Doces Sixth Ave., Inc.

National Labor Relations Board - Board Decisions

Aug 2, 1976

225 N.L.R.B. 806 (N.L.R.B. 1976)

806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Doces Sixth Ave., Inc . and Retail Store Employees
Union Local No. 1001 , Retail Clerks International
Association , AFL-CIO. Case 19-CA-8082
August 2, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On May 4, 1976, Administrative Law Judge Earl-
dean V. S. Robbins issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and General Counsel
filed an answering 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 and to
adopt her recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Doces Sixth Ave., Inc.,
Seattle, Washington, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
1 We agree with the Administrative Law Judge , for the reasons assigned
by her , that Respondent violated Sec 8(a)(5) of the Act by its refusal to
recognize and bargain with the Union as majority represen tative of its em-
ployees while engaging in unlawful conduct undermining the Union's ma-
jority status and preventing the holding of a fair election In characterizing
the seriousness and pervasiveness of the unfair labor practices upon which
we base such a determination , we wish to make explicit our reliance on the
anaylsis of analogous conduct , contained in our decision in Teledyne Dental
Products Corp, 210 NLRB 435 (1974), which leads into the excerpt from
that decision quoted by the Administrative Law Judge herein
In essence, we are presented with a situation wherein the Respondent
has deliberately embarked upon a course of action designed to con-
vince the employees that their demands will be met through direct
dealing with Respondent and that union representation could in no
way be advantageous to them Obviously such conduct must , of neces-
sity, have a strong coercive effect on the employees ' freedom of choice,
serving as it does to eliminate, by unlawful means and tactics , the very
reason for a union's existence
February 18 and 19 , 1976. The charge was filed by Retail
Store Employees Union Local No. 1001 , Retail Clerks In-
ternational Association AFL-CIO, herein called the
Union , and served on Respondent on October 15, 1975.
The complaint , which issued on November 28, 1975, alleg-
es that Respondent violated Section 8(a)(1), (2), and (5) of
the National Labor Relations Act, as amended.
In its answer Respondent admitted certain allegations of
the complaint violative of Section 8(a)(1) of the Act, and
during the course of the hearing General Counsel amended
the complaint to delete the allegation of paragraph 12
thereof . The basic issues remaining are:
1. Whether individual pay increases given employees
following the Union's demand for recognition were grant-
ed in order to chill the Union 's organizing activities.
2. Whether, following the Union's demand for recogni-
tion and during the pendency of an election campaign, Re-
spondent provided encouragement , support , and assistance
to the organization and establishment of an ad hoc employ-
ee committee in violation of Section 8(a)(1) and (2) of the
Act, and met and negotiated with said committee in viola-
tion of Section 8(a)(1), (2), and (5) of the Act.
3. Whether Respondent 's conduct was of such serious
and substantial character and effect as to render the con-
duct of a representation election doubtful or impossible,
requiring the issuance of a bargaining order.
Upon the entire record ,' including my observation of the
demeanor of the witnesses , and after due consideration of
the oral argument made by counsel for Charging Party and
the posthearing briefs filed by the General Counsel and the
Respondent , I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent , a Washington corporation with an office
and place of business in Seattle , Washington , is engaged in
the retail sale of furniture. During the year preceding the
issuance of the complaint herein , Respondent, in the
course and conduct of its business operations , has had
gross sales valued at in excess of $500 ,000 and during that
same period of time has purchased and caused to be
shipped to its facilities in Seattle, goods and materials val-
ued in excess of $50 ,000 directly from suppliers located
outside the State of Washington.
The complaint alleges, the answer admits, and I find that
Respondent is, and at all times material herein has been,
an employer engaged in commerce and in operations af-
fecting commerce within the meaning of Section 2(6) and
(7) of the Act.
II. LABOR ORGANIZATION
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge:
This case was heard before me in Seattle, Washington, on
The complaint alleges, Respondent admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
1 Upon the motion of General Counsel, the official transcript is hereby
corrected
225 NLRB No. 114
DOCES SIXTH AVE., INC. 807
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
For some period of time, unclear from the record, prior
to 1974, Respondent's office employees were represented
by the Teamsters Union. During 1974 they withdrew from
such representation with the result that the office employ-
ees, advertisement employees, and housekeeping employ-
ees became the only groups of unrepresented employees
employed by Respondent. Thereafter, the office employ-
ees became involved in direct negotiations with Respon-
dent which led to the formulation of a set of policies and a
wage scale sometimes referred to as the "Marsha Cannon
Plan " 3 The plan was reduced to writing and Raymond C.
DeMarr, Respondent's vice president of finance and
comptroller, admitted that this plan was used as a guideline
in handling day-to-day personnel problems and that the
wage scale therein is the wage scale in effect since October
16, 1974.
In early March 1975,4 Respondent opened a new store in
the Southcenter area of Seattle and moved its administra-
tive offices to this new location. About this time, according
to payroll clerk Dana Ford,5 Comptroller Paul Stewart 6
told him that all raises thereafter must be approved by
Respondent's president, G. John Doces. At some point
thereafter Ford, without instructions and without Re-
spondent's knowledge,7 ceased sending to supervisors the
written reminders that an individual pay increase was
due which initiated the procedure for putting a wage in-
crease into effect. Consequently, a number of periodic
wage increases were not granted. This and other grievances
caused the employees to seek representation by the Union
in early September 1975.
On the evening of September 10, 1975, certain of
Respondent's unrepresented employees met with the
Union. During the course of this meeting, they all signed
cards authorizing the Union to represent them for purposes
of collective bargaining. By the next day several other em-
ployees had signed such cards. One other signed authoriza-
tion card was secured by the Union on September 16.
On September 11, during a coffeebreak, employee Shir-
ley Jellison told several other employees that DeMarr was
upset about their union activity and wanted them to ex-
plain it to him. They agreed that they would talk to him.
Shortly thereafter, DeMarr came into the coffeeroom and
asked the employees there if they would speak to him. It
was agreed that after coffee one employee from each de-
partment would meet with DeMarr in his office. Jellison
started the meeting by explaining the reasons they wanted
union representation. She said some of the supervisors
showed partiality, that some employees could leave the
2 Sales employees are represented by the Union
3 Apparently, Marsha Cannon was an office employee who was instru-
mental in the formulation of the plan
4 All dates hereinafter will be 1975 unless otherwise indicated, and refer-
ences to employees mean office, advertising, and housekeeping employees
5 Ford is in one of the units found appropriate herein
6 DeMarr's predecessor
7 1 credit the testimony of DeMarr and Bennett that they did not know
that Ford had ceased sending supervisors these reminders
store to go to the restaurant next door and some could not;
there was no uniform sick leave or sick pay policy; the
machines in the coffeeroom did not work; there was no
sofa in the coffeeroom; there was no means of heating food
in the coffeeroom; new employees were being hired in at
higher wages than those received by more senior employ-
ees; and pay raises were not given as promised.
After about 10 minutes, Ronald Bennett, Respondent's
operations manager and an admitted supervisor, came to
the door, backed out, and returned a few minutes later.
Jellison told him he should hear what was being said and
repeated the list of employee grievances for his benefit.
At some point after Bennett joined the meeting, Doces
came to the door but immediately left. Bennett left the
room and a few minutes later returned with Doces. De-
Marr told Doces that he thought Doces should hear what
had been said. Jellison again repeated the list of employees
grievances. Doces said, "Shirley, why didn't you come to
me." Jellison said, "If I had come into your office, you
would have fired me." Doces asked, "Do you all believe
this." One of the other employees replied yes.8
At some point, Doces' secretary came in and informed
Doces that some union representatives were in his office.
Someone told her to stall them. A few minutes later she
returned and said she could not stop them. Then Union
Representatives Stanley Lebow and Steve Gouras came
into the room. Lebow said holding the meeting was an
unfair labor practice. One of the employees said it wasn't
because the employees were there voluntarily. Lebow
placed the authorization cards on the desk. Bennett picked
them up and looked at them. Gouras suggested that they
go to Doces' office. Lebow picked up the cards and Doces,
Bennett, Gouras, and Lebow proceeded to Doces' office?
After they left, DeMarr told the employees that he had
been unaware of all of the problems and that, if he had
known, he would have corrected them. He said he was so
busy with his other functions as comptroller that he did not
realize that these problems with the employees existed. He
further said that any promises that had been made would
be kept, he would make sure there were no second class
citizens and that he thought it was ridiculous for a furni-
ture store not to have a sofa in the coffeeroom. DeMarr
told Ford that from then on he (DeMarr) was to approve
pay raises and if anyone was due a raise, he was to receive
the paperwork. DeMarr also said he would check into the
restriction against leaving the premises for coffee.10
In the meantime, Gouras, Bennett, Lebow, and Doces
were meeting in Doces' office. Lebow handed Bennett the
authorization cards. Bennett looked through the cards and
said "it's clear you represent a majority." He separated the
cards into piles and made various statements such as "oh
this person signed" and "oh, I'm surprised about this per-
son." Either Doces or Bennett said he would contact
Respondent's attorney and would go to an election. At
some point Gouras handed Doces a previously prepared
8 This is from the testimony of Norma Benjamin , whom I credit in this
regard
This is from a composite of the testimony of LeBow and Benjamin,
whom I credit in this regard
10 This is from a composite of the undenied testimony of Benjamin and
Ford, whom I credit in this regard
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letter advising him that the Union represented a majority
of the employees in a unit of all office, advertising, and
housekeeping employees. The letter requested that he sign
the attached recognition agreement and suggested a date to
commence negotiations. Lebow took the authorization
cards from Bennett, cautioned them against committing
any unfair labor practices and Lebow and Gouras left."
A sofa and chair were placed in the coffeeroom that
afternoon. About a week later, a microwave oven was
placed in the coffeeroom. The vending machines were re-
placed and the restriction against leaving the premises for
coffee was lifted.
Thereafter employee Shirley Jellison became disenchant-
ed with the Union, the manifestations of which occurred
after she was promised a raise.12 On October 8,13 following
a union meeting and during the preceding week, Jellison
expressed her disenchantment to several employees, in-
cluding Norma Benjamin. Benjamin continued the discus-
sion with Jellison during a telephone conversation later the
evening of October 8, Jellison taking the position that a
union was not necessary and Benjamin taking the position
that it was. At Jellison's suggestion, they agreed that they
would talk to Doces the next day and try to come up with
an alternative to union representation.
On October 9, Jellison asked Doces if she could see him
in his office. He agreed and Benjamin and Jellison went to
his office. Jellison introduced Benjamin and then said to
Doces, "I know you can't talk to us but we can talk to
you." Doces said he could listen. Jellison explained that
Benjamin felt that Doces might lie to employees, that they
could not trust him, but she (Jellison) felt that they could;
Jellison said she felt that if he could look directly at her, he
was not lying. She asked if, after they had taken care of
some things, he would be willing to sit down and talk to
them over coffee. Benjamin said they wanted to draft a
policy and procedures booklet and asked if Doces would
listen to it when it was finished. He agreed. Jellison asked if
Marie Damschen, supervisor of stock control, could help
them with the booklet. Doces said he would ask her.14
Later that day, according to Benjamin's undenied testi-
mony, Damschen told Benjamin that she was going to
work with them. Damschen said they had better get busy
because they only had a very short time in which to work.
Later that day, driving home together from work, Jellison
asked Damschen if she had any notes left from their work
on the "Marsha Cannon Plan." 15 Damschen said no and
inquired why Jellison wanted them. Jellison told her they
had met with Doces and hoped she would work with them
because she was familiar with the "Marsha Cannon Plan."
Damschen said it was all right with her.
11 This is from the undenied testimony of Lebow, whom I credit
12 The paperwork on Jellison's raise was dated October I and Jellison told
an employee at the September 28 union meeting that she had received a
raise
13 The witnesses are generally vague as to the dates of the various meet-
ings The dates referred to herein are derived from Jellison's testimony relat-
ing the times of events to the union meeting held at her home, of which date
she was sure, and also from the date of the employee petition to withdraw
their designation of the Union as their collective-bargaining representative
14 This is from a composite of the undenied testimony of Jellison and
Ben5amm which I find more accurately reflects this conversation
1 Benjamin and Jellison had decided that the best approach would be to
work from the "Marsha Cannon Plan "
Also, on October 9 a Stipulation for Certification Upon
Consent Election entered into by Respondent and the
Union was approved by the Regional Director.
On October 10, payroll clerk Dana Ford agreed to work
with Jellison and Benjamin, and the three of them decided
it would be best to work in the auditorium because there
would be less chance of interruptions there. En route to the
auditorium Jellison met Mel Mateson, advertising manag-
er. She told him what they were doing that morning and
asked if he would meet with them to give some grammati-
cal assistance. He agreed to do so. Jellison asked if he had
copies of the old "do's and don'ts" and Mateson said he
would look.
According to Jellison, she xeroxed all of the material she
had and distributed them to the work group in the auditon-
um. She explained to Damschen and Mateson what their
plans were and the background. She asked Mateson if he
would help her organize everything into a rough draft
which she could type that evening. Jellison then asked
Damschen if she would point out anything she thought was
out of reach because they did not want to waste time work-
ing on such things. Damschen said she could not speak for
management, that she absolutely could not say anything
and could not make any guarantees. Damschen said she
would help them with the "Marsha Cannon Plan" portion
of their work but could not help with anything else.
They then began going through the "Marsha Cannon
Plan" section by section and revising it. When they came
to Sunday pay, Damschen was asked if she thought Doces
would permit a different Sunday pay rate. Damschen re-
plied that she knew from past experience that Doces would
not agree, also it was different from the union contract
already in effect in a different unit and she thought it
would be silly to ask for something more than was in the
contract because they were not going to be able to get it,
whereupon they pursued a different approach as to Sunday
pay. Mateson never mentioned whether he had authority
to negotiate for the Company or bind the Company.
Around lunchtime DeMarr came in and said Benjamin's
supervisor was looking for her, so she left. After lunch Jelli-
son did not immediately return. The others were there
working on a pay scale which reflected a 50-cent wage in-
crease. They called Jellison several times and finally Ford
told her that, unless she returned, they would have to stop.
Jellison returned. About a half-hour later, DeMarr came in
again and said he needed help in the cashier' s area, so they
broke for the day, after agreeing to meet the next day,
Saturday. 16
On Saturday, October 11, Jellison, Damschen, Ford, and
Benjamin finished the pay scale. According to Benjamin,
they had intended to give Doces a copy of the plan they
had prepared but because it was so long and such a rough
draft, they decided to read it to Doces. Benjamin and Jelli-
son, separately, asked Doces to meet with them. Jellison
testified that she told Doces they wanted to talk to him.
Doces said fine but he could not talk to them. Jellison said
she did not want him to talk, just to listen. He asked, "Are
16 The account of this meeting is essentially from Jellison's undenied testi-
mony Some minor portions are from the undenied testimony of Benjamin
and Ford
DOCES SIXTH AVE., INC. 809
you sure I can do this? I don't want to do anything wrong."
Jellision replied, "We can talk to you any time we want to,
you just can't talk to us." 17
Doces went into the conference room. According to Jel-
lison , she told Doces that they had put together a policy
and procedures booklet, to which they wanted him to lis-
ten. She asked if he would like to see a copy when it was
finished. Doces threw up his hands and said, "No, I don't
want to see anything. I don't want to even touch it, I don't
think I should be here." Jellison said, "They told us you
could listen to us, we are not asking you to comment or
give us any guarantees or any nods or say anything. We
don't expect you to say yes or no but will you at least listen
to us." Doces asked why. Jellison said, "Because we want
you to listen, we would just like to see your reaction." Doc-
es said , "I can't do this." Jellison said he could. So Jellison
and Mateson started taking turns reading the draft they
had prepared.
At some point, according to Benjamin, Jellison said, "I
know you cannot comment but to show you are sincere,
will you give us some indication." Doces looked at Jellison
quizzingly and Jellison said that Benjamin was there to
watch the expression on Doces' face, to see if he was sin-
cere. Doces asked Benjamin if that was true , Benjamin said
yes. Jellison said, "If you are sincere, would you blink your
eyes," and he did.
Jellison and Mateson, and perhaps Damschen, took
turns reading the draft they had prepared and explained
it.18 Shortly after they began reading, according to Jellison,
Bennett came into the conference room. He said, "What
are you doing here, Mr. Doces, we cannot do this." Jellison
said, "Listen, I wouldn't get you in trouble, Gouras said we
could talk to you, won't you just sit down and listen." Ben-
nett sat down and they continued to read. Then DeMarr
came in and asked what they were doing. Jellison said they
were just outlining some ideas they had concerning a poli-
cy and procedures booklet. She asked if DeMarr wanted to
see it . He said no. Jellison said, "Listen Ray, I have already
told them and I am going to tell you one more time, you
can listen to us, you just can't talk to us or offer us any-
thing, I am not asking you to do either, just to listen."
DeMarr sat down. The reading of the proposal continued
and, according to Ford, Bennett and Mateson commented
a few times that a specific section sounded fine. The sec-
tions read included sick leave and vacation and pension,
but when they came to the parts that "dealt with mon-
ey," 19 Jellison suggested that they break for lunch, which
they did.
When they returned after lunch, either Doces or Ben-
nett 20 said they had consulted Respondent's attorney who
advised them that they should not continue the meeting.
According to Jellison, she said that was stupid, that Gouras
said the employees could talk to management and she
could not understand why they would not continue to lis-
n Though not as detailed, Ford testified in general corroboration of this
testimony
18 Benjamin , Jellison, and Ford all testified that Mateson and Jellison
read portions of the plan Benjamin testified that Damschen did also
19 Apparently, Jellison is referring to the pay scale, for Benjamin testified
that for more than an hour they read the entire plan except the pay scale
20 Jellison testified it was Bennett Ford testified it was Doces
ten unless they dust did not want to do so. Jellison further
said, "All we want to do is to bat these ideas off your
head." Bennett said, "No, we're not going to listen any
more, we're not going to do nothing any more." DeMarr
agreed and they left. Ford, Jellison, Mateson, Damschen,
and Benjamin went into the coffeeroom and did some edit-
ing of the draft.
Benjamin testified that, at some point during the Satur-
day meeting with Doces, Bennett, and DeMarr, one of the
employees present said they would like to propose the plan
to the employees involved on Monday morning. Benjamin
does not recall any response from Doces, Bennett, or De-
Marr.
On Monday morning, Jellison went to each department,
including housekeeping and advertising, and announced
that there would be a meeting in the conference room. Ac-
cording to her, she did not seek permission to have the
meeting. All of the office, housekeeping, and advertising
employees attended the meeting. Jellison explained what
they had done. She said she did not feel that they could ask
the employees to withdraw from the Union on nothing. She
held up a copy of the plan that had been prepared, said she
had not had time to xerox it, but the one copy was there for
anyone to see.
She gave a synopsis of the proposed plan. Someone
asked why Jellison thought Doces could be trusted. She
replied that there was no guarantee but there was also no
guarantee from the Union. They discussed certain aspects
of the proposed plan. They also took a verbal vote as to
who wanted to continue with the Union. After further dis-
cussion, a vote was suggested as to whether they wished to
withdraw from the Union and submit the plan to Doces.
There were arguments pro and con. Then Jellision said that
if they withdrew from the Union, in 6 months they could
contact another union and go to an election, but if they
went to an election now and the Union lost, they would
have to wait for a full year before they could contact an-
other union. Someone suggested that, before they reached
a decision, they should invite Doces to come into the meet-
ing and see if he would agree to meet with them after they
withdrew from the Union.
Jellison then went out and asked Doces to come into the
meeting because all the employees were there. Doces said,
"I cannot talk to them." Jellison said, "They are not asking
you to talk, they dust want you to come in." Doces did go
to the meeting. Jellison said, "I know you cannot talk to us
now, we have something to take care of, but when that is
done, will you meet with us." He said he would. Someone
asked when. Doces said he had a 3 p.m. meeting but could
meet with them after that.
Later that day, October 13, Jellison unsuccessfully
sought assistance from both management and the Union in
drafting a withdrawal letter. She then drafted the letter
with the assistance of another employee. She personally
took the letter to each employee, asked them to read it and
sign only if they wanted to do so. Twenty-three employees
signed. Benjamin and another employee then hand-deliv-
ered the letter to the Union.21 According to Jellison, they
2i Although they left an hour early, Benjamin testified they did not get
permission to do so
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were in a hurry because a union meeting was scheduled for
the next night.
IV. CONCLUSIONS
A. The Soliciting and Remedying of Grievances
The record establishes that , immediately upon learning
that its employees were seeking union representation, Re-
spondent embarked upon a campaign to undermine their
support of the Union . Thus, on the evening of September
10, the Union held its first organizational meeting of
Respondent 's unrepresented employees . On the morning of
September 11, during a coffeebreak , Jellison told several
fellow employees that Vice President DeMarr was upset
about their union activity and wanted them to explain it to
him.
Within a few minutes, DeMarr came into the coffeeroom
and asked them if they would speak to him. They agreed
and after the coffeebreak several employees met with De-
Marr , Bennett , and Doces . Jellison listed the reasons they
had sought union representation as: (1) certain employees
were permitted to go to the restaurant next door whereas
others were restricted , (2) the lack of a uniform sick leave
or sick pay policy as between salaried employees and hour-
ly employees, (3) the vending machines in the coffeeroom
were inoperable , (4) the lack of a sofa in the coffeeroom,
(5) the lack of means to heat food in the coffeeroom, (6)
new employees were being hired at a higher wage than
those received by more senior employees , and (7) pay rais-
es were not given as promised . DeMarr specifically prom-
ised to correct some things and to check into others.
That afternoon , notwithstanding the Union 's intervening
demand for recognition and proof of majority , a sofa and
chair were placed in the coffeeroom . About a week later a
microwave oven was placed in the coffeeroom . New em-
ployees thereafter were hired at the wage rates of the "Mar-
sha Cannon Plan." The vending machines were replaced,
the restriction against going to the restaurant was lifted,
and Respondent began granting wage increases .22 In the
circumstances , I conclude that such conduct was calculat-
ed to and had the reasonable tendency to induce employ-
ees to forsake the Union . The complaint alleges, Respon-
dent admits, and I find that by soliciting and promptly
remedying certain employee grievances , Respondent has
violated Section 8(a)(1) of the Act
B. The Wage Increases
The complaint alleges that on and after September 11
Respondent, in adjustment of the grievances it solicited,
granted pay increases to unit employees because of, and in
order to chill, the organizing activities and the demand for
recognition by the Union. Respondent argues simply that
its policy was to follow the wage scale of the "Marsha
Cannon Plan" and that this policy was sabotaged through
payroll clerk Dana Ford's failure, without Respondent's
knowledge, to send department heads the reminders that
22 The wage increases will be discussed more fully below
an employee was due for a raise. Since this notice initiates
the wage increase process, Respondent argues it should not
be held responsible for the breakdown in its wage increase
program. Of course, if this were true, Respondent is cor-
rect. However, the facts are not that clear that Respondent
followed a strict plan of granting increases at a 6-month
interval. From the record it appears that Respondent fol-
lowed the "Marsha Cannon Plan" in a somewhat haphaz-
ard fashion. The exceptions seem to dwarf the rule.
Of the 38 unrepresented employees, 4 were part-time,23 6
were already receiving maximum pay, 4 had received raises
less than 6 months previously, 4 had been hired less than 6
months previously, 1 quit on September 15, and 2 layout
artists, the 1 layout assistant and the 2 housekeepers are
not covered by the "Marsha Cannon Plan," and there is no
record evidence to establish Respondent's practice as to
granting them raises. With 2 exceptions, none of these 23
employees received raises. The exceptions are a part-time
employee and Shirley Jellison, who will be discussed be-
low. Consequently, any deviation from past practice must
be gleaned from a consideration of these 2 exceptions and
the remaining 15 employees.
Ten employees received raises 24 in the critical period
between the September 11 meeting and the October 13 pe-
tition to withdraw support from the Union; two received
raises on October 16, the paperwork for which was initiat-
ed on October 15; the paperwork for one employee was
initiated on October 15, effective October 1. One employee
received a raise on November 15; and one received a raise
on November 1 which was due November 15. Of the 10
raises granted between September 1l and October 13, in-
clusive, only 1 was at a 6-month interval. Three were at
intervals of in excess of 1 year; two were between 6 and 7
months; three were between 5 and 6 months; and one was
initiated on September 11, 2 days after her previous raise
was initiated 25
Shirley Jellison, the leader of the antiunion movement,
received a wage increase on October 1, only 3-1/2 months
after her last raise.26 Cathy Pressel's beginning rate did not
conform to schedule. Her September raise was the first in a
year. Her increment was double that provided in the wage
schedule, presumably to compensate for the missed incre-
ment. However, it had been almost a year since Shirley
Aspnes' increase and she only received the regular incre-
ment.
The above clearly indicates that even after learning of
Ford's failure to initiate the paperwork leading to the
granting of raises, Respondent did not strictly adhere to
23
Although one part-time employee received a raise , there is no evidence
to refute DeMarr's testimony that part-time employees were not entitled to
6-month increments
24 The raises were all initiated within this period and most became effec-
tive during this period
251 am not impressed by DeMarr's explanation that Phyllis Hirsch re-
ceived a raise only days after her previous one because the first raise was to
bring her to journeyman status based on merit and the September 9 raise,
effective October 16, was a 6-month increment from date of hire This is Just
not consistent with the alleged pay schedule Even if this conformed with
someone's interpretation of the pay schedule, why initiate the increase on
September I I when the end of her first 6 months was not until October 17.
6 Jellison testified that she, Benjamin, and Maggie Clark requested raises
during this period All three received them even though their 6-month inter-
val was not up
DOCES SIXTH AVE., INC.
the "Marsha Cannon Plan." Nor did it do so as to the
raises due between October 13 and December 31.27 Of the
two raises due during this period, only Dana Ford received
his 28
This tends to negate Respondent's portrayal of itself as
the innocent betrayed by Ford. Furthermore, Ford credi-
bly testified that he stopped sending out memos because
they were not being returned to him after his March in-
structions that all raises were to be approved by Doces.
The evidence as to raises granted corroborates his testimo-
ny that very few of the notices he sent out were approved
and returned to him. Thus, the one raise due in March was
not granted. Five more became due in April. Of the six
due, only two were granted. One more became due in May.
Of the five due, only two were granted.
Accordingly, I find that Respondent's granting of wage
increases in September was not in accordance with an es-
tablished regular program of granting wage increases being
one of the main grievances solicited by Respondent, the
timing of the increase, and in view of Respondent's con-
temporaneous conduct, I find that the wage increases
granted in September subsequent to the September 11
meeting and in October were calculated to and had the
reasonable tendency to coerce employees to abandon their
support of the Union. Accordingly, I find that by granting
these wage increases, Respondent violated Section 8(a)(1)
of the Act.
C. The Ad Hoc Employee Committee
The complaint alleges that Respondent provided encour-
agement, support, and assistance to the organization and
establishment of an ad hoc employee committee and met
and negotiated with said ad hoc committee with respect to
the wages, hours, and working conditions of the unit em-
ployees. Respondent's defense is that it met with the com-
mittee and merely listened but did not negotiate. I find
Respondent's distinctions illusory.
It is clear that the committee sought and received
Respondent's support and approval at every step. Thus, on
October 9 Jellison and Benjamin informed Doces that they
were going to draft a policy and procedures booklet. Doces
agreed to listen to it when it was finished. They also made
it clear that though Jellison felt Doces could be trusted,
Benjamin and perhaps others were not so sure. They asked
if Supervisor Marie Damschen could help them with the
booklet. Doces said he would ask her.
Damschen evidently was instructed, or agreed, to give
the requested assistance and she did. Supervisor Mel Mate-
son also assisted them. Most of the work was done on com-
pany time for almost the entire workday on Friday, Octo-
ber 10. I find it difficult to believe that Doces was unaware
of this activity. Certainly DeMarr knew, for when immedi-
ate supervisors began chafing at the absence of committee
members, DeMarr came to their work location to inform
them that one or more were needed elsewhere. Notwith-
standing Damschen's protestations that she could not
27 There is no evidence in the record beyond December 31
28 if on a 6-month increment basis, the two housekeepers should have
received raises in December but did not
811
speak for management or make any guarantees, she did, on
occasion, point out what she felt would be management's
position on certain items. Witnesses specifically recalled
her doing this as to Sunday pay.
On Saturday, October 11, Doces readily agreed to meet
with the committee and listen to the draft they had pre-
pared, though protesting all the way that he could not do
this. Upon Jellison's request that he blink his eyes to show
his sincerity, Doces blinked his eyes. Then Bennett and
DeMarr came in and all three listened to the proposal.
Bennett and Mateson even commented a few times that
certain sections seemed fine. They tacitly agreed that Jelli-
son would hold a meeting of unrepresented employees on
Monday, October 13, on company time to propose the plan
to them.
During a lunchbreak, Respondent's attorney was con-
tacted and he advised Respondent to cease meeting with
the committee, which it did that day. However, the advice
of counsel did not hamper Respondent for long. On Mon-
day morning, Respondent permitted the meeting to be
held. When some of the employees expressed misgivings
over withdrawing their support for the Union on the as-
sumption that Doces would agree to meet with them, Jelli-
son invited Doces into the meeting. Again, Doces and Jelli-
son went through this coy routine; "We know you can't
talk to us, we just want you to listen." When Doces came
to the meeting, Jellison said, "I know you cannot talk to us
now, we have something to take care of but when that is
done, will you meet with us." Doces said he would. Some-
one asked when. Doces said he could meet with them after
he finished a 3 p.m. meeting.
Later that day, 23 employees signed a petition seeking to
withdraw their designation of the Union as their collective-
bargaining representative.
From the above, it is apparent that Respondent missed
no opportunity to meet with employees and impress upon
them, mutely if possible but vocally when necessary, its
desire to deal with them rather than the Union and to as-
sure them that they did not need a union to effect changes
in their working conditions. Certainly, employees would
have no difficulty receiving this message, particularly in
light of Respondent's September 25 letter to employees
stating that Respondent realized that changes needed to be
made, but that Respondent would strongly resist making
changes through a union and intended to convince em-
ployees that they and Respondent would be better off ad-
dressing themselves to needed change without the involve-
ment of the Union
Furthermore, with Jellison around, Respondent did not
need to be more explicit. By this, I mean in no way to
denigrate Jellison's sincerity or to imply that her own goals
and desires did not coincide with Respondent's. The fact is,
however, that with Jellison to wave the banner Respondent
could afford to play coy games of standing mute, and
blinking eyes, and Doces' appearance, at propitious mo-
ments to quell, by his presence, any doubts as to
Respondent's sincere desire and intent to meet and confer
with its employees as to terms and conditions of employ-
ment if only the Union were out of the way, provided
whatever added impetus was required.
Respondent also argues that there can be no violation
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because the committee is not a labor organization and
there were no negotiations . I am not persuaded by either of
these arguments . The committee was clearly involved in
drafting and submitting to Respondent recommendations
respecting wages and terms and conditions of employment.
The evolvement of the "Marsha Cannon Plan" and Re-
spondent's conduct in encouraging the work of the com-
mittee indicates that the recommendation of the committee
would be a major factor in Respondent 's decisions . There-
fore , even though the committee was not negotiating in the
traditional sense , it did deal with management concerning
mandatory subjects of bargaining .29 Sea Life, Incorporated,
175 NLRB 982 (1969). Reed Rolled Thread Die Co., subsid-
iary of UTD Corporation, 179 NLRB 56 (1969).
Accordingly, I find that the ad hoc committee is a labor
organization within the meaning of Section 2(5) of the Act.
I further find that by encouraging the formation of, partici-
pating in , and dealing with the committee concerning the
wages, hours, and terms and conditions of employment of
certain of its employees, after it had refused the Union's
demand for recognition and at a time when the Union was
seeking Board certification as the collective -bargaining
representative of these employees, Respondent has violated
Section 8(a)(1) and (2) of the Act.30 Sherman Division, St.
Regis Paper Company, 191 NLRB 818 (1971); Harpeth
Steel, Inc., 208 NLRB 545 (1974). Cf. James K Sterritt, Inc.
and Concrete Haulers, Inc., 215 NLRB 769 (1974); House of
Mosaics, Inc., Subsidiary of Thomas Industries, Inc., 215
NLRB 704 (1974).
D. The Refusal To Bargain and the Propriety of a
Bargaining Order
The complaint alleges and Respondent denies that a unit
of office , advertising , and housekeeping employees is ap-
propriate . However , General Counsel adduced no evidence
in support thereof. This unit may indeed be appropriate
but it is not presumptively so. Accordingly, since the rec-
ord evidence is insufficient to establish its propriety, I can-
not find such a unit appropriate.
Alternatively, the complaint alleges as appropriate a sep-
arate unit of office employees , and housekeeping employ-
ees. Respondent admits and I find that each of these two
units is appropriate . In its posthearing brief Respondent
amended its answer to admit the majority status of each of
the units. Accordingly, I find that, on September 10, a ma-
jority of Respondent's employees in each of the two appro-
priate collective-bargaining units designated the Union as
their collective-bargaining representative.
29 Sec 2(5) of the Act defines a labor organization as "any organization of
any kind , or any agency or employee representation committee or plan, in
which employees participate and which exists for the purpose , in whole or in
part , of dealing with employers concerning grievances, labor disputes, wag-
es, rates of pay, hours of employment , or conditions of work "
30 1 have given full consideration to, and reject , Respondent 's contention
that the Union had given its consent to such meetings The evidence does
not support this Whatever employees may have told Respondent in this
regard, Respondent had the services of able labor counsel and the union
representatives had made clear during Respondent's September II meeting
with employees that the Union considered such meetings to be unfair labor
practices
The complaint alleges that by its conduct set forth above
Respondent has violated Section 8(a)(1) and (5) of the Act.
I agree . It is apparent from the above that Respondent's
conduct was calculated to, and did, undermine the Union's
majority. The record establishes that Respondent , after re-
fusing to recognize and bargain with the Union, deliber-
ately embarked upon a course of action designed to identi-
fy the grievances underlying its employees ' desire for union
representation and to convince them that their demands
could best be met through direct dealing with Respondent
and that union representation would afford them no ad-
vantages.
Thus, Respondent, on September 11, refused the
Union's demand for recognition . Instead it responded by
soliciting and promptly remedying the grievances underly-
ing the employees ' resort to the Union, including wage in-
creases. Thereafter Respondent encouraged the formation
of an ad hoc committee to draft proposals to Respondent
regarding wages, hours, and terms and conditions of em-
ployment. Two of its supervisors assisted in formulating
these proposals . Respondent 's president and other top
management officials listened to the completed draft. Fur-
ther , Respondent 's president and other top management
officials , by their very presence and other indications of
assent , effectively conveyed to the employees Respondent's
readiness to meet and confer with them as to terms and
conditions of employment if the Union were eliminated.3i
The employees certainly got the message , for immediately
after Respondent's president assured them he would meet
with them, they signed a petition seeking to withdraw their
designation of the Union as their collective-bargaining rep-
resentative.
I conclude that this conduct has had effects which can-
not be expunged through traditional Board remedies. I
therefore conclude that the Respondent' s conduct has un-
dermined the Union's majority and rendered doubtful or
impossible the holding of a free and fair election. As the
Board has said in a less pervasive situation , "We can con-
ceive of no more pernicious conduct than that which is
calculated to undermine the Union and dissipate its major-
ity while refusing to bargain. Neither is there any conduct
which could constitute a greater impairment of employees'
basic Section 7 rights under the Act, especially since such
conduct by its very nature has a long -lasting , if not perma-
nent, effect on the employees' freedom of choice in select-
ing or rejecting a bargaining representative ." Teledyne Den-
tal Products Corp, 210 NLRB 435 (1974). Accordingly, I
find that Respondent violated Section 8(a)(5) of the Act by
refusing to recognize and bargain with the Union as the
majority representative of its employees while cotermi-
nously engaging in conduct which undermined the Union's
majority status and prevented the holding of a fair election.
Trading Port, Inc. 219 NLRB 298 (1975).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
31 Although this latter phrase was not actually used , as indicated above, I
find that in the circumstances everyone was aware that this is what was
meant
DOCES SIXTH AVE., INC. 813
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The ad hoc committee is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
4. By soliciting from employees the grievances underly-
ing their desire for union representation and by promptly
remedying same, including the granting of wage increases,
in order to induce employees to reject the Union as their
collective-bargaining representative; and by conveying to
employees that their demands could best be met through
direct dealing with Respondent and that union representa-
tion would be of no advantage, Respondent has interfered
with, restrained, and coerced employees in violation of
Section 8(a)(1) of the Act.
5. By encouraging the formation of, and rendering aid
and assistance to the ad hoc committee; and by dealing
with said committee after it had refused the Union's de-
mand for recognition and at a time when the Union was
seeking certification by the Board, Respondent has violat-
ed Section 8(a)(2) and (1) of the Act.
6. The following units each constitute a unit appropriate
for the purpose of collective bargaining within the meaning
of Section 9(b) of the Act.
All office employees working in Respondent's Stores,
excluding advertising employees, housekeeping em-
ployees, supervisors and guards as defined by the Act
and all other employees.
All housekeeping employees working in Respondent's
Southcenter Store and offices, excluding office em-
ployees, advertising employees, supervisors and
guards as defined by the Act and all other employees.
7. On September 10, 1975, a majority of the employees
of Respondent in each of the units described above desig
nated the Union as their representative for the purpose of
collective bargaining with Respondent and at all times
since said date the Union, by virtue of Section 9(a) of the
Act, has been, and is now, the exclusive representative of
all the employees in said units for the purpose of collective
bargaining.
8. On September 11, 1975, the Union requested Respon-
dent to recognize and bargain with it as the exclusive bar-
gaining representative of Respondent's employees in the
units described above with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment of such employees.32
9. On September 11, 1975, Respondent refused, and
since said date has continued to refuse, to recognize and
bargain collectively with the Union as the exclusive collec-
tive-bargaining representative of Respondent's employees
in the appropriate units described above and, instead, has
engaged in the unlawful conduct found above to be viola-
tive of Section 8(a)(1) and (2) of the Act in order to under-
mine the Union and to destroy its majority status among
the employees in the appropriate units described above.
32 The Union demanded recognition in a unit of office, advertising, and
housekeeping employees I do not consider this to be a fatal flaw
10. By refusing to recognize and bargain with the Union
as the majority representative of its employees while coter-
minously engaging in conduct which undermined the
Union's majority status and prevented the holding of a fair
election, Respondent has violated Section 8(a)(5) and (1) of
the Act.
11. The unfair labor practices found herein are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law and the entire record in this proceeding, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I hereby issue the following recommend-
ed.
ORDER 33
Respondent , Doces Sixth Ave ., Inc., Seattle , Washing-
ton, its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Soliciting from its employees grievances underlying
their desire for union representation and remedying such
grievances in order to discourage their interest in and sup-
port of Retail Store Employees Union Local No. 1001, Re-
tail Clerks International Association , AFL-CIO.
(b) Conveying to employees that their demands could
best be met through direct dealing with Respondent and
that union representation would be of no advantage.
(c) Encouraging the formation of, and rendering aid and
assistance to, the group referred to herein as the ad hoc
committee , or any like committee, or dealing with said
committee or any like committee concerning grievances,
wages , hours of employment , or other terms and conditions
of employment.
(d) Refusing to recognize and bargain with Retail Store
Employees Union Local No. 1001, Retail Clerks Interna-
tional Association , AFL-CIO, as the exclusive collective-
bargaining representative of its employees in the units de-
scribed above.
(e) In any other manner interfering with , restraining, or
coercing employees in the exercise of their rights guaran-
teed in the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Upon request , recognize and bargain with the above-
named Union as the exclusive representative of all the em-
ployees in the following appropriate bargaining units and,
if an understanding is reached , upon request, embody such
understanding in a signed agreement.
33 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All office employees working in Respondent' s Stores,
excluding advertising employees, housekeeping em-
ployees, supervisors and guards as defined by the Act
and all other employees.
All housekeeping employees working in Respondent's
Southcenter Store and offices, excluding office em-
ployees, advertising employees, supervisors and
guards as defined by the Act and all other employees.
(b) Post at its place of business in Seattle, Washington,
copies of the attached notice marked "Appendix." 34 Cop-
ies of said notice, on forms provided by the Regional Di-
rector for Region 19, after being duly signed by the
Respondent's representative, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 19, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
34 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice.
The Acts gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representatives of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all these things.
WE WILL NOT do anything that interferes with, re-
strains, or coerces employees with respect to these
rights. More specifically:
WE WILL NOT solicit from our employees their griev-
ances underlying their desire for union representation
or remedy such grievances by the granting of benefits,
in order to discourage their interest in, and support of,
Retail Store Employees Union Local No. 1001, Retail
Clerks International Association, AFL-CIO.
WE WILL NOT induce our employees to withdraw sup-
port for a union by conveying to them that their de-
mands can best be met through direct dealing with us
and that union representation would be of no advan-
tage.
WE WILL NOT encourage the formation of, or render
aid and assistance to, the committee composed of
Shirley Jellison, Norman Benjamin , Dana Ford, and
certain management representatives, or any like com-
mittee, or deal with said committee, or any like com-
mittee , concerning grievances, wages, hours of em-
ployment, or other terms and conditions of
employment.
WE WILL NOT refuse to recognize and bargain with
Retail Store Employees Union Local No. 1001, Retail
Clerks International Association, AFL-CIO, as the
exclusive collective-bargaining representative of the
employees in the appropriate units described below.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed in the Act.
WE WILL, upon request, recognize and bargain with
Retail Store Employees Union Local No. 1001, Retail
Clerks International Association, AFL-CIO, as the
exclusive collective-bargaining representative of the
employees in the following appropriate units:
All office employees working in Respondent's Stores,
excluding advertising employees, housekeeping em-
ployees, supervisors and guards as defined by the Act
and all other employees.
All housekeeping employees working in Respondent's
Southcenter Store and offices, excluding office em-
ployees, advertising employees, supervisors and
guards as defined by the Act and all other employees.
And, if an agreement and understanding is reached,
WE WILL embody such agreement and understanding in
a signed contract.
DocEs SIXTH AVE., INC.