J. W. Mays, Inc.

National Labor Relations Board - Board Decisions

Sep 27, 1974

213 N.L.R.B. 619 (N.L.R.B. 1974)

J. W. MAYS, INC. 619
J. W. Mays, Inc. and Local Union No. 30 , International
Union of Operating Engineers, AFL-CIO and Local
Union No. 30, International Union of Operating En-
gineers, AFL-CIO, and Local 307, Service Employ-
ees International Union, AFL-CIO and Laura Grib-
bin. Cases 29-CA-3441, 29-CA-3458, and
29-CA-3519
September 27, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY , AND PENELLO
On March 29, 1974, Administrative Law Judge
Robert Cohn issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a brief in support of both the exceptions and
Decision. Respondent filed exceptions and a support-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent consistent herewith, and to adopt his recom-
mended Order as modified herein.
We do not agree with the Administrative Law
Judge that the General Counsel met his burden of
proving that the transfer and subsequent discharge of
employee Laura Gribbins, an artist employed in the
display department, was discriminatorily motivated.
It is well established that suspicion cannot substitute
for the requisite proof of unlawful motivation. We will
briefly set out the relevant facts surrounding the al-
leged transfer and .the discharge.
Gribbins, hired in 1969, has since 1971 been per-
forming various display jobs, among which was bou-
tique trimming at three of Respondent's stores: the
Massapequa store, where she is regularly assigned,
and the Woodmere and Levittown stores. In February
1972 Respondent, on Display Director Hord's recom-
mendation, formally assigned Gribbins to handle all
boutique trimming in each of the three stores she was
previously working in. Although considering this a
promotion for Gribbins and giving her a raise, Re-
spondent felt that it merely made "official" her previ-
ous assignment to these duties. Within a few weeks,
Gribbins began to complain about the transportation
problems she was having while traveling to the Wood-
mere and Levittown stores. Respondent's efforts to
solve this problem by providing transportation when-
ever possible were futile and its vice president of oper-
ations, Katz, finally agreed to limit her travel by drop-
ping Woodmere from her duties. Gribbins asked
Hord to be taken off the Levittown job also, but was
told to continue because she "was paid to do so."
Since March 1972, Gribbins had worked primarily in
the Massapequa store, making only occasional trips to
Levittown. She worked for short periods at Levittown
in January, February, and early June, 1973. On June
19, 1973, Display Director Hord asked her to work
there for 2 weeks. His request was prompted by a call
from the Levittown display manager who at the time
was under great pressure to complete certain displays.
Gribbin refused the assignment at first and, when
Hord insisted, she accused him of trying to interfere
with her union activities. Hord, claiming "no knowl-
edge of any kind of union, whatsoever," instructed her
to work at Levittown and she complied.
Katz testified that in late June he received a call
from the Levittown store manager, who said that he
would complete Gribbin' unfinished work himself,
that she was wandering around the store not doing her
job, and he wanted her "out of his hair, he had enough
of her." Katz agreed to have her return to Massape-
qua and at that time, she had only worked 4 or 5 days
at Levittown.
On August 20, 1973, Gribbins was observed by
store detectives at Massapequa to be taking merchan-
dise without making the proper entry in the
department's display book. She was questioned about
her failure to sign for all merchandise. It was Grib-
bins' practice to sign only for items she eventually
used in the window displays. Several witnesses testi-
fied this was in violation of a longstanding company
rule, the policy being to sign for all items taken for
display purposes and then to draw a line through
entries made for unused items. It is undisputed that
later that same day Gribbins violated another rule by
carrying her purse in the store. When the purse was
searched, a body suit similar to that used by her in her
display work earlier that day was found wrapped in
a plastic bag. Gribbins' explanation was that she pur-
chased the item a few days earlier, had destroyed the
receipt, and, because she did not take the 10-percent
employee discount, no record of the purchase existed.
Respondent gave Gribbins a written warning for these
infractions of company rules, which she signed. Still
later that day, store detectives discovered a box in the
display area used for props such as Styrofoam pebbles
and artificial leaves. Inside the box were a necklace,
a bottle of perfume, and a burgundy pants suit wrap-
ped in a plastic bag similar to the one containing the
body suit found earlier in the day in Gribbins' hand-
bag. The usual store tags had been removed from the
pants suit and it was identical to one hung in the
213 NLRB No. 49
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
display area earlier that day by Gribbins. Questioned
the following day, Gribbins was unable to explain the
presence of the pants suit and necklace and, asserting
that she had returned the pants suit she used in her
window decorating work, accused the company of
"planting" the suit in an effort to fabricate a cause for
her dismissal. Store Manager Kaye dismissed Grib-
bins for failure to adequately explain the presence of
the merchandise and for violation of company rules.
The Administrative Law Judge found that the evi-
dence supports the conclusion that Respondent, in
effect, engaged in a scheme involving store executives,
supervisors, and security personnel, the object of
which was to discourage Gribbin' union adherence
by first transferring her and, having failed to achieve
the desired result, by subsequently discharging her.
We do not believe the circumstances of this case
substantiate such a theory. The Administrative Law
Judge found that on June 19, 1973, Gribbins was
"abruptly assigned or transferred" to the Levittown
store. The facts indicate differently. Gribbins admit-
ted that in early 1972, a full year before the Union
started organizing, she had reached an understanding
with Respondent that she would assume certain dis-
play duties in its three stores and for that she was
given a raise in pay and promoted. Although she was
no longer required to work at the Woodmere store, it
is quite clear that her responsibilities at Levittown
remained. In our view her continued assignment there
from time to time was part of her duties-something
she had done for more than a year and could expect
to do in the future. As recently as early June 1973, just
a few days before Hord gave her this assignment
which he testified would last about 2 weeks, she had
worked in Levittown.
Unlike the Administrative Law Judge, we are not
persuaded that discriminatory intent is evidenced by
the fact that transportation to Levittown for Gribbins
was a problem or that her assigned duties in late June
were not the customary ones. The evidence is clear
that Gribbins had been facing transit problems on
past assignments. Respondent did attempt to solve
her problem by arranging a ride from her home to the
Levittown store, and bus service was available to her.
Although her duties at Levittown in June 1973 were
not customary for her, they did involve related work
in the display department and there is no evidence
that the work was particularly burdensome or that she
was incapable of performing it. Yet the record does
indicate that at the time of her temporary assignment,
the Levittown display department needed her help;
that she was assigned, as in the past, only as needed;
and that she returned and reassumed her regular du-
ties at Massapequa, and soon thereafter, despite the
Levittown store manager's report, received a wage
increase , all of which in our view indicates a lack of
discriminatory intent with respect to this transfer.
Several weeks later Gribbin was discharged and
the Administrative Law Judge found unlawful moti-
vation. At that time Gribbins was 1 among 30 employ-
ees in the unit requested in the second representation
petition and, much like other employees, she support-
ed the union campaign but was hardly an active par-
ticipant. As in the case of her transfer, we think it
unlikely that the Respondent would devise a plot sin-
gling out this trusted employee of over 4 years, highly
regarded by her supervisors at Massapequa, and re-
warded by several substantial wage increases.
Unlike the Administrative Law Judge, we find sig-
nificant the evidence that directives to managerial
and security personnel concerning the sign-out proce-
dures were made known to affected employees like
Gribbin, and also that managers were reminded from
time to time to advise employees. In addition, we view
this as consistent with Respondent's overall security
procedures governing separate employee entrances
and special package rules. In this context it is not
reasonable to conclude that Gribbins and other dis-
play employees signed only for articles actually dis-
played with company acquiescence. We note that
display employee Warwel, though available as a wit-
ness, was not called to confirm Gribbins' testimony
that he likewise signed only for merchandise used in
display.
We find merit in Respondent's contention that its
previous year's stock shrinkage, totaling $3,800,000,
required a stern effort to curb such losses, that four
other employees were discharged in August 1973 for
security reasons, and that it was therefore justified in
its termination of Gribbins for violating company
rules designed to protect its merchandise; and for her
inability to explain to Respondent's satisfaction the
presence of merchandise secreted in the display work
area.'
In our view the General Counsel failed to prove
unlawful motivation in this transfer and discharge,
and we shall dismiss the 8(a)(3) and (4) charges per-
taining to Gribbin?
ORDER
Pursuant to Section 10(c) of the National Labor
1 For these same reasons we disagree with the Administrative Law Judge's
finding in fn . 47 of his Decision that the August 20 behavior of the store
detectives with respect to Gribbin constituted illegal surveillance of her
union activities . Member Fanning does not agree and would adopt the find-
inq of illegal surveillance.
Member Fanning would adopt the Administrative Law Judge's findings
and conclusions that display employee Gribbins was discriminatorily dis-
charged but would add as a further basis for the 8(aX4) finding, the charge
filed on June 28, 1973, alleging that she was discriminatorily transferred.
J. W. MAYS, INC.
Relations Act, as amended, the National Labor Rela-
tions Board hereby adopts as its Order the recom-
mended Order of the Administrative Law Judge, as
modified below, and hereby orders that Respondent,
J. W. Mays, Inc., Massapequa, New York, its offi-
cers , agents , successors , and assigns , shall take the
action set forth in the Administrative Law Judge's
rcommended Order, as so modified:;
1. Delete "surveillance of union activities," from
paragraph 1(b).
2. Delete the name of Laura Gribbins from para-
graph 2(a).
3. Substitute the attached notice for that of the
Administrative Law Judge.
3 The Respondent has excepted to the Administrative Law Judge's broad
order as being unwarranted . We disagree. This case involves extensive viola-
tions of the Act, making such an order appropriate . American National Stores,
Inc., 195 NLRB 127 (1972), and N.L.R.B. v. Entwistle Mfg., Co., 120 F.2d.
532, 536 (C.A. 4, 1941).
Member Kennedy would not find the 8(a)(4) violations as to Brandt. See
Mueller Brass Co., 208 NLRB No. 76 (1974), In. 2.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
621
WE WILL NOT direct or warn our employees to
refrain from engaging in activities on behalf of a
union.
WE WILL NOT create an impression of surveil-
lance of our employees' union activities.
WE WILL NOT in any manner interfere with, re-
strain , or coerce our employees in the exercise of
their rights to self-organization, to form, join, or
otherwise assist Local Union No. 30, Interna-
tional Union of Operating Engineers, AFL-CIO,
and Local 307, Service Employees International
Union AFL-CIO, or any other labor organiza-
tion, to bargain collectively through representa-
tives of their own choosing and to engage in other
concerted activities for the purpose of collective
bargaining, or other mutual aid or protection, or
to refrain from any or all such activities.
WE WILL offer Michael Brandt immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent po-
sition without prejudice to his seniority or other
rights and privileges, and make him whole, with
interest, for any loss of pay which he may have
suffered as a result of the discrimination against
him.
J. W. MAYS, INC.
(Employer)
Dated By
(Representative ) (Title)
After a trial in which both sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we have violated the law
and has ordered us to post this notice, and we intend
to carry out the order of the Board, and abide by the
following:
WE WILL NOT coercively interrogate our em-
ployees concerning their membership in, activi-
ties on behalf of, or sympathy for Local Union
No. 30, International Union of Operating Engi-
neers, AFL-CIO, and Local 307, Service Em-
ployees International Union, AFL-CIO.
WE WILL NOT discharge or otherwise discrimi-
nate against our employees because of their
union activities or sympathies.
WE WILL NOT discriminate against employees
for testifying under the National Labor Relations
Act, as amended.
WE WILL NOT threaten our employees with re-
prisals if they join the Union or otherwise engage
in union activities.
WE WILL NOT promise our employees benefits if
they refrain from joining a union or engaging in
union activities.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 16 Court Street, Fourth Floor, Brook-
lyn, New York 11241, Telephone 212-596-3535.
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge: This consoli-
dated proceeding, tried before me at Brooklyn , New York,
on 8 hearing days commencing December 18, 1973, and
concluding January 11, 1974, involves a complaint issued t
pursuant to Section 10(b) of the National Labor Relations
Act, as amended (herein the Act), alleging that J. W. May's,
1 Dated September 14, 1973, based upon charges filed June 19, 1973 (in
Case 29-CA-3441), June 28 , 1973, amended July 2, 1973 (in Case 29-
CA-3458), and August 23, 1973 (in Case 29-CA-3519). All dates hereinafter
refer to the calendar year 1973, unless otherwise indicated.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc. (herein the Company or the Respondent) violated Sec-
tion 8(a)(1), (3), and (4) of the Act by engaging in various
acts and conduct more fully detailed herein. By its duly filed
answer, the Respondent denied the commission of any un-
fair labor practices.
At the conclusion of the hearing, oral argument was
waived. However, following several requests for postpone-
ments by counsel for the Respondent, helpful, posthearing
briefs were filed with me within the time allowed by the
orders granting the postponements, by counsel for the Gen-
eral Counsel and by counsel for the Respondent, which
have been duly considered. Upon the pleadings, stipula-
tions, and arguments of counsel, the evidence, including my
observation of the demeanor of the witnesses,2 and the en-
tire record, I make the following:
FINDINGS OF FACT
1. COMMERCE
Respondent, a New York corporation, is, and has been at
all times material herein, engaged in the business of retail
sale and distribution of clothing, household appliances, jew-
elry, cosmetics, and related products. It owns and operates
a chain of retail stores located in various communities in the
Greater New York area. Its retail store located at Massape-
qua, New York, is the only facility directly involved in this
proceeding.
In the course and conduct of its business operations,
which are headquartered in Brooklyn, New York, Respon-
dent annually derives gross revenue in excess of $500,000.
In addition, Respondent annually purchases and causes to
be transported and delivered to its places of business, goods
and materials valued in excess of $50,000, of which goods
and materials valued in excess of $50,000 were transported
and delivered to its places of business in interstate com-
merce directly from States of the United States other than
the State of New York.
Based upon the foregoing, I find that the Respondent is,
and has been at all times material, an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of
the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local Union No. 30, the International Union of Operat-
ing Engineers, AFL-CIO (herein Local 30), and Local 307,
Service Employees International Union, AFL-CIO (herein
Local 307), and each of them, are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On March 22, Local 30 filed a petition with the Regional
Office of the National Labor Relations Board seeking an
election for the purpose of representing seven employees
2 Cf. Bishop and Malso, Inc., d/b/a Walker's, 159 NLRB 1159, 1161.
employed by the Respondent in the maintenance depart-
ment at its Massapequa store. Following a hearing on such
petition in April and May, the Regional Director, on May
29, issued his Decision and Order in which he found that the
unit sought by the petitioner was inappropriate for collec-
tive bargaining due to the fact that the employer also em-
ployed 12 additional maintenance employees in its
maintenance-housekeeping department who performed
substantially similar work as the employees petitioned for.
Accordingly, the Regional Director ordered that the peti-
tion be dismissed.3
The record shows that, thereafter, the union representa-
tives sought to solicit other maintenance employees, includ-
ing display department employees, in their cause, and, on
June 19, another petition was filed by Local 30 (along with
Local 307 as joint petitioner) seeking to represent a broader
unit of maintenance employees at the Respondent's Massa-
pequa store.4 Following a hearing in July, the Regional
Director, on August 30, issued his Decision and Order dis-
missing that petition also on the ground that the unit sought
was inappropriate for the purpose of collective bargaining.
It is the position of the General Counsel that the alleged
unfair labor practices arose as a result of the Respondent's
extreme hostility toward the organizational efforts of its
maintenance employees to achieve union representation.
B. The Alleged Discrimination as Respects Michael Brandt
The record reflects at all times material Brandt was an
employee in the maintenance department of the Massape-
qua store, having been hired on January 8, and was dis-
charged on June 13. In the maintenance department, he
performed repairs to equipment and did "lamping"; i.e.,
replaced light bulbs throughout the store. His immediate
supervisor was Paul DeRonde, who was, at all times materi-
al, in charge of the maintenance department.
Brandt was a leader in Local 30's campaign to organize
the employees of the maintenance department. He solicited
other maintenance employees to sign union authorization
cards, attended union meetings which were, at that time,
normally held after working hours on the Company's park-
ing lot, and testified on behalf of the Union at the NLRB
hearing on May 2.
On or about the day following issuance of the Regional
Director's Decision in 29-RC-2202 (May 29), Brandt had
a discussion with DeRonde concerning the matter in the
latter's office.' In that conversation DeRonde stated that
regardless of whether the Union won or lost, the mainte-
nance employees would be terminated because "Mr. Katz
3 See G. C. Exh. 2(b); Case 29-RC-2202.
° Case 29-RC-2287.
' It is established that DeRonde was aware of the union campaign at that
time since he testified at the NLRB hearing on May 2. It is further established
that DeRonde knew of the decision at that time through a telephone call from
employee John Cannon, an employee in the maintenance department at that
time. Cannon had been an active union adherent , and had telephoned the
Company seeking to talk with another employee when DeRonde answered
the phone . DeRonde told Cannon that the employee was not available and
asked Cannon if a message could be delivered . Cannon told him to tell the
employee that the decision of the NLRB had been rendered.
Cannon also credibly testified that in a conversation with DeRonde in
March the latter had spoken against the Union, and told maintenance em-
ployees that it would not be to their benefit to join.
J. W. MAYS, INC. 623
[a vice president of Respondent] had a hate for all of us and
that he was going to get rid of us one way or the other
.... " Deronde also advised Brandt that because of the
union campaign, all chances for advancement for any of the
employees had been stopped and particularly as respects
Brandt's chance for promotion to the position of De-
Ronde's assistant.6
DeRonde denied having any conversations with Brandt
concerning the Union. However, DeRonde was not impres-
sive as a witness, appearing more on the witness stand as
having a desire to please his employer with his testimony
rather than a strict adherence to the truth. On the other
hand, while his testimony was not always the epitome of
clarity, Brandt did seem to attempt to recall the events with
honesty and candor. Accordingly, I credit the testimony of
Brandy and discredit that of DeRonde as respects the fore-
going, and find that the threat of recrimination and loss of
possible benefits because of union activities constitutes a
violation of Section 8(a)(1) of the Act.
As previously noted, following the decision of the Re-
gional Director on May 29, in which he dismissed the
Union's petition, the Union made additional efforts to soli-
cit other employees (primarily in the maintenance-house-
keeping and display departments) to join their cause.
Brandt took an active part in such solicitation and such
conduct resulted in his being called into the office of the
store manager, Mr. Kaye, on June 7. Present in the office
in addition to Kaye were the Respondent's executive vice
president, Simon Katz, along with Foreman DeRonde.
Katz told Brandt that the latter had no right to be soliciting
on behalf of the Union on the Company's selling floor; that
if he wanted to solicit he could do so in the lunchroom, or
in the locker room, or on the parking lot, but he could not
stop work of others on the selling floor. Katz also stated that
if it happened again, Brandt would be dismissed. Brandt
denied any union involvement at that time?
DeRonde testified that he had been getting reports for
sometime prior to June 11, that Brandt was not performing
his principal job-lamping-in a satisfactory manner.
These reports assertedly derived from the employees in
other departments of the store as well as from "men in the
shop." 8 On Monday, June 11, DeRonde came in to work
at approximately 7:15 a.m., and observed Brandt talking to
Laura Gribbins in the hardware department. He did not
overhear the conversation, but observed that Brandt was
not working. During the 9 o'clock coffeebreak, in the cafete-
ria, DeRonde confronted Brandt and asked him if he had
been doing his lamping. When Brandt answered affirma-
tively, DeRonde accused him of lying since his bulb cart
6 Testimony of Brandt . It appears that the position of assistant to DeRonde
came open at the first of the year, and that shortly after Brandt was hired,
DeRonde spoke to him favorably concerning the matter . Thus DeRonde
testified that he told Brandt that if the latter continued to show aggressive-
ness and the proper attitude, he would be considered for an assistant's job.
This conversation took place in January or early February.
7 Following the June 7 meeting, Katz placed a warning in Brandt's file
jacket to the effect that "any repetition of the above soliciting or organizing
on the Company's time and working premises would lead to his immediate
dismissal." (G. C. Exh. 13.)
8 No corroborative evidence was adduced from these persons to this effect.
However, Respondent made it clear at the hearing herein that any such
derelictions were not the motivating reason for Brandt 's termination.
had been in the shop all of the time. Shortly thereafter,
according to DeRonde's testimony, Brandt stopped in his
office and apologized, to which DeRonde responded "All
right, Mike, just forget about it. Just do your job." Follow-
ing that exchange, DeRonde called Vice President Katz and
told him that "Michael Brandt is not doing his work. He's
playing me for some kind of idiot. What do I do about it?"
Katz advised that he give Brandt a reprimand. Accordingly,
DeRonde secured a reprimand blank from the personnel
office, filled it out and requested Brandt to sign it. The latter
refused .9
On June 13, DeRonde was asked to summon Brandt to
Kaye's office. DeRonde testified that he asked Brandt,
"What the hell did you do now?" Brandt, responded, "Gee,
I don't know." When they arrived at Store Manager Kaye's
office, Vice President Katz was there. Katz testified that he
had been notified on the evening of June 12, "that Mr.
Brandt had again been soliciting in the store on company
time, on the selling floor, and stopping people from work-
ing." Brandt again denied engaging in any such conduct,
but Katz stated that he did not believe him, and terminated
Brandt at that time.
Analysis and Concluding Findings as to the Discharge of
Brandt
Respondent contends that its termination of Brandt was
legally sanctioned because he violated Respondent's rule
against solicitation, which had been in effect for a number
of years, and which was a valid rule. I find that the evidence
does not sustain the Respondent's position on this aspect of
the case.
In the first place, there is a grave question as to whether
or not any such rule existed during the time of events in
question. The evidence shows that for some period of time
prior to September 1972, the Respondent did publish a
booklet which was distributed to all new employees, which
generally advised them of the rights, privileges, benefits, and
obligations of an employee of Respondent. The booklet
contains, inter alia, 11 directions to employees concerning
their personal conduct, the first two paragraphs of which
state as follows:
1. Refrain from holding personal conversations dur-
ing work.
2. There must be no solicitation or distribution of
any sort during work or in any of the public areas of
the store.10
However, assuming that such directions constitute rules
of conduct for employees for which sanctions would be
imposed, the fact remains that the booklet itself was not
circulated to employees subsequent to September 1972. The
reason for this was, as Vice President Katz explained, be-
cause there was some dispute about it with the Department
of Labor which resulted in litigation, and the Respondent
ceased publishing the booklet. Although Katz testified that
9 The text of the reprimand states as follows:
Mr. Brandt is required to relamp and change burned out ballast in the
morning hours from 7 a.m. to 9 a.m. Instead he spent this time walking
around the store and sometimes speaking to other employees.
10 See Resp . Exh. 4, p. 14.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
new employees received instructions orally from the person-
nel department, there is clearly a lack of substantial evi-
dence in this record that employees were aware in 1973, that
such a rule existed.' I
Indeed, the record is replete with evidence that solicita-
tions for other events and purposes were carried on during
working hours in the store with the approval of manage-
ment . Thus, the evidence shows that there - existed at all
relevant times an employee organization known as May's
Employees Association (M.E.A.) which was apparently a
voluntary organization of employees whose purpose was to
plan social events, vacation trips, and the like. In connection
with their activities solicitations were made from the em-
ployees for these purposes as well as to collect money for
flowers for death in the family, etc. In addition to these
activities there is evidence that the management called a
meeting of employees during store hours for the purpose of
soliciting funds for bonds for the State of Israel and for the
United Fund. Under these circumstances, it may be fairly
concluded that the rule was not enforced until the Union
appeared on the scene. I therefore find that it was discrimi-
natorily applied in Brandt' s case , and therefore could not
have provided a valid ground for his termination. 12
But even assuming the validity of the rule, I would still
find there was insufficient evidence to sustain the burden of
the employer that "he was motivated by legitimate objec-
tives" I in effectuating the termination. That is to say that
prior to the initial warning by Katz to Brandt on June 7,
Brandt acknowledged that he had been soliciting employees
for the Union during working hours. However, following
the warning he ceased such conduct during working hours
and on the selling floor. There is a dearth of evidence prof-
fered by Respondent that Brandt broke the rule during the
week following June 7, which would provide a legitimate
basis for Katz' "information" that Brandt had engaged in
such conduct. The evidence reflects only one incident, testi-
fied to by Florine Strayhom, a witness for Respondent, that
on or about June 12, around lunchtime, Brandt was going
down the steps from the first floor to the basement when he
encountered her and asked if she would be interested in
joining the Union. She told him that she was not interested.
That was the extent of the conversation. Certainly, this inci-
dent, occurring apparently during the lunch hour, not on the
selling floor and not interfering with the work of the matron,
would not provide a sufficient and valid basis for the impo-
sition of the rule.14
11 For example , Foreman DeRonde testified that he did not know whether
there was a rule against "soliciting for anything" prior to Katz' directions to
Brandt regarding soliciting for the Union.
12 See , e.g., Taylor Instrument Companies, 165 NLRB 843, 844.
t3N.L. R.B. v. Great Dane Trailers, Inc., 388 U .S. 26, 34 (1967).
14 In view of the reliance by Respondent upon breach of the no-solicitation
rule as the sole basis for the discharge of Brandt , I have given no weight to
the incident of June 11 , where DeRonde reprimanded Brandt for not proper-
ly performing his work . This incident, of course, did not involve any alleged
breach of the no-solicitation rule, and , in any event, appears somewhat
contrived for the purpose of "building a case " against Brandt . That is to say,
up to that point , there had been no criticism of Brandt's work performance
by Respondent ; indeed , he had been considered for possible promotion.
Moreover , as DeRonde testified , following the incident Brandt apologized
and DeRonde told him "All right, just forget about it. Just do yourjob." That
would normally seem sufficient to end the matter, but , curiosly enough,
DeRonde then called the vice president of the Company to ask him what to
In view of all the foregoing, I find and conclude that the
termination of Brandt on June 13, was to discourage mem-
bership in and activities on behalf of the Union, and there-
fore discriminatorily within the meaning of Section 8(a)(3)
of the Act. Since it may be reasonably inferred that the
termination was also in retaliation for Brandt's testimony in
the NLRB representation matter, I also find and conclude
that the discharge violated Section 8(a)(4) of the Act. I will,
therefore, recommend an appropriate remedy.
C. The Alleged Discrimination as respects William Fazio
Fazio commenced work for the Respondent in March
1971, and was employed until June 8, when he was laid off.
He commenced his employment as a display carpenter, but
was later transferred to the job of carpenter's helper (which
involved more heavy carpentry). His supervisor at the time
of termination was Charles Hord.15 Fazio's union activities
consisted of his signing a union authorization card upon the
request of Michael Brandt at the end of the workday, ap-
proximately a week before Fazio's termination. As it was at
the end of the workday, Fazio and Brandt proceeded to the
Company's parking lot where they met employees John
Cannon and Sal Gambino.16 While the four men were
standing together talking for approximately 5 to 10 minutes,
Fazio noticed that two of the Respondent plainclothes de-
tectives appeared to be watching them.
The following morning at approximately 8:30, Fazio en-
countered Brandt who was at the time replacing some light
bulbs between the first and second floor escalators. While
chatting with Brandt for a moment, Fazio noticed that Store
Manager Kaye came down the escalator and stood there at
the bottom of the escalator for approximately 30 seconds to
a minute "staring at us."
According to Fazio's testimony, on June 8, at approxi-
mately 10:30 a.m., Hord called him into his office and ad-
vised that he had `just got word from Brooklyn that he had
to cut down on the hours and the help and he had to let three
people go, and I was one.... " 11 Hord further stated that
Fazio would have his pay by 1 o'clock but that he could
finish out the day if he wanted to because they were busy
working on cash register units. Fazio replied that it was
nice working for him.
A short while later, Fazio told Mike Brandt that he had
been laid off; Brandt instructed Fazio to return to work and
that he (Brandt) would contact the Union. Fazio further
testified that while "he did not think anyone saw me talking
to him (Brandt), on my way back, when I was going back
do about the situation . Certainly such conduct by a foreman , who was well
aware of his power and authority to deal with such matters, would not
ordinarily involve the vice president of a concern as large as Respondent with
such a relatively minor breach of work performance.
All of the foregoing, considered in the light of other evidence hereinafter
adverted to, appears to confirm the argument of counsel for the General
Counsel that Respondent engaged in a countercampaign to harass and rid
itself of the small group of maintenance men who commenced the union
campaign in the Respondent 's store.
15 At that time , Hord was a supervisor over the display department of
several of Respondent 's stores, as detailed more fully infra.
16 Cannon, a night maintenance man, was an instigator of the union move-
ment in the Respondent's store.
17 The other was a girl who was getting married in about 2 or 3 weeks, and
the third was Paul Dashefsky, of which more, anon.
J. W. MAYS, INC. 625
to the shop Mr. Kaye came up the escalator and he saw me."
Shortly thereafter Hord was paged over the loudspeaker
following which Fazio was called into Hord's office. Hord
advised Fazio that "your pay is ready, go up and get your
pay and you have to leave the building right away."
The evidence showed that following Fazio's layoff on
June 8, employee Ronnie Smith, who had succeeded Fazio
as a display carpenter, helped to perform the work which
Fazio was doing when laid off; i.e., working on the cash
register units. However, there is no evidence that Respon-
dent ever hired another employee to replace Fazio.
Analysis and Concluding Findings as to William Fazio
Although some of these circumstances surrounding this
case are suspicious, I agree with Respondent that General
Counsel has not sustained his burden of proof on this issue.
I shall therefore recommend that the complaint, as to Fazio,
be dismissed.
At the threshold, we have the problem of proof of compa-
ny knowledge of Fazio's union adherence at the time of
termination (which Respondent denies). Of course, Fazio
testified that he was observed in the presence of both Brandt
and Cannon who were both known by Respondent at the
time to be active in the Union. However, this particular
incident was not corroborated by either Cannon nor
Brandt, and even if it were, a further step must be taken to
infer that (1) the store detectives were "staring at" them
rather than some other person or group on the parking lot;
and (2) the store detectives reported such conduct to man-
agement (which they denied). The fact that Fazio was as-
sertedly observed by Kaye while he (Fazio) was talking to
Brandt the following morning adds little to the inference. It
is questionable that an inference should be drawn that any
person to whom Brandt spoke necessarily acceded to
Brandt's solicitation (see, e .g., The Brandt-Strayhorn inci-
dent).
Secondly, even if the hurdle of company knowledge is
cleared, the General Counsel did not, in my view, overcome
the Respondent's defense that economic factors dictated a
reduction in force at the time, and Fazio was not shown to
have been in such a position that he could not have reason-
ably been chosen to be included in any such reduction in
force. Thus, the record establishes that the Respondent's
business is a seasonal one, and that June is a relatively slow
month between the Easter and back-to-school sales events.
Moreover, it is undisputed that Respondent keeps a close,
weekly perusal of the ratio between revenue and payroll and
that once any type of trend is established (either up or
down), adjustments are made in payroll accordingly. The
record reflects that net sales for the Massapequa store
showed a 7-percent drop in May 1973 from that of 1972.
There is nothing to contradict the Respondent's argument
that it considered such a drop significant, and, taking into
account that June is normally a slow month, that some
reduction in force was required.t8
Finally, the legitimacy of the reduction in force is con-
firmed by the fact that Respondent did not thereafter (until
at least the date of the hearing herein ) hire a replacement
for Fazio but "made do" with the carpentry help that it
already had on the payroll. As Respondent points out, this
amounts to a saving of $130 per week based on Fazio's
reduction alone.
Based upon all of the foregoing, I find and conclude that
the General Counsel did not, by a preponderance of the
evidence in the record, prove that the layoff of Fazio was
in violation of the Act, and, as previously stated, I shall
recommend that the complaint, as to him, be dismissed.
D. The Alleged Discrimination as Respects Paul Dashefsky
Dashefsky was hired as "summer help" on about May 21
and was assigned the job as painter's assistant in the display
department. As previously noted, the display department
in the Massapequa store was supervised by Louis Manzi,
who is, in turn, under the direction of Charles Hord.
On June 7, Dashefsky signed a union card for Brandt
during a luncheon break in the cafeteria. Dashefsky was
unable to testify with any degree of certainty that any super-
visor observed this transaction. However, he testified that
on the following day during working hours he waved to
Brandt on one occasion when he was "sure that Charles
Hord saw me."
On June 8, Dashefsky was told by Hord that due to a
slackening in business, the display department was being
reduced in personnel and that Dashefsky would be transfer-
red to another department. Thereafter, Dashefsky reported
to the personnel department and was told that commencing
June 11, he would start work as a nighttime porter.
Respondent's evidence is at substantial variance from that
of Dashefsky as to the reason for transfer. According to
Hord, Dashefsky was hired in the display department be-
cause a painter was needed at the time. However, Dashefsky
was incompetent as a painter and when Respondent's regu-
lar painter (Michael Rosario) returned to work after a leave
of absence in June, Hord requested the personnel depart-
ment to transfer him somewhere else 20
Dashefsky worked one evening (June 11) as a nighttime
porter. The supervisor of that department, Harry Schob, did
not work on June 11, and Dashefsky did not come to work
on June 12, due to asserted illness . When Schob returned to
work on June 12, he checked with some of his men on the
night crew and inquired how Dashefsky was "working out."
According to Schob's testimony, employee Christopher
Lynch stated that Dashefsky would not complete his jobs
and that he (Lynch) would have to do them. Employee
George Storm told Schob that Dashefsky asked him "if
there was any place around there he could take a nap after
awhile." On the basis of these reports, Schob advised the
personnel department that Dashefsky was "not working out
at all, . . . so they told me they would take care of it." 21
19 The transcript states the year of hire as 1972; this is an apparent error.
18 The fact that June sales showed a slight increase in 1973 over the corre- 20 1 do not view a resolution of this particular credibility issue as critical
sponding month of 1972, as argued by the General Counsel, is not persuasive to a determination of the ultimate issue of discrimination.
since such figures could not have been ascertained until July and the decision 21 Schob's testimony on this aspect of the case was corroborated in its
to reduce the payroll was made during the first week in June . Continued
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Analysis and Concluding Findings as to Dashefsky
Although suspicions are aroused because of the precipi-
tate nature of the discharge following immediately upon the
heels of Dashefsky' s signing of a union authorization card,
I find that the record fails to provide that substantial degree
of evidence to sustain the General Counsel's burden of
proof on this issue.
As in the case of Fazio, there is a paucity of evidence to
show that Respondent knew of Dashefsky's union proclivi-
ties prior to the termination. Respondent denies such
knowledge, and there is no definitive evidence that any
management representative observed Dashefsky' s signing
the card for Brandt in the cafeteria. While Hord may have
seen Dashefsky exhibit as a friendly gesture to Brandt the
following day, such an incident provides a slender reed
upon which to base a finding of the requisite company
knowledge of union activities.
Moreover, it is certainly plausible that Respondent would
desire to transfer Dashefsky out of a painter's job (particu-
larly where it considered him incompetent) upon the return
to work of its regular painter. Indeed, as Respondent argues,
had it sought to rid itself of an active union adherent, it
might have rested its case there rather than go to the trouble
of having him transfer to another department before termi-
nation. In any event, Dashefsky was apparently not happy
about the prospects of transfer to his new job 22 since he was
told by the personnel department that while working in the
maintenance-housekeeping department he would retain his
old rate of pay ($2.14 per hour) while the regular porter's
pay was $2.40 per hour. It is reasonable to infer that this
circumstance would not induce superior performance on
the part of Dashefsky, and tends to confirm the evidence
that he was less than enthusiastic on the first night on the
job. While, as above noted, doubts are raised because of the
discharge after only 1 night's performance on the job, it is
well established that it is not for this Board to oversee or
second-guess management decisions as to the proper disci-
pline to invoke. "Management can discharge for good
cause, for bad cause, for no cause at all. It has, as the master
of its own business affairs, complete freedom with the one
specific, definite qualification: it may not discharge when
the real motivating purpose is to do that which Section
8(a)(3) forbids." 23
Accordingly, I find that the General Counsel failed to
sustain his burden of proof that the motivating reason for
Dashefsky's termination was one which violated Section
8(a)(3) of the Act.
E. The Alleged Discrimination as Respects
Bernard Murphy
Murphy was employed in the maintenance-housekeeping
department as a porter. His job was to clean up about the
essential aspects by the testimony of George Strom , who was generally im-
pressive as a witness . Christopher Lynch, a witness for the General Counsel,
was not interrogated as to this aspect of the case.
22 There is no allegation or contention by the General Counsel that the
transfer was discriminatorily motivated.
23 N.LR.B. v. T. A. McGahey, et al., d/b/a Columbus Marble Works, 233
F.2d 406, 413 (C.A. 5, 1956).
store, both inside and outside, and perform such chores as
sweeping and mopping the floors, picking up trash and
emptying it, and cleaning up around the dumpsters outside
the store. His immediate supervisor was Harry Schob.
Murphy's union activities consisted of signing a card for
Brandt on or about June 7, and giving out about five cards
to other employees for their signatures. On or about June
7, Schob observed Brandt talking with Murphy, and after
they separated, Schob asked Murphy what Brandt had said
to him. Murphy replied that Brandt wanted to know if he
(Murphy) would sign a union card. Murphy responded that
he would let Brandt know, and returned to work24
Thursday, June 14, was Murphy's day off, but he came
into the store for the purpose of getting a check. However,
he entered the store by the platform entrance, which was
apparently in violation of company rules. The following
day, Martin Zinkofsky, one of Respondent's higher supervi-
sors, told Murphy that he understood Murphy had entered
the store through an unauthorized entrance, and that if it
happened again he was going to have to "write him up."
Murphy responded, "If you have to write me up, be my
guest-do what you want to do." 25 Later in the day, Mur-
phy was called into Store Manager Kaye's office and pre-
sented with a written warning concerning the incident,
which he signed 26
Later the same afternoon, Murphy met his supervisor,
Harry Schob, who advised Murphy that "they are out to get
you." Murphy responded, "What can I tell you?" Schob
proposed that he would say that he caught Murphy smoking
on the floor illegally, and would write him up to that effect.
Murphy responded, again, "Harry, be my guest."
Murphy did not go into work on Saturday, June 16, be-
cause of illness. When he reported to work on Monday,
June 18, Schob assigned him to work outside operating a
machine known as the "billy goat." This machine was noth-
ing more than a large vacuum cleaner that operated outside
rather than inside the building. Murphy flatly refused to do
the job2' Murphy was then assigned some inside work until
approximately 10 a.m. when he called into Store Manager
Kaye's office. Kaye explained that it was part of Murphy's
job to go outside and clean up if a superior told him to do
it. Murphy questioned why he should do it that day when
Mason did it every other day, and an argument ensued.
Kaye threatened that if it happened again he would have to
let Murphy go. The latter retorted, characteristically, "be
my guest." 28 Murphy asserted that he had always given the
24 See statement of Schob (G.C. Exh. 12). Murphy testified that he told
Schob that he could make more money by joining the Union, he was going
to join.
As Respondent was well aware by this time of Brandt 's prounion activities,
it may be reasonably assumed that Schob's interrogation of Murphy was for
the purpose of eliciting information about that subject matter . This conduct,
undertaken without any assurance to Murphy against recrimination consti-
tutes, in these circumstances , coercive interrogation in violation of Section
8(aXl) of the Act . I so find . See Bourne d/b/a Bourne Co. v. N.LR.B., 332'
F.2d 47 (C.A. 2, 1964).
25 Testimony of Murphy.
26 See Resp . Exh. 5.
27 Murphy testified that the reason he refused was because it "was out of
the ordinary altogether . They had one special porter, Jimmy Mason, that
done [sic] that every day." This, however, is contradicted by other evidence
of which more anon.
28 Testimony of Murphy.
J. W. MAYS, INC.
Company a day's work for a day's pay, to which Kaye
responded he had no complaint about his work.
After lunch that day, Kaye called Murphy back into his
office and told him that he had reconsidered and thought
it best that Murphy be terminated before there was an argu-
ment between Murphy and one of the other supervisors that
would cause a scene in the store. Murphy was agreeable,
and he left the store at that time.
Analysis and Concluding Findings as to
Bernard Murphy
Unlike the cases of Fazio and Dashefsky, I find there is
sufficient evidence in the record to impute to Respondent
knowledge of Murphy's union proclivities subsequent to
June 7. I am also inclined to agree with the argument of
counsel for the General Counsel that Respondent was, in-
deed, seeking a pretext upon which to base Murphy's termi-
nation as evidenced by Schob's offer to write up Murphy for
an offense he had not committed. However, Murphy, by his
conduct, placed himself in an indefensible position even if
it can be shown that Respondent planned to rid itself of
known union adherents.
Thus, there is no dispute that the assignment which gave
rise to Murphy's termination was one clearly within the
purview of a porter's job. There is no evidence that opera-
tion of the "billy goat" was either dangerous or required a
skill which was beyond Murphy's ability, and the latter did
not so contend. He simply had never operated it and did not
want to do it.29 Perhaps Murphy felt that, following Schob's
admonition to him that "Murph, they are out to get you,"
it was rather hopeless and futile to buck the power of Re-
spondent to find a way to discharge him. This was evi-
denced by his response to every threat of repnmand-"be
my guest."
However, it does not follow that the termination of an
employee under such circumstances necessarily results in a
violation of the statute. It is well established that engaging
in union or concerted activities does not immunize an em-
ployee from discipline.30 Where an employee, by engaging
in certain conduct (here insubordination), places himself in
a vulnerable position, the fact that the employer may be
glad that he so placed himself does not alter the conse-
quences even if it can be shown that the employer was
prounion and the employee antiunion.31
Here, the Company had a legitimate right to require Mur-
phy to operate the "billy goat" machine. He refused. Under
these circumstances, his union activities do not destroy the
just cause for his discharge. I will therefore recommend that
the complaint as to Murphy be dismissed.
29 Both supervisor Schob and employee Storm testified that employees in
the department other than Mason operated the "billy goat ," and that it was
done on a rotation basis However , I do not deem it necessary to resolve this
particular credibility issue for the purpose of determining the question of
discrimination
30 See Metals Engineering Corp, 148 NLRB 88, 90
31 See , e g., N L R B v Birmingham Publishing Company, 262 F 2d 2, 9
(CA 5, 1958)
627
F. The Alleged Discrimination as Respects Laura Gribbins
Gribbins commenced work for the Respondent at the
Massapequa store in February 1969 in the display depart-
ment. Her skill was in art work and her duties consisted
primarily of designing and dressing windows, interior dis-
plays, and making signs and posters. It is acknowledged that
during the course of her employment she was an exemplary
employee. The record shows that she was hired at $1.65 per
hour and when she was terminated on August 21, she was
earning $3.50 per hour. Louis Manzi was her immediate
supervisor in the display department, and, as has been pre-
viously pointed out, Charles Hord was the display director
(Hord being in charge of the display departments in four
stores: Massapequa, Levittown, Woodmere, and Glen
Oaks). There were, at all times material, approximately six
or seven employees in the display department at the Massa-
pequa store.
Although the record is somewhat vague and indefinite as
to date, the evidence shows that commencing in 1971, and
continuing in 1972, Gribbins was requested by manage-
ment, on occasion, to assist in the display departments in
the Woodmere and Levittown stores. She testified that she
requested and was granted a pay increase for doing this
work but that she continually had transportation problems
in reaching and returning from the other stores.3£ Because
of such problems, Gribbins made it known to Hord prior to
the events in this case that she did not desire to work at the
other stores, and for many months prior to June she had not
been assigned to work at the other stores.
On or about June 7, Gribbins signed a union card for
Michael Brandt while in the elevator of the store going to
her coffeebreak. On or about June 11, Supervisor Hord
called her into his office and advised that she had been
observed talking to Brandt in the hardware department ear-
her that morning. He inquired whether the subject matter
of the conversation was concerning the Union. She said
no-they had been talking about light fixtures. Then Hord
asked her if she had heard anything about the Union and
she answered affirmatively-that she was aware that the
Union was being organized in the store. He then warned her
that she should stay away from such people because other
unions had tried to get into Mays, on previous occasions,
but had never been successful, "and that people were get-
ting fired because of this and that I should stay away from
it." 33 Gribbins then asked Hord if her raise had gone
through and he responded that he would check into it. He
asked her if she was interested in an assistant manager's job
32 Apparently, Hord promised her transportation but was not always able
to carry out his promise and she was thus required to rely upon personnel
in the other stores , which was distasteful to her When working in Massape-
qua, she was able to ride a convenient bus from her home to and from work
33 Credited testimony of Gnbbins
Hord denied having any conversation with Gribbins in which the term
"union" was mentioned prior to June 19 (of which more anon ). Indeed, he
denied that he was aware of any union activity at the store prior to June 18
or 19 This seems rather incredible in view of the fact that the union activities
had been in progress since February and had included the filing of a petition
with the NLRB, an NLRB hearing at which fellow Supervisor DeRonde and
Vice President Katz had testified, and an order of the Regional Director on
May 29, concerning which DeRonde and other maintenance employees had
been advised Accordingly, I am unable to accept Hord's testimony in this
regard
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in display , and she answered yes. However , when he advised
that such job would have to be in the Levittown store, she
told him she could not get to Levittown, and was not inter-
ested.34
Both Gribbin and Hord recalled a conversation on or
about June 19, in which Hord requested and/or directed
Gribbin to perform some work at the Levittown store.
According to Hord, the display manager at the Levittown
store, Mr. Igloi, requested Gribbin and Hord agreed. He
proceeded to consult Gribbins about the matter and she
became upset and stated she did not want to go. Hord
attempted to persuade her, and they discussed her becoming
an assistant display manager (although he denies having
promised her such a position as a condition of going). Hord
testified that Gribbins accused him of wanting to get her out
of Massapequa because of the Union , to which he replied,
"Laura, don't you even mention union to me , because I
have no knowledge of any kind of union whatsoever.
According to Gribbins' testimony, Hord advised her on
or about June 19, that she was to be transferred to the
Levittown store. When she asked why she was being trans-
ferred, Hord replied, "you're just being transferred, don't
ask any questions about it." She accused Hord of trying to
make her quit and stated "why don't you save yourself the
trouble and just fire me-but make sure that you put down
the appropriate reasons on the card." When he asked what
the appropriate reasons were, she replied "you know darn
well it is because of the Union." When Hord claimed he
knew nothing about the Union, she inquired how he could
have three persons be discharged from his department with-
out asking any questions about it . Hord promised her an
assistant manager's job and an increase in salary if she went
to the Levittown store , but she told him that she still did not
want the job there. However, Hord stated, regretfully, that
he had to do it and that Igloi would bring her to the store
and carry her home because she did not have transporta-
tion35
Gribbins commenced working in the Levittown store on
June 20. According to her testimony, Igloi instructed that
she was not to do any of the windows and that she was to
make "plans for props" which was a job she had not done
in the Massapequa store. 36 On or about June 28, Gribbins
advised the Levittown store manager, Kreiner, that she had
a transportation problem and that Hord had told her that
Igloi would be transporting her to and from work, but that
was not taking place. The following day Kreiner called Igloi
and Gribbin into his office and the latter explained that she
did not have transportation to the Levittown store and that
she had been promised a raise and a promotion to assistant
manager's position , neither which had been given . Both men
were surprised and Kreiner said that he would have some
of his employees bring her to and from work, but their hours
3.I find the interrogation and threat of discharge for engaging in union
activities uttered by Hord on this occasion to be coercive and intimidatory,
and therefore violative of Sec . 8(axl) of the Act.
35 To the extent that their versions of the June 19 conversation differ, I
credit Gribbins . I find that the promise of benefits for the purpose of remov-
ing Gribbins from being an active participant in union activities to be inter-
ference and coercion with employees ' Sec. 7 rights and therefore violative of
Sec. 8(axl) of the Act.
36 Window displays were a major part of her job at the Massape ua store.
did not jibe with her hours. When she said that she could
not afford a $25-a-week taxi fare, Kreiner replied that she
should not expect to get an increase of $25. Kreiner said that
he would get in touch with Vice President Katz concerning
the matter, and he told Gribbins a few minutes later that he
(Kreiner) had spoken with Katz, the result of which was that
Gribbin had been transferred back to the Massapequa
store. 7
Gribbins returned to work at her regular job in the Mas-
sapequa store on July 2. Later that month, around July 14,
she went on vacation. On July 23, she testified on behalf of
the Union at the NLRB hearing in the representation case
(29-RC-2287).38
The events which lead up to Gribbins' discharge on Au-
gust 21, commenced the preceding day, August 20. Howev-
er, a few words concerning her work habits and procedures
in dressing a window in the Respondent's store might be
helpful in understanding the issue presented. Thus, as previ-
ously noted, it was one of Gribbins' principal functions to
dress the Respondent's windows. In performing such func-
tion, she would, in the first instance, plan what type of
display would be appropriate and arrange for the necessary
props. Having done this, she would decide what apparel or
other material would be appropriate to place upon the props
or mannequins in the window. The choice of apparel would
necessitate removing garments from various departments in
the store, and since it was practically impossible to know in
advance which colors and combinations of garments would
be pleasing to the customer, Gribbins would select several
such garments in various combinations in order to choose
the "right" one after viewing it in the window. Thus, in
dressing a window, it is apparent that she would take from
any given department more apparel than was ultimately
required, and return that which was not utilized in dressing
the window.
Respondent, in an apparent effort to keep tab of its inven-
tory, maintained in each department of the store (which
contained some 72 departments) what was called a "display
book." The purpose of such book was to keep a record of
items which were taken from such departments. Respon-
dent asserts that it maintained a rule which existed at least
since December 4, 1972, to the following effect:
Any merchandise taken out of a department by the
display department for interior or window displays,
must be given to the department manager first and
signed for in a book. Upon return of said merchandise
the item(s) will be checked off as a return to depart-
ment by the manager.
Failure to follow the above may be cause for dismiss-
al 39
37 The foregoing findings are based upon the uncontradictory testimony of
Gribbins, neither Kreiner nor Igloi having been called as witnesses by the
Respondent . No statement of unavailability of either person was made on
the record . Katz testified that he was aware that Gribbins had been assigned
to Levittown in the latter part of June , and that such assignment had come
to an end because Kreiner had called him and said that Gribbins had practi-
cally finished her work, that he (Kreiner) would complete it himself, he
wanted to "get her out of his hair."
38 Prior to that time , Gribbins attended two union meetings after work at
Madden 's Pub in Massapequa on June 14 and 21.
39 Resp . Exh. 2.
J. W. MAYS, INC.
The foregoing notice was sent as an interoffice communi-
cation addressed to: "All store managers, display managers,
security managers from S. Katz." Although Respondent
proffered some evidence which tended to show that the
foregoing rule was made known to the affected personnel,
Gribbins testified that it was her practice since she started
working at the Company to record in the display book only
that merchandise which was chosen for display; the other
merchandise was put back in the department with no men-
tion of that made in the book. Inasmuch as there is no
evidence prior to August 20 that Gribbins was in any way
warned or disciplined for failure to adhere to the require-
ments of the above-stated rule, I am inclined to believe that
the rule was honored more in the breach than in the obser-
vance. This finding is further confirmed by the admission
of Display Manager Manzi that following Gribbins' dis-
charge, a notice was posted to the effect that employees
should sign for display materials even when they are not
used.
Coming now to the events of August 20, Margaret Rous-
seau , one of Respondent's plainclothes, in-store detectives
testified that on that morning she was in the millinery de-
partment when she noticed Gribbins in the blouse depart-
ment pick up two bodysuits: a maroon one and a green one,
and walk out of the department with them.40 Rousseau
checked the display book in the blouse department to see
if it was signed but there was no signature for that merchan-
dise. She testified that she intended to report the violation
later on since it was not that important at the time. She then
proceeded to the back stock areas, which are those places
behind the windows where various props, mannequins, and
other materials are kept which are utilized in window dis-
plays. Rousseau noticed that the blouses that Gribbins had
brought into the backroom were hanging up along with a
burgundy polka dot pants suit which was a size 7 and sold
for $21.9941
Rousseau then went to lunch and upon her return noticed
that neither the bodysuits nor the pants suit was on display
in the window. She decided to check the back stock area
again and, at the time, observed the two bodysuits there but
the pants suit was missing. There was a pile of debris on the
floor, and the price ticket from the pants suit was also,on
the floor. She picked up the ticket and telephoned her boss,
Marie Eckert, who instructed her to come down to the store
detectives' office and relate the story. On the way down,
Rousseau noticed Gribbins with another green bodysuit
walking into the back stock area. After she came out, Rous-
seau went in and observed that now there were three body-
suits hanging in that area. Rousseau also noticed that the
debris had been swept up and cleaned out. She then, again,
checked the display book in the blouse department to see
whether the bodysuit had been signed for, but there was no
entry made. She then went to her office and told Marie
Eckert the situation and showed her the ticket that had been
40 The blouse department is located adjacent to the millinery department
A bodysuit is similar to a blouse, but fits around the torso like a one-piece
bathing suit.
41 Rousseau testified that she noticed the price because it was pretty and
she "wanted to see how much it cost because [she] liked it."
629
picked up from the floor. Eckert called Store Manager
Kaye, who came downstairs along with Vice President Katz,
who was in the building that day. Katz called Charles Hord
and told him that Gnbbins was not signing for merchandise
in the blouse department. He also called Lucille Tedeschi;
the second floor manager, and had her bring down a pants
suit which corresponded to the style number on the ticket
which Rousseau had picked up. Finally, Kaye instructed
Eckert and Rousseau to check the display book in each
department to see if they had been signed.
Shortly thereafter, there was a report by another store
detective that Gribbins had been seen on the selling floor
with her handbag, which was against store rules. Eckert
requested Gribbins to open her handbag so that it could be
checked. Gnbbms complied, and, among other things in the
handbag, was a green bodysuit in a clear plastic bag. Grib-
bins then was taken to Kaye's office by Eckert and Rous-
seau and asked to explain the circumstances. Gnbbins
stated that she had purchased the bodysuit from the Com-
pany about a week previously, and had brought it to work
because she wanted to wear it following working hours that
evening. Kaye inquired whether Gribbins purchased the
garment under the employee discount plan, and Gribbins
replied that she never took a discount.42 At the conclusion
of the meeting, a written warning was issued to Gribbins
respecting her failure to sign the display book and for car-
rying a purse on the selling floor during working hours 43
Gribbins testified that on August 20, she had been chang
ing the Unqua Road window and finished about lunchtime.
After lunch she proceeded to return the unused merchan-
dise to the respective departments and returned three pants
outfits to the junior impressions department. Since there
was no saleslady present, she placed the three pants suits
back on the rack. She had not returned a polka dot halter
and returned this to a saleslady and explained that it be-
longed to two other pieces in that department. When she
returned merchandise in the ladies' sportswear department,
one of the salesladies told her that Katz was calling for the
display book. This upset Gribbins because he had never
asked for the display book before, and she called Charles
Hord over the phone and asked why Katz was asking for the
display book. Hord responded that he did not know but
would find out the reason. A few minutes later, Hord came
to Gribbins and asked her if she would show him the pants
outfits that she had returned, and also inquired whether
anyone had seen her.retum them to the rack. She said that
she did not know but perhaps a salesgirl named Veronica
Turner did. According to Gribbins' testimony, Veronica
first said that she observed Gribbins return the merchandise
but then changed her story to say that all that Gribbins ha4
given her was a halter. Hord directed Gribbins to return to
work. She intended to go outside the,building for a break,
and that was the reason for carrying her purse inadvertently,
on the selling floor. There she was stopped by Eckert.
42 Employees are allowed to purchase merchandise from May's ai a dis-
count of 10 percent of the purchase puce . However , it is necessary for the
employee who purchases merchandise under that procedure to,take it to a
check desk and make out a slip for the purchase. She then later receives the
discount in a payroll check '
Respondent proffered no evidence in refutation of Gribbins' assertion that
she never utilized this procedure.
47 Resp . Exh 3.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following the meeting in Kaye's office, above-described,
Gribbin had a coffeebreak with Display Manager Manzi,
and brought to his attention that she had been accused of
having stolen merchandise in her personal handbag. Manzi
testified that he was surprised to hear that something like
that had happened to Gribbins, since he had never found
Gribbins to be dishonest in all the years he worked with
her. 44
Later in the afternoon of August 20, Store Detective
Rousseau, not being satisfied with Gribbins' explanation of
what happened to the burgundy pants suit, continued
(along with Marie Eckert) the search for said pants suit. A
short while later, they found the suit along with a string of
beads and a bottle of perfume under a box in the back stock
area. The merchandise was in a plastic bag similar to the one
in which Gribbins had the bodysuit. Eckert called Kaye; the
latter came down and observed the merchandise and re-
moved it to his office.
The following morning, Kaye called Gribbins into his
office and asked her if she could explain the merchandise.
Gribbins claimed that the burgundy pants outfit was not the
one she had taken to the window because she had used a size
5, and the one he showed her was a size 7. Marie Eckert,
who was present during the interview, asked Gribbins why
she did not return the necklace to the jewelry department,
and Gribbins replied she never seen that particular necklace
before-that the white necklace she used was still in the
window. She further explained that, as far as the perfume
was concerned, she had an understanding with the cosmet-
ics department that she could keep that bottle of perfume
in the display area because sun tends to spoil perfume and
therefore a new bottle should not be used on each occasion.
Kaye then called for Veronica (Turner), the saleslady, and
asked her if she had received the three pants outfits from
Gribbins. Turner said no, to which Gribbins responded that
she (Gribbins) never claimed she had returned the pants
outfits to Turner. Gribbins at that point became angry and
accused Kaye of planting the merchandise, and he dis-
missed her. Kaye terminated Gribbins at that point because
of "unsatisfactory explanation of merchandise, and viola-
tion of Company rules, carrying her bag on the floor." He
did not accuse Gribbins of theft.
Analysis and Concluding Findings as to Laura Gribbins
After a consideration of all the evidence in the record,
including that which reflects Respondent's hostility to the
union campaign and to those employees who evidenced
sympathy toward the Union, I am convinced and therefore
find that the assignment of Gribbins to the Levittown store
in June and the subsequent discharge on August 21, was
discriminatorily motivated and therefore violative of Sec-
tion 8(a)(3) of the Act.
That Respondent was suspicious of Gribbins' sympathies
for the Union is reflected, in the first instance , by the con-
versation between her and Hord on or about June 11 or 12.
It will be recalled that in that conversation Hord interrogat-
ed her concerning her conversation with Brandt and warned
44 No other employee or management representative testified of any prior
incident involving a suspicion of dishonesty on Gribbins' part.
her against further association with union advocates. Al-
though she denied that her conversation with Brandt con-
cerned the Union, the evidence shows that on June 14, she
attended her first union meeting at Madden's Pub and that
Brandt picked her up after working hours in his car outside
of the May's parking lot. The first part of the following week
she was abruptly advised that she was to be assigned or
transferred to the Levittown store although Respondent
knew from previous experience that she strongly objected to
any such assignment or transfer because of transportation
difficulties. She states that Hord refused to tell her why she
was being transferred, and I have credited that testimony.
However, even if Hord's testimony (that Igloi requested her)
is believed, the facts do not substantiate his claim since,
after she reported for work in Levittown, she was assigned
to perform work which she ordinarily did not perform in the
Massapequa store. Furthermore, Igloi did not follow
through with respect to providing Gribbins with transporta-
tion, as Hord had promised Gribbins he would do. Finally,
she did not receive any consideration as respects an assis-
tant manager's position in display, as Hord had indicated
to her; indeed, both Igloi and Kreiner were surprised that
this had been said to her. Neither Kreiner nor Igloi ever
explained why Gribbins had been transferred or assigned to
the Levittown store in the first place, and such assignment
was abruptly terminated after she had worked there only 5
or 6 days.
Although there is no direct evidence of Respondent's
knowledge of Gribbins' union activities prior to June 20, it
is well established that "direct evidence is not necessary to
support a finding of knowledge but that such knowledge
may be inferred by the Board from the record as a whole." 05
In my judgment, the facts above stated, considered in the
context of the whole record, warrant the inference of com-
pany knowledge of Gribbins' union activities.46
There is, of course, direct evidence of Respondent's
knowledge of Gribbins' union activities in July when she
testified on behalf of the Union at the NLRB hearing in the
representation case.
I am convinced that Respondent, having been unsuccess-
ful in its attempt to cause Gribbins to quit her employment
as a consequence of the Levittown assignment, commenced
seeking alternative methods of harassment following her
return from vacation in August. Inasmuch as Gribbins was
considered by her immediate supervisors to be an exempla-
ry employee it is evident that they were neither apprised nor
consulted respecting any such decision which I find to have
been made by Respondent's agents at the higher levels.
Skepticism is first aroused by the conduct of Rousseau on
the morning of August 20. It will be recalled that she ob-
45 Texas Industries, Inc., 156 NLRB 423, 424; see also F. W. Woolworth Co.
v. N.L.R.B., 121 F.2d 658, 660 (C.A. 2).
46 In addition to all the evidence above cited , the record reflects through
the testimony of Gribbins and former employee Evelyn Upton, that com-
mencing in about April, they noticed Respondent 's store detectives following
them. It was not , of course, until early June that Gribbins signed a union
card. The store detectives denied that they had been instructed to spy on the
union activities of the employees . However, I am inclined to believe, based
on the evidence of Respondent's extreme hostility toward the Union, that
after an employee became identified as a union proponent, the store detec-
tives were instructed by Respondent' s higher level supervision to keep a close
lookout on those employees ' activities.
J. W MAYS, INC. 631
served Gnbbins walking out of the blouse department with
two bodysuits without signing the display book, and that
this aroused her suspicion. But Gribbins, by her own testi-
mony, had been engaged in this very same conduct during
her entire period of employment which extended over 4
years. Under these circumstances, one wonders why it
abruptly aroused the suspicion of a store detective on this
particular occasion 47 In any event, this conduct resulted in
a written reprimand being given to Gribbins that day for
failure to sign the display book and for carrying her purse
on the selling floor contrary to company rules. It is evident,
however, that this conduct was not sufficient to warrant
termination since , as I have found, the first rule (if it existed
as interpreted by the Respondent) was not enforced, and the
second rule was breached only because Gribbins felt unjust-
ly accused of engaging in wrongful conduct.
That Gribbins alleged wrongful conduct did not warrant
termination under Respondent's policy is further confirmed
by the explanation of the operation of such policy as testi-
fied to by Respondent's agent, Martin Zinkofsky:
Q. You described a practice as to warnings and
writeups.
Can you explain now what the normal practice is
when an employee is engaged in wrongdoing once,
twice, three times?
A. Well, if we catch him doing something, we warn
him once. If it happens again, we usually write him up
and make sure that they sign the reprimand and put it
in to their folder.
We tell them that we don't want it to happen again,
you know, which would lead to problems.
Q. And then what happens if it's done a third time?
A. Then I refer him to the store manager and let him
make a decision on what he wants to do.
Q. Prior to June of 1973, do you remember any in-
stances or do you know of any instances where a per-
son was fired-strike that.
Do you know of any instance prior to June of 1973
where a person was written up the first time he was
warned?
A. Not to my knowledge.
I don't recall.
Q. And prior to June of 1973, do you have any
knowledge of any employee being fired after only one
warning?
A. I don't recall.
Later in the day the store detectives "found" the missing
burgundy pants suit along with a necklace and bottle of
perfume, and reported this to Store Manager Kaye. The
latter quickly concluded Gribbins' culpability and called
Vice President Katz at his home that evening. Katz con-
firmed that "this girl should be terminated in view of all the
things that had occurred." 48 Thereafter, Kaye, after check-
ing with company counsel, called Gribbins into his office
the following morning and confronted her with the mer-
chandise. She denied that the bodysuit was the one she had
handled as it was a different size; she claimed that the
necklace she obtained from the jewelry department was still
on the mannequin, and that perfume had not been returned
because of an agreement she had with the cosmetics depart-
ment. There was, concededly, a dispute concerning the
identity of the pants suit. But without even checking with
the jewelry and cosmetics departments (which would have
taken only a few minutes), Kaye refused to accept Gribbins'
explanations and terminated her.
Additional failures by Respondent to investigate the inci-
dent may be summarized as follows: (1) The failure of Kaye
to consult with Gribbins' immediate supervisor concerning
the circumstances of the alleged pilferage, much less request
a recommendation as to whether Gribbins should be termi-
nated therefor. It is well established that such conduct evi-
dences a discriminatory intent;49 (2) the failure of Kaye to
direct the store detectives to at least interview any other
employees of the display department, including Display
Manager Manzi, respecting their whereabouts and conduct
the previous day; (3) the failure of Kaye to call John Mal-
loy, the security director for all the Respondent 's stores, in
connection with this matter. Malloy testified that it was
normal procedure for him to be called by the store detec-
tives if an employee is under suspicion, and this has oc-
curred even if he is off duty. He further testified that on
numerous occasions Mr. Kaye had asked him to conduct
such an investigation . However, in the instant case , Malloy
did not know anything about Gribbins' termination until
several days later . Such failure to conduct a fair investiga-
tion has been held to constitute evidence of a discriminatory
intent 50
In addition to all of the foregoing, I have given weight to
testimony of former employee Evelyn Upton, who im-
pressed me as a candid and honest witness. She stated that
on the day of Gribbins' discharge she had a conversation
with Captain John Maquire, chief of Respondent's security
guards, who told her that he felt that Gribbins "should have
quit before she was fired . . . because if they want to get
you, they will, even if it means planting something on you
to get it." He further opined that he knew she [Gribbins] was
going to get fired because of activity in the Union."
Accordingly, based upon all the above recited evidence,
I find and conclude that the termination of Gnbbins on
August 21 was to discourage union membership in violation
of Section 8(a)(3) of the Act . Since it is a reasonable infer-
ence that such termination was also in retaliation for her
testifying at an NLRB hearing, I find that, in addition, such
termination violated Section 8(a)(4) of the Act.
F. Additional Alleged Violations of Section 8(a)(1)
In the course of discussion of the foregoing alleged viola-
48 Testimony of Kaye
41 Such conduct tends to confirm my view, earlier expressed , that the store 49 See , e.g , Bendix- Westinghouse Automotive Air Brake Co, 161 NLRB 789,
detectives were instructed to watch the activities of employees who were 798, Marsh Supermarkets, Inc, 140 NLRB 899, 913, Kingsford Motor Car Co,
union activists Accordingly, I find the above conduct of Rousseau (and of 135 NLRB 711, 726
the other store detectives on August 20) to constitute illegal surveillance of 50 See Rockingham Sfeepwear, Inc, 188 NLRB 698 , 702, and cases cited
union activities in violation of Sec . 8(a)(1) of the Act therein.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions of Section 8(a)(3) of the Act, I have made several
findings that some of the Respondent 's agents and supervi-
sors made certain remarks to employees which interfered
with , restrained , and coerced them in the exercise of their
rights under Section 7 of the Act , in violation of Section
8(a)(1) of the Act . The following, additional findings of
violation are warranted in the light of competent and credi-
ble evidence adduced by the General Counsel at the hear-
ing:
1. About 2 weeks after employee Frank Coletto signed a
union card (on or about June 7 ), Supervisor Paul DeRonde
asked him if he had signed a card . When Coletto answered
affirmatively , DeRonde advised that Coletto could be trou-
ble because of such conduct . In another conversation be-
tween the two men which occurred a couple of weeks later,
DeRonde advised that if he had to pay a certain salary as
a result of the Union coming in , he would get specialized,
qualified individuals as electricians , air-conditioning men,
etc., implying that less qualified employees such as Coletto
would be terminated.
2. Employee John Cannon testified that some time dur-
ing the month of April, there was a meeting of the employ-
ees under the supervision of Paul DeRonde in which the
subject of the position of assistant chief engineer was raised.
DeRonde told them that this position would not be filled
"until they (Respondent] decided what would be done
about the Union ." I find this statement to constitute a threat
of unlawful withholding of benefits because of the union
activities of the employees.
3. In late June , employee Christopher Lynch had a con-
versation with Supervisor Harry Schob in which the latter
advised that someone had seen Lynch talking to employee
John Cannon about the Union on one of the elevators.
Schob brought a piece of paper and directed Lynch to write
what he and Cannon were talking about . Lynch did as
directed and wrote that he and Cannon were talking about
the Union and how a union benefits employees . Schob took
the paper and left but later returned and said that Mr. Kaye
didn't like the way it was done because Lynch had spelled
Cannon with a "G" instead of a "C." Schob also directed
that Lynch include a statement to the effect that at no time
did Cannon ask him to join a union . When Lynch asked
Schob what would happen if Lynch refused to write the
statement , Schob responded , "It could be your job or his
[Cannon's] ." Accordingly , Lynch wrote the statement as
directed . (See G .C. Exh. 14.) I find the foregoing conduct
to constitute coercive interrogation respecting employees'
union activities ; to create an impression of surveillance of
employees ' union activities ; and a threat of retaliation for
refusing to accede to the demand to divulge information
concerning protected activity.
To the extent that counsel for the General Counsel has
urged me to make additional findings of independent viola-
tion of Section 8(a)(1) of the Act , I decline to do so based
on either of the following reasons: ( 1) The evidence does not
come within the specifications of the bill of particulars fur-
nished by General Counsel to Respondent prior to the hear-
ing; (2) the particular statement of the supervisor
constitutes an expression of opinion or prediction protected
by Section 8(c) of the Act , rather than a threat of retaliation
or retribution for engaging in union activities ; or (3) lack of
substantial evidence to support the allegation because the
witness failed to testify with that degree of clarity and di-
rectness required to prove the statement or conduct , or qua-
lified the alleged statement in such a manner as to render
it noncoercive ; (4) finally, it should be noted that I have
found that competent , credible evidence has sustained the
8(a)(1) allegations of the complaint in at least one instance,
so that any further findings would only be cumulative and
repetitive , and would not expand the scope of the order
herein recommended.
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 Respondent 's oper-
ations described in section I, above , have a close, intimate,
and substantial relationship to trade, traffic , and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that Respondent committed certain unfair
labor practices , it must be ordered to cease and desist from
engaging further in such conduct and to take remedial ac-
tion designed to effectuate the policies of the Act.
It having been found that Respondent unlawfully dis-
criminated against its employees by discharging them, it
must be ordered to reinstate them and make them whole for
any loss of earnings they may have suffered in consequence
of the unlawful discrimination in the manner prescribed by
the Board in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1963).
Respondent's unfair labor practices indicate a general
attitude of opposition to the purposes of the Act. Accord-
ingly, a broad cease -and-desist order is necessary and ap-
propriate to effectuate the policies of the Act.
Upon the foregoing findings of fact , and upon the entire
record in the case , I make the following:
CONCLUSIONS OF LAW
1. J. W. Mays, Inc., Respondent herein , is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Local 30 and Local 307, and each of them , are labor
organizations within the meaning of Section 2 (5) of the Act.
3. By discriminating against Michael Brandt and Laura
Gribbins, the Respondent has engaged in conduct to dis-
courage membership in the Union in violation of Section
8(a)(3) and (1) of the Act. Such discrimination resulted as
a consequence of the employees' giving of testimony under
the Act, and therefore in violation of Section 8(a)(4) thereof.
4. By the foregoing conduct, by coercively interrogating
employees concerning their union activities , by threatening
reprisals for engaging in union activities , by promising ben-
efits in return for ceasing engaging in union activities, by
directing and warning employees to refrain from engaging
in union activities , by creating an impression of surveillance
J. W. MAYS, INC.
of union activities, and by surveillance of such activities,
Respondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(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 foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 51
J. W. Mays, Inc., its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against its
employees because of their union membership and activi-
ties, or because they gave testimony under the Act.
(b) Coercively interrogating employees concerning their
union activities, threatening reprisals forjoining the Union
or engaging in union activities, promising benefits in return
for refraining from engaging in union activities, directing
and warning employees to refrain from engaging in union
activities, surveillance of union activities, or creating an
impression of surveillance of employees' union activities, or
in any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of their right to self-organi-
zation, to form, tom, or assist any labor organization, to
engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
31 In the event no exceptions are filed as provided by Sec 10246 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
633
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer to Michael Brandt and Laura Gribbins, and
each of them, immediate, full, and unconditional reinstate-
ment to his (or her) former or substantially equivalent posi-
tion without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay which
they may have suffered as a result of the discrimination
against them in the manner set forth in that portion of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports and all other records necessary to
analyze the amount of backpay due and ascertain reinstate-
ment under the terms of this Order.
(c) Post at its Massapequa, New York, store, copies of
the attached notice marked "Appendix." 52 Copies of said
notice, on forms provided by the Regional Director'for
Region 29, after being duly signed by the Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify said Regional Director, in writing, within 20
days from the receipt of this decision, what steps have been
taken to comply herewith.
IT IS FURTHER RECOMMENDED that the allegations of the con-
solidated complaint be dismissed in all respects other than
those found to have been sustained in the above findings
and conclusions.
52 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"