Maxam Buffalo, Inc.

National Labor Relations Board - Board Decisions

Nov 19, 1962

139 N.L.R.B. 1040 (N.L.R.B. 1962)

1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT ask our employees about their membership , activities, or in-
terest in Textile Workers Union of America, AFL-CIO-CLC, or any other
labor organization.
WE WILL NOT threaten to close down our Winston -Salem plant if our em-
ployees select a labor organization as their bargaining agent.
WE WILL NOT threaten employees with discharge to discourage activities on
behalf of a labor organization.
WE WILL NOT threaten employees that we shall inform other prospective
employers about their union activities.
WE WILL NOT ask for employees ' assistance in influencing others to vote
against a labor organization in a representation election.
WE WILL NOT seek to influence employees not to testify at hearings before
the National Labor Relations Board.
WE WILL NOT, in any like or related manner , interfere with, restrain, or
coerce employees in the exercise of their right to organize ; to form , join, or
assist a labor organization ; to bargain collectively through a bargaining agent
chosen by themselves ; to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection ; or to refrain from
any such activities.
THE DUPLAN CORPORATION ( FORSYTH DIVISION),
Employer.
Dated------------------- By-------------------------------------------
(Representative) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 1831
Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina, Telephone
Number, Park 4-8356, if they have any question concerning this notice or com-
pliance with its provisions.
APPENDIX B
NOTICE TO ALL VOTERS
The representation election conducted on May 3, 1962 , was set aside because
certain conduct of the employer , through its supervisors , rendered impossible a
free expression of the choice of its employees on that date. The conduct included
asking employees about their union membership , activities, and desires ; threatening
a shutdown if a union was voted in; threats of discharge for union activities; threats
of informing other prospective employers of employees ' union activities; and asking
employees ' assistance in influencing others to vote against a union.
Now, as will be noted in the accompanying notice of election , a new election
will be held Eligible employees are assured of their right to cast their ballots
as they see fit, free from coercive interference by any of the parties.
-------------------------
(Regional Director, 11th Region,
National Labor Relations Board)
Maxam Buffalo, Inc., d /b/a Maxam and Local 212, Retail Clerks
International Association , AFL-CIO and Maxam Niagara, Inc.,
d/b/a Maxam and Local 212, Retail Clerks International Asso-
ciation, AFL-CIO. Cases Nos. 3-CA-1809 and 3-CA-1809-2.
November 19, 1962
DECISION AND ORDER
On August 9, 1962, Trial Examiner Ramey Donovan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
139 NLRB No. 85.
MAXAM 1041,
from and take certain affirmative action, as set forth in the attached
Intermediate Report. He also found that the Respondents had not
engaged in certain other alleged unfair labor practices and recom-
mended dismissal of these allegations of the complaint. Thereafter,
the Respondents and the General Counsel filed exceptions to the
Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Leedom, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in this case, including the ex-
ceptions and briefs, and hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner.
ORDER
The Board adopts the Trial Examiner's Recommendations with the
modifications noted below 2
I The Trial Examiner inadvertently fixed the commencement of union organization, and
several other events following thereon , as occurring on various dates in June 1962 , rather
than January 1962 These Inadvertences are hereby corrected
2Paragraph 1(c) of the Recommendations is modified to read as follows:
(c) Announcing or enforcing any rule prohibiting its employees from engaging in
union solicitation in nonpublic , nonworking areas of its premises during their non-
working time
Paragraph 3 of the notice is modified to read as follows:
WE WILL NOT announce or enforce any rule prohibiting our employees from engag-
ing in union solicitation in nonpublic, nonworking areas of our premises during their
nonworking time
See Marshall Field & Co, 98 NLRB 88, and Great Atlantic & Pacific Tea Company, 123
NLRB 747
INTERMEDIATE REPORT
STATEMENT OF THE CASE
On March 14, 1962 , Local 212, Retail Clerks International Association, AFL-
CIO, herein called the Union, filed a second amended charge in Case No. 3-CA-
1809 and a charge in Case No. 3-CA-1809-2 against Maxam Buffalo , Inc., d/b/a
Maxam , and Maxam Niagara, Inc., d/b/a Maxam, respectively, herein called Re-
spondents .) Maxam Buffalo , Inc., is also referred to herein as the Union Road store,
the latter being in Buffalo, New York. Maxam Niagara, Inc., is also referred to
herein as the Niagara Falls store, the latter being in Niagara Falls, New York. The
General Counsel issued a consolidated complaint on March 21 , 1962. The complaint
alleges that Respondent at its Union Road store terminated one named employee in
violation of Section 8(a) (1) and ( 3) of the Act. With respect to the Niagara Falls
store the complaint alleges that Respondent illegally interrogated an employee and
threatened employees with reprisals if they engaged in union activities, all in violation
of Section 8 (a) (1) of the Act; it also alleged that 11 named employees were termi-
nated in violation of Section 8(a)(1) and (3) of the Act. Respondents in their
answer denied the commission of the unfair labor practices alleged.
A hearing was held before Trial Examiner Ramey Donovan in Buffalo, New
York, on May 7 and 8 , 1962 . All parties were represented by counsel and par-
'By stipulation of the parties at the hearing and subsequent to the hearing the name
of the Respondents was amended as appears above
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ticipated in the hearing . Briefs were received from the General Counsel and
Respondents on June 15, 1962.
Upon the entire record in the case , and upon my observation of the witnesses,
I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF RESPONDENTS
Maxam Buffalo , Inc., is a New York corporation and is wholly owned and con-
trolled by Maxam , Inc., a Delaware corporation . Maxam Buffalo maintains its
office and place of business at Union Road , Buffalo, New York, where it is engaged
in the operation of a self-service discount department store. In the past 12 months
Maxam Buffalo sold and distributed products having a gross value in excess of
$500,000 and received goods valued in excess of $50,000 that were transported
to its store in Buffalo in interstate commerce directly from outside New York State.
Maxam Niagara, Inc., is a New York corporation wholly owned and controlled
by Maxam , Inc., a Delaware corporation . Maxam Niagara maintains its office and
place of business in Niagara Falls, New York , where it is engaged in the opera-
tion of a self-service discount department store. For the past 12 months Maxam
Niagara sold and distributed products having a gross value in excess of $500,000
and received goods valued in excess of $50,000 that were transported to its store in
Niagara Falls in interstate commerce directly from outside New York State.
It is found that the above two Respondents are engaged in commerce within the
meaning of the Act and within the Board 's jurisdictional standards.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background facts
The Niagara Falls store , which opened for business in June 1961 , was of the
type that is more or less typical of contemporary retail merchandising. There was
a large parking area for cars and the store itself was a one-floor operation approxi-
mately 265 by 350 feet, with its space occupied by counters carrying various types
of merchandise. The general physical characteristic of this type of retail discount
department store is, and was in this instance, that of openness , with only two rela-
tively small areas enclosed , namely the shipping and receiving department and a
small office area for managerial personnel. Checkout counters , including cash
registers , were in the front part of the store . Some of the space in the store was
occupied by concessionaires but the details thereof do not appear in the record
since this aspect has no relevance or materiality with respect to the issues in
the case.
Respondent had two shifts at the Niagara Falls store and the number of em-
ployees varied with business conditions and the "seasons " characteristic of retail
trade. Thus , on opening day, June 12 or 13, 1961, the total number of Re-
spondent 's employees was 204 . This figure thereafter decreased but remained over
100 until September 26, 1961 .2 For the week ending January 2, 1962 , there were
87 employees , 56 on day shift and 31 on night shift. In the preceding 5 weeks,
the Christmas season , the complement had averaged 109 employees . The low point
in the weeks shown in the record was reached in the week ending February 20, 1962,
when the complement was 66, with 36 on day shift and 30 on night shift.
B. The union activity
The Union commenced organizational efforts at the Niagara Falls store on
Wednesday, June 3, 1962. According to the credible testimony of Dolores D'Agos-
tino, a day-shift employee who worked as a cashier and also on the merchandise
floor, two outside organizers of the Union entered the store on that date? The
organizers approached D'Agostino and Strenkowski . D'Agostino states that Stren-
z With the exception of the first few weeks , the payroll of September 26 was fairly
typical of the complement from June to September Thus , the total of employees on
September 26 was 101 , with 58 on the day shift and 43 on the night shift
3 The term "outside organizer " Is used herein to refer to an agent of the Union who
was not an employee of Respondent
MAXAM 1043
kowski was working as a cashier at one of the cash registers at the time and "I
was working with her. I was on the floor." One of the organizers asked the
girls if they would like to have a union in the store and the girls said they would.
The organizer identified himself as a representative of the Union and gave D'Agostino
some union authorization cards and asked her to speak to the girls about signing.
When the organizers left, D'Agostino spoke to the girls who were working on the
cash registers and about five girls, including D'Agostino, Strenkowski, and Shirley
Drake signed cards at the time. The following day the organizer returned to the
store. D'Agostino was working at one of the cash registers and a conversation
ensued between her and the organizer regarding her efforts to have the cards
signed. She gave the organizer the signed cards and secured additional cards.
Friday morning, June 5, D'Agostino secured signatures on the cards in the rest-
room before 8 a m., the starting time of the day shift. She also testified that she
gave a few cards to Shirley Drake on Friday and that Drake secured signatures
thereon.4 D'Agostino testified that she secured in all approximately 25 signed
cards from the girls on the day shift. At the hearing the parties stipulated that
there were approximately 30 production and maintenance employees on the day
shift. In the light of Respondent's Exhibit No. 9 (5?) submitted by agreement
after the close of the hearing, the figure of 30 production and maintenance em-
ployees appears somewhat low although it is not clear that all the employees listed
on the above-mentioned exhibit would be classified as production and maintenance.
In any event, I am satisfied that D'Agostmo had signed up in the Union a substan-
tial number of the day-shift production and maintenance employees, probably more
than half the employees in that category.
Beginning on Friday, June 5, various supervisors of Respondent followed D'Agos-
tino on her break time or lunch time when she went to the snackbar. The snack-
bar was located in the store, about the middle of the floor but to one side, and it
was open to Respondents personnel and to customers. The evidence regarding the
following of D'Agostino persuades me that it was neither accidental or coincidental
but was deliberate action on the part of Respondent. It also appears that in the
period that concerns us, June 3 to 11, 1961, outside union organizers, one or two in
number, appeared daily in Respondent's store and were followed by supervisory
employees while within the store.
C. The June 6 Speech
Prior to a speech to all the day-shift employees on Saturday, June 6, at 5 p m s
Muchnicki, manager of the Niagara Falls store, had a conversation with D'Agostino
on the afternoon of June 6. According to D'Agostino's uncontroverted and credible
testimony, Muchnicki told her to come to his office. When she arrived, Muchnicki
held a union card and said that "these" were being passed around the store. He
accused her of passing out union cards, and she denied having done so. Muchnicki
said that "when you sign one of these cards all your privileges are automatically
taken away." He stated that the Union "is interested only in your initiation fee and
dues and it makes a lot of promises." Muchnicki also said, "You could go to jail
for doing this, you could be fined and fired." He advised D'Agostino that what
she did on the outside on her own time was her own business but what she did in the
store was his business.
Regarding the speech made by Muchnicki at 5 p.m. on January 6 there is a con-
flict in the testimony of the General Counsel's witnesses who were present and
the testimony of Muchnicki who was Respondent's sole witness on the point. None
of the witnesses was a disinterested observer and the resolution of the credibility
issue has received careful consideration.
It is my finding that in some respects the tenor of the speech was similar to
Muchnicki's conversation with D'Agostino that same afternoon, prior to the meeting.
I find that the manager held a union card in his hand as he spoke to the employees
and expressed surprise that they had become interested in a union without having
first come to him with any problems or matters that were bothering them. He
stated that the Union was interested only in their money and that it was not a suit-
able union for a store such as they worked in. I also find that the manager said in
words or in substance that what the employees did outside the store with respect
to union activities or joining a union was their own business . While it may be that
Muchnicki intended to express opposition only to employees' and others' union
4 There being no evidence that D'Agostino observed Drake securing signatures I take
the former's testimony to mean that Drake returned some signed cards to D'Agostino.
8 The day shift worked from 8 a.m. to 5 P.m., 6 days a week.
672010-63-voL 139-67
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities on the floor of the store during working time, I do not believe that he
stated this in so many words or that he conveyed this idea to his audience. I find
that he stated that the employee who was giving out union cards could be arrested,
fined, and fired and that the outside organizers could be arrested, fined, or im-
prisoned. He also stated that if the Union came in the employees would lose
various privileges that they then enjoyed and that management would not be tolerant
of various matters such as talking among employees and matters of that nature. I
find that in the course of the speech Muchnicki said in substance that management
was carrying the present complement of employees although business was slow but
if a union was in the store this policy would not continue and there would be a
layoff.
Insofar as Respondent's manager, Muchnicki, stated to D'Agostino in his office
on June 6 and to the employees on the day shift at a meeting on the same date that
they would suffer a detriment, to wit, loss of privileges if the Union organized the
store, there was, in my opinion, a violation of Section 8(a)(1) of the Act and I so
find. I also find that Respondent had never previously promulgated to its employees
in the store a valid no-solicitation rule and that on June 6 the employees were
threatened with reprisal, to wit, a fine or discharge, if they engaged in any union
activity on company premises. The ban and the threat was broader than was
legally permissible since the only area left free for union activity was nonstore
property on the employees' own time. The evidence and the circumstances reveal
no reasonable basis for such a general prohibition particularly since the evidence
shows that the employees, when not busy, commonly conversed with each other
on various topics without interference by Respondent and the employees did devote
nonworking time to matters of personal concern. While Respondent would be
within its rights in preventing interference with business operations and the servicing
of customers, as well as confining working time to work, it could not do so by
generally threatening reprisals for all union activity. Accordingly, and for the
reasons stated, I find a violation of Section 8(a)(1) of the Act in the foregoing
respect 6 It is also my opinion and I find that there was a threat of reprisal in
the references to keeping the employees on the payroll in a slow period but implying
that this condition would not continue with the advent of a union. This was also,
in my view, a violation of Section 8 (a) (I) of the Act and it is so found.
D. Interrogation
The uncontroverted and credible testimony of employee Drozdowski is that on
Wednesday, January 10, 1962, about 3 or 3 30 p.m., she was stacking candy in the
store with Mort, an admitted supervisor of Respondent. According to Drozdowski,
"Out of the blue sky he asked me, he wished he could have a union card. .
This employee told Mort that if he wanted a card he should ask one of the organizers
that came around to the various stores. Mort then said, "You know Mr. Jacobs
[the assistant manager and admitted supervisor] is very mad at his girls . .. they
signed the union card "
It is my opinion that Mort's remark to Drozdowski, coming as it did "out of the
blue," was tendentious in nature and designed to evoke information regarding the
Union or the employee's attitude or association with respect to the Union There
is not a particle of evidence to suggest that Mort said that he wished that he had a
union card because he personally desired to join the Union or that he wished to see
a union card because it was some unique form of card that he desired to have the
pleasure of seeing. Nor was Mort simply engaging in a meaningless soliloquy.
Under the circumstances, Mort's statement was a subtle, but not too subtle, form of
inquiry or interrogation. Reasonably regarded, it could only be intended to evoke
from the employee to whom he was speaking, one of the following types of response:
(1) ignorance of anything pertaining to a union or some expression by the employee
indicating lack of sympathy with the Union, e g., "I cannot tell you where to get a
union card" or, "I know nothing about a union card and care less"; (2) familiarity
with union activity and association with union activists or possibly a revelation of
direct personal participation in union activity, e g , "I do not have any union cards
but you can get one from Dolores D'Agostino," or, "I can get you a card if you are
interested as you say you are," or, "I have a bunch of cards and you can have one."
The fact that Mort's inquiry might be either successful or unsuccessful in ascertain-
ing reliable information regarding union sympathy or activity is no more material
than the fact that a direct interrogation, "Do you have a union card" or "Did you
sign a union card" might or might not be successful in eliciting accurate information.
6 Texas Aluminum Co, Inc, 131 NLRB 443, and cases cited therein.
MAXAM 1045
The fact is that the supervisor was in effect probing and interrogating an employee
regarding activity or union sentiment without legitimate justification.
The foregoing conclusion finds additional confirmation in the balance of the con-
versation between Drozdowski and Mort on the same occasion . When the em-
ployee's response to the statement of Mort was not particularly revelatory of
whether or not she had a union card or was in close association with union activists
among the employees ( she told Mort to ask one of the outside union organizers for
a card ), Mort at least was given no indication that this employee was hostile to the
Union . As a minimum he, therefore , probably regarded her as being of doubtful
quality insofar as where she stood with respect to the Union . It may also be that
he believed that she was being less than candid with him regarding the source of union
cards. There evidently had been some reason why he had elected to say to this
particular employee "but of the blue" that he wished that he had a union card. In
any event , Mort's interrogation did not reveal at that stage that Drozdowski was
opposed to the Union and he thereupon said, "You know, Mr. Jacobs [ assistant
manager] is very mad at his girls . they signed the union card ." This and other
parts of the record previously described indicate a very active interest on the part
of management , of which Mort was a part , in the union sentiments of the employees.
Additionally, of course , management was opposed to a union or at least this par-
ticular Union . In these circumstances it is difficult to discern in Mort's remark
to Drozdowski, that he wished that he had a union card, any purpose or anything
other than a form of slightly indirect interrogation regarding union activity and
union sentiment on the part of this and possibly other employees .7 The interroga-
tion, in context with Muchnicki' s previously expressed opposition to the Union and
with Mort's remark that Jacobs was "very mad" at his girls for having signed union
cards, was of an inhibiting and coercive nature. While management was free to
express its views regarding the Union , Mart's statement that the assistant manager
was "very mad" at his girls for signing union cards places the matter in a different
plane. Disapproval and opposition to the Union is one thing but when it is made
known that the disapproval and opposition has also been transferred to personal
animosity toward individual employees because of their union activity , an inhibit-
ing and coercive aspect has been introduced Ordinarily and naturally , employees
cannot be expected to ignore or to take lightly the fact that the assistant manager
is angry at employees who signed union cards. Personalized hostility by manage-
ment toward individual employees for union activity is not incurred readily by
employees despite any expressions of bravado by some individuals . The aforesaid
personalized hostility has, as a matter of realism in the minds of employees, too
great a potential to be ignored . Job tenure , promotion , raises in wages, layoffs,
are all real specters that come to mind as a consequence of management anger to-
ward those who have signed union cards or are debating whether or not to sign
cards. Moreover, in the instant circumstances , an additional clear implication of
Mort's statement was the fact that the assistant manager had means of knowing and
knew the identity of employees who had signed union cards . This intelligence has
its inhibitory aspects. Accordingly , I find that Respondent through Supervisor Mort
interrogated employee Drozdowski regarding union activities and sentiments in a
coercive context and thereby violated Section 8(a) (1) of the Act.
E. The January 1962 layoffs
The complaint alleges that 11 named employees were illegally laid off or dis-
charged. Eight of the elevent were terminated on January 10, 1962, two on Janu-
ary 11, and one on January 12. Among this group is Shirley Drake. Respondent
contends that all the above employees except Drake were laid off for economic
reasons, in effect, a seasonal layoff due to business conditions 8 No replacements
7It is of course a well-known technique for anyone seeking to secure information to use
a statement such as that which was used by Mort For instance, to detect the source of
illegal sales of liquor, an agent would say to a suspect or to a purchaser of such illegal
products that he, the agent, wished he could get a drink of Mountain Dew The person
thus addressed would be expected to rise to the bait and reveal either that he was a pur-
veyor or that he could refer the inquirer to a source of the liquor The same technique
is also used in other forms of sleuthing such as narcotic detection and in other fields The
statement, "I wish I had a union card," by a supervisor to an employee during an active
union organizational campaign, is of the same nature and is a form of interrogation and
detection and lacking legitimate justification in the circumstances herein.
8In this report Shirley Drake is treated under a separate heading, infra.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were hired to take the place of the 10 laid-off employees. In March or early April
1962, with the advent of the Easter retail season, the record shows that 9 of the 10
laid-off employees were afforded an opportunity to return to work and 8 returned
to work. One employee had declined the invitation to return to work.9
Although the record shows Respondent's hostility toward the Union and the tim-
ing of the layoffs approximately a week after the inception of the union organizational
effort gives rise to suspicion, I am not satisfied that the General Counsel has estab-
lished that the layoff was attributable to union activity. The record shows, and I
believe it is in accord with the common knowledge of retail merchants and con-
sumers generally, that the weeks prior to Christmas are periods of high activity in
the retail field. This was true in the instant case. It is also true that Respondent's
business had declined after Christmas and that in stores of Respondent other than
the Niagara Falls store there had been layoffs in the post-Christmas period. The
Niagara Falls store had first opened in June 1961 and therefore December 26, 1961-
January 1962, was the first experience in this particular store with the problem
of post-Christmas business decline. There is no question but that the Niagara store
management expected and experienced a post-Christmas decline but there was no
prior experience in this particular store regarding the extent of the decline.
On January 6, 1962, when the Niagara store manager, Muchnicki, addressed the
day-shift employees as previously described, he stated among other things that his
audience constituted the regular or permanent staff of the store and although busi-
ness was slow the store was continuing to carry them as employees.10 Since business
had declined in the first week after Christmas and since there had already been
layoffs accompanying such decline," serious consideration must be given, in view
of the above words of Muchnicki, to the possibility that a further layoff on January
10-12, would not have taken place but for the inception of the union activity.
While the last-mentioned consideration cannot be eliminated as a possibility, I
am not persuaded that on the evidence as a whole the General Counsel has sustained
the burden of proving that the layoffs were so motivated and were discriminatory.
When Muchnicki made his speech on January 6, he probably knew that business
was worse than it had been for the preceding week that ended on Janurav 2. 1 am
-clot convinced, however, that he knew before January 9, when Respondent's week
.ended, that business for the January 9 week would reflect the almost record low
in the store's relatively brief history.12
9 Regarding Claribel Kerns, 1 of the 10 laid-off employees, there is no definite evidence
whether or not she was rehired or was offered reinstatement Kerns did not testify at
the hearing and there is nothing to distinguish her from the other nine laid-off employees
who were offered reinstatement Since the record discloses no reason why she would have
been treated differently than the other nine laid-off employees or that she was not rehired
because of Illegal motivation on Respondent's part, I shall treat her case the same as
those of the other nine laid-off employees. Laid-off employees, named in the complaint,
who did not testify, are: Brydges, Kerns, Reid, Welsh, and Pannozzo.
10 Testimony of D'Agostino, Drake, and Strenkowski.
"First business decline:
Week ending Sales Day shift Nightshirt Total
Payroll
ratio to
sales,
percent
12/19--------------------------------- $100.408 61 50 Ill 46
12/26--------------------------------- 76,844 59 44 103 55
1/2----------------------------------- 25 779 56 31 87 14 5
13 Second business decline:
Week ending Sales Day shift Night shift Total
Payroll
ratio to
sales,
percent
1/9----------------------------------- $15, 904 50 30 80 19.4
(Footnote continued on following page)
MAXAM 1047
Respondent introduced evidence that showed that its district manager in charge
of a group of stores was at various intervals reminding the store managers, includ-
ing Muchnicki, about the necessity of keeping down their payroll ratio to sales.
Apparently, during relatively slow periods a 12-percent ratio was tolerable although
from June 1961 through December, the Niagara store percentage had always been
below this figure.13 As we have seen, the percentage of payroll to sales at Niagara
reached a record high of 19.4 percent for the week ending January 9, 1962. In
subsequent weeks, following the layoffs, the percentage ratio remained over 12 per-
cent for 7 weeks,14 then began declining to 10.1, 8.1, and so on, well below 12 of
even 10 percent.15 While the store manager had some discretion with respect to
number of employees in relation to sales, I am satisfied that the ratio was a matter
that was of constant concern to top management as well as to local store manage-
ment. Muchnicki apparently was prepared to, and did, carry a 14.5 percentage for
the week ending January 2, but the figure of 19.4 for the week ending January 9 was
such that a layoff was deemed necessary. Accordingly, I conclude that the layoff of
10 employees on January 10 to 12, 1962, was dictated by economic considerations.
We next consider the question whether, assuming that business conditions dictated
the layoff of 10 employees, Respondent made a discriminatory selection of the
employees thus terminated. Of the 10 employees laid off, D'Agostino appears to be
the only one whose union activity was outstanding. According to D'Agostino's
testimony eight of the other laid-off employees had signed union cards 16 Other
than having signed union cards there is no other union activity shown on the record
that distinguished the eight employees aforementioned from other employees who
were not laid off. There is no evidence that these persons signed cards in the pres-
the only other week where sales did not exceed $16,000 was:
Payroll
Week ending Sales Day shift Nightshift Total ratio to
sales,
percent
1/23---- - -------------------------- $15,012 35
1
32 67 17 6
and this was subsequent to the layoffs . Business continued poorly throughout January
and February and began to rise from March onward. Without selecting peak periods, a
comparison between the Respondent 's business in the above periods with business in earlier
and later period shows the January 9 period to have been decidedly low. Thus:
Week ending Sales Day shift Night shift Total
Payroll
ratio to
sales,
percent
8/22/61- ---- ------------------------- $50,913 57 43 100 7.3
4/17/62-- ---------------------------- 52,924 49 34 83 6.5
18 The average for the weeks ending June 13 to December 26, 1961 , inclusive, was
7.8 percent.
14 The average for 6 of these weeks was 14 9. The week of January 30 was 21 2 but
inventory was taken in that week and the payroll dollar total but not the number of
employees was increased by reason of an extra day worked for inventory.
15 Business improved from March onward because of the coming Easter season.
le Drozdowski , Kerns, Morrison, Reid, Strenkowski , Welsh, Messing, and Pannozzo. As
to the ninth girl , Brydges , D'Agostino did not know whether or not she had signed a
card. Brydges did not testify and there is no other evidence regarding her union activity.
As previously noted, others in this group who did not testify at the hearing were Kerns,
Reid, Welsh, and Pannozzo.
In testifying as to the names of girls who had signed union cards D'Agostino did not
specify when the particular employees she named had signed although in another portion
of her testimony she referred to Strenkowski having signed about January 3 Drozdowski,
however, testified that at 3 or 3.30 p.m . on January 10, when she had a conversation with
Mort, she did not have a union card nor had she signed one . The layoff occurred at
5 p.m , January 10, although there apparently was a rumor of the layoff on the day prior
to the actual layoff. D'Agostino so testified.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pence or in the vicinity of supervisors. D'Agostino testified that she signed up most
of the employees in the ladies' restroom out of sight of the rest of the floor and
on nonworking time. Since D'Agostino had signed up about 25 day-shift employees
within the first few days of the union drive and since there were about 30 to 35
day-shift production and maintenance employees, the high percentage of card signers
among these laid off is not determinative.
What had been said in the preceding paragraph merits some qualification with
respect to Drozdowski, Messing, and Strenkowski. In a conversation with Su-
pervisor Mort on January 10, previously described in part, Drozdowski, who had
not signed a union card at the time, was told by Mort that Jacobs was very mad
at his girls because they had signed union cards. Drozdowski then said that she
was glad the girls had signed cards and that "we should have a union . . ." be-
cause Jacobs had favorites in the store. The employee's statement to a supervisor
thus indicated sympathy for the Union. Strenkowski, because she worked with
D'Agostino, a known or strongly suspected union adherent and activist, and because
she had conversed with union organizers when they came to the store and signed
,a card while at her work station on the cash register, was probably known to
the store management as a union sympathizer. Apart from D'Agostino, Drozdowski,
Strenkowski, and possibly Messing, however, there is no specific evidence from
which employer knowledge of union activity ( limited as it principally was to sign-
ing a card), on the part of the others who were laid off, can be based.17 In view
of the testimony of D'Agostino that she signed up most of the girls in the ladies'
restroom on nonworking time, I find no reasonable basis for inferring employer
knowledge of individual's union activity except as indicated above. The evidence
in the record, in my opinion, is too limited to warrant drawing the inference that
because the store was relatively small in size and in the number of employees that
the employer knew who had signed union cards.18
Even assuming, arguendo, that a conclusion is warranted that the employer was
aware of those of its employees who had signed union cards or who were sympathetic
to the Union, I find nothing to rebut the reasons given by the employer for the
particular selection of employees to be laid off. I do not believe that because
the employer has been shown to be hostile to having a union in its store, the sus-
picion that does of course arise in such situations is sufficient, in the instant cir-
cumstances, to sustain the allegation of discriminatory selection.
Thus, Muchnicki testified that Brydges worked in the children's department, along
with Strenkowski and two other named employees. As previously noted, the sore
opened for business in June 1961. A large number of employees had been hired
for the opening period, including Brydges. Brydges had been laid off in the first
reduction, about June 18. She was rehired June 30, laid off on January 10, 1962,
and rehired in March 1962. Muchnicki testified that the four girls in the depart-
ment had been hired about the same time and that the two girls who were not
laid off were more efficient workers and were not absent as much as the others.
Neither Strenkowski nor Brydges nor anyone else controverted the foregoing and
limited as the Respondent's evidence was on this point it is found to be credible.
Strenkowski was subsequently rehired, as was Brydges, when business began im-
proving in March and April 1962 by reason of the coming Easter season.
Muchnicki stated that D'Agostino was hired in ladies' sportswear and also worked
as a cashier. 19 In D'Agostino's particular section of the department an employee
named Rotko was retained in preference to D'Agostino. Muchnicki testified that
Rotko was the more efficient employee and he listed the various activities in which
Rotko excelled. Rotko had received a merit increase around August and D'Agostino
had not. This testimony was not controverted and is credited.20 D'Agostino was
subsequently rehired 21
17 Messing testified credibly that she signed a union card early in January. Sometime
prior to January 10, one of the outside organizers of the Union spoke to Messing in the
store about the stockings in Messing's department. Muchnicki came over and stood
nearby during the conversation.
1e In some respects, it could be argued that the store was fairly large, 265 by 350 feet,
with 50 employees in the day shift at the time
19 The witness said that Strenkowski and Brydges had also worked on the cash registers
Working on the registers as needed was part of the normal duties of the employees
20 With respect to various employees who were retained in preference to those laid off
there is no evidence as to whether the former had or had not signed union cards
21I have considered the fact that D'Agostino was a regular or permanent cashier and
worked as a cashier more than most of the other salesclerks D'Agostino had been hired
as a stock clerk and was then placed in sales. According to Head Cashier Drake,
MAXAM 1049
Drozdowski was hired in the candy department. There were two girls in the
department, Toellner and Drozdowski. Although the two employees were hired
about the same time , according to Muchnicki, he also testified that Toellner had
started just a little before Drozdowski. He said that he considered that Toellner
was doing the work more efficiently than Drozdowski and therefore did not lay
her off. No evidence was offered to refute the statement regarding relative effi-
ciency. Drozdowski was subsequently rehired.
Kerns worked in girls' wear with two other employees. Muchnicki testified that
the other two girls had been employed longer than Kerns, could do inventories
better, and had better overall ability. This testimony is not controverted. Much-
nicki therefore laid off Kerns on January 10 when business was slow.
Morrison worked in the boys' wear department. She and one other girl worked
in that department. Morrison was a nervous type and could not fill in as a cashier
when needed. She had been given work in the office but gave up the job after 1
day because of nervousness . The other girl in boys' wear was more flexible and
versatile and could fill in on other tasks when needed. This other girl was retained
in preference to Morrison. Morrison was subsequently rehired for the Easter
season.
Substantially the same type of testimony was given by Muchnicki in describing the
work of Reid and Welsh, the department they worked in, and the reason (com-
parative efficiency) why they and not others in the department were laid off. Both
Reid and Welsh were later rehired.
Pannozzo worked at the snackbar with one other employee. This other girl was
retained because she had a little more seniority and could do various things that
Pannozzo did not do, such as ordering supplies and taking inventory. Pannozzo
was subsequently rehired.
Messing had been hired in October 1961. At the time of her layoff on January
11 she was working in nylons, records, and handbags. Apparently there was one
other girl in the section who worked mainly on records. Nylons and records
were slow after Christmas, particularly nylons. Nylons was a very minor activity
in January and required little attention. The record is not clear as to the amount
of handbag activity then prevailing. The nylon section was next to sportswear and
when Messing was laid off the girl in sportswear handled Messing's work in addi-
tion to her own. This condition had prevailed prior to Messing' s original em-
ployment. Messing was subsequently offered reemployment but declined. While
the Respondent's evidence with respect to Messing is not particularly clear or satis-
factory neither is the evidence that she was selected discriminatorily. Relative
seniority or efficiency of employees involved does not appear but Messing, who had
been hired in October, had worked for Respondent only 3 months when she was
laid off during a period of business decline.
It is found that neither the layoff on January 10-12, 1962, nor the selection of
those laid off was discriminatory and violative of Section 8(a)(1) and (3) of the
Act and I recommend dismissal of the complaint allegation with respect to Brydges,
D'Agostino, Drozdowski, Kerns, Morrison, Reid, Strenkowski, Welsh, Messing, and
Pannozzo.
F. The termination of Shirley Drake and Patricia Fehr
1. Drake's duties
Drake was hired as a salesclerk or stock girl in May 1961, at the Niagara Falls
store. Her pay was $1 an hour. Other girls were also hired in the same capacity
and at the same rate during this period prior to the opening of the store to the
public in June. During this initial period Drake and the others performed various
tasks and received training on operating cash registers from a representative of the
manufacturer of the registers. A time came when Assistant Manager Jacobs told
Drake that she was to be sent to the Buffalo store for further training and upon
satisfactory completion she would return to Niagara as head cashier with an in-
crease in salary. Drake went to Buffalo and received training from the head
cashier in the Company's Buffalo store.
Drake returned to the Niagara store which had not yet opened for business. Some
of the employees had previously been trained as cashiers by the manufacturer's
representative who had come to the store initially as aforedescribed. Employees who
D'Agostino had become a regular cashier after one of a group of four regulars had quit
and apparently she had performed her duties for a briefer period than the other regulars.
In any event, there is no showing in the record that regular cashiers had any greater
retention rights than others and when sales were low, as in January, the need for
cashiers would also be affected.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had not been trained as cashiers were thereupon trained by Drake upon her return
from Buffalo 22 She taught them the operation of the registers and matters relating
thereto as well as how to treat the customers of the store. The store issued no
written rules of conduct or instructions to the cashiers.
As head cashier Drake received $1 10 an hour as compared with the other
cashiers and salesclerks who received $1 an hour. Subsequently Drake received
$1.15 and experienced salesclerks were raised to $1.05. The duties performed by
Drake as head cashier were as follows: In the morning she would take a reading
from the cash registers and then go into the office to turn in the register readings and
to get the trays and money for the cash registers; Drake was the only person who
took a reading from the registers as aforedescribed; she would also take from the
office a bag containing $500 in cash which was placed in a drawer at the service
desk in the store and which was there so that it could be used by Drake during the
course of the day to make change for the cashiers as needed; there were also, in
the office, bags containing money that belonged to various concessionaires in the
store and Drake took these bags to the appropriate concessions; another moneybag
in the office contained $500 in cash which Drake used to put in "banks" of $50
for each register. The "bank" of $50 was placed in a separate drawer of the
register and it was the source from which the cashiers filled their automatic change-
makers in the course of the day; each girl has a key to the bank and Drake also
had a key; Drake also spent some time in the morning before the store opened for
business in straightening candy and magazine racks in the vicinity of the registers;
on the first day when the store opened for business Drake had been told that 48
registers should be in operation and that she would need 48 cashiers; some of the
employees, who had been trained by the manufacturer's representative who had done
the initial training of employees, including Drake, before the store opened for
business, were assigned to the registers on the basis of ratings that had been given
by the manufacturer's representative; other employees who had been trained by
Drake were selected and assigned by Drake as opening day cashiers; thereafter, in
the course of her employment as head cashier, Drake selected and assigned employees
to work as cashiers and those assignments were made in accordance with Drake's
estimate of the need for additional cashiers and on the basis of her estimate as
to their suitability; one of Drake's principal responsibilities was to open up an addi-
tional cash register line or lines whenever the number of customers waiting to pay
for their merchandise warranted such action; she made the decision when the fore-
going was necessary and secured cashiers for the additional registers from among
the salesclerks in the store; Drake would go to the particular department where the
salesclerk worked, advise the department manager that she wished to use clerk A
as a cashier, and the selected clerk would then report to Drake and be assigned to
a register; if the department manager needed the particular clerk, as for servicing
a rush of customers in his department, he would so advise Drake and she would
seek a girl from another department; there were situations when the backing up of
customers at the registers became acute and, as Drake testified without contradiction,
in such situations it was her duty as head cashier to open up a new register and she
did not have to confer with department managers or other supervisors and just went
ahead and assigned girls to the new register or registers.
At no time during her employment as bead cashier did Drake physically operate
a cash register during business hours.23 She had four cashiers who acted as cashiers
on a more regular basis than the other salesclerks. One of these regulars left or,
in any event, the assistant manager, Jacobs, told Drake to select a replacement.
She chose D'Agostino, advised Jacobs of her choice, and D'Agostino received the
job. Drake's regular duty station was to stand beside or in front of the cash
registers where she observed the functioning of the registers and the cashiers. She
testified that it was part of her duties to receive complaints from customers re-
garding the registers and the cashiers and that she had to act on the complaints.
This matter of customer relations had been part of her training as head cashier.
Drake testified that if she observed a cashier performing her duties other than the
way she should she (Drake) would probably close the register, take the girl off
22 Although the majority of the employees were to work as salesclerks they all received
training as cashiers since, as we shall see, the number of cashiers varied with the numbers
of customers and the source of additional cashiers or cashiers to relieve other cashiers
was the general sales force
23 Apparently, if a new girl had to be trained to operate a register, Drake, who did the
training, would presumably show her how to operate.
MAXAM 1051
the register, and report the matter to the manager or to a department manager 24
More specifically, Drake testified that she had found employee Morrison 25 in-
adequate as a cashier. Drake reported this to the assistant manager and he said,
"Do what you think is necessary." Morrison, thereafter, did not work as a cashier 26
D'Agostino who had substantial experience as a cashier in the Niagara store was
asked who would deal with improper conduct of a cashier.27 She replied that
sometimes it would be the head cashier or sometimes it would be the management
[the store manager or assistant manager, apparently]. The witness was then asked:
Q. Would it be management, even if she [the head cashier] is present?
A. I don't remember any.
Q. As a matter of fact, if the head cashier is there, she is the one who
supervises the behavior of the cashiers?
A. Oh, yes.
Q. Isn't that exactly what she is there for?
A. Yes.
Other portions of Drake's duties as head cashier consisted in writing "over ring"
slips for the cashiers, i.e., if a customer came through the cash register line with
$20 in merchandise and had only $12, the cashier would have registered $20 before
the customer's lack of funds came to light; this would mean an "over ring" on the
register of $8, so Drake would write out a slip and place it in the register to account
for the $8 difference between what was registered and the money in the register.
At other times Drake would make price checks. This would be necessary if the price
of an article that a customer brought to the register could not be ascertained by
inspection or if the price tag had an appearance of alteration. Drake would go to
the particular department where the article was displayed and ascertain the price
either by inspection or by consulting personnel in the particular department. When
the store was very busy this price checking would consume a substantial portion
of Drake's time. At one point in her employment Jacobs told Drake to select one
of the girls to be assistant head cashier. Drake advised Jacobs of her choice and
the girl was appointed to the job. The assistant head cashier, unlike the head
cashier, operated a register regularly and took Drake's place when the latter was
on her lunch or break periods.
When one of Drake's regular cashiers had become ill on the job Drake asked the
assistant manager if the girl could go home. The assistant manager replied in the
affirmative and told Drake that in the future she had authority to allow any of her
regular cashiers to go home if they were ill.28 When cashiers were on their lunch
periods or rest periods the head cashier assigned other girls to take their place.
If the cash register lines were busy and there were customers waiting, Drake could
require a cashier who had a scheduled rest period at the time to defer her break
until a later time.
Regarding the cashing of checks in the store, Respondent introduced a printed
card entitled "Job Responsibilities" which among other things states that only the
manager, the assistant manager, and the head cashier are authorized to initial checks
prior to cashing. I credit Drake's testimony that she never saw this document and
had never been advised of the foregoing. As credibly described by Drake, the
procedure in the Niagara store regarding checks was as follows: A customer with a
check would be directed to the service desk. At the service desk the check would
have to be approved or rejected by nonsupervisory service desk personnel and a
21 Most of the cashiers, as we have seen, were basically salesclerks and their basic assign-
ment was to one of the departments on the floor. There was no department manager in
charge of cash registers as such and Drake's immediate superior was the store manager
or the assistant manager. Her relationship with department managers was as has been
described previously and was indirect and incidental.
25 One of the alleged discriminatees discussed above.
29 Elsewhere it has been noted that Muchnicki gave Morrison's inability to work on the
register as a factor in her selection for layoff. If Drake had concluded that a cashier
could not perform the duties of such a job and if there was no sales job to which the
cashier could be transferred or to which she could be returned it Is a fair Inference that
the employee would have been discharged.
27 The witness was a General Counsel witness, a leading union activist, and a close
associate of Drake.
29 This and substantially the entire description of Drake's duties is based on Drake's
testimony.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picture was automatically taken of the customer and his or her identification. When
the customer returned to the cashier with the check the head cashier would make
sure that the check had been approved for cashing. If the check was too large for
the cashier to cash, Drake would take the check to the office for cashing and return
to the cashier.
2. Fehr's duties
When Respondent Companies came into the northern New York area the first
store opened was the Union Road store in Cheektowaga, a suburb of Buffalo. Fehr
was hired as head cashier in the Union Road store in October 1959 at a pay rate of
$1.45 an hour. She was receiving $1.50 an hour when terminated on January 10,
1962. The other employees, salesclerks, and cashiers received $1.10 an hour.
Prior to her employment by Respondent, Fehr was a section manager at Neisner's,
a retail department type store. At Neisner's Fehr testified that she had trained and
supervised cashiers.
After some initial training with a manufacturer's representative on Respondent's
cash registers and with a girl from Respondent's Boston store who instructed Fehr on
Respondent's register procedures, Fehr functioned as head cashier at the Union Road
store in substantially the same way as Drake's duties at Niagara have heretofore
been described Among other things, Fehr testified that it was her duty to keep the
manager and the assistant manager informed of all problems and of the performance
of the cashiers. She stated that she reported the performances of the girls working
as cashiers under her supervision. It may be noted that one of the factors advanced
by Muchnicki for terminating Drake was the fact that as head cashier she had failed
to report to the assistant manager that $48 was missing from one of the registers.
Such a report would no doubt have included the details of the incident and an ex-
pression of opinion or a recommendation regarding the responsibility and reliability
of any cashiers who had worked on the particular register. A few minor variations
in procedure at the two stores are inconsequential and do not meaningfully distin-
guish the two head cashiers 29 However, in addition to training cashiers for the
Union Road store, Fehr had also trained girls from other stores of Respondent and
Fehr, as we have seen, received 35 cents more an hour than did Drake or $1.50 as
compared with $1.15.
G. Conclusions regarding the terminations of Fehr and Drake
Respondent states that Fehr was terminated on January 10, 1962, because she was
a supervisor and was engaging in union activity in the Union Road store. This was
the reason that Fehr states was given to her for her discharge. She does not deny
having engaged in union activity.
With respect to Drake, Respondent asserts that she was terminated on January 11,
1962, for inefficiency and this was the reason admittedly given to Drake. The
inefficiency alleged was: making a personal telephone call during working hours and
allowing a line of customers to back up at the registers without opening an addi-
tional register; also, at the hearing, Muchnicki, the manager, referred to, as factors
in the discharge, an incident about 6 months before the discharge when Drake failed
to report a shortage of $48 in one of the registers to the assistant manager who was
in charge of the store in Muchnicki's absence on vacation; Muchnicki also stated
that there had been occasions in the past when Drake had allowed lines of customers
to form without opening additional cash registers in timely fashion. Respondent
has expressly stated at the hearing that it does not contend that Drake was ter-
minated because she was a supervisor who was derelict in her duties as a supervisor.
Unlike Fehr's case, Respondent did not admit knowing of Drake's union activity
and did not expressly state that Drake was or was not a supervisor. As a defense,
Respondent has not contended that Drake was a supervisor as defined in the Act.
It is my opinion that either Drake and Fehr are both supervisors within the mean-
ing of the Act or both are employees. The principal difference between them was
that Fehr received 35 cents an hour more than Drake. There is little doubt but
that in 1959 when Fehr was interviewed for the head cashier job at the Union Road
store she would have been hired for less than $1.45 an hour if she had made known
her willingness to work for a lesser sum. At Neisner's she was receiving $1.45 and
she would not transfer to Respondent for less. Respondent therefore paid her
$1.45. Two years later, at the Niagara store, that store manager found that he
29 Regarding checks, Fehr testified that the regular procedure was that checks would
first have to go to the service desk for approval. If the girls at the service desk had
some problem about a check Fehr would sometimes be consulted but if it was a serious
problem the assistant manager would be consulted.
MAXAM 1053
could secure and had secured a girl who was both willing and able to perform the
duties of head cashier for $1.10. Perhaps the labor market was different in Niagara
Falls than it was in Cheektowaga or perhaps 1959 was different from 1961 or
perhaps in 1959 when Respondent came into the area it did not know as much about
local conditions as it did in 1961. Fehr, it is true, had had more experience in
training cashiers than had Drake and Union Road was the first store in the area.
But, as far as day-to-day duties as head cashiers, I find no significant difference in the
duties and functions of these two girls.
There is, I believe, a somewhat natural tendency to conclude that a girl receiving
$1 10 or $1.15 an hour is not a supervisor and should not be excluded from the Act's
protection. But while wages or salary are factors to be considered they are not
determinative on the question of whether or not a person is a supervisor as defined
in the Act. I do not believe that if Drake received $1.35 or $1.40, all other elements
remaining as previously described in this report, she would be any more or any less
a supervisor because of the wage factor. Nor can I be governed by any belief that
a person in Drake's position should come within the mantle of the Act's protection.
The definition of a supervisor in Section 2(11) of the Act is fairly broad and is
stated in alternative terms, and, in my opinion, it encompasses both Head Cashier
Drake and Head Cashier Fehr.
Neither of the two girls could hire and discharge or lay off employees. At the
Union Road store the manager testified, without contravention, that only the man-
ager and assistant manager could hire and discharge, although the salaried department
managers were admittedly supervisors. There is no direct testimony on this point
regarding the Niagara store but since the stores operated under the same district
manager and had the same basic operational policies and standards (and the mnager
of Niagara had formerly been assistant manager at Union Road) it is a reasonable
inference that the same policy prevailed at both stores. Authority to hire and
discharge and layoff or effectively so recommend is not a sine qua non of a super-
visor. Both head cashiers could assign or transfer employees to work as cashiers
and did exercise this authority. An employee was obliged to comply with such
assignments at the head cashier's direction. The fact that the head cashier would
defer to the department manager if one of his girls could not be spared to work as
cashier is no more than an exercise of comity between different sections of an
organization. If the master mechanic in a tool design department of a plant wished
to being in a machinist from the production machine shop he would ordinarily
advise the foreman of the machine shop and would probably secure another ma-
chinist if advised that the originally selected man could not then be spared from
production duties. Moreover, when there were large numbers of customers wait.
ing at the registers the head cashier selected and assigned additional cashiers from
the various departments without asking the departmental manager if the employee
could be spared Since some salesclerks no doubt preferred their sales duties to
the duties of a cashier and since others probably preferred cashier duty, the authority
of the head cashier affected other employees in matters of employment. The daily
conduct and performance of the cashiers was evaluated and judged wholly by the
head cashier although of course if the manager or assistant manager saw a cashier
sleeping or otherwise acting improperly he no doubt would take appropriate action.
But neither the manager nor the assistant spent their time standing at the cash
registers or directly checking and helping the cashiers in their work of registering
correct prices of merchandise and no other supervisor was responsible for the
operation of cash registers. If an employee performed inadequately as a cashier in
the judgment of the head cashier that employee would be removed as cashier and
quite evidently would not thereafter be so assigned. In a period of layoff, since the
store policy was to have all the girls qualified to work in sales and on the registers
when needed, a girl who was inadequate as a cashier was in a more vulnerable posi-
tion than was one who performed adequately in sales and on the registers. Per-
formance on the registers rested upon the judgment and evaluation of the head cashier.
The head cashiers trained most of the cashiers in the operation of the registers
and in their duties as cashiers. If some problem arose in the course of the opera-
tion of the registers, the head cashier would be the normal source to which the cashier
turned. There can be no doubt that if the head cashier observed a cashier pushing
the wrong buttons or pulling the wrong lever in dealing with a matter a little out of
the ordinary, such as an additional or supplementary purchase or the substitution of
one article of merchandise for another after the former had been recorded, she would
correct the cashier and would certainly be the one to advise and responsibly direct
her if asked for assistance. As one of the General Counsel's witnesses admitted,
when the head cashier is there she was the one who supervised the performance or
behavior of the cashiers, that is what the head cashier was there for. Since the prime
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
function of the store was merchandising and sales and since the head cashier had
no direct connection with these functions, she had little in common with other
supervisors. Her minor and confined supervisory status , however, is not the same
as no supervisory status.
Without repeating all the duties and responsibilities of the head cashiers that
have previously been set forth, it is my opinion that some of the duties were routine
in nature and required little or no discretion or independent judgment. Such tasks
as taking readings of the registers, placing bags of cash in the registers, and check-
ing prices fall within this category. But such matters as selecting and assigning
cashiers, determining when to open additional registers, and seeing that there were
cashiers to operate the registers, required the exercise of independent judgment.30
By some standards the judgment required was inconsequential. It is, of course,
not on the level of the judgment to be exercised by the chief engineer in charge
of building a multimillion hydroelectric power plant. But our approach, I believe,
must relate to the particular enterprise, the nature of the judgment required for that
particular activity, and the level of those involved. The cashier operation in this
retail store was not particularly complex but such as it was and such independent
judgment as was required from day to day was exercised by the head cashier and
the head cashier responsibly supervised the cashiers in their work as cashiers.31
The Act's definition of a supervisor applies to the small pond as well as to the big
pond and even though the supervisor in the former is proportionately or relatively
small.
It is evident that the Act could have defined "supervisor" in terms that would
have excluded minor supervisors. A definition of supervisor in terms of policy
making authority or in terms of participation in policy making discussions or in
policy making decisions, or a definition in terms limited to those having authority
to hire or discharge or layoff or to effectively recommend such action would prob-
ably limit the term supervisor to those who were more than minor arms of manage-
ment. But the definition of Section 2 (11) of the Act is broader than the foregoing
concept. It can and does include minor supervisors.
The head cashier exercised her authority, in the interest of the employer, in her
own rather limited sphere of cashiers, cash registers, and the effective manning,
directing, and functioning of that operation. Such disciplining as was entailed in
day-to-day operation was apparently limited to disqualifying and removing, as a
result of the head cashier's appraisal and judgment, any individual employee from
continuing to act as cashier. This disciplinary action was exercised by the head
cashier. A girl who was incompetent as a cashier was not discharged by the head
cashier but neither was she discharged by the store manager. The discipline en-
tailed, such as it was, either by the head cashier or by the manager if he was in-
formed of the particular case, was to return the employee to sales duty and not to
use her thereafter as cashier. In short, the head cashier exercised the normal dis-
ciplinary powers in the particular area described and if there was no head cashier
position the same normal disciplinary action would presumably have been exercised
by the assistant manager or manager. Of course, the last mentioned individuals
could discharge employees and the head cashier could not but this does not mean
that the head cashier did not discipline employees in the interest of the employer.
Disciplinary power exists without it being maximum disciplinary power and a fore-
man may be a supervisor although his disciplinary power may be less than that
su In The Great Atlantic & Pacific Tea Company, 119 NLRB 1257, 1258, the non-
supervisory head cashier had the responsibility of seeing that the registers were manned
only when the manager and assistant manager were absent
One of the factors referred to in The Ironsides Company, 87 NLRB 1564, 1565, where
It was found that certain foremen were not supervisors, was the fact "that they never
undertake action in their own initiative " and simply transmitted daily orders from one
,of the superintendents.
ai Unless the standards of judgment are looked upon as relative and related to the par-
ticular activity involved, it might be questioned whether there could be such a thing as
a head janitor supervisor of janitorial employees absent evidence that the head janitor
could hire and discharge or recommend such action But, under the definition of super-
visor in the Act a head janitor who determines whether the three other janitors should
wax the floors on Tuesday night rather than on Wednesday or Saturday or whether on
Monday night janitor A will first empty waste baskets on the third floor rather than
mop the restroom on the second floor is exercising independent judgment and is re-
sponsibly directing the other janitors Independent judgment and responsible direction
may exist regardless of how humble may be the segment of activity over which the
judgment and direction are exercised
MAXAM i0 i5
of the plant manager. Much the same may be said regarding the authority of
the head cashier to responsibly direct employees. Such direction as was entailed
was exercised by the head cashier and at times it was directed to as many as 20
or more cashiers, plus other employees assigned to the registers as wrappers or
baggers. Many supervisory jobs may have routine aspects and the authority of the
supervisor is exercised in the daily regular course of business without marked varia-
tion. The job may also have "clerical" aspect but an area for the exercise of
independent judgment may exist in humble circumstances as well as in more weighty
and more important circumstances. Few, if any, supervisors are completely in-
dependent, operating as they do within at least the basic policies of an organiza-
tion and, in most cases, operating within the confines of additionally prescribed
standards and policies. But absent language indicating that independent judgment
as referred to in Section 2(11) of the Act is limited to matters of major importance
requiring a high degree of intellectual judgment, it is my opinion that the head
cashier in the course of her duties did and was expected to exercise independent
judgment that was not merely routine or clerical in nature.
I do not regard the opinion of the employer or of the Union as determinative of
the question of whether particular employees are supervisors. The issue of su-
pervisory status is frequently a complicated one. The cases are legion in which
one party claims that certain persons are or are not supervisors. Many times they
disagree on such matters. Sometimes they agree. But ultimately in a statutory
proceeding the question of whether individuals are or are not supervisors is a.
mixed question of fact and law to be decided on all the evidence. I have con-
cluded that both head cashiers, Drake and Fehr, were supervisors, albeit minor
supervisors, within the meaning of Section 2(11) of the Act. Accordingly, they
are not employees protected by the Act and I recommend dismissal of the complaint
allegations regarding Drake and Fehr.32 I find that Respondents have not violated
Section 8(a)(1) and (3) of the Act by the discharges of Drake and Fehr.
Pursuant to a conviction that in the long run a considerable amount of time
will be saved in the adjudicatory process if tribunals would determine all issues that
have been litigated before them and concerning which a complete record has been
made, I shall pass upon the merits of Head Cashier Drake's discharge 33 Hope-
fully, this will obviate the passing of the case back and forth between the Trial
Examiner and the Board in the event that exceptions are filed and it is determined
that the instant head cashiers are employees.34 Otherwise regarded, my resolution
of the merits of the discharge may be considered to be in the nature of an arguenao
approach.
With respect to the conflict in testimony between Drake and Muchnicki as to
whether she had made a personal telephone call on January 11, thereby neglecting
her duties and allowing customers to line up at the registers without providing
additional operating registers, I credit Drake. Although Drake was shown to have
been less than a paragon of veracity in an unemployment compensation matter that
arose from her discharge and did in fact lie to that tribunal, I believe that she
was telling the truth regarding the telephone incident and that she did not telephone
during her working time. There is uncontroverted testimony by D'Agostino that she
(D'Agostino) had been falsely accused of using the telephone during working hours.
Apparently this type of accusation was rather readily made by management even
without justification, as was true in D'Agostino's case. I also find that Drake was
82 The fact that Respondent did not discharge Drake on the same basis as it discharged
Fehr, namely , that Fehr was a supervisor who was engaging in union activities , is not, in
my opinion, determinative
sa Respondent has admitted that it discharged Fehr for union activity.
"It would be less than candid to pretend that I do not regard the issue of the super-
visory status of the head cashier in this case as a close one. However, I have stated my
conclusion and, in my opinion , it is the correct conclusion . By now passing on the merits
of the discharge of Drake the impression may be given that the foregoing conclusion re-
garding Drake 's supervisory status is less than firm or convincing to the Trial Examiner
himself. Such is not the fact I pass upon the merits because the supervisory issue is
not an open-and-shut matter and by placing the emphasis on various supervisory func-
tions not exercised or possessed by the head cashier and by characterizing her functions
as routine and requiring no significant exercise of independent judgment , an opposite con-
clusion can be reached. In considering the case it was apparent to me that it would be
easier (but not correct) to find that the head cashier was not a supervisor than it would
be to reach the opposite conclusion. But for reasons previously stated, it is my opinion
that the conclusion that I have reached in the case was the correct one under the provi-
sions of the Act.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not derelict in failing to open additional cash registers to service customers. Her
testimony impressed me as credible and my estimate of her was that she was a com-
petent and alert head cashier who performed her duties conscientiously and well.
One employee, a cashier, in fact testified that Drake was particularly zealous in
opening additional registers even where this particular cashier believed that the
operating registers were adequate. The incident regarding the $48 shortage occurred
about 6 months before Drake's discharge and impressed me as a makeweight invoked
by Muchnicki as a factor in his decision to discharge Drake. Moreover, I found
Drake's uncontroverted testimony regarding the incident to be convincing. The
shortage was discovered at the end of the day shift, 5 p.m., and Drake, who was
going off duty, informed the night head cashier of the matter. They both talked
to the cashier on the register about the matter. Except for a brief interval, Drake
was at the store until 6 p.m. that night. She left when the front office manager,
Mrs. Duforth, told her that the shortage had been found. The next morning Mrs.
Duforth said that she had made a mistake and the shortage still existed. The
assistant manager, Jacobs, apparently learned of the matter that same morning,
evidently from either Mrs. Duforth or the night head cashier. Jacobs discussed
the matter with Drake and subsequently the cashier on the register was discharged.
At the hearing Muchnicki asserted that Drake was derelict in not reporting the
matter to Jacobs. Under the circumstances it would appear that since both the
night head cashier and Mrs. Duforth were thoroughly familiar with the matter,
it is not unreasonable to assume that Drake could and did conclude that a further
report was unnecessary. Neither Jacobs, nor the night head cashier, nor Duforth
testified at the hearing. In any event, even if Drake should have reported the
matter to Jacobs I am not persuaded that this incident, about 6 months before the
discharge, was one of the reasons for the termination of Drake.
The uncontroverted and credible testimony of employee D'Agostino is that on
January 5, 1962, she heard Drake speaking to Garcia, the night head cashier, about
the Union. Among other things, Drake asked Garcia what she thought about hav-
ing a union in the store. About 10 or 15 minutes later, D'Agostino heard Garcia
tell Supervisor Mort that Drake had been talking to her about the Union. We have
elsewhere described Mort's interest in the union sentiments of employee Drozdowski
and his statement that Assistant Manager Jacobs was, in effect, cognizant of union
activity of certain employees and was very mad about the fact that they had signed
union cards. Under these circumstances and the fact that Respondent's supervisors
were admittedly alert to and aware of union activity by the union organizers in the
store and kept them under close observation, it is a fair inference that since Drake
had spoken to union organizers in the store on several occasions and had signed a
union card in the store, her prounion sentiments were known to Respondent. Also,
her close association with Cashier D'Agostino, the leading and known union ad-
vocate, is, in my opinion, further reason for concluding, as I do, that Drake's
prounion sentiments and activity were known to Respondent.
I find that Drake was discharged not for the reasons asserted by Respondent but
because of her union activities and sentiments and because Respondent in its op-
position to the Union regarded Drake, the head cashier, as a distinct asset to the
Union in its organizational efforts. Accordingly, I find that Respondent has violated
Section 8(a)(1) and (3) of the Act by the discharge of Drake and Fehr, the head
cashiers, assuming, of course, that they are employees and not supervisors within
the meaning of the Act. On this premise, the customary remedy of an offer of
reinstatement to their former or substantially equivalent positions, with backpay
to make them whole, would be recommended.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, Maxam Niagara, Inc., d/b/a Maxam, set forth above,
occurring in connection with the operations of Respondent, have a close, intimate, and
substantial relation 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 has violated the law in certain respects, I shall
recommend that it cease and desist therefrom and post a remedial notice.
RECOMMENDATIONS
On the basis of the foregoing findings of fact and conclusions of law, and the
entire record, it is recommended that Respondent, Maxam Niagara, Inc., d/b/a
Maxam, its officers, agents, successors, and assigns, shall:
MAXAM 1057
1. Cease and desist from:
(a) Threatening employees that they will lose benefits if Local 212, Retail Clerks
International Association, AFL-CIO, become their collective-bargaining representa-
tive.
(b) Interrogating coercively any employee regarding the employee's union ac-
tivity or union sentiments.
(c) Announcing or enforcing a rule broadly prohibiting its employees from
engaging in union solicitation on company property during their nonworking time.
(d) in any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist the above-named or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in any
other concerted activity for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any and all such activities.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Post at its store in Niagara Falls, New York, copies of the attached notice
marked "Appendix." 35 Copies of said notice, to be furnished by the Regional
Director, Third Region, shall, after being signed by Respondent's authorized repre-
sentative, be posted by Respondent immediately upon receipt thereof, and be main-
tained for a period of 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director, Third Region, in writing, within 20 days from
the receipt of this report, what steps the Respondent has taken to comply herewith.36
"'If these Recommendations are adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommendations of a Trial Examiner"
in the notice. If the Board's Order Is enforced by a decree of a United States Court of
Appeals, the notice shall be further amended by substituting the words "Pursuant to a
Decree of the United States Court of Appeals, Enforcing an Order" for the words "Pur-
suant to a Decision and Order."
36If these Recommendations are adopted by the Board, this provision shall be modified
to read "Notify said Regional Director, in writing, within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we notify our employees that:
WE WILL NOT threaten employees that they will lose benefits if Local 212,
Retail Clerks International Association, AFL-CIO, becomes their collective-
bargaining representative.
WE WILL NOT coercively interrogate any employee regarding the employee's
union activity or union sentiments.
WE WILL NOT maintain or enforce a rule broadly prohibiting employees from
engaging in union solicitation on company property during their nonworking
time.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization, to form labor
organizations, to join or assist the above-named or any other labor organization,
to bargain collectively through representatives of their own choosing, and to
engage in any other concerted activity for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any and all such activities.
MAXAM NIAGARA, INC., D/B/A MAXAM,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
Employees may communicate directly with the Board's Regional Office, Fourth
Floor, The 120 Building, 120 Delaware Avenue, Buffalo 2, New York, Telephone
Number, Tl. 6-1782, if they have any question concerning this notice or compliance
with its provisions.