The Union has not been designated by the em-
ployees as the majority representative of the afore-
said unit."
2. Delete the Administrative Law Judge's Conclu-
sion of Law 8.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
6These employees are John Corbitt, Donald Wallis, Edward Wiezel.
James Sharpe, William Brown , Richard Kiley , Robert Lamothe, David
Hoag, Robert DiFillippo . Charles Eldred, Kaj Wilson , Margaret Warren.
Karen O 'Donnell, Bertil Forsberg , Henry Gingold . and Dennis O'Connor.
r Employee Theresa Ganno, who appears ca the payroll record, was dis-
charged on September 20 but was employed at all times from September 9
through September 20.
$ These employees include , in addition to the employees mentioned in In.
6, Martha Battenfield , Anthony Calloway , and Richard Nye. but do not
include Bertil Forsberg (mentioned in In . 6) since his name does not appear
on the September 20 payroll record . Justine Kanodia did not sign a card
and, like Forsberg , her name appears on the September 13 payroll record
but not on the September 20 payroll record . If Forsberg were to be counted
as a unit employee on September 20 despite the fact that his name does not
appear on the September 20 payroll record then Kanodia also would have
to be counted . This would result in an addition of 2 employees to the unit
for a total of 40 employees and an addition of I authorization card for a
total of 19 authorization cards . Therefore , with or without counting Fors-
berg and Kanodia in the unit on September 20, the Union in either situation
lacks authorization cards from a majority of the employees in the unit which
we have found appropriate.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
WE WILL NOT coercively interrogate you con-
cerning your union activities and sympathies.
WE WILL NOT solicit grievances from you with
the implied promise of improving your working
conditions for the purpose of discouraging you
from supporting the Union.
WE WILL NOT announce and/or grant employ-
ee benefits to you for the purpose of discourag-
ing you from supporting the Union.
WE WILL NOT announce or grant wage increas-
es to you for the purpose of discouraging you
from supporting the Union.
WE WILL NOT revoke privileges which we pre-
viously granted you for the purpose of discour-
aging you from supporting the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your right to organize or bargain collectively, or
to refrain from such activities.
WE WILL, upon request, restore to Robert La-
mothe the privilege we had previously granted to
him to work through his lunch period thereby
enabling him to complete his workday a half
hour earlier.
SOUTH STATION LIQUOR STORE, INC. d/b/a
BERENSON LIQUOR MART
DECISION
STATEMENT OF THE CASE
ARNOLD ORDMAN, Administrative Law Judge: Pursuant
to unfair labor practice charges filed by the Charging Party
BERENSON LIQUOR MART
(herein called the Union) on October 22, 1974, and on Feb-
ruary 26, 1975, complaint issued against Respondent on
February 27, 1975. The complaint alleges that Respondent
engaged in violations of Section 8(a)(1), (3), and (4) of the
National Labor Relations Act, as amended. Respondent
denies engaging in the alleged violations.
Hearing was conducted before me in Boston, Massachu-
setts , on July 1, 2, and 3, 1975. General Counsel and Re-
spondent submitted briefs in August 1975. Upon the entire
record in this proceeding, upon my observation of the wit-
nesses and after careful consideration of the briefs, I make
the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent, a Massachusetts corporation, maintains
three stores and a warehouse, all located in Metropolitan
Boston, and is engaged in the wholesale and retail sale and
distribution of liquor. Respondent's sales on an annual ba-
sis are in excess of $500,000 and its receipt of products
from out-of-state sources total more than $50,000 in value.
Respondent admits, and I find, that it is engaged in com-
merce within the meaning of the Act. Respondent also ad-
mits, and I find, that the Union is a labor organization
within the meaning of the Act.
Jurisdiction is properly asserted in this proceeding.
11. THE UNFAIR LABOR PRACTICES
A. Introductory Statement; the Issues
Edward M. Levitt is president of Respondent, owns all
its stock, and actively manages its business . Early in 1974
Respondent purchased Berenson Liquor Mart, an already
existing enterprise , hereinafter referred to as Berenson. Be-
cause of complications including the obtaining of a liquor
license, the actual transfer of ownership did not take place
until March 1, 1974. For some months prior thereto, how-
ever, Levitt as the prospective buyer of Berenson was con-
sulted by the predecessor owner as to essential manage-
ment decisions.
As of March 1, 1974, Berenson consisted of three stores
and a warehouse all located in Metropolitan Boston. After
the transfer of ownership, a few changes in physical loca-
tion occurred. Thus, one of the stores which had been lo-
cated at Summer Street in Boston was moved to One Win-
throp Square in that city. Warehouse facilities were also
moved but again within the Metropolitan Boston area.
These changes in location, however, do not affect resolu-
tion of the issues here presented.
Union activities among Respondent's employees began
in August 1974, about 5 months after the transfer of own-
ership. It is General Counsel's position that Respondent
learned of these union activities virtually at their outset
and sought to block the organizational effort by interrogat-
ing the employees, by soliciting the employees to list their
grievances , and by announcing and granting to the em-
ployees a wide range of employee benefits including wage
raises . In addition to this conduct which General Counsel
1119
alleges to be violative of Section 8(a)(1) of the Act, General
Counsel alleges that Respondent further violated Section
8(a)(1), (3), and (4) of the Act by revoking a privilege previ-
ously granted to employee Robert Lamothe, the most ac-
tive union adherent in the work force, to work through his
lunch hour, thereby enabling him to complete his workday
a half hour earlier. Finally, General Counsel urges that
Respondent's unfair labor practices were so unlawful and
pervasive as to warrant an order directing Respondent to
bargain with the Union which, General Counsel contends,
represents a majority of Respondent's employees in an ap-
propriate unit.
Respondent, for its part, denies that it engaged in unfair
labor practices and takes issue with the claim that a bar-
gaining order is warranted or justified.
The findings and conclusions respecting these matters
are set forth hereunder.
B. Chronology of Events
1. The events from March to August of 1974
Early in March 1974 after taking over the ownership of
Berenson , Edward M. Levitt, Respondent's president, sum-
moned the staff to a meeting. Present at the meeting were
employees and supervisory and administrative personnel.
Levitt introduced himself as the new owner and told the
assembled group about his style of doing business, about
his expectations for the future of Berenson, and about his
other business involvements. In this connection Levitt stat-
ed that he was also president of Longwood Management, a
corporation which furnished management and accounting
services to a number of businesses including some which
Levitt owned or in which he had a substantial interest.
Among the latter were Berenson and a similar enterprise in
Taunton, Massachusetts, known as Smitty's Liquor Store.'
A leaflet entitled Berenson's Liquor Mart Employees
Manual described employee benefits which had been in
effect at that enterprise before Respondent's assumption of
ownership. At the March meeting, however, Levitt an-
nounced that he would promulgate new and different per-
sonnel policies which would be patterned essentially and as
far as feasible on those contained in the personnel hand-
book of Smitty's Liquor Store which reflected Longwood
Management directives. In the course of his remarks Levitt
made frequent reference to the Smitty's handbook but did
not read from it. He did make reference to such matters as
the Longwood Management Blue Cross/Blue Shield pro-
gram, the Longwood Management life insurance and sick
leave benefits, and the "Smitty" holidays. Levitt stressed
that the personnel policies at Smitty's could be adopted to
a considerable degree at Berenson so as to assure a basic
consistency and uniformity of personnel practices in the
separate enterprises. Levitt also invited employee sugges-
tions as to future personnel policies. He did not particu-
larize, however, the employee benefits he was considering
nor did he announce any specific date when changes would
be instituted.
1 Levitt had been the owner of Smitty's Liquor Store but in order to
facilitate his acquisition of Berenson Levitt transferred ownership of
Smitty's Liquor Store to his wife.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Levitt testified that beginning after the March meeting
there was an ongoing implementation of changes in per-
sonnel policies at Berenson with some changes being made
forthwith and others later. Thus, Levitt testified that the
number of holidays for employees was increased forthwith
and that Respondent paid a larger proportion of the fees
exacted from employees previously for Blue Cross/Blue
Shield benefits . This testimony was considerably shaken,
however , when Levitt conceded as to the increase in the
number of holidays that no announcement was made to
the employees in that regard and that the first manifesta-
tion to the employees of a change in holiday schedule oc-
curred 6 months later in September 1974 when the employ-
ees were given a Labor Day holiday . Similarly , as to Blue
Cross/Blue Shield benefits, Levitt conceded that in fact the
new system, whereby management paid a larger portion of
the fees required, was not actually put into effect until Oc-
tober 1, 1974.2 Indeed, so far as appears, the only changes
which seem to have been made in the period between
March and August 1974 when union activities began were
that membership in a Longwood Management credit union
was made available to Berenson employees , a handful of
employees were given raises , and a few received longer va-
cations.
2. The inception of union organizational activities; the
events of August 1974
In June 1974, about 3 months after Respondent took
over the ownership of Berenson , employee Robert La-
mothe became interested in unionization and communicat-
ed with Joseph Bryan, president of the Union. Bryan ex-
plained to Lamothe the procedure for getting employees to
sign Union authorization cards and later furnished La-
mothe with Union authorization cards . Lamothe, however,
took no action in that regard until August because summer
vacations would make earlier action difficult.
In August Lamothe did take action . He signed an au-
thorization card himself and obtained two other employee
signatures to authorization cards . Thereafter , on August
19, Lamothe prepared a union leaflet which he personally
distributed that same day to the employees in
Respondent 's three stores and warehouse . The leaflet urged
the employees to join the Union in order to insure their job
security , to obtain better wages and employee benefits, and
to protect themselves against unwarranted discharge. One
of the discharge incidents cited in the leaflet was that of
Peter Carmichael. The leaflet closed with an appeal to the
employees to attend a meeting with representatives of the
Union on the evening of August 22.
The union meeting scheduled for August 22 was not
held. On August 20, the day following his distribution of
the union leaflet , Lamothe was informed by a management
official that Levitt was having a meeting at his home for
2 Levitt explained the delay from March to October as being due to a
"clerical foulup" Significantly , however. Respondent made no effort to rec-
ompense the employees for the time lag which action would have seemed
appropriate if the change was, as claimed , intended to have been effective in
March.
the Berenson employees on the evening of August 22. The
union meeting was rescheduled for August 23.
About 20 employees attended the August 22 meeting at
Levitt' s home . According to Lamothe, Levitt opened the
meeting with a statement that he had heard there was talk
of a union at Berenson, that Longwood Management had
never had a union, that business functioned best without a
union and that he, Levitt, saw no need for a union in
Respondent's enterprise and did not want one. Levitt also
testified as to the course of the August 22 meeting. In an-
swer to a question whether the Union had been discussed
at the meeting, Levitt replied that he was unable to recall
such a discussion. He did recall, however, discussing the
discharge of Peter Carmichael which had been mentioned
in the August 19 union leaflet. Indeed, as Levitt admitted,
discussion of the Carmichael discharge was one of the rea-
sons for the meeting.
Levitt testified that other reasons for the meeting were to
review the status of company affairs and to discuss such
matters as the continuing formulation of personnel poli-
cies, operational plans, and advertising plans for the holi-
day season. Levitt did discuss these matters. Following this
discussion and toward the close of the meeting employee
Dennis O'Connor asked Levitt what he was going to do for
the employees. According to Lamothe, Levitt replied that
business was really bad at this time, that there was really
not much he could do, that it depended on the profit situa-
tion and that he wanted to wait 6 months or so before
making any changes. Dennis O'Connor's recollection was
that Levitt prefaced his reply with a lot of talk about busi-
ness and the company and then stated that "right now he
was concerned with the business aspect and that changes
would be taken up at a later date-after Christmas." Levitt
testified that the question to him was posed in terms of an
across-the-board increase and that his reply was that he
had no intent at that time to give such an increase, that he
had given some increases over the preceding months, and
that he would have an opportunity in the ensuing months
to continue to evaluate the staff.
Levitt's meeting of August 22 did not stifle the unioniza-
tion effort . Interest in union organization continued. Addi-
tional authorization cards were signed. The union meeting,
which had been rescheduled for August 23, was held.
3. The events of September 1974
A second union meeting was held on September 3. This
union meeting , too, was announced to the employees in a
leaflet which, again , had been prepared and circulated by
Lamothe in the same manner as the leaflet for the first
union meeting. The second leaflet, like the first, stressed
the importance and advantages of unionization, pointing
out this time that "management has said that there can be
no substantial improvements in the employees' situation
until the distant future, depending upon whether or not
profits are up." Additional authorization cards were signed
by employees on September 3 and thereafter. Still another
union leaflet was prepared and circulated by Lamothe in
preparation for a third union meeting held on September
10.
In the meantime Respondent was continuing its activ-
BERENSON LIQUOR MART 1121
ites . On August 28 Levitt had circulated among the em-
ployees a memorandum concerning "additional company
policies." This memorandum dealt with the realignment of
Respondent's administrative structure effective as of Sep-
tember 1, 1974. It also set forth clarifications of company
policy respecting such matters as employee purchases,
store security, a concentrated sales effort, and a prohibi-
tion against consumption of alcoholic beverages on compa-
ny premises. Paragraph 7 of the memorandum designated
James Parker as operations manager and detailed his re-
sponsibilities . In addition, the paragraph indicated that
Parker had been designated by Levitt as his personal repre-
sentative "in completing the formulation of new personnel
policies which will be implemented on or before October
15, 1974" and that "Mr. Parker will be communicating
with all personnel for input in these policies."
Parker carried out his assignment . Employee Dennis
O'Connor testified that he was approached by Parker
shortly after circulation of the August 28 memorandum.
Parker told O'Connor that he wanted to know what the
employees' grievances were and what changes they wanted.
Parker also asked O'Connor to question his fellow employ-
ees as to what they wanted to change and how they wanted
the changes to be made. O'Connor complied. He recorded
the answers he obtained and gave the data to Parker. Par-
ker told O'Connor that he would transmit this data to Lev-
itt and other management officials with whom he would
presently be meeting. Some of the data related to medical
plans, working hours, and job transfers.3
On the heels of this activity Respondent issued another
memorandum to the employees dated September 11. This
memorandum stated that "a review and evaluation of per-
sonnel policies for Berenson has been underway" for sever-
al months and that new policies were now ready for review
by interested company staff. All staff personnel were invit-
ed to attend a company meeting for that purpose on the
evening of September 18.
The timing of the September I1 memorandum was sig-
nificant. It followed by 2 days a letter from the Union to
Levitt in which the Union stated that it represented a ma-
jority of the employees at Respondent's three stores and
warehouse and suggested that a card check be conducted
by an impartial third party. In a followup letter, dated Sep-
tember 17, the Union repeated its claim of majority status,
asked for recognition and bargaining, and again indicated
the Union's readiness to submit to a card check if Respon-
dent had any question as to the Union's majority status.'
About 25 employees and some management personnel
attended the company meeting of September 18. Levitt re-
viewed in considerable detail the personnel policies which
3 Employee Edward Weizel also testified in this regard . While much of his
testimony was confused and quite imprecise, he did indicate that he, too,
was interrogated and solicited by Parker as to employee grievances and
what the employees would like to see improved. Respondent did not call
Parker as a witness and the testimony as to Parker's activities is uncontra-
dicted.
So far as appears, Respondent made no reply to these letters. On Sep-
tember 18 the Union filed a petition with the Board asking for certification
as bargaining representative of Respondent's employees . A hearing was held
thereon on October 9 but that matter has been held in abeyance pending the
outcome of the instant proceeding.
were to be effective as of October. Among the policies
mentioned were those relating to new employee benefits
such as a higher contribution by Respondent toward the
cost of the employees' health insurance, a reduction from a
44- to a 40-hour week, a new wage review policy, a sick
leave policy, and a new holiday policy.5 On September 25
Levitt issued a memorandum to the employees clarifying
two issues left unresolved at the September 18 meeting.
The two issues had to do with increased holiday pay and
details concerning the Blue Cross/Blue Shield program.
4. The wage increases
In addition to the various employee benefits announced
at the September 18 meeting and put into effect as of Octo-
ber 1 or shortly thereafter Respondent during this same
period granted numerous pay increases to employees. Re-
spondent contends that these increases were merely a con-
tinuation of a pattern instituted long before the advent of
the Union pursuant to Levitt's expressed commitment to
effectuate a more equitable wage structure.
The facts as to the wage increases are not in serious
dispute. Company records establish that a number of raises
were given on April 1, 1974, about a month after Respon-
dent assumed ownership of Berenson and well before the
advent of the Union. But Levitt himself characterized these
actions as "takeover raises" attributable to the special cir-
cumstances arising from the takeover of the operation and
as unrelated to any pattern of effectuating a more equita-
ble wage structure. Excluding the "takeover" raises only a
handful of employees were given raises prior to the advent
of the Union in August 1974. After the advent of the
Union, however, over a score of employees were given rais-
es, the bulk of these on September 30.
C. Analysis and Conclusions as to Interference, Restraint,
and Coercion
It is not at all unusual for a purchaser of an ongoing
enterprise to review the operations of that enterprise for
the purpose of determining what, if any, changes would be
advantageous to that enterprise and when and how, if at
all, such changes should be made. Precisely that process,
Respondent argues, occurred here. Levitt took over owner-
ship of Berenson on March 1, 1974. Even before that date
Levitt had already been consulted by the predecessor own-
er about management decisions. And beginning in March
Levitt undertook a comprehensive review of the business
posture of the company and its personnel policies. From
that time on and pursuant to that comprehensive review
Levitt instituted a number of changes including changes in
the physical locations of some of its properties and changes
in its personnel practices. In respect to its personnel prac-
tices, Respondent asserts, its objective was to correlate, in-
sofar as possible, the practices it had followed in a like
enterprise, Smitty's Liquor Store in Taunton, Massachu-
5 Levitt testified that some of the policies mentioned at this meeting had
already been put into effect earlier. The situation as to increased payments
to Blue Cross/ Blue Shield and as to increased holidays has already been
discussed. In any event it is undisputed that a number of the new policies
were not put into effect until October 1 or later.
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
setts . The advent of the Union in August 1974, Respondent
insists, played no role in, and had no impact on, its con-
duct in this regard . In Respondent's view, one must con-
clude, the union organizational campaign was merely a for-
tuitous circumstance coinciding in time with the period
during which Respondent was making changes for purely
operational reasons.
While superficially persuasive , Respondent 's position
does not withstand scrutiny . To be sure, the record in this
case does warrant a finding that at least as of March 1,
1974, several months before organizational activity at Ber-
enson began , Levitt did institute a process of reviewing the
entire operation with a view to making changes he deemed
appropriate . Indeed, at the staff meeting early in March,
Levitt announced , so far as relevant here , that he would
promulgate new personnel policies patterned essentially on
those in effect at Smitty 's Liquor Store. But Levitt did not
at the March meeting specify to any significant degree the
details of the policies he was considering or fix any date as
to when changes would be made.
This situation prevailed, so far as appears, until August
1974. But in that month active organizational efforts began
among the employees . On August 19, a union leaflet was
distributed announcing a union meeting for the evening of
August 22 . The union meeting was not held on August 22
because, in the few days intervening after August 19, Levitt
suddenly scheduled a meeting for the employees to be held
on the same date and time . On Respondent's view of the
case , this also would have to be considered a mere fortuity.
But such coincidence strains credulity . In fact, Lamothe
credibly testified that Levitt opened the meeting with an
announcement that he had heard talk of a union , that busi-
ness functioned best without a union, and that a union at
Berenson was neither needed nor wanted . Levitt, for his
part, testified that he did not recall making such state-
ments . But he did recall discussing in detail the discharge
of Peter Carmichael . Inasmuch as criticism of the dis-
charge of Peter Carmichael had been featured in the union
leaflet distributed 3 days earlier , this also would have to be
regarded in Respondent 's view of the case as a fortuity.
On the whole record I am satisfied and find , therefore,
that Respondent hastily arranged its meeting of August 22
to stifle the incipient organizational effort. In furtherance
of this purpose , Levitt stressed to the employees that busi-
ness was bad, that there was little he could do for the em-
ployees because of the profit situation and that it would be
6 months or so or after Christmas before he could consider
instituting changes which would be beneficial to the em-
ployees.
As the record demonstrates, Respondent's August 22
meeting failed to stem the organizational effort. Rather,
the Union in its propaganda capitalized on Respondent's
assertion that any determination as to employee benefits
hinged on the profit situation and was months away. Ac-
cordingly, Respondent changed its tactics . In a memoran-
dum dated August 28 Levitt informed the employees,
among other matters, that James Parker would be the new
operations manager, that Parker would be Levitt's personal
representative in completing the formulation of new per-
sonnel policies which would be implemented on or before
October 15, 1974, and that Parker would communicate
with all personnel for input into these policies.
The August 28 memorandum marked a significant
change in tactics. At the August 22 meeting 6 days earlier,
Levitt had told the employees that any changes in person-
nel policy were 6 months or more away because of poor
business and the profit situation. Now it appeared that
such changes would be implemented by October 15. Ab-
sent other explanations not vouchsafed in the record, I am
persuaded and find that Respondent was utilizing an im-
plied promise of benefits to forestall unionization. More-
over, Respondent implemented this action by further pro-
scribed tactics. Parker, at Levitt's direction, interrogated
the employees as to their problems and solicited grievances
from them with the implicit suggestion that Respondent
would solve their problems.
Respondent followed through with this new approach.
On September 11, 2 weeks later, Levitt issued another
memorandum . Again, the timing is significant . Two days
earlier the Union had written to Respondent claiming ma-
jority status among Respondent's employees. Respondent
did not acknowledge this communication. Indeed, at no
time during the events here relevant did Respondent com-
municate with the Union. Its program was directed, rather,
to the employees. Respondent's memorandum of Septem-
ber 11 announced a meeting for September 18 and stated
that new personnel policies were now ready for review and
would be reviewed at this meeting.
New personnel policies and improved employee benefits
were announced at the September 18 meeting and were
implemented early in October or shortly thereafter. Re-
spondent reduced the amount employees were paying for
Blue Cross/Blue Shield benefits and itself paid the differ-
ence.6 The workweek was reduced from 44 to 40 hours, a
new wage review policy and a new sick leave policy were
put into effect, and the number of holidays was increased.?
Finally, as previously stated, Respondent during this pe-
riod granted numerous wage increases to employees which
were wholly disproportionate in number to any similar in-
creases it had previously granted.
Viewing the entire course of Respondent's conduct in
perspective, little credence can be given to Respondent's
claim that it was merely carrying out a program initiated
before the advent of the Union to reorganize business op-
erations and personnel policies. The fact is that there was a
dramatic change in tactics upon the advent of the Union.
Before then, employee benefits were only vaguely defined,
were contemplated only on a long-range basis, and were
conditioned on an improvement in business and profitabil-
ity. After organizational activities began, these consider-
ations apparently disappeared and specific employee bene-
fits were hastily formulated and put into effect. Sheer
coincidence is inadequate to explain the surprising correla-
tion between the actions of the Union and the appropriate-
ly-timed counteractions of Respondent. In this state of the
record , Respondent's assertion that it contemplated per-
6 Respondent's claim that this change had really been made in March but
was not implemented until October because of a "clerical foulup" is lacking
in Plausibility.
As previously noted, Respondent contends that the new holiday pro-
gram had really been decided upon months earlier but concedes that no
announcement to the employees was made at that time.
BERENSON LIQUOR MART 1123
sonnel policy changes before the advent of the Union does
not absolve it. N.L.R.B. v. Exchange Parts Co., 375 U.S.
405, 407 (1964). Rather, the record evidence compels the
conclusion and I find that , when organizational activity
began , Respondent expeditiously timed and executed its
actions to discourage unionization among its employees.
Little need be said to demonstrate the proscribed nature
of those activities. The broad pattern of interrogation in
which Parker engaged-as later shown , Levitt himself also
engaged in interrogation-was plainly interference with or-
ganizational activity in violation of Section 8(a)(1) of the
Act. Parker 's solicitation of employees to list their griev-
ances-grievances which obviously had prompted the or-
ganizational activity-with the implicit suggestion that Re-
spondent would satisfy those grievances making resort to
the Union unnecessary is even more demonstrably a viola-
tion of Section 8 (a)(1). Finally , "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." Exchange Parts, supra at
409. Here, in its concentrated effort to ward off unioniza-
tion, Respondent not only conferred a wide range of em-
ployee benefits but also gave wage increases to numerous
employees. The violation of Section 8(a)(1) of the Act by
this conduct is established by controlling precedent.
D. Findings and Conclusions as to the Discrimination
Against Robert Lamothe
The facts relevant here can be summarized quickly. Rob-
ert Lamothe was the most active union supporter among
the employees . He made the initial contact with the Union,
obtained signatures to union authorization cards , and pre-
pared and distributed the union leaflets . His role was
known to Respondent . Indeed , at the close of
Respondent 's September 18 meeting Levitt asked him
whether he was employed by the Union . Lamothe said he
was not but that he was still strongly for the Union.
About 3 weeks later on October 7 , Lamothe told his
store manager Chris Marshall that he had been served with
a subpena to attend the Board representation hearing on
October 9 (supra, fn. 4) and would be unable to be at work
that day . Marshall suggested that Lamothe shift his day off
from October 8 , his scheduled day off , to October 9. La-
mothe , who had already made plans for October 8, de-
clined . Marshall then called Julian Nadeau , Respondent's
retail store supervisor , who concurred in Marshall 's judg-
ment . Thereupon , Marshall informed Lamothe that , unless
he complied , management would force him to take a
1/2-hour lunch period thereafter . Prior to this time La-
mothe had with Respondent's approval regularly worked
his 8-hour shift without taking a 1/2-hour lunchbreak
thereby enabling him to complete his workday a half hour
earlier . Lamothe , after consulting union counsel , refused to
shift his day off and did attend the representation hearing
on October 9. Thereupon Respondent suspended the privi-
lege previously granted Lamothe to work right through his
lunch period and to complete his workday a half hour ear-
ly.
The foregoing evidence is virtually undisputed. Mar-
shall, who testified as a witness for Respondent as to this
series of events, did not deny that they occurred as herein
set forth. He did assert, however, that Levitt had made
reference at the September 18 meeting to a 1/2-hour lunch
period for all employees but admitted that as store manag-
er he had discretion as to when this policy should be imple-
mented. At the hearing Respondent sought to explain its
action as being compelled by Massachusetts law. Respon-
dent introduced into evidence a recently enacted provision
of the Massachusetts General Laws, Chapter 149, Sec. 100.
That provision, enacted June 13, 1974, and effective 90
days thereafter, provided that no employee "shall be re-
quired" to work for more than 6 hours during a calendar
day without an interval of less than 30 minutes for a meal.
I find Respondent's defense wanting in merit. Lamothe
was never "required" to work his 8-hour shift without a
lunchbreak; he sought that privilege and Respondent
granted it. Nor does Respondent explain why it suddenly
found the newly enacted law, which had been effective for
almost a month, crucial on October 7 when Lamothe in-
formed Respondent that he had been subpenaed to testify
at the representation. I am persuaded, rather, that Respon-
dent belatedly advanced the provision of the Massachu-
setts code at the hearing as a pretext to conceal the true
motivation for its action. That motivation, I find, was to
take reprisal against Lamothe for his participation in the
representation hearing and for his antecedent and outspo-
ken union advocacy. This action, Respondent could prop-
erly assume, might discourage such activities on the part of
Lamothe, or on the part of other employees to whom, as
could have been anticipated, Lamothe related what had
occurred.
Accordingly, I find that Respondent, by canceling and
failing to reinstate the privilege previously granted to La-
mothe to work through his 1/2-hour lunchbreak, violated
Section 8(a)(3), (4), and (1) of the Act, as alleged in the
complaint.
E. The Properiety of a Remedial Bargaining Order
The complaint alleges that at all times since September
9, 1974, and continuously thereafter, the Union has repre-
sented a majority of Respondent's employees in an appro-
priate unit or units, that on or about that time the Union
requested Respondent to bargain collectively and that Re-
spondent refused to do so. Accordingly, the complaint re-
quests that a remedial order be entered requiring Respon-
dent to bargain with the Union. The request is predicated
on the ground that the unfair labor practices committed by
Respondent are so serious and substantial in effect as to
warrant entry of such an order.
Certain preliminary facts are undisputed. The Union did
inform Respondent of its majority status in a letter dated
September 9, 1974, and in a followup letter dated Septem-
ber 17, 1974, requested recognition and bargaining. Re-
spondent did not accede to these requests. The question
remaining to be resolved is whether a bargaining order is
warranted. Respondent argues strongly that it is not.
A precondition to a bargaining order, of course, is that
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union be found to be the representative of a majority
of the employees in an appropriate unit. If this be estab-
lished , the further question is whether , under the control-
ling authority of N.LR.B. v. Gissell Packing Co., Inc., 395
U.S. 575 ( 1969), Respondent's conduct was such as to
"make a fair election an unlikely possibility" (at 579) and
hence to warrant the imposition of a bargaining order.
1. The appropriate unit
The complaint alleges appropriate units in the alterna-
tive. Initially , the complaint alleges that all sales personnel,
including cashiers and stockmen , employed by Respondent
at its three retail stores and all warehousemen and drivers
employed by Respondent at its warehouse, but excluding
all office clerical employees , professional employees,
guards and supervisors as defined in the Act, constitute an
appropriate unit. Alternatively, the complaint alleges that,
if the foregoing unit should be found not to be appropriate,
then separate units consisting in the one case of retail store
employees and in the other of warehouse employees, each
with the customary exclusions , are appropriate.
At the hearing and in its brief to me, General Counsel
takes the position that the overall unit first defined includ-
ing both retail store and warehouse employees should be
found to be appropriate. Respondent took no position as to
appropriate unit at the hearing. But in its brief filed after
the hearing Respondent now takes the position that be-
cause of the highly integrated company operations with
respect to both its retail and wholesale operations , the ov-
erlapping functions of both selling and nonselling employ-
ees, the fact that the locus of operational and labor rela-
tions authority with respect to all Respondent 's operations
is centered in President Levitt who implements a uniformi-
ty and consistency of employment conditions , "the entire
employee complement shares a cohesive community of in-
terests and-the only appropriate unit-is a single overall
unit of selling and non-selling retail and wholesale employ-
ees."
Notwithstanding significant differences in the unit for-
mulations proposed by General Counsel and by Respon-
dent, it is apparent that, at minimum , all parties including
the Union are agreed that an appropriate unit finding
should encompass both store and warehouse employees.
Insofar as both store and warehouse employees are includ-
ed, the respective formulations contemplate an employer-
wide unit, a type of unit specifically designated, among
others, in Section 9(b) of the Act as appropriate . In these
circumstances and without deciding whether an alternative
unit or alternative units might also be appropriate, I con-
clude and find on the basis of the views of the parties and
on the facts of record that a unit including both store and
warehouse employees would be appropriate here.
The parties are at odds, however , as to whether several
categories of employees fall inside or outside the confines
of that unit . Six individuals , including the president and
other top officials of Respondent, are admittedly supervi-
sors; the parties agree, and I find, that they are excluded
from the unit . These individuals are Berenson , Hoag, Mill-
er, Nadeau, Snow, and Levitt. Listed on Respondent's pay-
roll with these individuals is Jean Ricen , a woman in her
mid-90's who was given special privileges. The parties
agree and I find that she is excluded from the unit. Other
individuals as to whom there is no dispute and whom I find
to be excluded from the unit as supervisors are James Par-
ker, operations manager, James Silo (Salo), sales manager,
Store Managers Marshall, Mansour, and Nathan A. War-
ren, and Warehouse Manager Blydenburg.
There is a dispute as to the supervisory status of Richard
Kiley, Charles Eldred, and Helen Doherty. According to
Levitt, Kiley and Eldred were assistant store managers at
their respective stores and Levitt "assumed" that Doherty
was also an assistant store manager. Respondent took no
position at the hearing as to the supervisory status of these
individuals. In its brief, however, Respondent argues that
Kiley and Eldred exercise supervisory authority and should
be excluded from the unit.8
Levitt testified generally that Kiley and Eldred, who
were in charge of the wine departments at their respective
stores , were also assistant store managers , that they had the
authority to make management decisions including deci-
sions as to employment of wine department personnel, and
that they had special responsibilities with respect to store
security. Levitt also testified that Kiley and Eldred, as as-
sistant store managers, were in charge of their respective
stores during the manager's absence, a not infrequent oc-
currence, and during manager vacations. Levitt further tes-
tified that assistant managers, like store managers, were
paid on a salary basis, and not on an hourly rate.
Taken at face value and as adduced at the hearing,
Levitt's testimony makes quite a congent showing that Ki-
ley and Eldred had supervisory status. But full examination
of the record would appear to make that showing vulnera-
ble. Thus, despite Levitt's assured testimony that Kiley and
Eldred were in the ranks of management, the underlying
business records of Respondent do not reflect that situa-
tion. As already indicated, Respondent's top management
officials were listed in a separate category for payroll pur-
poses. Kiley, Eldred, and Doherty, however, were listed in
the general categories assigned to salesmen. Similarly, little
can be made of the fact that assistant managers were paid
on a salary basis since, as Levitt admitted, some of the
nonsupervisory staff are also paid on a salary basis.
Vulnerable also is Respondent's argument that, because
store managers are often absent from their stores, an infer-
ence is warranted that the assistant store managers possess
supervisory authority because otherwise the staff would be
without direct supervision. Apart from the fact, as illus-
trated below, that supervision in such situations could be
lodged elsewhere, it is apparent from Levitt's own testimo-
ny that managers and assistant managers frequently work
the same hours so that, for the remainder of the store
hours, the store staffs admittedly work without any direct
supervision.
More specifically, there is no probative evidence, as to
Kiley, that he was ever told he was an assistant manager,
that he had supervisory duties, or that he ever exercised
supervisory duties. Kiley indicated his status as a wine
8 No mention is made by Respondent in this regard as to Helen Doherty,
explicable perhaps on the ground that Doherty, unlike Kiley and Eldred,
had not signed a union authorization card.
BERENSON LIQUOR MART 1125
salesman on the union authorization card he signed.' Simi-
larly as to Eldred , Levitt could not specifically recall
whether Eldred ever exercised any supervisory duties. Store
Manager Marshall , in his sole reference to Eldred's status,
testified that Eldred had no authority to set hours for em-
ployees . As against Levitt's testimony that Eldred was res-
ponsible for his store in the absence of his manager, Chris
Marshall , Robert Lamothe , an employee in that store,
credibly testified that he was told by Marshall that , during
the latter's vacation , Retail Stores Supervisor Nadeau
would be in charge . Lamothe further testified that he was
never told Eldred was assistant manager and that he never
took orders from Eldred.
On the basis of all the relevant testimony and the entire
record , I am satisfied that Respondent's contention that
Eldred , Kiley, and perhaps Doherty, are supervisors is an
afterthought and has no foundation in the record . Persua-
sive as Levitt's testimony might otherwise be as to the
broad supervisory responsibilities of Eldred and Kiley,
there is an utter dearth of substantiating evidence that they
or the employees under them were aware that they were
supervisors or that they ever exercised supervisory func-
tions . Neither Levitt nor any other witness proffered such
substantiating testimony. I conclude and find that Kiley,
Eldred , and Doherty were not supervisors and are properly
included in the appropriate unit.
The next group of employees whose inclusion or exclu-
sion is in dispute is listed in the payroll records under Cate-
gory 105 which consists of five employees identified as in-
cluding the office staff and the secretary to the general
manager . These employees are Battenfield , Berman , Jaime,
Lieberman , and Wilson . General Counsel urges that these
should be excluded from the unit . Levitt admitted that
these employees work separately and apart from the retail
sales personnel , do not necessarily work the same hours,
and are under separate supervision . They perform clerical
functions essentially relating to administrative and ac-
counting matters and only rarely work with retail sales per-
sonnel . On the basis that their community of interests with
such personnel is minimal and that they have substantially
different interests and working conditions , I believe and
find that they should be excluded from the appropriate
unit.
Two employees , Stennes and Margaret Warren , are list-
ed in Respondent's payroll records under Category 115,
identified as covering retail charge sales . Their basic duties
are to take retail orders from customers over the telephone,
type, process and price those orders . Only on the few days
before Christmas , when virtually all staff is devoted to ser-
vicing customers in a sales capacity , do Stennes and War-
ren act in that capacity . Here, as in Sears Roebuck & Co.,
174 NLRB 941 (1969), the function of the telephone sales
employees is essentially a clerical function , differing in
kind from the functions of sales employees . Accordingly, I
conclude and find that , as in the parallel situation in Sears
Roebuck, so here , Stennes and Margaret Warren should be
excluded from the appropriate unit.
Respondent argues that Respondent 's employee who are
9 Eldred designated himself as wine manager on his authorization card.
engaged in purely wholesale operations should be included
in the appropriate unit. These employees, falling under the
payroll Category 411 (Wholesale Salesmen-Outside),
are Alan Richmond and Sidney Specter.10 Jane Hoey and
Justine Kanodia are listed in Category 405 designated as
Wholesale-Clerical. While urging the inclusion of whole-
sale employees in the appropriate unit here, Respondent
nonetheless concedes that the outside wholesale salesmen
could properly be excluded. Respondent presses, however,
for the inclusion of employees in the wholesale-clerical ca-
tegory on the ground that the latter work above a retail
outlet and on occasion are called upon to perform retail
duties. As General Counsel points out, however, not only
do outside wholesale salesmen share little in common with
retail clerks who sell to customers coming into the stores
but so, too, do the clerical employees whose basic activity
is to service those outside wholesale salesmen and their
accounts. I find that Richmond, Specter, Hoey, and Kano-
dia are properly excluded from the appropriate unit.
In view of the foregoing, I conclude and find that all
retail sales employees and warehouse employees employed
by Respondent at its three retail stores and warehouse but
excluding office clerical employees, telephone sales em-
ployees, administrative and wholesale employees, guards
and supervisors as defined in the Act constitute an appro-
priate unit herein.
2. Majority status
As already indicated the Union in its letter of September
9, 1974, notified Respondent of its claim of majority status.
Respondent's payroll records for the week ending Septem-
ber 13, 1974, list a total of 48 persons on Respondent's
roster including everyone from President Edward M. Levitt
on down. Excluding those previously found herein to be
excluded from the appropriate unit, a total of 25 employees
remain. One of these, Paul Hanley, however, is not includ-
ed, because of undisputed evidence that he was discharged
on September 6. As of September 9, therefore, according to
General Counsel, the appropriate unit numbered 24 em-
ployees.
Respondent introduced into evidence union authoriza-
tion cards signed by 16 of these 24 employees, ll and signed
at various dates between August 20 and September 6. The
cards in question, which may be described as single pur-
pose authorization cards, unambiguously indicated that the
subscribing employee authorized the Union to represent
him or her for the purpose of collective bargaining. At the
hearing Respondent sought to establish that certain of the
signatures to the cards were obtained by representations
made that the cards were going to be used solely as a basis
for obtaining an election. This effort was unsuccessful, Re-
spondent has abandoned this contention in its brief, and I
find that the authorization cards introduced into evidence
10 Sidney Specter is listed on the payroll for the period ending 9-20-74,
but not for the period ending 9-13-74.
11 These employees are Richard S. Kiley, Edward Weizel, Karen O'Don-
nell, William M. Brown, Robert DeFilippo, Dennis O'Connor, Charles C.
Eldred, Stephen Katz, Kaj Wilson, David J. Hoar, Robert J. Lamothe, Ber-
til Forsberg, Henry B. Gingold, John R. Corbit, James W. Sharp, and Don-
ald R. Willis.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were valid designations by the undersigned employees of
the Union as their bargaining representative . N.LR.B. v.
Gissel Packing Co., 395 U.S. 575, 604-609 (1969). Also ad-
vanced at the hearing but abandoned in its brief is
Respondent's contention that 2 of the 16 cards here relied
upon, specifically the cards signed by employees Corbit
and Willis , were insufficiently authenticated because they
were not authenticated by Corbit and Willis . However, the
record does show that these two cards were turned in to the
union representative in the course of the organizational
campaign and at a union meeting attended by Corbit. and
Willis respectively. Settled authority establishes, and I find,
that the cards signed by Corbit and Willis were adequately
authenticated and constitute valid designations of the
Union as bargaining representative by the subscribing em-
ployees. I. Taitel & Son, 119 NLRB 910, 912 (1957);
Sandy's Stores, Inc. 163 NLRB 728, 745 (1967); accord,
N.L.R.B. v. Howell Chevrolet Company, 204 F.2d 79, 85-86
(C.A. 9, 1953), affd . 346 U.S. 452 (1953).
Indeed, the only four authorization cards which Respon-
dent specifically challenged in its brief to me are those
signed by Eldred, Kiley, Savage, and Katz . The basis for
the challenge to the cards of Eldred and Kiley is that they
are supervisors . That contention has already been consid-
ered and rejected in the preceding subsection of this Deci-
sion . I find that Eldred and Kiley are not supervisors, that
they are properly included within the appropriate unit, and
that they validly designated the Union as their bargaining
representative.
Respondent objects to counting the cards of Savage and
Katz on the ground that they are enrolled as law students,
that they are employed only during the summer, that they
do not enjoy a regularity of employment sufficient to
create the requisite community of interests with the regular
employees and should be excluded from the unit for pur-
poses of ascertaining majority status . De Luca Brothers,
Inc., 201 NLRB 327, 330 (1973); Georgia-Pacific Corp., 195
NLRB 258, 259 (1972), and cases there cited. The question
as to Savage is academic here inasmuch as his name does
not appear on the payroll for the week ending September
13 and he does not enter into the computation here under
consideration. 12
The status of Katz presents a more difficult issue. Thus,
the employment of record of Katz shows that during the
summer of 1972 he worked I month for the Boston Cab
Co., that thereafter he worked for Respondent for about a
year as a salesman until the late summer of 1973 when he
left to attend school , and that he returned to work for Re-
spondent on August 5, 1974, and worked until September
13, 1974, when he again left to attend school . It seems
apparent therefore that Katz' regular activity for the past 2
years was as a student at a law school and that he was
strictly a summer employee. General Counsel argues, how-
ever, that Respondent failed to show evidence that Katz
12 Savage's name does appear on the payroll for the week ending Septem-
ber 20 . Inasmuch as the Union predicates its claim of majority on its status
as of September 9, 1 find resort to the September 20 payroll unnecessary.
Were such report necessary , however, I believe that , on the basis of the
evidence already adduced, a finding of union majority during that period
would also be warranted.
intended to work only during the summer when he started
work on August 5, 1974, or that there was an agreement
between Respondent and Katz that Katz was to work only
during the summer . Accordingly, General Counsel urges
that an adverse inference be drawn from Respondent's fail-
ure to produce books and records to clarify Katz' employ-
ment status as a summer or casual employee. My own con-
clusion, however, is that the employment record of Katz
supported by other evidence of record adequately demon-
strates that Katz' primary activity was as a law student,
that his status with Respondent was purely as a summer
employee, and that no adverse inference can be drawn
from the failure by Respondent to produce additional rec-
ords. To exact more evidence in this regard from Respon-
dent on penalty of an adverse finding would, I believe, be
equivalent to shifting the burden of proof. On the basis of
the authorities hereinbefore cited, I believe and find that it
would be improper to utilize the authorization card which
Katz signed as additional showing of majority status.
Nonetheless, the Union's majority which otherwise would
be 16 out of 24 is unimpaired by omitting the participation
of Katz.
Accordingly, I conclude and find that at all times since
September 9, 1974, the Union has been the majority repre-
sentative of Respondent's employees in an appropriate unit
for purposes of collective bargaining.
3. The Gissel issue
On the basis of the foregoing findings, the question is
squarely posed as to whether the unfair labor practices in
which Respondent has been found to have engaged is so
serious and substantial in character as to warrant the impo-
sition of a bargaining order under the controlling princi-
ples laid down in N.L.R.B. v. Gissel Packing Co., 395 U.S.
575 (1969). In Gissel, the Supreme Court sustained the
Board 's authority to issue a remedial bargaining order in
cases where unfair labor practices which have been com-
mitted are such as to make a fair election an unlikely possi-
bility. The Court defined two situations where entry of
such an order would be appropriate . The first situation is
in those exceptional cases which are marked by "outra-
geous" and "pervasive" unfair labor practices (395 U.S. at
613). The second situation is "in less extraordinary cases
marked by less pervasive practices which nonetheless still
have the tendency to undermine majority strength and im-
pede the election processes ." (Id. at 614.) On the other
hand , the Court posed a third type of situation where a
bargaining order would not be warranted. This situation is
presented in cases where "minor or less extensive unfair
labor practices" would have a "minimal impact on the
election machinery ." (Id. at 615.)
General Counsel takes the position that the instant case
is one where Respondent 's unfair labor practices are so
"serious , extensive and pervasive" as to warrant entry of a
bargaining order under the criteria set forth in Gissel. Re-
spondent , on the other hand , takes the position that, even
assuming the unfair labor practices "which consist of iso-
lated casual questioning of two employees , an ambiguous
solicitation of grievances by an intermediate supervisor,
the grant of wage increases having no demonstrable impact
BERENSON LIQUOR MART 1127
on the Union 's majority status , and a very marginal 8(a)(3)
or (4), may scarcely be characterized as so pervasive that
their `lingering' effects may not be eradicated by the appli-
cation of traditional Board remedies , or that a fair elec-
tion-1 year later-cannot now be conducted."
In my view, Respondent's statement of the issue under-
states the case . The fact is that Levitt in his memorandum
to the employees on August 28 announced that James Par-
ker would be the new operations manager, that he would
be Levitt's personal representative in completing the for-
mulation of personnel policies, and that he would commu-
nicate with all personnel in that regard . It was in this con-
text and on the heels of this memorandum that Parker
engaged in his broad program of interrogation and solicita-
tion of grievances. To characterize this program as "casual
questioning" or "ambiguous solicitation of grievances by
an intermediate supervisor" is quite misleading . Similarly,
the deprecatory reference to "the grant of wage increases
having no demonstrable impact on the Union's majority
status" is hardly a fair characterization of the announce-
ment and subsequent implementation in September and
October of a wide program of various employee benefits
including numerous wage increases.
Not to be overlooked also is the fact that all this conduct
on Respondent's part was part of an integrated program
designed to frustrate unionization and shrewdly timed to
counter the developing facets of the organizational cam-
paign. To be sure, in March 1974, upon Respondent's take-
over of the business and before the advent of the Union,
Respondent did announce its commitment to review the
operations of the enterprise and to review its personnel
policies . Respondent made no specific commitments in
that regard. But on August 22, 1974, upon learning of the
advent of the Union, Respondent hastily assembled a
meeting of its employees necessitating a rescheduling of the
union meeting announced a few days earlier . At this meet-
ing Respondent sought to discourage unionization by
stressing that the business and profit posture of the enter-
prise precluded the grant of any employee benefits for at
least 6 months or until after Christmas.
This tactic did not work. Unionization continued and
Respondent dramatically changed its tactics . Only 6 days
after the August 22 meeting, the employees were told that
new personnel policies would be implemented on or before
October 15, 1974. Even this date was accelerated when the
Union early in September informed Respondent that it
represented a majority of Respondent's employees and re-
quested bargaining. On September 18, 1974, Respondent
announced and shortly thereafter put into effect numerous
employee benefits and accompanied those benefits with
numerous wage increases . Conspicuously absent in this re-
gard was any reference to business or profit considerations.
Rather, Respondent's objective, I find, was to demonstrate
the lack of need for , or the futility of, unionization.
Respondent rounded out this effort by zeroing in on
Robert Lamothe , the prime mover in the unionization ef-
fort. Lamothe was discriminatorily denied a privilege pre-
viously granted without question.
In this frame of reference it would be difficult to argue
that Respondent's unfair labor practices would not "have
the tendency to undermine majority strength and impede
the election process." The Supreme Court in Exchange
Parts Co., previously cited, emphasized "the danger inher-
ent in well-timed increases in benefits..... Here, as in
Exchange Parts, the employees were unlikely to miss the
inference that they were better advised to rely on
Respondent's unilateral generosity than to invoke the aid
of the Union. The larger paycheck was a continuing re-
minder not to speak of the numerous other employee ben-
efits Respondent instituted virtually contemporaneously.
Accordingly, the Board has almost uniformly regarded the
grant of wage increases and other benefits as a persuasive
demonstration of the need for, and the propriety of, a
remedial bargaining order. See Idaho Candy Company, 218
NLRB 352 (1975), and cases there cited. And here, the
announcement and grant of these benefits do not stand
alone. Coupled with them is the pattern of unlawful inter-
rogation and unlawful solicitation which was the precursor
to the grant of those benefits.
Under all these circumstances I conclude and find that
the total impact of Respondent's conduct was such as to
make a fair election an unlikely possibility and to warrant
the imposition of a bargaining order. See Steel-Fab, Inc.,
212 NLRB 363 (1974), and Trading Port, Inc., 219 NLRB
298 (1975).
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(1) of the Act by in-
terrogating its employees concerning their union sympa-
thies and activities.
2. Respondent violated Section 8(a)(l) of the Act by sol-
iciting grievances from its employees with the implied
promise of improving their working conditions for the pur-
pose of discouraging its employees from supporting the
Union.
3. Respondent violated Section 8(a)(1) of the Act by an-
nouncing and thereafter granting employee benefits for the
purpose of discouraging its employees from supporting the
Union.
4. Respondent violated Section 8(a)(1) of the Act by
granting numerous wage increases to its employees for the
purpose of discouraging its employees from supporting the
Union.
5. Respondent violated Section 8(a)(1), (3), and (4) of
the Act by canceling the privilege previously granted its
employee Robert Lamothe to work through his lunch peri-
od and to complete his workday a half hour earlier.
6. As of September 9, 1974, the Union has been desig-
nated as the majority representative, for purposes of collec-
tive bargaining, of Respondent's employees in a unit de-
scribed as follows:
All retail sales employees and warehouse employees
employed by Respondent at its three retail stores and
warehouse located in metropolitan Boston, Massachu-
setts , but excluding office clerical employees, tele-
phone sales employees, administrative and wholesale
employees, guards and supervisors as defined in the
Act.
7. The aforesaid unit is a unit appropriate for purposes
of collective bargaining within the meaning of Section 9(b)
of the Act.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. By the unfair labor practices found to have been com-
mitted , Respondent made the holding of a fair election
among Respondent's employees in the above-described
unit an unlikely possibility and the imposition of remedial
bargaining order requiring Respondent to bargain with the
Union for those employees is warranted.
The Remedy
Having found that Respondent has committed certain
unfair labor practices, I shall direct that Respondent cease
and desist therefrom. The scope of the unfair labor practic-
es found , ranging from interrogation , solicitation of griev-
ances , announcement and grant of benefits,13 and individu-
al discrimination , suggests a propensity on Respondent's
part to violate other proscriptions of the Act and indicates
the propriety of a broad order enjoining such other viola-
tions.
Affirmatively, I shall direct that Respondent, upon re-
quest by employee Robert Lamothe, restore the privilege
previously granted that employee to work through his
lunch period thereby enabling him to complete his work-
day a half hour earlier. No showing having been made that
Lamothe suffered any financial detriment as a result of the
revocation of his privilege, and no request having been
made for relief in that regard, I perceive no reason for
providing for such relief.
For reasons already adequately described herein, I shall
direct that Respondent, upon request, recognize and bar-
gain with the Union as the exclusive bargaining representa-
tive of the employees in the unit found appropriate and
that Respondent incorporate in a signed agreement any
understanding reached . Customary provisions regarding
notice-posting and reporting requirements will also be di-
rected.
Upon the basis of the foregoing findings of fact and con-
clusions of law, upon the entire record, and pursuant to
Section 10(c) of the Act, I recommend the following:
ORDER 14
Respondent , South Station Liquor Store, Inc., d/b/a
Berenson Liquor Mart, Boston, Massachusetts , its officers,
agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning
13 Nothing in the recommended Order, however , shall be read as requir-
ing Respondent to withdraw employee benefits or wage increases previously
granted.
14 In the event no exceptions are filed as provided in 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.
their union sympathies and activities.
(b) Soliciting grievances from its employees with the im-
plied promise of improving their working conditions for
the purpose of discouraging its employees from supporting
the Union.
(c) Announcing and/or granting employee benefits to
its employees for the purpose of discouraging its employees
from supporting the Union.
(d) Announcing or granting wage increases to its em-
ployees for the purpose of discouraging its employees from
supporting the Union.
(e) Revoking privileges previously granted to its employ-
ees for the purpose of discouraging its employees from sup-
porting the Union.
(f) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their right to orga-
nize or bargain collectively , or to refrain from such activi-
ties.
2. Take the following affirmative action to effectuate the
policies of the Act: '
(a) Upon request , restore the privilege previously grant-
ed Robert Lamothe, to work through his lunch period
thereby enabling him to complete his workday a half hour
earlier.
(b) Upon request , recognize and bargain collectively
with Retail Store Employees ' Union, Local 1291, Retail
Clerks International Association , AFL-CIO, as the exclu-
sive bargaining representative in the following appropriate
unit , and embody in a signed agreement any understanding
reached:
All retail sales employees and warehouse employees
employed by Respondent at its three retail stores and
warehouse located in metropolitan Boston , Massachu-
setts , but excluding office clerical employees, tele-
phone sales employees , administrative and wholesale
employees , guards and supervisors as defined in the
Act.
(c) Post at its three retail stores and at its warehouse in
Metropolitan Boston , Massachusetts , copies of the at-
tached notice marked "Appendix ." 15 Copies of said notice,
on forms provided by the Regional Director for Region 1,
after being duly signed by an authorized representative of
Respondent , shall be posted by it for a period of 60 consec-
utive 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 the notices are not altered , defaced , or covered by any
other material.
(d) Notify the Regional Director for Region 1, in writ-
ing, within 20 days of the date of this Order, what steps
Respondent has taken to comply herewith.
Ts In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board"