House of Adler

National Labor Relations Board - Board Decisions

Oct 1, 1973

206 N.L.R.B. 228 (N.L.R.B. 1973)

228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
House of Adler and Retail Store Employees ' Union,
Local 480 , AFL-CIO. Cases 37-CA-853, 37-
CA-866, and 37-CA-867
October 1, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On May 29, 1973, Administrative Law Judge Leo
F. Lightner issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief. The General Counsel filed an
answering brief. After the Board's reception of briefs,
Respondent filed a "Motion for Acceptance of Settle-
ment" with an attached affidavit by Respondent's
counsel and "Agreement and Dismissal of Com-
plaint." Both the General Counsel and the Charging
Party then filed statements in opposition to
Respondent's motion.
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,
the Respondent's Motion for Acceptance of Settle-
ment Agreement, and the statements in opposition to
Respondent's motion and has decided to deny
Respondent's motion I and to affirm, the rulings,2
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, House of Adler, Honolu-
lu, Hawaii, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
DECISION
STATEMENT OF THE CASE
LEO F. LIGHTNER, Administrative Law Judge: This pro-
ceeding was heard before me in Honolulu, Hawaii, on
March 26, 27, and 28 and April 9 and 10, 1973, on the
consolidated complaint of General Counsel, as amended,
and the answer, as amended, of House of Adler, herein
referred to as Respondent.' The complaint alleges violations
of Section 8(a)(3) and (1) and Section 2(6) and (7) of the
Labor Management Relations Act of 1947, as amended, (61
Stat. 136; 65 Stat. 601; 73 Stat. 519; 29 U.S.C. 151, et seq ),
herein called the Act. The parties waived closing arguments,
and briefs filed by the General Counsel and Respondent
have been carefully considered.
Upon the entire record,' and from my observation of the
witnesses, I make the following:
1 In denying this motion, we note inter aha that. as General Counsel and
Charging Party point out, Respondent's proposed settlement has not been
accepted either by any of the other parties to this proceeding or by any of
the employees found victims of Respondent's discrimination
2 Respondent has excepted to the Administrative Law Judge's refusal to
grant an extension of the hearing to allow Mrs Adler (the former Frances
L Kelley) to testify We have reviewed the record and find no error in his
ruling The original complaint and notice of hearing, dated December 12,
1972, initially set the hearing for March 6, 1973 In a letter dated January
29, 1973, counsel for Respondent requested that the hearing be rescheduled
for the last week of April because "essential witnesses" in the Respondent's
case would be on an around-the-world buying trip In an order consolidating
cases, consolidated amended complaint, and amended notice of hearing,
dated March 1 1973 the hearing was rescheduled for March 26, 1973
During the course of the hearing, the Administrative Law Judge granted a
continuance to April 9 in order to allow the Adlers to testify The Respon-
dent, asserting that Mrs Adler (Kelley), who had undergone certain medical
examinations during the course of the Adlers' business trip, would be in
Denver, Colorado to obtain advice from the Adlers' physician and a member
of her family concerning her medical probelms sought a continuance to
April 16 1973 These circumstances plainly indicate that the Administrative
Law Judge's refusal of Respondent's request was not amabuse of his discre-
tion, and we so find In addition, we note that no application was made in
this proceeding to take deposition testimony as provided in Sec 102 30 of the
Board's Rules and Regulations Serves 8, as amended, and that Respondent
presented no reason why such application was not made
3 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find
no basis for reversing his findings
FINDINGS AND CONCLUSIONS
I BUSINESS OF RESPONDENT
The complaint alleges, the answer admits, and I find that
Respondent is an Hawaii corporation engaged in the retail
sale of jewelry. During the 12-month period immediately
preceding the issuance of the complaint, a representative
period, Respondent, in the course and conduct of its busi-
ness operations received gross revenues in excess of
$500,000. During the same period, in the course and con-
duct of its business operations, Respondent purchased jew-
elry products at places located outside the State of Hawaii
valued in excess of $50,000.
A charge was filed on November 3 in Case 37-CA-853 A charge was
filed on December 14 in Case 37-CA-866 A charge was filed on December
15 in Case 37-CA-867 A complaint was issued on December 12, an amend-
ed complaint was issued on March 1, and amended during the hearing The
dates herein from July to December'are 1972; and from January-to March
are 1973, except where otherwise indicated
2 General Counsel filed a motion to correct errors in the-transcript Re'
spondent has filed an opposition to some of these corrections General
Counsel's motion is directed to obvious errors and is granted [Certain other
errors are corrected as detailed in the slip opinion l
206 NLRB No. 47
HOUSE OF ADLER 229
The complaint alleges, the answer admits, and I find that
Respondent, at all times material, has been an employer
engaged in commerce and in operations affecting com-
merce, within the meaning of Section 2(2), (6) and (7) of the
Act.
II THE LABOR ORGANIZATION INVOLVED
It is undisputed, and I find , that Retail Store Employees'
Union, Local 480, AFL-CIO, herein referred to as the
Union, is, and at all times material has been, a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Issues
The principal issues raised by the complaint and answer,
as amended, and litigated at the hearing, are whether the
Respondent: (1) engaged in conduct constituting interfer-
ence, restraint, and coercion by (a) Frances L. Kelley, here-
in Kelley, creating an impression of surveillance of
employee union activity, on or about November 6, or (b) by
Kelley interrogating employees relative to their union activ-
ity on November 7 or November 9, or (c) by Kelley threat-
ening a breakdown in employer-employee relations would
occur if the employees selected the Union as their bargain-
ing representative, on or about November 9, or (d) by Kel-
ley directing an employee not to sign an authorization card
for the Union on or about November 9, or (e) by Kelley, at
Respondent's president's residence, creating the impression
of surveillance, in November or December, or (f) by Kelley
warning employees not to talk to union representatives and
not to sign union authorization cards on November 6 or
November 9, or (g) by Kelley interrogating employees
about their union activity in the middle of November and
December 1, or (h) by Kelley, in late November or early
December, at Respondent's president's home, or Decem-
ber 13 at Respondent's premises, threatening to sell
Respondent's business and close its operations in reprisal
for employees selecting the Union as their collective-bar-
gaining representative, or (i) by Jacques H. Adler and Kel-
ley promising an employee an increase in salary to induce
him to vote against the Union on or about December 1, or
(j) by Kelley interrogating employees as to how they voted
in a Board election on December 13, or (k) by Kelley threat-
ening to withhold promised Christmas bonuses because the
employees selected the Union as their collective-bargaining
representative on December 13, or (1) by Kelley demanding
that employees pay all outstanding charge accounts thereby
changing the terms of repayment, because employees had
selected the Union as their collective-bargaining representa-
tive on December 13, or (m) by Adler issuing warning letters
to Kim Lee because he engaged in union activities on Feb-
ruary 12 and February 16; or (n) whether Respondent was
discriminatorily motivated and thus engaged in conduct
violative of-Section 8(a)(3) and (1) by. (a) the discharges of
Nancy Bermudez, Jessica Lloyd, or Diane Griffith on No-
vember 2, or George Moore on-Deceiliber 13, or (b) increaeI
ing the salary of an"employee to persuade him to abandon
his, union- activities and vote against the Union on Decem-
ber 1, or (c) by Kelley interfering with and preventing Lloyd
from completing sales from which she would have received
commission income because of her union activites on De-
cember 17, or (d) by reducing the hours of Bermudez, on or
about December 25, as a reprisal for her union activities.
Respondent denies the commission of any unfair labor
practice. Respondent asserts that the three discharges on
November 2 were for cause, and that Moore voluntarily quit
his employment on December 9.
Supervisory Personnel
The complaint alleges, the answer admits, and I find that
Jacques H. Adler, herein Adler, president and chairman of
Respondent, at all times material, is and has been an agent
of Respondent within the meaning of Section 2(13) of the
Act, and a supervisor within the meaning of Section 2(11)
of the Act.
The complaint alleges and the answer denies that Kelley,
general manager, was an agent and supervisor. The evi-
dence relative to this issue is next set forth.
Lloyd credibly related that she was hired by Kelley in
September. The evidence establishes, as set forth infra, that
Bermudez, Lloyd, and Griffith were discharged by Kelley
on November 2. Adler acknowledged that Kelley, at all
times material herein, was store manager at the Honolulu
store. Respondent is inconsistent in contending that Kim
Lee, as assistant store manager, was a supervisor, while
asserting that Kelley was not. It is undisputed that when
Kelley was at the store, she prepared the schedules of hours
of work for the employees. She also granted employee re-
quests for time off, and changes in schedules.
Accordingly, for the reasons stated, I find that Kelley at
all times material was a supervisor within the meaning of
Section 2(11) of the Act.
I turn next to the question of whether and when Kim Lee
was a supervisor.3
Lee credibly related that he was initially employed by
Respondent in February 1972 as a part- time salesman. He
was not hired as a full-time employee until July 17. Lee, who
is 24 years of age, commenced work in a jewelry shop in
Bangkok at the age of 14, in 1963. He was branch manager
of a jewelry store, identified as Johnny's Gems in Thailand,
in 1967 and 1968. Lee related that 90 percent of his time,
in Respondent's employment, has been spent in selling mer-
chandise to customers. He also cleaned up the shop, vacu-
umed the floor, cleaned showcases, and prepared work to
be repaired or reset by independent jewelers.
It is undisputed that Adler and Kelley left on a trip to
Tokyo and Hong Kong on October 22. Adler acknowledged
that he appointed Lee as assistant manager the day prior to
their departure, October 214 It is undisputed that Lee made
out the work schedules for the employees commencing Oc-
3 The name Kim Lee is an adopted name Lee, who is Chinese, related his
full name is Prachuab Charoensuk. For ease of reference he is referred'to
herein as Lee
° I do not credit Adler's recitation that Lee had been given the authority
of assistant manager prior to their trip which started early July and continued
until Labor Day. Adler acknowledged no employees were advised of Lee's
purported promotion in July. It is undisputed, in this record, that Lee was-
Continued
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tober 22, and may have continued to do so, with the approv-
al of Kelley, between November 5 and December 18.
On December 18, Respondent posted a notice "To all
employees," over the signature of Adler, advising that Jo
Ann Courtney was promoted to a new position of supervisor
of personnel. The letter states, inter alia: "Mrs. Courtney
will be in charge of our entire operation here in my absence
and will report directly to me. She has full supervisory au-
thority and the effect of her decisions and direction will be
the same as mine."
Lee credibly related that he has not made out work sched-
ules since shortly after the Board election, which was held
on December 13. Lee related that Kelley made out the
schedule when she was there, and made out a permanent
schedule, which no one was to change, when Adler and
Kelley left on a trip, on December 25 .1
Accordingly, for the reasons set forth, I find that Lee was
a supervisor, within the meaning of Section 2(11) from the
period commencing October 22 and ending December 18.
I also find he was not a supervisor before or after those
dates.
Background
and Sequence of Events
Adler related that he is president of Respondent, and
chairman of the House of Adler, Ltd. It appears that
Respondent's headquarters are in Denver, Colorado, while
House of Adler, Ltd. is located in Hong Kong. Adler de-
scribed his business as that of diamond wholesalers, with
buying offices in Belgium, out of which merchandise is dis-
tributed to offices and distributors in Okinawa, Guam,
Hong Kong, and Japan. Respondent formerly was the who-
lesaler in Hawaii to military installations and discount de-
partment stores. Respondent has a chain of stores in the
United States, which have been purchased and are operated
in the name of various sellers. However, we are herein con-
cerned only with the store located in Honolulu, a retail
outlet.
Adler related that he and Kelley made a trip covering the
months of July and August and ending on Labor Day. On
this trip they visited Japan, Okinawa, Taiwan, Hong Kong,
Bangkok, Singapore, Tel Aviv, London, Antwerp, and New
York. They then visited stores in Texas and the office in
Denver. They were in Honolulu from September 5 until
approximately noon on Sunday, October 22, when they left
on another trip, during which some of the discharges which
are the subject of this litigation occurred.
Adler asserted that he was advised, in October, by his
CPA and vice president, identified as Jerry Epstein, that
Respondent was facing a loss of $150,000 for the year. Ep-
stein requested a meeting which was held in Honolulu, in-
ferentially in the second or third week of October.
On October 21, Nancy Bermudez, alleged discriminatee
only a part-time employee until July 17. There is not a scintilla of evidence
that Lee exercised any of the duties of a supervisor prior to October 22
I find it unnecessary to determine if the employees were advised of Lee's
promotion, on October 21. Adler was uncertain and unconvincing
5 I do not credit the recitation of Adler that Lee was still supposed to take
care of schedules after December 18
herein, confronted Adler in what is described as a lunch-
room, which is also the stockroom. She asked for a raise.
Bermudez asserted that Adler became upset and started
yelling at her. Adler advised her that she did not need a
raise, that she was making enough already, and that Re-
spondent didn't need her, and that she could leave the store
immediately. Adler asserted he would advise Kelley that she
had been discharged and they would send her paycheck.
Bermudez then talked to Kelley and advised her as to
what had happened. Kelley advised Bermudez that Kelley
did not want her to leave, that she was a valuable employee,
and that Kelley would talk to Adler. Bermudez returned to
her duties.
At the end of the day, after the customers had left, Adler
had a meeting with all the employees, including Bermudez.
Bermudez credibly related that Adler advised all of the
employees that if they were not satisfied with what they
were being paid, they could leave and seek employment
elsewhere.b
Margaret Diane Griffith, alleged discriminatee herein,
was employed as a sales clerk from June until her discharge:
on November 2. Griffith did not work on Saturday,. October
21. On Monday, October 23, Bermudez advised Griffith
relative to the events of Saturday. Griffith suggested that the
employees should look into the possibility of obtaining a
union. Griffith then discussed this possibility with George
Moore, Kim Lee, Jessica Lloyd, and Ellen Sellen.7 Griffith
met with Tom Glenn, International representative for the
Union, at lunch on Wednesday, October 25, and signed an
authorization card. Kim Lee also attended the luncheon,
but arrived late and was not aware of the fact that Griffith
had signed an authorization card. On Saturday, October 28,
a meeting was held with Glenn which was attended by
LethiCue, Lloyd, Bermudez, Moore, Griffith, and Lees It
appears undisputed that it was Griffith who advised each
employee of the meeting with the Union.
On Monday, October 30, the Union filed a petition for
election. The unit requested was: All employees of the em-
ployer employed on the Island of Oahu, excluding confiden-
tial employees, guards and/or watchmen, and supervisors
as defined in the Act. The petition represents that there were
eight such employees.
An election was held on December 13. The tally of ballots
reflects 6 votes for the Union, 1 opposed, and 3 challenged
ballots, with 10 eligible employees. On December 20, the
Regional Director issued a certification of representative in
Case 37-RC-1797.
6 Adler acknowledged advising Bermudez that she had had three raises in
less than 9 months, that he faced a horrible predicament, and that this was
not the time to discuss a raise Adler acknowledged having a meeting with
the employees, advising them that business was poor, and that he did not
want to be harassed every time he came to Honolulu. Adler acknowledged
advising the employees if they were not satisfied, they could look elsewhere
for work
7 The only other employees at this time identified in the record are Mar-
guerite LethiCue, a Vietnamese, and Jo An Courtney, the bookkeeper How-
ever, there were some part-time employees
6 Lee related that he had signed an authorization card at the luncheon
meeting on October 25, after Griffith had left.
HOUSE OF ADLER 231
Events Relative to the
Discharges of November 2
It is undisputed that Adler and Kelley left Honolulu
about noon on Sunday, October 22, for Tokyo and Hong
Kong, and returned to Honolulu on Sunday, November 5,
about noon. It is, patent from the record that, during these
trips, Adler and Kelley were in frequent communication
with the Honolulu store and the Denver headquarters by
telephone and telex. The record reflects the time difference
between Tokyo and Honolulu is 1 day, less 5 hours. In other
words, 12 o'clock noon, November 2 in Honolulu would be
7 a.m., November 3, in Tokyo.
Lee asserted he was confronted with mixed emotions,
explaining that he did not like the way Respondent was
treating the employees, but felt a duty to report the union
activities. Lee credibly related that, on October 25, he wrote
a letter to the Adlers advising that he suspected union activi-
ty was going on, and that he had seen Griffith with a man
who worked for the Union. The letter was mailed to the
Hilton Hotel in Tokyo .9
Lee credibly related that on Monday, October 30, he
found a book outlining the benefits of belonging to the
Union in the stockroom which he then showed to Courtney.
Lee asserted he advised Courtney that someone must have
attended the union meeting, that Griffith was the leader.
Lee related he then wrote a letter, which Courtney typed,
and which was mailed to the Adlers in Tokyo. Lee related
that in the letter he advised Adler that Moore, Bermudez,
and Lloyd had attended a union meeting.10
9 f do not credit the assertion of Adler that he never received this letter
10 Courtney was not questioned about this letter However, her assertion
that she knew nothing about union activities until after November 2 consti-
tutes a denial of Lee's recitation. To the extent the testimony of Courtney
is at variance with that of Lee, I credit Lee
Adler acknowledged receiving communications from Lee while he was in
Tokyo between October 22 and November 5 Adler asserted that Lee's letter
advising the identity of the employees who attended the union meeting never
reached him, and that he first learned of the union activities of employees
after his return to Honolulu on November 5 Adler was then self-contradic-
tory as indicated by the following recitations
Q Now, did you ever receive the letters from Kim Lee, discussing the
union activities of certain employees'
A No
Q You never received this9
A No The only-we were really faced with all of these union activi-
ties when we came back, which was on the 5th, and he discussed it on
long distance with Fran Kelley In turn, she explained it to me, that they
had union activities, and what did I think about it, and I told her not
to get excited, that we would be back in a few days, and we would face
it then
JUDGE uoirmeR When did he explain to her that there were union activi-
ties on long distance, while you were in Tokyo9
THE wm+ESS While we were in Tokyo, yes, sir
JUDGE6uGHTNER So he did tell her about the union activities while you
were in Tokyo9
THE wm+ESS Yes
Q (By Mr Berkowitz) Now, did Miss Kelley tell you about her
conversation with Kim9 Did she tell you.who had attended union meet-
ings9
A No That was revealed to us on the afternoon of the 5th, on Sunday
the 5th, when we came hack
Later, Adler gave the following recitation
Q You say that Mrs Adler did talk to you about a conversation with
Kim and the Union on your trip back to Honolulu9
A Yes
Q What did Mrs Adler say about the Union on that trip?
Lee credibly related that on the afternoon of Thursday, -
November 2, Honolulu time, around 1 p.m., Courtney had
a telephone conversation with Adler or Kelley, who were in
Tokyo. He asked Courtney to ask Adler if Adler had re-
ceived letters Lee had mailed. Lee asserted that Courtney
made the inquiry and advised him that Adler had responded
in the affirmative. During the same telephone conversation,
Lee talked to Kelley, who asked him which union he was
trying to organize. Lee responded that it was the Retail
Clerks International. Kelley then inquired as to who had
attended the meeting, and Lee responded, Griffith, Lloyd,
Bermudez, and Moore. Kelley then asked Lee if he had
attended. Lee acknowledged he lied and stated he had not.
Kelley then asked who else had attended the meeting, and
Lee responded that he did not know. This terminated the
conversation.
Lee credibly related that 2 minutes later, there was anoth-
er call from Tokyo and Kelley advised him, "I want you to
fire Diane [Griffith], Nancy [Bermudiz], and Jessica [Lloyd],
right now." Lee asked the reason for the discharges. Lee
related that Kelley advised, "We want to cut the overhead.
We want to cut the company expenses " Lee responded that
they had just hired David Peterson and it did not make
sense to fire the three named to cut expenses. Lee credibly
related that Adler then talked to him and advised, "We
don't need those people. You, me and Fran and David, we
can run the business.""
It is undisputed that Lee then called Griffith, Lloyd, and
Bermudez into the office and advised them that Kelley had
instructed him to terminate them.12 The employees inquired
if they should leave then or work the balance of the day. It
is undisputed' that Lloyd was scheduled to work until 5:30
p.m. and the other two until 8:30 p.m. Lee suggested they
finish the workday. After 5:30 p.m., Honolulu time, there
A She just quoted tome that Kim had suspected that the employees,
all of them, went to a meeting of the Union He cited all the people who
went, Marguerite [LethiCue] and Jessica [Lloyd], and Nancy [Bermudez]
and Mr Moore and Diane Griffith, andhe mentioned that they all went,
that he went, too, and he went as an observer, and we dropped it at that,
and that was the end of it It was no big deal We have unions in many,
many of our stores in other areas We had Holiday Mart here in town
for several years They are a union
JUDGE LIGHTNER But she did tell you that Kim had told her this in a
telephone conversation9 Is that what you are testifying9
THewriHESS On the plane, when we came hack, that is right According-
ly, I do not credit the recitation of Adler that he and Kelley had no
knowledge of union activities until their return on November 5
Adler related that he and Kelley left Honolulu, on Sunday, October 22,
and went to Tokyo to organize a Belgian Fair in a local department store.
They left for Hong Kong on Monday, October 30, and returned to Tokyo
on November 2, which was November 1, in Honolulu, arriving at their hotel
in late afternoon Adler could not recall if there was mail or telex messages
waiting for him
Adler acknowledged that on the morning of November 3, which would be
the afternoon of November 2, Honolulu time, he had a meeting which he
described as a clinic or seminar, for employees of the department store, in
his hotel room Adler acknowledged that Kelley was present. Adler acknowl-
edged there was a telephone conversation between Kelley and Lee Adler
acknowledged his meeting was recessed during the telephone conversation,
and that he was present during that time Adler asserted that the difficulty
was related to a wage-hour problem, set forth infra Adler asserted that Kelley
advised that Lee was complaining that some of the employees were giving
him a problem and he didn't have authority, and thereupon Kelley advised
him to fire the people who would not listen to him Adler denied talking to
Lee at that time On these conflicts I credit Lee
Kelley did not appear as a witness for reasons explicated infra
12 The four named so testified
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was another telephone call from Tokyo. Kelley inquired of
Lee as to what the employees said when they were fired. Lee
responded they all laughed. Kelley inquired if they were still
there. Lee advised that Lloyd had left but that Griffith and
Bermudez were still there. Kelley then instructed Lee to put
the two named employees on the telephone, which he did.
Griffith related that Kelley advised her, "Get off the prem-
ises in two minutes and you can expect to be sued by us."
Bermudez credibly related that she was advised, by Kelley,
to leave the store immediately or else she would have a
lawsuit on her hands. Both employees then left.
The following day, November 3, at the instruction of Lee,
Courtney sent a telex to Adler advising that since they had
fired three people, they did not have enough employees to
stay open late or to be open on Sunday. Lee requested
advice. Lee related that Adler, by telex, advised that he
could close on Sunday, or, alternatively, he could schedule
people to work overtime in order to stay open on Sunday.
Respondent's Purported Defenses
Adler sought to establish that his understanding of Lee's
communications was related to an investigation of Respon-
dent by the Wage-Hour Division of the Department of La-
bor, and that he did not understand that a union was
involved. Adler incorrectly asserted that Bennett, of the
Wage-Hour Division, had started that division's investiga-
tion prior to Adler's departure, on October 22. When coun-
sel for General Counsel advised Adler that Bennett had
advised counsel that he did not start his investigation of
Respondent until October 31, Adler acknowledged that he
had not met Bennett, or talked to him relative to that inves-
tigation, until after his return, on November 5.
Adler sought to assert that the discharges were motivated
by reason of insubordination. Adler asserted that Kelley
advised Lee that if the employees did not listen to his com-
mands he had to dismiss them. Thus, the Respondent
sought to establish that the decision was Lee's and not that
of Kelley. I find no substance or merit to this contention.i3
Reinstatement of Bermudez
and Lloyd-Asserted Reasons for
Failure to Reinstate Griffith
It is undisputed that Bermudez was reemployed by Re-
spondent, on November 7. The facts relative to that rein-
statement are next set forth.
Bermudez credibly related that Kelley called her at home
and apologized for having discharged her, asserting it was
a misunderstanding. Kelley requested Bermudez to have
13 Adler was first uncertain , then acknowledged receiving a telex from
Honolulu, on the evening of November 2 Tokyo time, which was November
I in Honolulu, which reads as follows,
Labor Department investigating us because several have complained of
their new hours. Possible union problems. Employees being interviewed,
Thursday, Friday and Monday. Denver informed already. Letter re.-this
mailed yesterday Suggest you return as soon as possible.
It was the following morning that Kelley made the inquiry of Lee set forth
sarprk
lunch with her on Monday, November 6, which she did.
During the lunch, Bermudez related, Kelley advised that
she knew the troublemaker was Griffith, and that they never
had any problems prior to Griffith's working for Respon-
dent.
It is undisputed that Lloyd was reinstated on November
9. The circumstances of her reinstatement are next set forth.
Lloyd credibly related that she went to Respondent's
store to pick up her paycheck on Tuesday, November 7. At
that time, Kelley offered her a part -time job. Lloyd re-
sponded that she would let her know. When Lloyd called to
advise Kelley she would not accept part-time work, Kelley
was not there. Lloyd then so advised Lee. Later the same
day or the following day, Lee advised Lloyd that Kelley had
agreed that she should work full time. She returned on
November 9.11
Adler related a variety of reasons as the basis for
Respondent's failure to reemploy Griffith. Adler asserted
that in September Griffith came to him and requested that
she be reinstated. Adler asserted that Griffith admitted that
Kelley had good cause for firing her, advised him that it
would not happen again, and requested that he plead her
case with Kelley. Adler asserted that he had advised Griffith
to have lunch with Kelley and ascertain if Kelley was willing
"to take you back on probation." Adler, then asserted that
Griffith had not been discharged, but had been given a f-
or 2-week notice.
Griffith credibly related that, on September 1, while the
Adlers were still on their summer trip, she considered pur-
chasing a diamond pendant and a diamond ring. Griffith
asserted that Sato Falk, a salesclerk, wrote out a sales slip
on September 1. Griffith explained that she was given the
white copy and the pink and yellow copies go to the book-
keeper, one for the Honolulu office and one for the Denver
office. Griffith asserted that she deposited a diamond,
which she owned, as a down payment. When Kelley re-
turned on September 5, she called Griffith a thief because
she had worn the pendant. Griffith asserted that she did not
talk to Kelley because Kelley was extremely agitated. Kel-
ley took the ring away from Griffith, and advised Griffith
that she was giving her 2 weeks' notice. Griffith asserted she
left the premises for approximately 2 hours, and then called
Adler, and inquired if he was aware of the situation. Griffith
asserted that Adler advised her that it was a misunderstand-
ing and that she should return to work, which she did.
Griffith acknowledged that Adler suggested that Griffith
should discuss the misunderstanding with Kelley. When
Griffith attempted to approach Kelley, Kelley refused to
discuss the matter. Several days later, Griffith advised Adler
that she wanted time to look for another position. Adler
convinced her that she should stay, that she was doing an
i4 Adler explained the reason for these reinstatements. Adler asserted the
kind of infractions that had happened with Bermudez "were things that we
could straighten very easily " Adler then asserted that Bermudez' shortcom-
ings were that she had nine children and her husband was in ill health, and
this resulted in an excessive use of the telephone , during working hours, by
Bermudez Adler asserted that when Bermudez stated she would rectify this
error, "that was the end of it " There is no evidence that Bermudez Was ever
warned of this alleged deficiency prior to her discharge
Adler described the infractions of Lloyd as "extremely mild." " Adler then
stated, "There was really nothing for us to get excited about. There wasn't
any=reason why she couldn't be reinstated right away"
HOUSE OF ADLER 233
excellent job and had a future with Respondent, and that
he was certain things could be straightened out with Kelley.
Griffith and Kelley then reconciled their differences. The
assertion of Griffith that she received a raise in October is
undisputed and is credited. It is patent that Griffith was not
discharged in September,15
Interference , Restraint, and Coercion
It is alleged that on November 6, Kelley created the im-
pression to an employee that Respondent was engaging in
surveillance of employee union activity.
Bermudez related that, on November 6, Kelley advised
Bermudez that Kelley knew that the troublemaker was Grif-
fith, that they had never had any problems before Griffith
started working for Respondent.
It is alleged that on November 7 and November 9 Kelley
interrogated employees about their union activity. It is also
alleged that on November 9, Kelley threatened a break-
down in employer-employee relations would occur if the
employees selected the Union as their bargaining represen-
tative, and directed an employee not to sign an authoriza-
tion card.
Bermudez credibly related that on November 7 Kelley
asked if she had been contacted by any union man or re-
ceived any calls. Bermudez responded in the negative.
Lloyd credibly related that on November 9 Kelley called
her into Kelley's office. At that time, Kelley asked Lloyd if
she knew anything about the Union. Kelley advised Lloyd
that Kelley knew that as an employer she was not supposed
to ask the question. Lloyd asserted she denied knowledge of
the Union. Kelley then advised Lloyd the Union would only
cause a breakdown between the employees and the employ-
ers, that the Union was not good, and was just like commu-
nism.
Lloyd related that later the same day, about 8 p.m., Kel-
ley again called Lloyd into Kelley's office. At that time
Kelley inquired why Lloyd had signed an authorization
card. Lloyd denied signing an authorization card. Kelley
then advised Lloyd if the Union started bombarding her
house to stay neutral.
It is alleged that about the middle of November, at
Respondent's premises, and in late November or early De-
cember, at Adler's residence, Kelley created the impression
that Respondent was engaging in surveillance of employees'
union activities.
Moore credibly related that, on November 6, Kelley
called Moore into her office. Kelley then advised Moore
that she was not supposed to talk to him about the Union,
but she had to know where he stood because she and Adler
were planning trips in the future, and wanted to know that
15 Adler asserted that on Sunday , November 5, after he returned from
Tokyo Lee reported that Griffith had gone to Hilo [on Hawaii ] with a lot of
merchandise Adler then acknowledged that this event occurred in Septem-
ber It is patent that it was not related to the events at the time of discharge.
Adler also asserted that Lee complained that Griffith would be late for
work on occasions, or take a long lunch hour There is no evidence that these
deficiencies, if they existed, were ever called to the attention of Griffith.
Respondent makes no such contention herein.
I find no merit to Respondent 's purported reasons for its failure to rein-
state Griffith.
the organization was going to run smoothly while they were
gone. Kelley then advised Moore she had found out that he
had attended a union meeting, and wanted to know the
reason. Moore responded that there was a low morale
throughout the organization and he went to the meeting to
find out more details Kelley then inquired how he was
going to vote if it came to an election. Moore responded that
he would vote for whoever was looking after his paycheck.
The events at Adler's residence follow.
It is alleged that in late November or early December, at
Adler's home, and on December 13 at Respondent's prem-
ises , Kelley threatened to sell the business and close the
operations in reprisal for employees selecting the Union.
Gerold Benjamin Hirsch related that he had dinner at the
Adlers' near the end of October or early November. At that
time, Adler advised Hirsch, who was not an employee, that
he wanted Hirsch to help at the Christmas season. Adler
also mentioned a position opening in Hong Kong. Hirsch
asserted that both Adler and Kelley were present. Hirsch
related that it was Adler who asserted they might close
down the business if the Union came in. Since Hirsch was
not an employee at the time in question, and no employees
were present, I will recommend dismissal of those portions
of paragraph VI(e) and (h) which relate to conversations at
Adler's home.
Lee related that, on December 13, immediately after the
election, Kelley asked him how he voted and he responded
that she already knew. Kelley then inquired if he was happy,
now that he had a union. Kelley then advised he would not
be happy long because after Christmas they were going to
sell the store. Since I have found that Lee was a supervisor
at the time in question, and no employees were present
during this conversation, I will recommend dismissal of
those portions of paragraph VI(h) which relate to this con-
versation.
It is alleged that on December I Adler and Kelley prom-
ised an employee an increase in salary to induce him to vote
against the Union.
Lee related that on November 7 Adler advised that he
intended to raise Lee's salary from $800 a month to $856.67
a month. Lee asserted he was not given a reason, but later
learned that it related to payment for his overtime.
Since Lee was a supervisor at the time in question, I will
recommend dismissal of the allegations of paragraph VI(i)
of the complaint.
It is alleged that, on December 13, Kelley interrogated
employees as to how they had voted in a Board election,
held that day, and that Kelley threatened to°withhold prom-
ised Christmas bonuses, because they had selected the
Union, and that Kelley demanded that the employees pay
all outstanding charge accounts, thereby changing the terms,
of repayment, in retaliation for the employees selecting the
Union.
Bermudez credibly related that on December 13, after the
election, Kelley called Bermudez into Kelley's office and
advised Bermudez that she was not working for Kelley but
for the Union. Later, Kelley advised that she would have to
pay all of her charge account, which was over $1,000, by the
following payday. Bermudez related that previously she had
paid $100 a month on the account. Kelley also advised
Bermudez that be-cause of the union election no Christmas
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bonuses would be granted, and that she would not receive
a nickel raise even if she had to picket.16
Lloyd related that, on December 13, after the election,
Kelley advised her that she would have to pay off her charge
account. Lloyd asserted that the total was $65 and that she
had been previously advised by Courtney, the bookkeeper,
that it did not matter when she paid the account as it was
only a $65 item."
Discharge of Moore-December 13
George E. Moore had been an independent entrepreneur
in the jewelry business in Hawaii. He was employed on
September 28 as a gemologist , appraiser, and salesclerk.
Moore was the union observer at the election, on December
13, a Wednesday, and signed the tally of ballots. Wednes-
day was Moore's day off, and he left immediately after the
election, which was held before the store opened at 10 a.m.
Moore credibly related that about noon Adler, by tele-
phone, advised that he was accepting Moore's resignation
as of the previous Saturday, December 9, and that they had
wired Denver for a replacement. Moore advised Adler that
he didn't recall having resigned. Moore related that Adler
then advised "Oh, yes, at the conclusion of this argument
that we had Saturday, you said you had had enough, and
you walked away from me, and I took that to indicate that
you quit your job." Moore related that he had worked on
Sunday and Tuesday, following the episode of Saturday.
Moore advised Adler that if he had quit he would not have
worked on Sunday and Tuesday.
Moore related the events of Saturday, December 9. Sever-
al days prior to December 9, Moore, with Adler's assistance,
had sold a $3,200 ring to a man and woman who were not
married. Adler explained they needed a 20-percent down-
16 Bermudez related that she was not employed by Respondent at Christ-
mastime, 1971, and did not know if there had been a Christmas bonus.
17 Kelley did not appear as a witness . Adler related that he and Kelley were
married in Honolulu on February 14, 1973. Adler related that he and Kelley,
then Mrs . Adler, left Honolulu on February 19 and went to Japan , Okinawa,
Hong Kong, Bangkok, Tel Aviv, London, Antwerp, and Denver . Adler as-
serted that in Tel Aviv, Kelley had a gallstone problem . A doctor came to
the hotel and advised that her problem could not be diagnosed without her
entering a hospital for 2 or 3 days. Adler acknowledged they had arrived in
Tel Aviv on Wednesday, March 7 , and left on Friday, March 16 . The precise
date of the gallstone problem is obscure . They were not scheduled to arrive
in Denver until April 9. Adler related that they had coverage of Blue Cross
and Blue Shield in Denver , and wrote immediately to Denver, to Adler's
doctor, to make the proper arrangements , and to have the gallstone problem
diagnosed . Adler asserted that previously Kelley was in the hospital from
January 10 to January 13, in Denver, for major surgery on her eye. The
stitches were removed in Honolulu.
Adler was asked why his wife was not present at the hearing , on April 9.
He responded, "She is consulting first with a doctor in San Diego , and then
they are going back with her younger brother, who had the same kind of
surgery, and the whole thing had been scheduled since January.
To the extent the testimony of General Counsel's witnesses, set forth in
detail, involved Kelley , who did not appear, I am constrained to find the
recitations credible. In so finding, I am not impressed with Respondent's
explanation of the reason for Kelley's nonappearance.
Adler acknowledged that the terms of employee credit require a downpay-
ment of 20 percent, with the balance payable over a period of 12 months.
Adler asserted the reason the employees were told to pay up their accounts,
immediately after the election , was because their accounts were delinquent.
I do not credit Adler.
Respondent's contention that no Christmas bonuses had been promised,
and therefore were not revoked , is without substance.
payment. The young lady proffered $300, and Adler noted
it on the sales slip and recorded it on the cash register. At
that time, Adler was called away to answer a telephone call.
The couple then explained to Moore, that they needed the
money for Christmas purchases, and Moore returned the
money. Moore removed the slips from the cash register and
attached a penciled note that no deposit had been received,
and placed it with the ring in the safe. Moore asserted, the
following morning, he explained the transaction to Court-
ney, the bookkeeper. Moore acknowledged he did not ex-
plain it to Adler, acknowledging that this would be asking
for trouble. The following Saturday, December 9, when
Courtney was unable to account for the missing $300,
Moore advised Adler of what had occurred. Moore asserted
that Adler indicated that Moore might have absconded with
the money. This infuriated Moore, who exhibited the white
sales slip, which is customarily given to the customer as a
receipt when money is paid down, still attached to the pur-
chase. Moore acknowledged he told Adler that he had
enough of this, and walked away. Thereafter, Adler advised
Moore that Adler was sorry that Moore felt that way, but
Moore had lost the Company a big sale.
Moore related that it was customary, at closing time, for
Adler to designate those who were to work on Sunday.
Moore explained that he and Lee alternated Sundays. Ini-
tially, Adler advised Lee he was to work. When Moore
advised that it was his Sunday, as Lee had worked the prior
Sunday, Adler advised Moore to come in on Sunday, which
Moore did.
Moore related that on Sunday evening, December 10, at
the close of business, Adler mentioned the fact that Moore
was off on Monday, but should come in on Tuesday, De-
cember 12, which Moore did. Moore related that, on Tues-
day evening, Adler advised him, "Tomorrow is your day off,
but don't forget you have to come in to vote."
Moore is a graduate of the Gemological Institute of
America, and is a gemologist . Moore related that, on occa-
sion, he was asked by Adler to take repair work home, to
do it in his own workshop. He also, on occasion, made
appraisals for Respondent. When Adler called Moore on
Wednesday, he was completing an appraisal at home.
Moore was paid extra, by Respondent, on a percentage
basis, for these appraisals, and the cost was then charged to
the customer. It appears undisputed that Moore completed
this appraisal, and billed Respondent for it, after his dis-
charge. 8
Is Adler asserted that on Saturday , December 9, Moore advised him that
at this stage of life Moore was not about to change his way of doing things,
that Moore did not approve of the manner in which Adler ran the business,
and that Moore was quitting . Adler asserted he responded that he was
accepting the resignation , that he hoped they would remain friends, and that
Moore did not have to work there . Adler related that later in the day, at the
time of closing , Moore approached him and advised that he was going to be
shorthanded on Sunday , and inquired if Adler would mind if he came in to
help. Adler asserted h-, responded that he welcomed this because there were
no hard feelings . Adler then asserted that he advised Moore that he did not
want him as an employee as long as he had resigned, but "that he was
welcome to come back on Sunday for the day , to help us out until we could
make other arrangements ." Adler's explanation was that it was impossible on
Saturday night to get enough help for Sunday morning.
Adler described Moore's days off as Mondays and Wednesdays. Adler
related that on Sunday evening Moore advised that he had appraisal work
to finish , which he was doing at home . Adler acknowledged that this work
was completed and Respondent was billed for it. Adler made no reference
HOUSE OF ADLER 235
Alleged Discrimination
Against Lloyd-December 17
It is alleged that Kelley interfered with and prevented
Lloyd from completing sales from which Lloyd would have
received commissions , because of Lloyd's union activities.
Lloyd related that on Sunday, December 17, on several
occasions , while she was starting to make a sale, Kelley
would interrupt and take the customer. Lloyd asserted the
customer would walk in and Lloyd would inquire if they
needed help and attempt to sell them merchandise. At this
point Kelley would walk up and interrupt and start talking
to the customer. Lloyd voluntarily left and waited on other
customers . Lloyd related that she was paid a salary plus a
1-percent commission.
Lloyd had been employed, initially, in the middle of Sep-
tember. Lloyd asserted that the total commission involved
in the four or five sales which Kelley completed approxi-
mated $5. Lloyd asserted that, prior to the election on De-
cember 13, Kelley did not interfere with a sale unless it was
a large sale . Lloyd voluntarily quit on December 18. Gener-
al Counsel does not contend that Lloyd's separation consti-
tuted a constructive discharge.
I am unable to find from the recitation that Lloyd suf-
fered any reduction in earnings as a result of Kelley's inter-
ference. Accordingly, I will recommend dismissal of the
allegations of paragraph X of the complaint.
Reduction of Hours of Bermudez,
Commencing December 25
It is alleged that commencing December 25, Respondent
reduced the work hours of Bermudez in reprisal for the
Union having won a Board-conducted election of Decem-
ber 13.
Bermudez credibly related that, prior to the election, she
was scheduled to work 40 hours a week, and averaged 42 or
43 hours per week. After the election, Kelley posted a sched-
ule reducing her hours to 32 hours a week, for the week
commencing December 25, and each of the following weeks
until the beginning of February, when she was returned to
the regular 40-hour week.
Bermudez related that during the Christmas season, Re-
spondent hired new employees whom she identified as Chi-
co, Harriet, Jean, and Sandra. These new employees were
scheduled for a 40-hour week each during the period in
to or explanation or denial of the fact that Moore worked on Tuesday.
Adler related that he did not see Moore on Wednesday , but learned that
Moore had advised some of the employees that Moore would be back on
Thursday. Adler acknowledged he then called Moore and advised Moore
that he had resigned and that Adler was accepting his resignation. Adler
asserted that Moore inquired if he had not been reinstated since he had
worked on Sunday, and Adler asserted he responded that he had not.
To the extent the recitation of Adler is at variance with that of Moore, I
credit Moore.
I find it unnecessary to treat with the fact that Moore returned and worked
on December 19 and 20, in an attempt to assist Respondent to update its
inventory. It is apparent, from the record, that the inventory was inaccurate
by reason of a number of factors, such as sales slips not being properly
recorded, jewelry being shipped to other stores and not properly taken off
the inventory, and for other reasons . I find none of the recitation relative to
this inventory is relevant or material to the issues presented herein.
question. Bermudez acknowledged that some of these em-
ployees spoke Japanese, while Bermudez speaks Philippino,
Ilocano, and Tagalog. Bermudez is a native of the Phil-
ippines. Bermudez acknowledged there was an influx of
Japanese tourists in Hawaii in the latter part of December
and that Respondent did advertise in Japanese tourist news-
papers.19
Reprimand Letters to Lee-
February 12 and 16
By amendment during the hearing, it is alleged that repri-
mand letters issued to Lee on February 12 and 16 were
issued because Lee had engaged in union activities and
constituted interference, restraint, and coercion.
It is undisputed that on February 12 Adler, by letter
advised Lee as follows:
You have been directly involved with two incidents
of customers switching stones in the past eight months.
This carelessness constitutes a serious economic loss
to the House of Adler.
Repetition of these incidents is cause for immediate
suspension from duties and/or dismissal20
Lee credibly related that it was the first warning letter he
had received, and that he was the first employee to receive
a warning letter. Lee then recited the background. Lee relat-
ed that on July 24 he showed diamonds to two ostensible
customers, with a security guard watching. It is undisputed
that one of the customers switched an imitation diamond
for a real diamond. Immediately after the customers left,
Lee became suspicious, ascertained that the diamond had
been switched, and pursued and caught the customers.
However, for unexplained reasons, they were not prosecut-
ed, allegedly because there was insufficient evidence?'
Lee asserted the second alleged incident occurred on Feb-
ruary 10. He identified the customer by name. The customer
and his wife had previously purchased a diamond, and de-
sired the ring size modified. Lee then interested them in a
larger diamond, and a more perfect stone. Lee exhibited two
diamonds, and the customer selected one of them. Lee re-
turned the other diamond to Kelley. Lee credibly related
that it was then Kelley's duty to examine the diamond and
to weigh it, which she failed to do. Lee asserted that 2 days
later, Kelley advised that the customer had switched a dia-
mond. Lee looked at the diamond and was positive it was
the same diamond. Lee then suggested, since he knew the
identity of the customer, and the customer was returning to
19 Adler acknowledged that three of the identified employees were hired
because they spoke Japanese and the Respondent anticipated business from
Japanese tourists. It appears undisputed that Respondent caused to be
mailed some 10,000 letters, from Europe to Japan, in anticipation of this
influx of Japanese business. Respondent also advertised in Japanese lan-
guage newspapers and on Japanese language radio and television.
Adler acknowledged that after the hiring of the Japanese speaking employ-
ees, the hours of Bermudez and Lloyd were reduced. I have found that Lloyd
was voluntarily separated on December 18, prior to the event in question.
Adler made no explanation, by way of ,justification, of the need for the
reduction in Bermudez' hours
2e A postscript indicates that the copy was placed in "permanent employee
file"
21 While Lee asserted the value of the missing diamond was $30,0003 Adler
asserted that he had recouped the loss, from the insurance company, in the
amount of $8,000.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the store, that Adler confront the customer with his accusa-
tion, and report the matter to the police. Adler responded
there was no need to do that. Lee related that, after the letter
was issued, he requested Adler to withdraw the accusation,
which Adler refused to do.22
It is undisputed that on February 16, by letter, Adler
advised Lee as follows:
Over the past two months, your commissions have
shown a sizable decrease.
With business being as good as it is, and very few
new employees hired, there is no excuse for your lack
of sales.
I will be looking for an improvement in your sales,
and a review of same will be made in the near future.
Lee denied that his commissions had fallen off for a
period of 2 months, immediately preceding February 16.
Lee's record of commissions, produced by Respondent,
substantiates this assertion of Lee. According to these rec-
ords, Lee's commissions were: July, $99.57; August,
$100.43; September, $100; October, $190.07; November,
$226.38; December, $348.01; January, $80.81; February,
$74.36; and March, $134.
Lee related that in January he spent 1 week doing inven-
tory for the fiscal year and spent additional time preparing
work to be sent to jewelers for mounting or repair.
Concluding Findings
Interference , Restraint , and Coercion
I have found, supra, that on November 7 Kelley interro-
gated Bermudez relative to her union activities; that, on
November 9, Kelley interrogated Lloyd relative to her
union activities; and that, on November 6, Kelley interro-
gated Moore as to his union activities.
While interrogation of an employee as to union member-
ship, activities, and desires, or that of fellow employees, has
been held not to beper se unlawful, Board decisions require
that there be a legitimate reason for inquiry, which must be
conducted with appropriate safeguards. Blue Flash Express,
109 NLRB 591.
The Board has identified the areas permitting interroga-
tion, i.e., clarification of the union's claim to majority status
22 Adler asserted that the first gem switch cost Respondent $ 8,000. This is
obviously inaccurate since that amount was recovered from the insurance
company . Adler asserted the second switch was a switch from a 2-1/2 carat
diamond to a white garnet, which was worthless . Adler acknowledged re-
covering insurance on the first stone . Adler acknowledged they did not report
the second incident to the police . Adler denied that Lee requested the matter
be reported to the police or that the customer be confronted . On this conflict
I credit Lee.
Adler asserted his reason for not reporting it to the police was that he
would have had to report it to the insurance company. Adler was reluctant
to report it to the insurance company for fear that his insurance would be
cancelled . On the matter of whether the second stone had actually been
swiched , I credit the recitation of Lee.
21 It is patent from the record that after the separation of Moore, Lee
assumed some of the duties formerly performed by Moore, which required
expenditure of time and were in the nonselling area.
Adler was not questioned relative to this letter and made no explanation
of the reason for its issuance . Likewise, Adler did not explain why these
reprimand letters were sent to Lee, when no written reprimands had been
sent to any other employee at any time.
to determine whether recognition should be extended, and
the investigation of facts concerning issues raised in a com-
plaint, where such interrogation is necessary in preparing
the employee's defense for the trial of its case. Such interro-
gation requires safeguards which have been enumerated by
the Board. Johnnie's Poultry Company, 146 NLRB 770, 775.
None of the safeguards, including voluntary participation
and assurance of freedom from reprisals, was taken herein.
Accordingly, for the reasons stated, I find the interroga-
tion of the named employees by Kelley constituted coercion
and was violative of the proscriptions of Section 8(a)(1) of
the Act.24
I have found that on November 6, in conversations with
Bermudez and Moore, Kelley created an impression of sur-
veillance of the employees' union activities.
It is patent from many Board decisions, with court ap-
proval, that the creation of an impression of surveillance is
violative of the proscriptions of Section 8(a)(1) of the Act.
I find accordingly. Ainsworth Manufacturing Company, 131
NLRB 273.
I have found, supra, that on November 9 Kelley advised
Lloyd that selection of the Union would cause a breakdown
between the employees and the employers, and advised her
not to sign an authorization card. I have found, supra, that,
on December 13, immediately after the election, Kelley ad-
vised Bermudez and Lloyd that they would have to forth-
with pay all of the balance on their charge accounts, thus
changing the terms of repayment as retaliation for the em-
ployees selecting the Union as their collective-bargaining
representative. At the same time, Kelley advised Bermudez
that because of the union election no Christmas bonus
would be granted.
It is patent that threats of economic retaliation, and the
taking of economic retaliation because employees engage in
union activities, each constitute coercion and are violative
of the provisions of Section 8(a)(1) of the Act. I find accord-
ingly. Bell Manufacturing Division, Di Giorgio Leisure Prod-
ucts, Inc., 192 NLRB 570.
I have found, supra, that on February 12 and 16 warning
letters were issued to Lee. Counsel for General Counsel, in
his brief, accurately describes these warnings as spurious,
and asserts the true motive behind the letters was retalia-
tion. I have found that Lee was a supervisor at the time he
engaged in union activities in November and December.
However, counsel for General Counsel accurately, in his
brief, asserts that Lee no longer possessed or exercised su-
pervisory authority at the time the warning letters were
issued and is entitled to the protection of the Act. More
importantly, this is a small store, with 10 employees at most
in the unit. It is reasonable to infer that the retaliatory
purpose of these letters would not be misunderstood by the
other employees, and the letters had an impact on the Sec-
tion 7 rights of all of the employees.
Accordingly, for the reasons stated, I find that the is-
suance of these warning letters was coercive and violative
of the provisions of Section 8(a)(1) of the Act. Southwire
Company, 133 NLRB 83, 98=100.
u Respondent , in its brief, contends that Kelley was neither a supervisor
nor an agent. I have found to the contrary, supra.
HOUSE OF ADLER 237
The Discharges of Griffith,
Bermudez, and Lloyd-November 2
The single question to be resolved relative to the dis-
charges of Griffith, Bermudez, and Lloyd is whether they
were discriminatorily motivated.
The evidence establishes that Griffith was the prime mov-
er in the organization of the employees and was the one who
contacted the union representative and arranged for a meet-
ing of identified employees with the Union. These activities
of Griffith commenced on Wednesday, October 25, and the
union meeting was on Saturday, October 28. I have found
credible Lee's recitation that, by letter, he promptly advised
Adler and Kelley of these events. I have also found, from
the recitation of Adler, that Adler and Kelley had knowl-
edge of these events prior to the discharges. I have found
that, prior to the discharges, Kelley inquired of Lee as to the
identity of the Union which was attempting to organize
Respondent's store, and that Lee advised it was the Retail
Clerks International. I have also found that Kelley inquired
as to who attended the union meeting and that Lee supplied
the names of Griffith, Lloyd, Bermudez, and Moore. It was
not until that information had been supplied, and in a fol-
lowing telephone call from Kelley to Lee, that Lee was
advised summarily to discharge the three named employees,
ostensibly to cut expenses. The total lack of substance for
this asserted reason is adequately demonstrated by the fact
that Respondent rehired Bermudez on November 7 and
Lloyd on November 9.
Respondent's effort to attribute the discharges to Lee, as
distinguished from Kelley, was disputed by Lee, whom I
find to be a credible witness. While Respondent asserted the
named employees refused to take orders from Lee, it is
obvious from Lee's letter of November 1 that his principal
complaint about employees not following his orders related
to David Peterson, a new employee, against whom no action
was taken.
In numerous cases, the Board and courts have held that
direct knowledge of an employee' s union activities is not a
sine qua non for finding that an employee has been dis-
charged because of such activity but may be inferred from
the record as a whole. The small number of employees, and
the abruptness and timing of the discharge, are among the
factors considered. Wiese Plow Welding Co., Inc., 123
NLRB 616.
The unexplained coincidence of time with respect to the
principal events has been found to be no coincidence at all,
but rather part of a deliberate effort by the management to
scotch the lawful measures of the employees before they
have progressed too far toward fruition. The court held that
if employees were discharged partly because of their partici-
pation in the campaign to establish a union, and partly
because of some neglect or delinquency, there is nonetheless
a violation of the Act. N.L.R.B. v. Jamestown Sterling Corp.,
211 F.2d 725 (C.A. 2).
The existence of some justifiable grounds for discharge or
layoff is no defense if it was not "the moving cause." Wells,
Inc, v. N.L.R.B., 162 F.2d 457, 460 (C.A. 9).
The abruptness of a discharge, and its timing, have been
found to be persuasive evidence as to motivation. N.L.R.B.
v. Montgomery Ward & Co., 242 F.2d 497, 502 (C.A. 2);
N.L.R.B. v. Southern Desk Company, 246 F.2d 53, 54 (C.A.
4).
In view of the above facts, I find that Respondent's pur-
ported reasons for the discharges of Diane Griffith, Nancy
Bermudez, and Jessica Lloyd on November 2 were pretex-
tuous and the real reason and moving cause was the union
activities of said employees, and said discharges constituted
discrimination to discourage membership in the Union, and
are violative of the provisions of Section 8(a)(3) and (1) of
the Act.
Discharge of Moore-December 13
It is undisputed that Moore was the union observer at the
election on December 13. The election was held prior to the
opening of the store at 10 a.m. Wednesday was Moore's day
off. About noon, Adler, by telephone, advised Moore that
he was accepting Moore's resignation, which he asserted
Moore had proffered Saturday, December 9. It is undisput-
ed that Adler and Moore had a dispute on December 9,
which concluded with an offer on Moore's part to discontin-
ue his employement by Respondent. However, thereafter,
Moore worked on Sunday and Tuesday, December 10 and
12. It is patent from this record that Moore, on Wednesday,
considered the events ,of the previous Saturday as having
been laid at rest, particularly by reason of his employment
thereafter. It follows, and I find, that Moore's separation
was a discharge, not a resignation. Respondent has ad-
vanced no justification for the discharge 25 The effort of
Respondent, in its brief, to imply that Moore left voluntarily
on December 20 requires no explication. Moore returned on
December 19 and 20 only to aid in locating items missing
from the inventory. He was not reemployed at that time.
In view of the above facts, I find that Respondent's pur-
ported reasons for the separation of Moore, because of his
asserted resignation on December 9, were pretextuous and
the real reason and moving cause for the discharge of
Moore, on December 13, was the union acitivites of said
employee, and said discharge constituted discrimination to
discourage, membership in the Union, and is a violation of
the provisions of Section 8(a)(3) and (1) of the Act.
Reduction of Hours of Bermudez-
December 25 to February 1
It is undisputed that Bermudez worked a 40-hour sched-
ule each week, and averaged 42 or 43 hours per week, prior
to the election. After the election, commencing the week of
December 25 and continuing until early February , Bermu-
dez' hours were reduced to 32 hours a week. Respondent's
only explanation was that they hired some Japanese-speak-
ing employees to wait on the Japanese-speaking tourists,
whom they anticipated would patronize the store by reason
of Respondent's extensive advertising in Japanese language
periodicals, radio, and television.
Absent any showing of economic justification, I am con-
strained to find that Respondent's reduction of Bermudez'
25 While Adler asserted that at the time he advised Moore of his separation,
Adler had -made arrangements to hrang,Be 1 from Detver to replace Moose,
Adler acknowledged that Bell had never, in fact, replaced Moore.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours was further retaliation for the union activities of Ber-
mudez, and was thus discriminatorily motivated and viola-
tive of the provisions of Section 8(a)(3) and (1) of the Act.
recommend that Respondent be ordered to cease and desist
from in any manner infringing upon rights guaranteed to its
employees by Section 7 of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operation of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in, and is
engaging in, certain unfair labor practices, I will recom-
mend that it cease and desist therefrom, and take certain
affirmative action designed to effectuate the policies of the
Act.
It has been found that Respondent discriminatorily dis-
charged Diane Griffith on November 2, 1972, and George
Moore on December 13, 1972, and has failed and refused
to reinstate them. Accordingly, I recommend that Respon-
dent offer Diane Griffith and George Moore immediate and
full reinstatement to the former or substantially equivalent
position of each, without prejudice to seniority or any other
rights or privileges previously enjoyed by them, dismissing,
if necessary, any employee hired since the day of each dis-
charge. I have also found that Respondent discriminatorily
discharged Nancy Bermudez and Jessica Lloyd, on Novem-
ber 2, and reemployed Nancy Bermudez on November 7
and Jessica Lloyd on Nov 9. I have also found that Respon-
dent discriminatorily reduced the hours of Nancy Bermu-
dez during the period from December 25 until early
February 1973. It is recommended that Respondent make
each of the named discriminatees whole for any loss of pay
each may have suffered by reason of the discrimination
against each. The loss of pay, relative to the discharges, shall
be based on the earnings each would normally have earned
from the date of discharge until the date each is or was
offered re' tatement, less the net earnings of each during
said period. aid backpay shall be computed on a quarterly
basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289. Interest on backpay
shall be computed in the manner set forth in Isis Plumbing
& Heating Co., 138 NLRB 716. In addition, Nancy Bermu-
dez shall be made whole for any loss of pay she may have
suffered by reason of her reduction in hours, during the
period her hours were reduced, with interest as provided.
I will also recommend that Respondent be ordered to
revoke and rescind the reprimand letters issued to Lee on
February 12 and 16.
It is also recommended that Respondent be ordered to
make available to the Board, upon request, payroll and
other records to facilitate checking the amount of earnings
due.
In view of the nature of the unfair labor practices com-
mitted, the commission of similar and other unfair labor
practices reasonably may be anticipated. I shall therefore
Conclusions of Law
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Retail Store Employees' Union, Local 480, AFL-CIO,
is a labor organization within the meaning of Section 2(5)
of the Act.
3. By engaging in the conduct set forth in the section
entitled "Interference, Restraint, and Coercion," to the ex-
tent therein found, Respondent has engaged, and is engag-
ing, in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By discriminating with respect to the hire and tenure
of employment, and terms and conditions of employment,
of Diane Griffith, George Moore, Nancy Bermudez, and
Jessica Lloyd, thereby discouraging the free exercise of
rights guaranteed by Section 7 of the Act, Respondent has
engaged, and is engaging, in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law, upon the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I hereby issue the following:
RECOMMENDED ORDER 26
House of Adler, its officers, agents, successors and as-
signs shall:
1. Cease and desist from:
(a) Discouraging membership in Retail Store Employees'
Union, Local 480, AFL-CIO, or any other union, or dis-
couraging free exercise of rights guaranteed by Section 7 of
the Act, by discriminating against any employee in regard
to his hire or tenure of employment, or any term or condi-
tion of employment.
(b) Interfering with, restraining, or coercing its employ-
ees by interrogating them relative to their union activity or
the union activity of other employees in a manner violative
of the provisions of Section 8(a) (1) of the Act.
(c) Threatening economic retaliation, or engaging there-
in, by announcing discontinuance of a Christmas bonus, or
a reduction of hours of employment, or by issuing warning
letters.
(d) Creating an impression to employees that Respon-
dent has engaged, or is engaging, in surveillance of employ-
ee union activity.
(e) In any other manner interfering with, restraining, or
26 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and Recommended Order herein shall, as provided in Section
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
HOUSE OF ADLER
coercing its employees in the exercise of their right to self-
organization, to form labor organizations , to join or assist
the above-named Union, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in any other concerted activity for
the purpose of collective bargaining or any other mutual aid
or protection, or to refrain from any and all such activities,
except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8(a)(3)
of the Act, as modified by the Labor Management and
Disclosure Act of 1959.
2. Take the following affirmative action, designed to ef-
fectuate the policies of the Act:
(a) Offer to Diane Griffith and George Moore immediate
and full reinstatement to the former or substantially equiva-
lent position of each, without prejudice to the seniority or
other rights and privileges previously enjoyed by each, and
make each whole for any loss of pay each has suffered by
reason of Respondent 's discrimination against each, in ac-
cordance with the recommendation set forth in The Reme-
dy herein.
(b) Make Nancy Bermudez and Jessica Lloyd whole for
any loss of pay each has suffered by reason of Respondent's
discrimination against each , in accordance with the recom-
mendation set forth in The Remedy herein.
(c) Revoke and 'rescind warning letters issued to Kim
Lee, on February 12 and 16, 1973.
(d) Preserve and make available to the Board, or its
agents , upon request , for inspection and reproduction, all
payroll records , social security reports, timecards , personnel
files, and all other records necessary to analyze, compute
and determine the amount of backpay to which Diane Grif-
fith, George Moore, Nancy Bermudez and Jessica Lloyd
may be entitled under the terms of this Decision.
(e) Post at its place of business , in Honolulu , Hawaii,
copies of the attached notice marked "Appendix." 27 Copies
of said notice, to be furnished by the Regional Director for
Region 20, after being signed by Respondent's representa-
tives, shall be posted by the Respondent and maintained by
it for 60 consecutive days thereafter, in conspicuous places,
including each of Respondent's bulletin boards. Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 20 in writing,
within 20 days from receipt of this Decision, what steps it
has taken to comply herewith. It is further recommended
that unless Respondent shall, within 20 days from the re-
ceipt of this Decision, notify said Regional Director in writ-
ing, that it will comply with the foregoing Recommended
Order, the National Labor Relations Board issue an Order
requiring that Respondent take the action aforesaid.
IT IS FURTHER RECOMMENDED that the allegations of para-
graph VI(e) relative to conduct at the president's residence,
the allegations of paragraph VI(h) and (i), and the allega-
tions of paragraph X of the complaint be dismissed.
27 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 be changed to 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
239
WE WILL NOT discourage membership in Retail Store
Employees' Union, Local 480, AFL-CIO, or any other
union, or discourage the free exercise of rights guaran-
teed by Section 7 of the Act, by discriminating against
any employee in regard to his hire or tenure of employ-
ment or any term or condition of employment.
WE WILL NOT interfere with, restrain, or coerce our
employees by interrogating them relative to their union
activity or the union activity of other employees in a
manner violative of the provisions of Section 8(a)(1) of
the Act.
WE WILL NOT threaten economic retaliation , or engage
therein, by announcing discontinuance of a Christmas
bonus, or a reduction of hours of employment, or by
issuing warning letters.
WE WILL NOT create an impression to employees that
we have engaged or are engaging in surveillance of
employee union activity.
WE WILL NOT in any other manner interfere with, re-
strain , or coerce our employees in the exercise of their
right to self-organization , to form labor organizations,
to join or assist 'the above-named Union, or any other
labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in
any concerted activity for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities , except to the
extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as
a condition of employment , as authorized in Section
8(a)(3) of the Act, as modified by the Labor Manage-
ment Reporting and Disclosure Act of 1959.
WE WILL offer to Diane Griffith and George Moore
immediate and full reinstatement to the former or sub-
stantially equivalent position of each, without preju-
dice to the seniority or other rights and privileges
previously enjoyed by each, and we will make whole for
any loss of pay each has suffered by reason of our
discrimination against them.
WE WILL make Nancy Bermudez and Jessica Lloyd
whole for any loss of pay each has suffered by reason
of our discrimination against them.
WE WILL revoke and rescind the warning letters is-
sued-to Kim Lee, on February 12 and 16, 1973.
All of our employees are free to join, or to refrain from
joining, Retail Store Employees' Union, Local 480, AFL-
CIO, or any other labor organization.
HOUSE OF ADLER
(Employer)
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dated By This notice must remain posted for 60 consecutive days
(Representative) (Title) from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
This is an official notice and must not be defaced by ed to the Board's Office, 1311 Kapiolani Boulevard, Suite
anyone . 308, Honolulu , Hawaii 96814, Telephone 808-546-5100.