S. E. Nichols, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1987

284 N.L.R.B. 556 (N.L.R.B. 1987)

556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
S. E. Nichols, Inc. and Local No. 1, United Food
and Commercial Workers International Union,
AFL-CIO. Cases 3-CA-9304 and 3-CA-9714
30 June 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 31 December 1980 Administrative Law
Judge Josephine H. Klein issued the attached deci-
sion. The Respondent and the General Counsel
each filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' fmdings,2
The Respondent has excepted to the Judge's consolidation of Case 3-
CA-9304, in which the hearing had closed, with Case 3-CA-9714, in
which the complaint had just issued. It contends (1) that the judge "may
have already reached certain determinations and conclusions" in Case 3-
CA-9304 and thus her decision on issues in that case would prejudice her
determinations and (2) that the issuance of the complaint in Case 3-CA-
9714' may affect considerations already made m Case 3-CA-9304 and
therefore may have made it impossible for her to render a fair decision in
the earlier case. The record shows, however, that the two cases involve
the same parties and factually related events and that both parties had a
full and fair opportunity to examine all the witnesses and to litigate all
the issues. Furthermore, on our consideration of the entire record in these
proceedings we find no evidence that the judge prejudged the cases,
made prejudicial rulings, or demonstrated bias against the Respondent in
her analysis and discussion of the evidence. We therefore find no merit to
the claim that the Respondent was denied due process by the consolida-
tion or to its argument that the judge exhibited bias.
The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.241 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
At the hearing in Case 3-CA-9714 the parties stipulated that the
record from the 10(j) injunction portion of this proceeding be accepted in
lieu of testimony before the judge. In her decision the judge noted that
the court made no credibility findings, stated that her appraisal of credi-
bility was based on considerations other than demeanor, and in all but the
following three instances stated the basis for crediting testimony: employ-
ee Pumiho's testimony that Store Manager Hathorn asked him why "the
Federal Labor Board wanted [Punulio] to testify"; Pumilio's testimony
that District Supervisor Korcz told him to remain henceforth in his de-
partment; and employee Klimacek's testimony that, contrary to past prac-
tice, she had to load cases of oil onto a pallet unassisted. The Respondent
contends that all the judge's credibility resolutions were based on de-
meanor. Concerning the above three instances we find nothing m the
judge's decision to indicate, and the Respondent has not shown other-
wise, that her crediting Pumilio and Klimacek in these instances was
based on demeanor rather than other considerations. Moreover, the judge
generally credited Pumdio and Klimacek, rather than the supervisor, be-
cause they testified against the Respondent while in its employ. Such tes-
timony is against their own interests and therefore is more reliable than
the supervisor's testimony. Rodeway Inn of Las Vegas, 252 NLRB 344
(1980). Further, bias and partiality are not established merely because the
judge resolved factual conflicts in favor of the General Counsel's wit-
nesses. NLRB v. Pittsburgh Steamship Co., 337 U.S. 656 (1949).
We correct four inadvertent errors of the judge. First, in fn. 24 of her
decision, the judge incorrectly stated that the Respondent's president,
Brecker, testified at the district court trial that all employee meetings
and conclusions 3 only to the extent consistent with
this Decision and Order.
1. Thp judge found that the Respondent's pre-
1980 no-solicitation and no-distribution rule violat-
ed Section 8(a)(1). Although she relied on then-
current Board law which held that rules prohibit-
ing employee solicitation and distribution during
"working time" are presumptively valid,4 the
judge found that the Respondent's use of the
phrase "the working time" (emphasis added) ren-
dered the rule fatally ambiguous. The judge rea-
soned that the Respondent's rule would be under-
stood by employees as being broader in scope than
a lawful reference to times when employees would
be actually at work. In effect, the judge equated
this rule using the phrase "the working time" with
a presumptively invalid rule using the phrase
"working hours." We disagree with this analysis.
We fail to see any meaningful distinction between
"working time" and "the working time" or how
the addition of "the" as a preface to "working
time" causes that term to become ambiguous; nor
do we believe that the employees would see any
significance to this difference in wording. In either
construction of the term we fmd that it "connotes
periods when employees are performing actual job
duties, periods which do not include the employ-
ees' own time such as lunch and break periods."
Our Way, 268 NLRB at 395. Accordingly, we shall
dismiss the 8(a)(1) allegation with respect to the
pre-1980 rule.
were taped when, in fact, it was District Supervisor Korcz who so testi-
fied in the hearing in Case 3-CA-9304. Second, the judge identified two
of the Respondent's witnesses in the district court hearing in Case 3-CA-
9714 as Rose Stagliano and Edward Lintz. The record discloses that the
two witnesses were Beverly Stagliano and Rose Ceneviva. Third, the
judge found that Brecker spoke at the 18 April employee meeting when,
in fact, it was Korcz. Finally, the judge stated that the Respondent oper-
ates 42 stores in 3 States. The record establishes that the Respondent op-
erates 43 stores in 10 States. These inadvertent errors do not affect the
conclusions reached in this case.
We agree with the judge that the Union's failure to file objections to
an election held in Case 3-RC-7578 did not constitute an admission of
the absence of merit in complaint allegations about conduct which oc-
curred during the critical preelection period. We disavow, however, any
reliance on the judge's discussion of the reasonableness of the Union's ac-
tions. The failure to file objections has no legal relevance to the merits of
unfair labor practice allegations involving Sec. 8(a)(1), (3), and (4), re-
gardless of the reasons for such failure.
3 We agree with the judge's conclusion that the Respondent violated
Sec. 8(a)(3) and (1) of the Act by discharging employees Reinhardt, Vin-
cent Styles, and Burkle. Her analysis is consistent with Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981). See also Limestone
Apparel Corp., 255 NLRB 722 (1981).
4 Essex International, 211 NLRB 749 (1974). The Board later partially
overruled Essex in T.R.W. Bearings, 257 NLRB 442 (1981), holding that
rules prohibiting employees from soliciting during "working time" with-
out further clarification were, like rules prohibiting such activity during
"working hours," presumptively invalid. However, the Board subsequent-
ly reversed T.R.W. and returned to the Essex standard. See Our Way,
Inc., 268 NLRB 394 (1983). We also rely on Our Way in adopting the
judge's fmding that the Respondent's revised rule using the phrase
"working hours" is presumptively invalid.
284 NLRB No. 55
S. E. NICHOLS, INC. 557
2. The judge also found that the Respondent vio-
lated Section 8(a)(1) by requesting that employees
report on organizing activities. In part, the judge
relied on a section of the Respondent's employee
handbook. That section, entitled "Your Employee
Rights Under 4 Union Organization Drive," in-
cludes a paragraph reading:
Remember, do not sign a card because you are
threatened, tell us and we will protect you. It
is your right to have a union. It is your right
not to have a union. Our Company will try to
see to it that your rights are preserved no
matter how you choose. Tell us if someone is
trying to stop your freedom of choice.
The judge also relied on her findings that on sev-
eral occasions during meetings with employees,
District Supervisor Korcz advised employees to
report "harassment," "threats," or "trouble" to
management officials, including its attorney, and
that Korcz also said that the Respondent's attorney
would help the employees with respect to union
harassment. The judge found that Korcz' com-
ments to employees demonstrated that he subjec-
tively equated "harassment" with solicitation of
union support and the handbook's reference to
"freedom of choice" with the absence of such so-
licitation and that therefore Korcz was inviting em-
ployees to report on union activities. The judge
found that both the oral and written requests for
information were unlawful and cited S. E Nichols
of Ohio, Inc., 195 NLRB 939 (1972), in which the
Board had found similar invitations in the context
of the corresponding section of the handbook to be
violative of Section 8(a)(1).
We agree with the judge's analysis and findings
with respect to the oral requests for information
about "harassment" and "trouble." These words
are vague and ambiguous in the context of union
organizing and reasonably could encompass per-
fectly lawful union efforts to persuade or even
merely to inform employees about the asserted ben-
erns of unionization. However, we disagree with
the judge with respect to the quoted portion of the
handbook and to Korcz' oral request for reports on
"threats." We find that here the Respondent's re-
quest for information merely advised employees
that the Respondent would be available to protect
employees froth conduct that might restrain or
coerce them in the exercise of their Section 7
rights. We note that in S. E. Nichols of Ohio the
Board found it unnecessary, in the absence of a
specific allegation, to pass on whether the hand-
book language was unlawful per se. Here, we must
address the issue, and we find that the handbook
provision is not reasonably subject to an interpreta-
tion that would unlawfully affect the exercise of
Section 7 rights. Regardless of Korez' equation in
his mind of "freedom of choice" with no soliciting
for the Union, there is no evidence that he explicit-
ly expressed that view to the employees. We there-
fore shall dismiss the 8(a)(1) allegation concerning
the quoted portion of the handbook and Korcz' re-
quest for information on threats.
3. In addition to the provision quoted above, the
handbook also includes the following paragraph:
Do not sign a card because you are told that if
you sign now, you will not have to pay initi-
ation fees, and that non-signers will be forced
to pay such fees if the Union gets certified.
The judge found that even though the underlining
of the words "do not sign a card" in this paragraph
deemphasizes the qualifications that follow, the ad-
monitions by themselves fall within the permissible
limits of Section 8(e) in that they contain no threat
or promise of benefit. However, the judge went on
to consider these statements in the context of other
statements found in the employee handbook. The
pre-1980 version also admonished employees to
"remember to stay out of problems, the only paper
to sign is your pay receipt." The judge found that
this was a coercive discouragement from signing
authorization cards because the statement appeared
in the section of the handbook that also stated that
one company "benefit" was protection from "being
exploited" or being taken advantage of by "outsid-
ers" who most frequently were "Union Organiz-
ers."
The judge found that all these statements taken
together against the background of the Respond-
ent's other unfair labor practices constituted unlaw-
ful "brinksmanship" and thus violated Section
8(a)(1). Although we agree with the judge that the
now-deleted reference to signing only pay receipts
is an implicit threat and thus a violation of Section
8(a)(1), we note that the judge does not mention
that the handbook also states clearly, "So, if the
union organizers call on you and you want the
union, you should sign the card." Absent the pay
receipt statement, the handbook in its entirety is
not so unbalanced in its presentation to constitute
interference, coercion, or restraint with respect to
the employees' Section 7 rights. Accordingly, we
shall dismiss the general complaint allegations re-
garding the handbook in its 1980 edition.5
5 Contrary to our dissenting colleague, we affirm the judge's finding
that the Respondent violated Sec. 8(a)(1) through Korcz' telling several
employees that they could recall or withdraw authorization cards that
they might have signed. Although Korcz did not explicitly "ask" em-
ployees to withdraw their cards, the judge correctly found Korce re-
peated comments to be coercive in the context of the Respondent's nu-
merous contemporaneous unfair labor practices. The judge particularly
Continued
558

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4. At an 18 April 1980 employee meeting, Dis-
trict Supervisor Korcz repeated the earlier state-
ments of Respondent's president, Manfred Brecker,
that it was futile for employees to resort to the
Board because the Respondent would win in the
end. The judge found that Brecker violated Section
8(a)(1) of the Act but made no findings with regard
to Korcz. We find that Korcz' repetition of
Brecker's statements also violated Section 8(a)(1) of
the Act because it intefered with the employees'
use of the Board and its processes. Scott's, Inc., 159
NLRB 1795, 1797-1798 (1966).
The judge also found that Korcz condoned the
Respondent's use of unlawful campaign tactics, but
did not specifically find that this conduct violated
the Act. The record shows that on 24 April 1980
the Union sent employees a letter, which stated
that the Respondent was continuing its use of the
"scare tactics" at the Herkimer store that it had
used to defeat the Union at its Marcy store, located
13 miles away. At an employee meeting 2 days
later, Korcz acknowledged that the Respondent
would continue to engage in the same conduct—
conduct that Korcz well knew was unlawful. See
S. E. Nichols Marcy Corp., 229 NLRB 75 (1977). A
continuation of the unlawful conduct at the Herki-
mer store had already resulted in the Respondent's
discharging the four leading union adherents and
engaging in numerous 8(a)(1) violations. We find
that Korcz' threats to continue to engage in known
unlawful conduct violated Section 8(a)(1) of the
Act.6
5. Employees June Klimacek and Fred Pumilio
informed Store Manager Robert Hathorn that they
had received subpoenas from the General Counsel
to appear at the March 1980 hearing in Case 3-
CA-9304. Hathorn asked Klimacek if she knew
what it was about, and she replied, "Not really."
He also asked her if she had received any tele-
phone calls about the subpoena and she answered
in the negative. Later that day Hathorn spoke to
Pumilio and "wondered" why the Board wanted
him to testify. Pumilio said that he did not know
and ignored Hathorn's repetition of the inquiry.
The judge acknowledged that Hathorn did not di-
rectly interrogate either employee about his or her
forthcoming testimony. However, she found Hath-
noted that Korcz' "advice" was given following the four discriminatory
discharges and that Korcz had attributed them in substantial part to the
discrimmatees' having solicited cards. In these circumstances, the em-
ployees could reasonably assume that Korcz was telling them to with-
draw their support for the Umon or risk the same fate as befell the discn-
mmatees.
6 The judge found that the Respondent violated Sec. 8(a)(1) of the Act
by Korea' statements to employees that they could refuse to speak to
Board agents investigating the case. The record fails to show, however,
that Korcz or any of the Respondent's representatives made such state-
ments. Therefore we shall reverse and dismiss this 8(a)(1) allegation.
orn's "implied probing" to be coercive interroga-
tion. We disagree and find no violation of Section
8(a)(1) of the Act. Hathorn's questioning of Klima-
cek and Pumilio was indirect, was not pressed fol-
lowing the employees' noncommittal or negative
responses, and was totally unaccompanied by
threats or promises. Accordingly, under Rossmore
House, 269 NLRB 1176 (1984), we find Hathorn's
behavior was noncoercive and thus we shall dis-
miss the allegation of unlawful interrogation based
on it.
6. The judge found that the Respondent violated
Section 8(a)(1) by "in effect" adopting certain re-
marks made at employee meetings on 18 April and
5 June 1980 by employee Edward Lintz. On 18
April at a meeting called by Korcz, during which
other employees also spoke, Lintz spoke for ap-
proximately 15 minutes during which he stated that
if the Union won the election, the store might close
down or some employees would be laid off and re-
maining employees wOuld have increased work-
loads. No other evidence was provided detailing
the remainder of Lintz' comments. According to
three witnesses, Korcz nodded his head in agree-
ment during Lintz' speech. This event formed the
basis of the allegation in the 8 May 1980 complaint
in Case 3-CA-9714 that Lintz was the Respond-
ent's agent whose statements violated Section
8(a)(1).
In the other incident, on 5 June, Brecker con-
vened a meeting of all store employees and store
officials during which he asked each individual
named in the complaint as having committed a vio-
lation to rise and deny the allegations against him.7
Lintz, who was named in the complaint, took the
opportunity to repeat his comments of 18 April.
Employee IClimacek specifically testified, however,
that Brecker then told the assembled employees
that Lintz was an employee and that anything he
said was not a reflection on the Company. The
judge acknowledged this summary disavowal of
the Respondent's responsibility for or acceptance
Of Lintz' remarks but stressed that Brecker did not
specifically deny their substance. It was on this
latter basis, as well as her finding that the Respond-
ent "permitted" Lintz to speak at length on 18
April and signified approval through Korcz' non-
verbal behavior, that she found an adoption of
Lintz' views by the Respondent.
7 We adopt the judge's rmdmg that Brecker violated Sec. 8(a)(1) at the
employee meeting on 5 June 1980 In so doing, we agree with her that
Brecker's overall use of ridicule and parody directed at the Board and its
agents was not itself unlawful, but that his specific request in this context
of "manipulated hilarity" that three chscriminatees also respond in the
presence of their fellow employees to complaint allegations naming them
was coercive and thus violated Sec. 8(a)(1).
S. E. NICHOLS, INC. 559
Regarding Lintz' remarks on 5 June, we cannot
agree that Brecker should have been required to go
beyond a blanket disavowal of a rank-and-file em-
ployee's authority to speak for the Respondent in
order not to be charged with adopting each of
Lintz' statements. Because Brecker's statement on 5
June was made directly following Lintz', the as-
sembled employees could have no doubt that Lintz
was speaking for himself on 5 June and did not
bind the Respondent.
Concerning the earlier events on 18 April, Korcz
testified that prior to the meeting he did not know
that Lintz was going to speak or what he was
going to say. According to Korcz, all employees in
attendance were free to speak, were encouraged to
do so, and several did take advantage of the oppor-
tunity. Although three of the employees observed
Korcz "nodding" his head during unspecified por-
tions of Lintz' 15-minute speech, this evidence is
insufficient to indicate Korcz made such a move-
ment during that portion of the speech relied on as
the basis of the complaint allegation. Moreover, the
"nodding" of a listener's head during a speech, or
in this case a series of speeches, is subject to inter-
pretations other than "approval." Owing to this
ambiguity there is an insufficient factual basis for
finding ratification by the Respondent of Lintz'
views on the effects of unionization. Accordingly,
we shall dismiss the complaint allegations concern-
ing Lintz without finding it necessary to consider
whether his remarks themselves were violative of
the Act if attributable to the Respondent.
7. In affirming the judge's conclusion that the
Respondent violated Section 8(a)(4) by denying
employee Margaret Goldsmith a raise in retaliation
for her testimony at a Board hearing, we find that
contemporaneous raises given other employees, ad-
ditional duties assigned to Goldsmith, and the com-
ments of the Respondent's agents in denying Gold-
smith's request for a raise establish that she ordinar-
ily would have received a raise sometime in April
or May 1979. We agree with the judge that this
disparity in wage treatment was an act of unlawful
discrimination.°
REMEDY
We adopt the judge's recommended remedies
with some modifications. We first agree that the
extent of the 8(a)(1), 9 (3), and (4) violations war-
s As part of the backpay remedy pertaining to Goldsmith, the judge
recommended that she also be made whole for wage losses suffered prior
to 2 April 1980, the date on which the Respondent discriminatorily
denied her a wage increase. We find no reason to commence Goldsmith's
backpay period earlier than 2 April 1980, and we amend the recommend-
ed remedy accordingly.
9 Contrary to our dissenting colleague we affirm the judge's fmdings
that the Respondent violated Sec. 8(a)(1) by timing the announcement of
rants a broad cease-and-desist order, reinstating the
employees unlawfully discharged, and making em-
ployees whole for losses caused by the Respond-
ent's unlawful conduct. 1 ° We further agree with
the judge that certain additional remedies are nec-
essary to dissipate fully the coercive effects of the
unfair labor practices found, to give S. E. Nichols
employees an understanding of their Section 7
rights, and thereby to effectuate the remedial poli-
cies of the Act. Specifically, the judge is correct in
concluding that the Respondent's prior history of
violations at 5 of the other stores in its 43-store op-
eration requires the imposition of extraordinary
notice and access remedies.
The judge found the Respondent's history before
the Board and the courts" to be similar to that in
the I P. Stevens line of cases and recommends,
with modifications, the corporatewide notice and
access remedies parallel to those ordered by the
Board in J P. Stevens & Co., 244 NLRB 407
(1979).12
a "shrinkage" bonus to influence the election and by offering to provide
its own counsel to employees during their interviews with Board agents.
Concerning the bonus announced 2 weeks before the election, there is no
written statement of the policy underlying it and no evidence that the
Herkimer employees had previously known of it. In particular, the judge
found that the Respondent provided no evidence on the formula for de-
termining a store's entitlement to a bonus or its timmg and amount and
no evidence that the Herkimer store has actually earned such a bonus.
We therefore agree with the judge that the granting of the bonus to two
nearby stores does not prove that the bonus was awarded pursuant to any
established company policy. The judge correctly found that the Respond-
ent failed to present a defense to the General Counsel's prima facie case.
See NLRB v. Tommy's Spanish Foods, 463 F.2d 116 (9th Cir. 1972).
Concerning the offer of counsel, we agree with the Judge's clear expo-
sition of the reasons the Respondent's offer is distinguishable from the
statements found not coercive by the courts in Garry Mfg. Co., 630 F.2d
934 (3d Cir. 1980), and Florida Steel Corp., 587 F.2d 735 (5th Cir. 1979).
Essentially, telling employees that they might need protection in an action
against the Respondent would tend to dissuade them from cooperating
with the Board. Secondly, here the Respondent did not recommend ob-
taining independent counsel but offered only its own attorney, thus, in the
judge's words, "temptingly proposing a serious conflict of interests."
19 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. § 6621.
" See S. E. Nichols Marcy Corp., 229 NLRB 75 (1977), enfd. by con-
sent judgment No. 77-4154 (26 Cm 1977); S. E. Nichols Co., 156 NLRB
1201 (1966), enfd. in relevant part 380 F.2d 438 (2d Cir. 1967); S. E.
Nichols-Dover, Inc., 159 NLRB 1071 (1966), enfd. 374 F.2d 115 (3d Cir.
1967); 165 NLRB 924 (1967); 167 NLRB 832 (1967), enfd. 414 F 2d 561
(3d Cir. 1969), cert. denied 397 U.S. 916 (1970); 179 NLRB 249 (1969),
enfd. 73 LRRM 2816 (3d Cm 1970), cert denied 400 U.S. 831 (1970); S.
E. Nichols of Ohio, Inc., 195 NLRB 939 (1972), enfd. 472 F.2d 1228 (6th
Cir. 1972); NLRB v. S. E. Nichols of Ohio, Inc. 100 LRRM 2840 (N.D.
Ohio 1978), affd. 592 F.2d 326 (6th Cir 1979) (civil contempt); 258
NLRB 1 (1981), enfd 704 F.2d 921 (6th Cir. 1983); S. E Nichols Shilling-
ton Corp., 195 NLRB 189 (1972), enfd 475 F 26 1395 (3d Cir. 1973), cert.
denied 414 U.S. 860 (1973). Unreported cases include: NLRB v. S. E.
Nichols Shilhngton Corp., Civil Action No. 75-1751 (3d Cir. 1975) (con-
tempt); DeProspero v. S. E. Nichols Marcy Corp., No. 76 CV 5 (D.N.Y.
1976) (10(j) injunction granted); Eisenberg v. S. E Nichols, Inc., Civil
Action No. 78-2613 (D.N.J. 1979) (10(j) injunction granted).
12 These include. (1) Posting of the Board notice in each store, to be
signed by Brecker, Korcz, and the respective store manager; (2) mailing
Continued
560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Respondent's many previous acts of miscon-
duct over the 16-year period preceding the 1979-
1980 unionization effort at the Herkimer store are
detailed in the cases cited at footnote 11. In par-
ticular, in S. E. Nichols of Ohio, Inc., 258 NLRB 1
(1981), the Board stated that as of 1981 the Re-
spondent's history of committing unfair labor prac-
tices clearly demonstrated that it had repeatedly
committed unlawful acts in response to attempts to
organize its stores. Specifically, with respect to the
8(a)(3) discriminatee at issue in S. E. Nichols of
Ohio, whose original discharge was first found un-
lawful in 195 NLRB 939 (1972), the Board stated,
"Scrutiny of this pattern of illegal conduct clearly
indicates Respondent's bad faith in complying with
the Board's and the court's remedial orders." The
judge in the instant proceeding is therefore justified
in characterizing the Respondent as a "recidivist"
who has at the Herkimer store continued to engage
in an "obdurate flouting of the Act."
We join the judge in noting the repetitions of
President Brecker's attacks on the Board's neutrali-
ty through his telling employees that the Board fa-
vored unions and unionization, and we affirm her
conclusion that extraordinary notice and access
remedies are necessary to "clear the atmosphere
poisoned by Respondent's unrelenting, egregious,
and pervasive trampling on its employees' statutory
rights." We disagree, however, with the judge's
recommendation that the extraordinary remedies be
applied corporatewide to all 43 stores in the Re-
spondent's operation. The massive multiplant viola-
tions by J. P. Stevens are not parallel to S. E.
Nichol's history, which involves a smaller number
of proceedings, each restricted to one facility. Al-
though it is true that never before with this Re-
spondent have we found it appropriate to extend
the geographical scope of the notice and access
remedy beyond the individual stores where the vio-
lations occurred, we will this time approve a limit-
ed expansion to encompass all eight stores in the
of the notice to each employee with an explanatory letter signed by
Brecker; (3) a reading of the notice by Brecker in each store; (4) union
access to bulletin boards in all stores during a 2-year period with access
to last for 1 year from the date of request; (5) affording two union repre-
sentatives access for 30-minute speeches within 10 days of any election
scheduled at any S. E. Nichols store within 2 years; (6) affording any
union an opportunity to be present at and to respond to any speech given
by the Respondent at any store concerning union representation within
the next 2 years, (7) furnishing unions with lists of the names, addresses,
and classifications of employees at any store where an organizational
campaign is bemg conducted and to keep such lists current at the end of
each 6 months during a 2-year period. Additionally the Judge recom-
mended that the Respondent give each supervisor at its Herkimer,
Marcy, and New Hartford, New York stores a copy of the notice and
give written instructions to each supervisor concernmg compliance with
the notice and that the Respondent publish the notice in company publi-
cations and in newspapers in Herkimer and Utica, New York
corporate division supervised by Henry Korcz.13
In our view this remedy is proportionate to the
violations, when viewed in historical context. Ac-
cordingly, the judge's recommended Order is
modified below."
ORDER
The National Labor Relations Board orders that
the Respondent, S. E. Nichols, Inc., Herkimer,
New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening employees with loss of employ-
ment, loss of benefits, or increased work duties if
they choose to be represented by a labor organiza-
tion.
(b) Soliciting employee complaints and griev-
ances and promising to remedy them.
(c) Promising employees any wage increase,
bonus, or other benefits to discourage membership
in or support of any labor organization.
(d) Soliciting employees to withdraw or retract
their authorizations for union representation.
(e) Coercively directing or advising employees
not to sign union authorization cards or any papers
other than pay receipts.
(f) Telling employees that the Respondent or its
counsel would learn the identity of employees who
signed union cards.
(g) Telling employees that discriminatorily dis-
charged employees had not been and would not be
reinstated or that any such employees who are re-
instated will not remain in the Respondent's
employ.
(h) Promulgating, maintaining, or enforcing any
rule prohibiting employees from soliciting or dis-
tributing written materials on behalf of any labor
organization during working time without affirma-
tively and clearly specifying the times during
which employees may lawfully engage in such ac-
tivities.
(i) Imposing or enforcing any restriction or limi-
tation on solicitation and distribution by any em-
ployee on behalf of any labor organization greater
13 The record shows that President Brecker personally participated in
unfair labor practices at four other stores prior to the events at Herkimer,
two of them located in District Supervisor Korcz' district, and Korcz
joined him at one of them We fmd, however, no evidence to support the
judge's suggestion that their various career promotions over the years
have been at least in part intended as corporate "rewards" for their mis-
conduct under the Act Korcz supervises five stores in upstate New York
(New Hartford, Marcy, Herkimer, (iloversville, and Amsterdam) and
three stores in Ohio (Wooster, Ashtabula, and New Philadelphia).
14 We do not adopt the judge's recommendation that the Respondent
publish the notice in company publications and in local newspapers in
Herkimer and Utica, New York We find such publication is unnecessary
because the postmg and reading of the notice will properly and fully
inform employees of the Respondent's violations.
S. E. NICHOLS, INC. 561
than restrictions on solicitation or distribution by
employees for any other purpose.
(j) Telling employees that an employee was dis-
charged for engaging in protected concerted activi-
ties.
(k) Keeping in effect or distributing its employee
handbook (or any past or future version thereof) so
long as it contains its present rules concerning so-
licitation and distribution or the advice that em-
ployees sign no papers other than pay receipts
found in the section entitled "Employee Rights &
Unions—Your Employee Rights and Legal Rights
under a Union Organization Drive."
(1) Expressing approval of, and threatening to
engage in, conduct similar to that which has previ-
ously been found to violate the Act.
(m) Withholding wage increase from any em-
ployees because they have testified on behalf of the
General Counsel in a Board proceeding or because
they support a labor organization.
(n) Discharging, embarrassing and ridiculing, dis-
ciplining, or subjecting to increased supervision or
otherwise discriminating against any employees be-
cause they have testified in any Board proceeding,
or have been named in any unfair labor practice
charges or complaints, or because they support or
have supported any labor organization or have en-
gaged in protected concerted activities.
(o) Soliciting employees to inform the Respond-
ent of the union or other protected activities of
other employees.
(p) Offering the assistance of the Respondent's
counsel to employees in connection with Board in-
vestigations or proceedings.
(q) In any other manner interfering with, re-
straining, or coercing its employees in the exercise
of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Dorothy C. Reinhardt, Douglas Vin-
cent, Kristin Burkle, and Denise Styles immediate
and full reinstatement to their former positions or,
if such positions no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or other rights or privileges previously en-
joyed, and make them whole for any loss of earn-
ings and other benefits suffered as a result of the
discrimination against them.
(b) Grant Margaret Goldsmith a wage increase
of not less than 15 cents per hour.
(c) Make all the employees whole for any loss of
pay they have suffered by reason of the Respond-
ent's discrimination against them in the manner set
forth in the remedy section of the judge's decision
and this Decision and Order.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Remove from its records and destroy all ref-
erences to the written warnings given to employee
Fred Pumilio on 26 March 1980 and to employee
June E. Klimacek on 7 April 1980 and to the dis-
charges of Dorothy Reinhardt, Douglas Vincent,
Kristin Burkle, and Denise Styles. Notify each of
the cliscriminatees in writing that this has been
done and that their respective disciplines will not
be used against them in any way.
(f) Remove from its employees' handbook the
rules concerning employee solicitation and distribu-
tion of literature.
(g) Post in conspicuous places at all its stores in
the corporate district supervised by Henry Korcz
copies of the attached notice marked "Appendix
A."15 Copies of the notice, on forms provided by
the Regional Director for Region 3, after being
duly signed on behalf of the Respondent by Presi-
dent Manfred Brecker, by Henry Korcz, and by
the highest managerial official of the store in which
the notice is posted, shall be posted by the Re-
spondent immediately upon receipt and maintained
by it for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other mate-
rial.
(h) Reproduce and mail to the home of each of
its employees at all its stores in Korcz' district a
facsimile of the signed notice, together with a letter
appended hereto as "Appendix B." The letter shall
be reproduced on the Company's regular business
stationery and signed by President Brecker and by
the highest official of the recipient's store. The Re-
spondent shall provide the Regional Director for
Region 3 with proof of such mailing.
(i) Reproduce and give to each supervisor at its
Herkimer, Marcy, and New Hartford, New York
stores a facsimile of the notice, and give written in-
structions, signed by the highest official at each
store, to each supervisor to comply with the provi-
sions of the notice. The Respondent shall provide
15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Regional Director for Region 3 with proof of
compliance with this paragraph.
(j) At such reasonable time after the entry of this
Order as the Board may request, convene during
working time all its employees in each of its stores
in Korcz' district and also the supervisors at the
Herkimer store, and have the notice read by Presi-
dent Manfred Brecker. The Board shall be afforded
a reasonable opportunity to provide for the attend-
ance of a Board agent at all such meetings.
(k) On request of a union, made within 2 years
from the date hereof, immediately grant such union
and its representatives reasonable access to the
store bulletin boards and all places where notices
to employees are customarily posted at each of the
Respondent's stores in Korcz' district for a period
of 1 year from the date of request.
(1) In the event that during a period of 2 years
following entry of this Order any supervisor or
agent of the Respondent convenes any group of
employees at any of the Respondent's stores in
Korcz' district and addresses them on the question
of union representation, give notice to any union
attempting to organize the employees and afford
two union representatives a reasonable opportunity
to be present at such speech and, on request of the
representatives, permit one of them to address the
employees for the same amount of time as the Re-
spondent's address.
(m) If within the next 2 years the Board sched-
ules an election at any of the Respondent's stores in
Korcz' district then, on request by any participat-
ing union, afford at least two representatives of
such union reasonable access to each of the Re-
spondent's stores and appropriate facilities to deliv-
er a 30-minute speech to employees on working
time, the date to be within 10 working days before
but not within 48 hours prior to any such election.
(n) On request of a union immediately furnish it
with lists of the names, addresses, and classifica-
tions of all the Respondent's employees at any
store in Korcz' district where the Union is con-
ducting an organizing campaign, as of the latest
available payroll date, and furnish a corrected, cur-
rent list to such union at the end of each 6 months
thereafter during the 2-year period referred to
above. 1 6
(o) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
15 If either Brecker or Korcz no longer occupies the position he held
during the commission of the unfair labor practices found herein, then the
specific obligations set forth in par. 2 of this Order shall be earned out by
the individual currently holding that position.
IT IS FURTHER ORDERED that those allegations of
the complaint for which no violations have been
found are dismissed.
CHAIRMAN DOTSON, dissenting in part.
Contrary to my colleagues, I would not adopt
the judge's findings that the Respondent violated
Section 8(a)(1) by telling employees it would help
them with "trouble" and union "harassment"; by
instructing employees not to sign authorization
cards; by soliciting employees to withdraw authori-
zation cards they may have signed; by the granting
of a shrinkage bonus; and by the offer to provide
counsel to employees. I further disagree with the
majority's granting of extraordinary access and
notice remedies.
1. On several occasions during the union orga-
nizing campaign, District Supervisor Korcz ad-
vised employees to report "threats," "trouble," or
"harassment" to management and told them that
the Respondent's attorney would help them "as far
as the union harassing" them. During this period
the employee handbook contained a request to
report "threats" associated with organizers' at-
tempts to secure signed authorization cards. The
judge found that by these oral and written state-
ments the Respondent violated Section 8(a)(1) by
soliciting employees to report on union organizing
activities. I agree with the majority's fmding that
the handbook provision is not unlawful in that it
contains no threat or promise of benefit and thus is
protected by Section 8(c) of the Act.
For the same reason, I agree with my colleagues'
adoption of the judge's finding with respect to the
oral statements of Korcz about "threats." They,
like the handbook, only seek to inform employees
that the Respondent stands ready to assist them if
they should be faced with unprotected union ac-
tions in violation of Section 8(b)(1)(A). I disagree,
however, with the finding of a violation with re-
spect to Korcz' statements about "trouble" and
"harassment" for the reason just set forth. Accord-
ingly, I would dismiss this complaint allegation in
its entirety.
2. The majority adopts the judge's finding that
the Respondent violated Section 8(a)(1) by main-
taining in its pre-1980 edition of the employee
handbook the closing statement admonishing em-
ployees to "remember to stay out of problems, the
only paper to sign is your pay receipt." The judge
found that this was a coercive discouragement
from signing authorization cards since the state-
ment appeared in the section of the handbook
which also stated that one company "benefit" was
protection from "being exploited" or taken advan-
tage of by "outsiders" who Most frequently were
S. E. NICHOLS, INC. 563
"Union Organizers." My colleagues have adopted
this finding relying at least in part on the judge's
analysis of the handbook. As my colleagues ac-
knowledge, however, the judge does not mention
that the handbook also clearly states in this section,
"So, if the union organizers call on you and you
want the union, you should sign the card." Thus,
even with the pay receipt statement, the handbook
is thus not so unbalanced in its presentation as to
constitute any interference, coercion, or restraint
with respect to the employees' Section 7 rights. I
would therefore dismiss this complaint allegation.
3. The judge finds, and my colleagues agree, that
the Respondent further violated Section 8(a)(1) by
"soliciting" employees to withdraw authorization
cards that they may have submitted to the Union.
Korcz told several employees that if they had
signed cards they were entitled to recall or with-
draw them Employee testimony supports his claim
that at no time did he either directly or indirectly
ask them to do so and the judge concedes that in
fact no "solicitation" took place. The handbook, to
which Korcz referred in his conversations with
employees, merely advises employees that if they
change their minds after signing a card they have
the right to do so. In my view, both the handbook
and the oral statements of Korcz were simply in-
formational in nature, correct as a matter of law,
and devoid of any threat or promise of benefit and
thus protected under Section 8(c). Because I see no
realistic possibility that employee coercion could
have resulted from Korcz' volunteered comments,
I would dismiss this complaint allegation.
4. Two weeks before the election in June 1980,
the Respondent's president, Manfred Brecker, an-
nounced that the Herkimer store employees would
receive a $2000 "shrinkage bonus" to be divided
among employees and supervisors. The judge
found, and my colleagues agree, that the Respond-
ent violated Section 8(a)(1) of the Act by timing
this benefit announcement unlawfully to influence
the election. I disagree. The undisputed testimony
of ID is tr lc t Manager Henry Korcz shows that the
Respondent's policy was to grant such bonuses to
any store in its chain that improved its record with
respect to losses from theft or improper handling.
Two other stores in the same geographical area as
the Herkimer store had recently earned and re-
ceived this bonus. The General Counsel has neither
alleged nor presented evidence that the bonus as
announced was either not earned or not in accord-
ance with the Respondent's normal business prac-
tice. Thus, because the shrinkage bonus was a ben-
efit that the Respondent could lawfully grant, it
cannot be an unfair labor practice to announce it.
Cardivan Co., 271 NLRB 563 (1984).
5. During the Regional Office's investigation of
the charges in Case 3-CA-9304, Korcz told em-
ployees that Board agents would be visiting the
store and might want to interview them. Korcz tes-
tified that he further told employees that if they
needed help during the interviews they could see
the Respondent's attorney. Relying primarily on
Florida Steel Corp., 233 NLRB 491 (1977), enf.
denied 587 F.2d 735 (5th Cir. 1979), and Garry
Mfg. Co., 242 NLRB 539 (1979), enf. denied in rel-
evant part 630 F.2d 934 (3d Cir. 1980), the judge
found, and my colleagues agree, that the Respond-
ent violated Section 8(a)(1) of the Act by offering
employees the assistance of its attorney during
interviews with Board agents. For the reasons set
forth below, I am persuaded by the reasoning of
the United States Court of Appeals for the Fifth
and Third Circuits, respectively, in denying en-
forcement in Florida Steel and Garry Mfg.' Ac-
cordingly, I would overrule the Board's decisions
in those cases and dismiss the 8(a)(1) allegation as
to Korcz' offer to provide legal assistance to the
Respondent's employees.
In Florida Steel the company distributed a letter
during the Board's investigation of the unfair labor
practice charges advising employees that they had
a right to consult with counsel before talking to the
Board agent and that the company would recom-
mend an attorney to any employee who so desired.
The Fifth Circuit held, contrary to the Board, that
the letter was protected under Section 8(c) of the
Act in that it was not coercive and contained no
threat of reprisal. Further, the letter neither re-
quired nor compelled any employees to report to
or consult with the company regarding the obtain-
ing of counsel. The letter made it clear that any
action employees took with respect to obtaining
counsel or talking to a Board agent was entirely
optional with them. Finally, the letter offered as-
sistance without regard to the positions employees
took with respect to the union or talking with the
Board agent.
Because Korcz' statements to employees con-
tained no threat of reprisal or promise of benefit,
they too were protected under Section 8(c). Korcz
demanded nothing of his employees, but merely of-
fered the assistance of the Respondent's attorney to
any employee who Wanted it without any inquiry
into their positions with respect to the Union's or-
ganizing campaign. Accordingly, in the absence of
any coercive impact flowing from Korcz' offer, I
would dismiss this 8(a)(1) allegation.
1 The Board in Garry Mfg. relied on its decision in Florida Steel and
the Third Circuit in turn relied on the Fifth Circuit's reasoning in Florida
Steel in denying enforcement of the Board's Order.
564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6. I agree with my colleagues that despite the
Respondent's history of unfair labor practices, the
corporatewide access and notice remedies ordered
by the judge are inappropriately broad with respect
to the violation, limited to its Herkimer store, spe-
cifically found in this proceeding. I part company
with them, however, to the extent they order any
additions to the conventional remedies for the
8(a)(1), (3), and (4) violations herein (a broad cease-
and-desist order, reinstatement of employees un-
lawfully discharged, the making whole of employ-
ees for losses caused by the Respondent's unlawful
conduct, and the normal notice posting).
The majority agrees with the judge that the Re-
spondent's prior history of violations at 5 of its
other 43 stores requires the imposition of extraordi-
nary notice and access remedies, but limits the im-
position of these remedies to the 8 stores super-
vised by Korcz. This remedy is ordered with the
majority's acknowledgement that the Board has
not, in prior cases involving this Respondent, ex-
tended the scope of the notice and access remedy
beyond the individual store where the violations
occurred. Unfortunately, my colleagues have of-
fered no reason why such an extension is appropri-
ate here.
Unlike the pattern of misconduct in the J. P. Ste-
vens cases, there is no evidence that the unfair
labor practices found in previous S. E. Nichols
cases currently remain unremedied, and no evi-
dence that corporate policy ever led to extensive
and detailed publicizing of its illegal activities at
any one store to employees of any other store. The
record contains neither allegation nor proof that
the unlawful activities at the Herkimer store herein
affected the employees at any of the Respondent's
other locations. Similarly, there is no evidence that
the Union experienced access problems during the
relevant timeframe. To compare this Employer's
unfortunate but limited history of unfair labor prac-
tices to the widespread and pervasive practices en-
gaged in by J. P. Stevens defies common sense.
The judge, in making such a comparison and or-
dering the same remedies as were ordered in J. P.
Stevens & Co., 2 appears to have been unduly influ-
enced by the Respondent's belief that the Board
was not "neutral." While the Respondent's impres-
sions of the Board are unfortunate, we cannot
allow them to serve as a justification for punishing
the Respondent through punitive remedies that far
outreach the specific violations herein. Likewise,
the Board should not allow the use of a respond-
ent's history of unlawful conduct as a per se justifi-
cation for punitive remedies that do not specifically
2 244 NLRB 407 (1979).
address the unfair labor practices found in a par-
ticular case. The majority's imposition herein of ex-
traordinary remedies in all the stores in Korcz' di-
vision represents just such a practice. Because in
my view the record here does not support a find-
ing that even divisionwide remedies are necessary
to offset the coercive effects caused by the Re-
spondent's conduct at issue in this proceeding, I
would require only the conventional remedies de-
tailed in the Order.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten you with loss of employ-
ment, reduction in benefits, or increased work as-
signments if you choose to be represented by a
union.
WE WILL NOT solicit your grievances or com-
plaints and promise to adjust them in order, to
interfere with your union activities.
WE WILL NOT promise any wage increase,
bonus, or other benefits in order to discourage you
from seeking union representation.
WE WILL NOT solicit you to withdraw or retract
authorizations for union representation that you
have executed.
WE WILL NOT direct you or coercively advise
you not to sign union authorization cards or any
papers other than pay receipts.
WE WILL NOT tell you that we will learn the
identity of any of you who sign a union authoriza-
tion card.
WE WILL NOT tell you that discriminatorily dis-
charged employees will not be reinstated or that
any such employees who are reinstated will not
remain in our employ.
S. E. NICHOLS, INC. 565
WE WILL NOT tell you that an employee was dis-
charged for engaging in protected concerted activi-
ties.
WE WILL NOT restrict your right to solicit or to
distribute written or printed material on behalf of
any labor organization without clearly telling you
when you may lawfully engage in such activities.
WE WILL NOT impose any greater restriction on
the solicitation or distribution or receipt of written
or printed material on behalf of a union than is im-
posed on all other forms of solicitation or distribu-
tion and receipt of material.
WE WILL NOT withhold wage increases from any
of you because you have testified in a Board pro-
ceeding or because you support a labor organiza-
tion.
WE WILL NOT indicate to you that we approve
of or will repeat any type of conduct by which the
Board has determined that we have previously vio-
lated the National Labor Relations Act.
WE WILL NOT ask or solicit any of you to report
to or inform us of the union or other protected
concerted activity of other employees.
WE WILL NOT offer to you the assistance of our
attorney in connection with Board investigations or
proceedings.
WE WILL NOT discriminate against you because
you have engaged in union or protected concerted
activities or because you have testified in National
Labor Relations Board hearings or have been
named in any charge or complaint before the
Board, or to discourage membership in or support
of any labor organization. Specifically, WE WILL
NOT discriminate against any of you by discharging
you; reprimanding, warning, or disciplining you,
withholding wage increases from you; subjecting
you to increased supervision; subjecting you to rid-
icule or embarrassment; or in any other manner.
WE WILL offer Dorothy C. Reinhardt, Douglas
Vincent, Denise Styles, and Kristin Bur1de immedi-
ate and full reinstatement to their former positions
or, if such positions no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously
enjoyed and WE WILL pay each of these four em-
ployees for any earnings and other benefits they
lost as a result of our discrimination against them,
kss any net interim earnings, plus interest.
WE WILL give Margaret Goldsmith a wage in-
crease and pay her, with interest, for any loss she
suffered as a result of our having previously with-
held a wage increase from her.
WE mail. notify Fred Pumilio and June Klima-
cek that we have removed from our files any refer-
ences to the written warnings given them on 26
March and 7 April 1980, respectively. WE WILL
notify Dorothy Reinhardt, Douglas Vincent,
Denise Styles, and Kristin Burkle that we have re-
moved from our files any references to their dis-
charges. WE WILL also notify all these employees
that their discipline will not be used against them
in any way.
WE WILL rescind and withdraw from our em-
ployees' handbook the rules concerning employees'
solicitation and distribution of literature.
WE WILL withdraw our employee handbook
from distribution and circulation until such time as
the portions referred to above have been physically
deleted.
WE WILL, for 2 years, give all our supervisors at
our Herkimer, Marcy, and New Hartford, New
York stores copies of this notice and instruct them
to comply with its provisions.
WE WILL grant to any union access to our bulle-
tin boards, list of the names and addresses of our
employees and, as ordered, speaking opportunities
at any store at which the requesting union is at-
tempting to organize our employees.
WE WILL send to all our employees copies of
this notice, with an explanatory letter; and WE
WILL read this notice to all our employees.
S. E. NICHOLS, INC.
APPENDIX B
Dear Nichols Employees:
Pursuant to an order of the National Labor Rela-
tions Board, this letter and enclosed notice are
being sent to assure you that your rights as em-
ployees under the National Labor Relations Act
will be honored and protected.
The National Labor Relations Board has found
that, since 1965, we have violated the rights of our
employees in the course of union organizing cam-
paigns in our stores in Dover, Delaware; Shilling-
ton, Pennsylvania; New Philadelphia, Ohio; and
Elmira and Marcy (Utica), New York. When these
decisions by the National Labor Relations Board
have been appealed, the United States circuit
courts of appeals have affirmed them. We have
also been held in contempt of court for violating
such orders at our New Philadelphia, Ohio, and
Shillington, Pennsylvania stores. In addition to the
cases referred to above, on our settlement agree-
ments, orders have been issued against us for our
conduct in connection with a union campaign at
our store in Matawan, New Jersey. Most recently
it has been held that we violated the National
Labor Relations Act in a union organizational cam-
paign at our store in Herkimer, New York.
The Board has held that, in large part, our cam-
paigns have followed much the same general pat-
566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tern in all union organizational campaigns. That
pattern, as reflected in the enclosed notice, in-
cludes, among other things, discharge of employees
who attempt to unionize; discrimination in various
ways against employees who support a union or
who cooperate with the National Labor Relations
Board in investigating and prosecuting cases
against us; threats of detriment to employees who
choose to be represented by a union; promises of
benefits to discourage employees from choosing
union representation; restriction of employees' legal
rights to solicit for and distribute literature on
behalf of unions.
In the situation that occurred at Herkimer, it has
been found that we have interfered with investiga-
tions by the National Labor Relations Board and
that we have improperly led our employees to be-
lieve that the Board is interested in supporting
unions but is unable and unwilling to protect the
rights of employees under the Act. We disavow
any such statements and implications. The Board is
open to all persons who believe that any violation
of the National Labor Relations Act has been com-
mitted and the Board is required to protect the
rights of all persons under the Act.
We may, of course, exercise our right to free
speech concerning union matters. However, we
assure you that we will make every possible and
sincere attempt to keep our conduct within proper
bounds. We want you to know that you are entire-
ly free to consult the National Labor Relations
Board if at any time you believe we may have vio-
lated your rights under the National Labor Rela-
tions Act. We will not unlawfully inquire about or
otherwise interfere with any contacts, direct or in-
direct, you may have with the Board.
Very truly yours,
Manfred Brecker, President
Thomas .1. Sheridan, Esq. and Alfred M Norek, Esq., for
the General Counsel.
Leonard W. Wagman, Esq., Stephen M. Rathkopf; Esq.,
and Robert S. Goodman, Esq. (Golenbock & Barell), of
New York, New York, for the Respondent.
Harold Cohen, Esq., of Rochester, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Administrative Law Judge. Pur-
suant to a charge filed by Retail Store Employees Union
Local 345, United Food and Commercial Workers Inter-
national Union, AFL-CIO,' on September 7, 1979, 2 a
complaint was issued against S. E. Nichols, Inc. (the
Company or Respondent) on October 10 (amended on
March 5), alleging that, at its store in Herkimer, New
York, Respondent has maintained an unlawful rule pro-
hibiting employees' accepting literature on company
property; in September, during a union organizing cam-
paign, Respondent committed numerous acts of miscon-
duct in violation of Section 8(a)(1) of the Act; 2 and on
September 3 and 4 Respondent discharged employees
Douglas Vincent, Dorothy Reinhardt, Denise Styles, and
Kristin Burkle in contravention of Section 8(a)(3) and (1),
of the Act. Pursuant to due notice, a trial on the com-
plaint was held before me in Utica, New York, on
March 17, 18, and 19. Thereafter, briefs were filed on
behalf of the General Counsel and Respondent.
On April 2, Local 1 (the Union; see fn. 1) filed an ad-
ditional charge against Respondent, pursuant to which a
complaint was issued on May 8 (and amended on June
11 and September 3), 4 alleging that on various occasions
between March 7 and June 6 Respondent engaged in nu-
merous acts violative of Section 8(a)(1) and (3) of the
Act at its store in Herkimer, New York. On May 12, the
General Counsel moved to reopen the hearing in Case 3-
CA-9304 and to consolidate that case with the second
complaint (Case 3-CA-9714) for further hearing. The
Regional Director also petitioned the United States Dis-
trict Court for the Northern District of New York for an
injunction against Respondent under Section 10(j) of the
Act (No. 80-CV-467).
On June 18, an election was held pursuant to the
Union's petition filed on September 7. The Union lost
the election and no objections were filed.
On July 3, 1980, I granted the General Counsel's
motion to reopen the record and consolidate the two
complaints and scheduled a hearing for September 15,
1980, On July 8, 1980, at the conclusion of a 4-day trial,
District Court Judge Neal P. McCurn denied an injunc-
tion. The General Counsel's appeal from Judge
McCurn's decision is pending in the Court of Appeals
for the Second Circuit.
At the hearing convened before me in Utica, New
York, on September 15, 1980, I granted the request of
counsel for all parties that I accept the transcript of the
district court trial in lieu of direct evidence. The record
before me, consisting of the district court record supple-
The charge in Case 3-CA-9304 was filed by Retail Store Employees'
Union Local 345, United Food and Commercial Workers International
Union, AFL-CIO However, union organizer Mark Alexander testified,
without contradiction, that Local 345 was merged with Local 1 of the
International in November 1979. Although the representation petition
was filed by Local 345, the election was held and the certification was
issued with Local 1 named as the petitioning labor organization. Accord-
ingly, although no motion has been filed, I have corrected the caption of
the consolidated proceeding to show that Local 1 is now the Charging
Party in both cases.
2 Unless otherwise specified, all dates are in the period August 1979
through June 1980.
'National Labor Relations Act, 29 U.S.0 §-151 et seq.
4 Three amendments were made on September 3. The second amend-
ment was withdrawn at the hearing on September 15 The third amend-
ment merely requests detailed remedial provisions in any order to be
issued against Respondent
S. E. NICHOLS, INC. 567
mented by stipulations and arguments of counsel, was
closed as of September 25, 1980. Supplementary posttrial
briefs have been filed by the General Counsel and Re-
spondent
On the entire record, 5 careful observation of the wit-
nesses who testified before me, and consideration of the
briefs of the General Counsel and Respondent, I make
the following
FINDINGS OF FACT
I. PRELIMINARY FINDINGS
Respondent, a New York corporation with its princi-
pal office and place of business in New York, New York,
maintains several stores in New York State and in other
States, including a store in Herkimer, New York, where
it is engaged in the retail sale and distribution of various
products. In the course of its business operations at the
Herkimer store, Respondent annually sells and distributes
products valued in excess of $500,000 and receives goods
valued in excess of $50,000 directly from points outside
the State of New York. Respondent is now, and was at
all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
Local 1, United Food and Commercial Workers Inter-
national Union, AFL-CIO (including Local 345; see fn.
1) is, and was at all times material, a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. 8(a)(3) Discharges
1. The General Counsel's case
a. The evidence
Respondent operates some 42 discount department
stores in upper New York State, Pennsylvania, and Dela-
ware. The present case involves the store in Herkimer,
New York.
On Friday, August 17, apparently without any prior
indication, Henry Korcz, Respondent's district supervi-
sor, announced at a meeting of the approximately 70 em-
ployees that Lyle Genung had been discharged as store
manager, a position he had apparently held for many
years. Genung apparently had been well liked by the
store's employees, many of whom were shocked and
upset by his summary dismissal. At least some of the em-
ployees immediately became concerned that the sudden
discharge of a long-term store manager meant that no
company employees had reasonably reliable job security.
Alleged discriminatee Dorothy C. Reinhardt, who had
worked in the Herkimer store for 11 years, was so upset
by the announcement of Genung's discharge that she left
the employee meeting before its conclusion. That
evening she and alleged disciiminatee Douglas Vincent,
who had been employed by Respondent for about 5-3/4
months, discussed the Genung discharge and agreed that
6 The General Counsel's unopposed motion to con ect the transcript in
Case 3-CA-9304 is granted in certain respects.
it would be wise to consider getting a union for protec-
tion of the employees. Reinhardt testified that the next
day her immediate supervisor, Peter Bifora, manager of
the store's home center, told her that he might also be
fired. 6 Thereupon, Reinhardt spoke to another employee
in the home center about the advisability of unionizing.
The next day Reinhardt started a scheduled 1-week va-
cation.
On Monday, August 20, Robert Hathom, who until
then had been assistant manager of Respondent's store in
New Philadelphia, Ohio, arrived at the Herkimer store to
replace Genung. No employee meeting was called to in-
troduce Hathorn, but apparently he was introduced to
some individual employees as they reported to work.
Several employees soon expressed displeasure that Hath-
orn had almost immediately begun to give orders and
call employees to the office without even having been
properly introduced.
On Wednesday, August 22, Reinhardt, on her own ini-
tiative, interrupted her vacation and worked at the store
all day without compensation. She heard some employee
complaints about Hathom. She also observed Hathom
treat employees in what she considered an improper
manner, causing one employee to cry. Reinhardt then
spoke about the matter to I3ifora and to Linda Abrarnc-
zyk, a district supervisor, under Korcz. Thereafter,
Abramczyk introduced Hathorn to Reinhardt. Hathorn
apparently was very cordial and told Reinhardt that he
had heard that she was a good worker. When she spoke
of her desire to become an assistant manager, he said that
vacancies often occurred and that all she needed to do
was keep up her good work. 7 Later that day Reinhardt
indicated to Abramczyk that perhaps Reinhardt had
judged Hathom too hastily.
Korcz remained at the store with Hathorn on August
20 through 24. For that week, the work schedules desig-
nated by Genung were left undisturbed. Korcz spent the
next week visiting stores in Ohio, but apparently spoke
with Hathom on the telephone on occasion.
During her vacation, Reinhardt spoke to Nick Gian-
none, an organizer for the Union, but no defmite plans
were made for a future contact.
On August 31, alleged discriminatees Denise Styles
and Kristin Burkle, security employees, had lunch with a
fellow employee and Alvin Madison, an assistant manag-
er trainee, admittedly a supervisor. Styles and Burkle tes-
tified that they spoke about the possibility of unionization
and asked Madison if he would sign a union card or peti-
tion if it were available. According to Styles, Madison
said he would sign. Madison testified that he had said he
did not know whether he would sign. He also testified
that Styles and Burkle spoke about a possible walkout. I
credit Styles' denial that they mentioned a walkout be-
cause the evidence as a whole shows that consideration
of a walkout did not arise until after lunch.
On returning to the store after lunch on August 31,
Styles and Burkle saw a new work schedule posted,
under which their hours were to be increased from 38 to
6 Bifora did not deny this testimony by Reinhardt.
7 There is no contention that Hathorn promised a promotion.
568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
40 per week, but they were to work 6 days a week
rather than the 5 days they had been working. They im-
mediately went to see Hathorn, who spoke to them indi-
vidually. He said they would have to observe the new
schedule for 3 weeks, after which he would decide
whether to make it permanent. Burkle testified that she
also inquired about her 6-month wage increase and was
told that she would receive it "in a couple of weeks."
Styles and Burkle thereupon agreed to try to arrange
an employee walkout at noon the next day. Styles, who
was then running a cash register in place of an absentee,
spoke to 12 to 15 employees, mainly on the store inter-
com telephone. Burkle also spoke about the matter with
several employees at her security post. Around 10 em-
ployees agreed to join a walkout.
Reinhardt soon learned of the proposed walkout and
informed Bifora, her supervisor. He told her to dissuade
the employees from such action and she agreed to do so.
Bifora testified that he had confidence in Reinhardt's
ability to forestall the walkout and therefore did not
inform his superiors of the plan. Madison testified that
during that afternoon he overheard Reinhardt say that
"Whey should get a union started." Madison denied that
he informed his superiors of this occurrence.
Reinhardt advised the employees against walking out,
warning that it might end their employment and remove
any possibility of unionization. Styles and Burkle were
willing to drop the planned walkout if Reinhardt actually
got in touch with a representative and initiated organiza-
tional activity rather than simply continuing to talk about
it.
Alleged discriminatee Vincent, who was not scheduled
to work on Friday, August 31, visited the store that
afternoon to pick up his pay stubs. At that time Rein-
hardt informed him of the planned walkout and request-
ed that he make immediate contact with a union repre-
sentative. That evening, after Reinhardt finished work,
she and Vincent met with union organizers Mark Alex-
ander and Giannone, from whom they received blank au-
thorization cards. Reinhardt and Vincent then returned
to the store, where they had some cards signed and gave
blank cards to Styles, who also obtained four signatures
that evening.
On Saturday, September 1, Styles spoke to employees,
informing them of the incipient union organization and
calling off the planned walkout. Styles testified that
when she asked Madison to sign a card, he asked where
she got the cards, and she replied that Reinhardt and
Vincent had obtained them. According to Styles, Madi-
son said that, having discussed the matter with the wife,
he would not sign a card until he had spoken with
Korcz. Madison denied having had that conversation.
However, I credit Styles. This credibility resolution is
based on two main factors. First, Madison's testimony
was generally unreliable. For example, he first testified
that at lunch on August 31 there was no union talk, but
he later conceded that he was asked if he would sign a
union petition. Second, Madison testified that he was
there in the midst of his own "dispute" with Respondent
and did not know whether his own job would continue.
It is understandable that he would not sign a union card
before settling his own job problem. His supervisory job
was assured in a meeting with Korcz the next day. It is
reasonable to assume that in that meeting Madison would
impart his knowledge of employee activities to Korcz.
On Friday, Saturday, and Sunday, Reinhardt, Styles,
and Vincent obtained about 27 signed cards (including
their own), many of them in or near the store. Vincent
delivered those cards to the Union on Sunday. Reinhardt
had at least one card signed on Monday. The total
number of cards introduced into evidence was 29. In ad-
dition to obtaining cards, the four alleged discriminatees
spoke about the Union to several employees at work.
Reinhardt testified that, after work on Saturday, her
husband informed her that Assistant Manager Alan
Levy, a supervisor, had said that Korcz knew of the "big
trouble" in the store and would be there on Sunday.
Levy did not testify. As the General Counsel notes, pro-
bative value may be given to hearsay that is admitted
without objection. O'Malley Lumber Co., 234 NLRB
1171, 1175 (1978); NLRB v. Operating Engineers Local 12
(Ledford Bros.), 413 F.2d 705 (9th Cir. 1969). The predic-
tion attributed to Levy proved accurate; although Korcz
had been at the store for only a very short time on Sat-
urday, he was there apparently all day Sunday and
Monday, which was Labor Day. Hathorn had left town
on Friday afternoon and did not return to the store until
Tuesday morning.
Reinhardt and employee Fred Pumilio testified that on
Saturday evening, September 1, Assistant Manager James
R. Worden, a supervisor, spent an unusual amount of
time in the home center where Reinhardt and Vincent
worked. Vincent testified that Worden also made fre-
quent visits, for no apparent reason, to the stockroom
while Vincent was working there. Warden maintained
that he did not recall being in the home center except as
he passed through en route to the automotive depart-
ment, which he also manages, but then he added that he
had been in the home center checking on lumber for his
personal use. I credit the employee testimony.
In midafternoon of Labor Day, September 3, Rein-
hardt was called to the office where she was summarily
discharged by Korcz. That evening, toward the end of
his shift, Vincent was called to the office where he, too,
was summarily discharged by Korcz.
After receiving executed union, cards from Vincent on
Sunday, the Union sent Respondent a mailgram on
Monday, claiming majority representation and requesting
a card check. Hathorn received the mailgram apparently
on his return to work on September 4. That morning
Korcz initiated a series of employee meetings Later that
day, Burkle and Styles were called into the office, sepa-
rately, and summarily discharged by Hathorn.
In each of the four discharges, the employee's final
check had already been prepared. None of the four was
given any advance notice; nor was any of them given
any opportunity to discuss the matter.
b. Discussion and conclusions
The evidence establishes that by Sunday, September 2,
at the very latest, Korcz knew of the union activities at
the store. Indeed, Korcz testified that on Sunday he had
been informed by Assistant Manager Levy that there
S. E. NICHOLS, INC. 569
were union activities at the store. 8 And, as noted previ-
ously, Madison, who knew that Reinhardt and Vincent
had obtained union cards and that Styles and Burkle had
distributed them, settled his own problems with Korcz
on Sunday. 8 Additionally, all four alleged discriminatees
engaged in union activities at the store. Although the
store might not strictly qualify as a "small plant," it was
operated in such a manner that the union activities
would normally come to the attention of the employees
and supervisory personnel. See, e.g., U.S. Soil Condition-
ing Co. V. NLRB, 606 F.2d 940,948 (10th Cir. 1979).
It is significant that Korcz summarily discharged Rein-
hardt and Vincent on Labor Day while Hathorn was out
of town for the holiday weekend. There was no evidence
of any urgency that might explain Korcz' taking such
drastic action without consulting Hathorn, whose re-
sponsibility it was to keep the store staffed and operating
properly.
Hathorn's discharge of Styles and Burkle is even more
inexplicable on any legitimate grounds. He fired them
the day he returned from his weekend vacation and there
is no suggestion that he contemplated any such action
before he left on Friday afternoon. Although he testified
to the great importance he placed on trained security
personnel, he gave no thought to replacements for Styles
and Burlde for at least a week after their discharge.
Since the discharges here in issue came so rapidly on
the initiation of concerted and union organizational ac-
tivities, there can be no substantial evidence of antiunion
animus previously displayed at the Herkimer store. How-
ever, Korcz began his antiunion campaign immediately,
calling employee meetings the morning of September 4
between the discharges of Reinhardt and Vincent and
those of Burkle and Styles. As discussed below, the cam-
paign was vigorous and included several violations of
Section 8(a)(1).
Additionally, Respondent's longstanding antiunion
animus is documented in numerous cases involving other
stores. I take official notice of such prior reported cases
as follows: S. E. Nichols Marcy Corp., 229 NLRB 75
(1977), enfd. by consent judgment (Dover, No. 77-4154
(2d Cir. 1977)); S. E Nichols Co., 156 NLRB 1201
(1966), enfd. in relevant part" 380 F.2d 438 (2d Cir.
1967); idem., 159 NLRB 1071 (1966), enfd. 374 F.2d 115
(3d Cir. 1967); idem., 165 NLRB 924 (1967); idem., 167
NLRB 832 (1967) and 179 NLRB 249 (1969), enfd. 414
Fad 561 (3d Cir. 1969) and 73 LRRM 2816 (3d Cir.
1070) cert. denied 397 U.S. 916 (1970) and 400 U.S. 831
(1970); S. E. Nichols of Ohio, Inc., 195 NLRB 939 (1972),
mkt 472 Fad 1228 (6th Cir. 1972); S. E. Nichols Shill-
8 The testimony was in essential conflict with Korcz' pretrial affidavit,
in which he said that he first learned on September 4 or 5 when Hathorn
telephoned about receipt of the Union's telegram Korcz explained the
discrepancy by saying that on Sunday Levy merely mentioned general
union activities without naming any union.
9 Bifora also knew of the union activities However, it is possible that,
as he testified, he did not pass his information on to Hathorn or Korcz
because 13ifora appears to have been sympathetic with the employees and
may well have thought he had done enough by getting Reinhardt to pre-
vent the-proposed walkout
° In the first Dover case the court affirmed the Board's finduigs of nu-
merous violations of Sec. 8(a)(1) during a union campaign, but declined
to enforce an 8(a)(5) bargaining order on the ground that the union's ma-
jority status had not been established
ington Corp., 195 NLRB 189 (1972), enfd. 475 F.2d 1395
(3d Cir. 1973), cert. denied 414 U.S. 860 (1973). Re-
spondent was later held in civil contempt of the Sixth
Circuit's judgment in the Ohio case. NLRB v. S. E. Nich-
ols of Ohio, Inc., 100 LRRM 2840 (N.D. Ohio 1978), affd.
592 F.2d 326 (6th Cir. 1979)."-
There is nothing in the present record to suggest that
Respondent's view of unionism was changed an iota.
Indeed, Korcz was found to have committed numerous
unfair labor practices in the Marcy case, and in the dis-
trict court trial of the 10(j) injunction proceeding con-
cerning the Herkimer store he testified that Respondent
was "using the same tactics" in Herkimer as it had in
Marcy and he expressed his approval of those tactics.
With Respondent's antiunion animus and knowledge of
the employees' union activities so clearly shown, the
General Counsel has obviously established a strong
prima facie case of unlawful discharges. The abrupt and
unheralded discharge of all four union activists within 3
or 4 days after they initiated the organizing campaign is
most persuasive evidence of Respondent's unlawful moti-
vation. See, e.g., NLRB v. Elias Bros. Big Boy, 325 F.2d
360 (6th Cir. 1963); NLRB v. Tru-Line Metal Products
Co., 324 F.2d 614, 615-616 (6th Cir. 1963), cert. denied
377 U.S. 906 (1964).
2. Respondent's defense
a. General matters
To rebut the General Counsel's strong prima facie
showing, Respondent sought to establish that all four al-
leged discriminatees were discharged for poor perform-
ance. Before analysis of each individual case, a few mat-
ters common to all should be noted.
Employee Margaret Goldsmith testified that on Sep-
tember 3, shortly after Reinhardt's discharge, she asked
Madison if Reinhardt had been fired for union activities
and Madison replied that "he couldn't say," but added
that "there would be more to go; it wasn't the end."
Madison's apparent denial of this testimony was, at best,
equivocal, and I credit Goldsmith. In context, Madison's
statement could have meant nothing other than that
other discharges for union activities would follow. Re-
spondent argues that Madison had no way of knowing
management's plans. However, as previously noted,
Madison had been assured of his own supervisory posi-
tion in a meeting with Korcz on the day before Rein-
hardt's discharge. Madison thus presumably spoke with
knowledge of management's thinking and plans.
Goldsmith also testified that in employee meetings
KorcZ said that the alleged discriminatees "had been
fired for not doing their jobs and not cooperating with
management" and "were passing out cards and he didn't
want them harassing people in the store while they were
working." Employee Linda Sheppard testified that in
" The General Counsel also cites the following unreported cases:
NLRB v. S. E Nichols Shillington Corp., Civil Action No. 75-1751 (3d
Cir. 1975) (held in contempt), DeProspero v. S. E. Nichols Marcy Corp.
No 76 CV 45 (N.D.N Y. 1976) (10(j) injunction granted); Eisenberg v. S.
E. Nichols, Inc., Civil Action No 78-2613 (D.NJ 1979) (10(j) injunction
granted).
570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
one employee meeting Korcz said that Styles had har-
assed employees and had threatened some in the lounge.
According to Sheppard, Korcz defined harassment as
"[t]rying to get people to sign union cards." Korcz did
not specifically deny having informed employees that the
discharges were, in part at least, related to the discrimin-
atees' having "harassed" employees to support the
Union. However, because Korcz and Hathorn denied
having known of the individuals' union activities, Re-
spondent cannot maintain that any such "harassment" led
to their discharge. And they presented no evidence of
"harassment" by the dischargees. Additionally, because,
as discussed below, Respondent did not have in effect
any lawful rule restricting employee solicitation or distri-
bution, and discriminately applied what rule it had, the
discharges would clearly have violated the Act if they
had been based on claimed violation of a rule against so-
licitation.
b. Dorothy C. Reinhardt
Reinhardt had been employed at the Herkimer store
some 11 years. The record leaves no doubt that she was
an exemplary, conscientious employee. She frequently
and voluntarily worked substantial hours "off the
clock"—coming to work before scheduled, leaving later
than her scheduled departure, cutting her luncheon break
from 1 hour to as little as 15 minutes, etc. Reinhardt tes-
tified that she chatted with Korcz on August 17 when he
visited the store to announce Genung's discharge. Ac-
cording to Reinhardt, Korcz said to her, "I haven't told
you but I've told several other people, you're a very
good worker, and keep up the good work and some day
you will be an assistant manager," a position which she
was seeking. Although Korcz denied having spoken to
Reinhardt on August 17, 12 I credit Reinhardt. She was
forthright throughout and displayed a clear and precise
memory. On the other hand, Korcz' testimony was
vague and usually lacking in details. Additionally, in
some instances his testimony was inconsistent with his
pretrial affidavit and with testimony of Hathorn.
There is no question that Reinhardt was well regard-
ed. Bifora, her immediate supervisor, testified that she
was a very good employee. She admittedly earned high
incentive commissions. Abramczyk also apparently
thought well of her. And Genung obviously had thought
highly of her work.
Korcz testified that on August 17 and 18 he observed
that Reinhardt's "paint department was not like it should
be." Despite the claimed deficiencies, Korcz said nothing
to Reinhardt. There is no evidence that Hathom ob-
served or commented on any supposed deficiencies in
Reinhardt's paint department on August 22 when he met
her.
Respondent apparently maintains that the deficiency in
Reinhardt's performance was reflected most strikingly in
the presence of unopened cases of merchandise on the
floor and/or in the aisles of her work area. A large por-
tion of the merchandise she was in charge of is pur-
la it would appear strange for Korcz not to speak with Reinhardt if, as
he also testified, he noticed blatantly unsatisfactory conditions in her de-
partment at the time.
chased from F. R. Schreiber Company. The general
practice is that a Schreiber salesman comes to the store
on a Wednesday to take orders and the merchandise is
then delivered on the next Wednesday. It was on
Wednesday, August 22, that Reinhardt worked during
her vacation so she could give the Schreiber order. Al-
though delivery was due the next Wednesday, it did not
arrive until the afternoon of Friday, August 31. It con-
sisted of some 183 to 189 cartons in two shipments. Rein-
hardt immediately set about emptying the cartons and
packing the merchandise on the counters, but was unable
to complete the job by her scheduled departure at 6
p.m." She had removed all the cartons from the floor of
the department by the time she left work on Saturday,
September 1.
At the hearing on Reinhardt's unemployment compen-
sation claim, 14 Hathom testified that it had taken Rein-
hardt from Wednesday to Friday or Saturday 15 to take
care of the Schreiber order, during which time there
were cartons on the floor. When, in the trial in the
present case, Respondent's records clearly established
that the order had not arrived until Friday, Hathorn tes-
tified as follows concerning his prior testimony at the un-
employment compensation hearing:
I had felt at that time that Schreiber had come in
on Wednesday. There was a previous shipment that
came in the week before, it was also a Schreiber
shipment. Whether it was eight or five" or what-
ever departments they were, I'm not sure, but I do
know that I saw merchandise on the floor and I had
assumed it was the Schreiber shipment from the
prior week.
But Hathom could not have assumed that any packages
on the floor were from "last week's" Schreiber shipment,
because such shipments were received only on alterna-
tive weeks. He did not mention any cartons on the floor
before Wednesday, August 29. Additionally, according
to his own testimony, he accused Reinhardt of "miscon-
duct" without even ascertaining in which department or
departments he claimed to have seen cartons on the
floor. Hathorn conceded that he made no attempt to
have Reinhardt reinstated when he learned of his
"error." It is thus clear that Hathorn was fabricating sup-
port for Reinhardt's discharge by Korcz.
In its brief, Respondent says that Korcz "noticed on
two occasions as he walked through the paint depart-
ment that Reinhardt was not there and that it was neces-
sary to page someone to come to the department." The
reference apparently is to Korcz' testimony that he was
13 She credibly testified that she had intended to stay on to finish the
job that evening, but left to accompany Vincent to meet with the union
busmess agents because Styles had to work.
14 All four alleged discrmunatees applied for unemployment compen-
sation and their claims were originally denied on Respondent's contention
that the employees had been fired for misconduct. However, after a hear-
ing on review, an administrative law judge reversed, finding no employee
misconduct and granting the clams. At the original trial in the present
case, Respondent's counsel stated that an appeal from the grants of unem-
ployment compensation was pending.
15 Hathorn left on the Friday afternoon to spend the weekend in Ohio.
16 Reinhardt's department was No. 8.
S. E. NICHOLS, INC. 571
at the store on Saturday and Sunday, September 1 and 2,
but "didn't see [Reinhardt] in her department." In
answer to a subsequent question, Korcz conceded that
on one of those days Reinhardt was not scheduled to
work.
In testifying, and in a pretrial affidavit, Korcz indicat-
ed that he had not discussed Reinhardt's deficiencies
with Hathorn before the discharge. Hathorn, however,
testified that on August 29, 30, or 31, during his second
week at the store, he had telephonically complained to
Korcz about Reinhardt's work. In any event, it is undis-
puted that Korcz summarily discharged Reinhardt on
Labor Day without consulting either Bifora, her immedi-
ate supervisor, or Store Manager Hathorn, who was due
back at the store the next day. When she was called into
the office on September 3, her final check had already
been prepared and Korcz initially simply announced her
discharge. He apparently stated a reason only after she
expressed her incredulity. Concerning the reason, Korcz
testified:
I told her that I was terminating her employment
because she was not doing her job, I could not have
two store managers running the store. I did not
have her cooperation with the present store manag-
er because I felt that she was favored by the last
manager and I was terminating her employment for
these reasons.
There is no evidence of how she was attempting to "run
the store." As to the claim that she had been "favored"
by Genung, Korcz testified that she "had excessive
hours" under Genung, but then conceded that he did not
compare her timecards for the periods before and after
Genung's departure and that she had been scheduled for
7 hours' overtime in the week ending September 1. Rein-
hardt testified that Korcz terminated the discharge inter-
view by saying that she was not working out well with
the new management and that, if she wanted to discuss it
further, she could call Respondent's president or vice
president in New York City for advice, which indicates
that the discharge was directed at the corporate level.
Respondent apparently recognizes the manifest anoma-
ly of its summary discharge for poor job performance of
a long-term employee with an indisputably established
record and reputation for superior performance and de-
votion. To explain the claimed sudden deterioration in
Reinhardt's work, Respondent speculates that she had
been much favored by Genung and intentionally lowered
the quality of her work on his unceremonious discharge.
There is no question that, as Reinhardt freely testified,
she was shocked and distressed by Genung's sudden dis-
charge. But several facts belie Respondent's speculation
concerning Reinhardt. Korcz testified that he observed
deficiencies in Reinhardt's paint department on August
17, the very day he appeared unexpectedly at the store
to announce Genung's termination. And shortly after
Genung's discharge Reinhardt donated to Respondent a
full day's work during her vacation, a fact hardly evi-
dencing a vengeful attitude.
Perhaps most significant to Respondent's speculative
argument concerning Reinhardt are the facts concerning
her alleged vindictive motives. Respondent did establish
that Reinhardt had been given somewhat more paid
overtime work than the average in the store. However,
there is no evidence that other employees resented this
fact. On the contrary, the only pertinent evidence in the
record shows that the employees liked Genung and were
pleased with his management of the store. Without any
contradiction, Reinhardt fully explained her relatively
high overtime work. She had previously worked under
Genung in the office. In that period she had spent con-
siderable time, including many overtime hours, planning
and arranging for the installation of the home center. On
the opening of the home center, she was transferred to it
to operate its paint department. When Genung then tried
other employees to assist in his office duties, he often
found them unsatisfactory and thus called on Reinhardt.
Finally, after his arrival, Hathorn changed the work
schedules of many employees, increasing the hours of
some and decreasing those of others, but he left un-
changed Reinhardt's 45-hour-a-week schedule.
The evidence establishes beyond question that Rein-
hardt was not discharged for poor performance. Indeed,
there is no evidence of poor performance that could
even provide a pretext for discharge for cause. Particu-
larly in view of the roughly simultaneous discharge of
the three other union activists and the nature of Re-
spondent's subsequent antiunion campaign (discussed
below), there can be no doubt that Reinhardt was dis-
charged solely for her union activities."
c. Douglas Vincent
Vincent had started to work at the Herkimer store, in
the automotive department, around March 1979. In the
middle of August, at his own request, he transferred to
the camera department because he had experience in
photography, which he viewed as his future career. Nor-
mally there are two employees covering the camera,
record, and appliance departments in the evening. In ad-
dition to running the camera department, which, unlike
other departments, is basically not self-service, he cov-
ered the nearby record department and assisted in the ap-
pliance department.
As previously set forth, Vincent engaged in consider-
able organizing activity at the store from Friday, August
31, until near the end of his shift on September 3 when
he was called to the office and discharged by Korcz. Ac-
cording to Vincent, Korcz said that he had "been ob-
serving" Vincent that night and a "few" earlier times
and Vincent did not "seem to be doing [his] job; [he]
seem[ed] to be sitting around a great deal." 8 As in the
case of Reinhardt, and the two employees fired the next
day, Vincent's final pay had already been prepared and
was given to him on the spot.
17 In the district court trial, Klimacek testified that Brecker at one
point accused Remhardt of fomenting the walkout planned for September
2 The fact is that Reinhardt prevented the walkout.
18 Vincent also testified that Korcz said, untruthfully, that there were
no other departments to which Vincent could be transferred. It would
seem strange for Korcz to mention the possibility to transfer if he be-
lieved that Vincent was a shirker
572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Korcz testified that during the week of August 20
through 24, Hathorn's first week at the store and possi-
bly Vincent's first week in the camera department,
Korcz observed that "Vincent was consistently sitting in
his department and then when he wasn't sitting there
[Korcz] couldn't fmd him." Korcz added that he "felt
there was definitely no coverage in that department.""
Vincent further testified that any time he had been paged
when away from the department he had been at or en
route to or from the office for a legitimate business
reason, such as delivering large-denomination currency
or getting change. Other evidence indicates that Vincent
may have stopped to talk to other employees en route.
However, such conduct appears to have been common in
the store, and there was no rule against employees' con-
versing.
Vincent testified that on Sunday, September 2, Korcz
visited the camera department and "took a look around
at the records and so on." Korcz observed that no music
was being played and said he wanted the record player
"playing the entire time the store was opened." Accord-
ing to Vincent, Korcz returned to the department the
next day and asked Vincent to "straighten up and dust
and so on" and Vincent complied. Korcz later visited
again and "started looking through [Vincent's] salesbook
and just general records within the department." There
is no evidence that Korcz found anything amiss in the
records. Vincent testified that "Mr. Korcz normally is
not in the store giving instructions, usually it's the man-
ager."
Hathorn testified that during his first 2 weeks at the
store, he once noticed Vincent "sitting [on] the back
showcase in the camera department." Vincent testified
that it was impossible to sit on the counter, but added
that he had used a glass-doored cabinet "as a leaning
post." When in answer to Hathorn's inquiry Vincent said
he had no work to do at that time, Hathorn suggested
that Vincent assemble some bicycles. According to Vin-
cent, a stockboy then delivered two small, unassembled
bicycles, which Vincent assembled. Thereafter, Hathorn
criticized Vincent for having worked too slowly and
having assembled only two bicycles. Two l0-speed bicy-
cles were then delivered to Vincent, who assembled
them.
Hathorn also testified that once, during his first or
second week in the store, he passed through the camera
department when "there were some customers at the
counter and Mr. Vincent wasn't anywhere to be found."
Hathorn then added that this had happened a "couple"
of times that he could recall. He later testified that he
spoke to Vincent "[j]ust that one instance when I asked
him what he was doing on the showcase," which hap-
pened "[s]ometime the first week I was there." But then
Hathorn added that during his second week he spoke to
Vincent "when I saw him back in the sporting goods de-
partment." However, in a pretrial affidavit, Hathorn had
said that "the only cautionary remark" he could recall
having made to Vincent concerned the bicycle assembly.
Korcz did not state what Vincent was sitting on and there is no evi-
dence that there were any chairs m the department. See discussion of
Hathorn's testimony below
Korcz testified that, at some unspecified time, he spoke
about Vincent to Assistant Manager Charles Turner,
Vincent's superior. He gave no details. Turner did not
testify.
Korcz testified that, during the week of August 27
through 31, when he was visiting stores in Ohio, he re-
ceived a telephone call from Hathorn, who reported
"that he had a problem in the camera department, that
[Hathorn] could not get the man [Vincent] to do any-
thing; that he was always sitting down, and [Hathorn]
felt he was not getting the fullest from [Vincent] and
[Vincent] was not performing his job." However, in a
pretrial affidavit, Korcz had said that he had never
spoken to Hathom about any problems with Vincent
before Hathom left on August 31 for the Labor Day
weekend. Yet, Hathorn testified that he believed he had
never mentioned to Korcz any problems involving Vin-
cent.
Even without its internal inconsistencies, Respondent's
evidence is inadequate to establish that Vincent was dis-
charged for cause. It is fair to infer that Vincent had
been a satisfactory employee because he had never previ-
ously been reprimanded; on March 25 Hathorn thanked
him for having worked overtime to fill in for absent em-
ployees; and, after only 5 months' employment, he was
given a transfer that he requested. Respondent does not
offer even a speculative reason why Vincent might have
lessened his industry immediately on getting the job he
wanted.
Perhaps most significant is the fact that Korcz, a dis-
trict supervisor, discharged Vincent around 9:30 p.m. on
Monday, with Store Manager Hathorn due back at work
the next morning and Vincent presumably not scheduled
to work before Tuesday evening. Thus, even if it had
been shown that Vincent's work was deficient, the
record would not support a fmding that his discharge
was dictated by such deficiency.
But, finally, the record does not establish any conduct
by Vincent warranting discharge. In this connection, it
bears repeating that Assistant Manager Turner, Vincent's
immediate supervisor, did not testify and was not quoted
as having any dissatisfaction. It is undisputed that Vin-
cent was never warned of any possible discipline, let
alone the supreme penalty of discharge.
Accordingly, I conclude that Respondent did not
rebut the General Counsel's prima facie showing and
that Vincent was discharged for his union activities, in
violation of Section 8(0(3) and (1) of the Act.
d. Denise Styles and Kristin Burkle
Styles and Burkle were primarily security employees,
although they were frequently assigned to other tasks.
They worked the same hours, one of them stationed at
the security desk at the front of the store while the other
was at the rear of the store." Their duties were to
check packages brought into the store, to observe pack-
ages taken out, and, with the assistance of closed-circuit
television monitors, to watch for suspected shoplifting.
The television cameras were located and operated in the
20 They arranged between themselves to alternate posts.
S. E. NICHOLS, INC. 573
front office, where there were also monitors used by
management and office personnel.
Hathorn did not specifically testify as to when he de-
cided to discharge these two employees. There is no evi-
dence that he entertained any such action before he left
for Ohio on Friday afternoon, August 31. He did testify
that on September 4 he "again observed packages in the
store, customers were bringing stuff into the store, the
girls were not at their posts, [he] couldn't fmd them any-
where around the store and general security just wasn't
there." He provided no specifics. And, so far as it ap-
pears, he did not speak to either of the employees at the
time of his claimed observation and did not refer to any
such specific incidents in the discharge interviews. Nei-
ther employee had ever before been disciplined or
warned of possible discipline or discharge. Burkle testi-
fied, without contradiction, that on Friday, August 31,
Hathorn had assured her "that he and Mr. Korcz were
going over files and that [she] was going to get [her]
raise in a couple of weeks," an unqualified assurance that
would be most unlikely if he was dissatisfied with her
work.
Bur1de conceded that during Hathorn's first week at
the store, he spoke to her about her having permitted a
customer to enter the store carrying a Nichols' package.
She replied that Genung, the former store manager, had
said that it was all right to permit such conduct as long
as the package was stapled closed and the receipt was
readily visible. Hathorn then instructed her not to do so
in the future. That was the end of the matter. Burkle tes-
tified further that, also during his first week at the store,
Hathorn spoke to her about her not wearing the store-
provided smock that employees were required to wear.
It is clear that employees frequently are specifically in-
structed to don their smocks, but there is no evidence
that any employee has ever been disciplined when found
without her smock.
Korcz testified that he had never observed any defi-
ciencies in Burkle's work, nor had he discussed any such
deficiencies with Hathorn. Hathorn also testified that on
August 22, 2 days after his arrival, by viewing the televi-
sion monitor, he observed that Burlde was not at her se-
curity desk. He spoke to her on the telephone and "men-
tioned, 'Don't you think you belong at your security
desk' and she agreed." He then testified that on another
occasion, also during his first week, he spoke to Burkle
about lb]asically the same thing I had mentioned to her,
be at your post, stuff getting into the store, please do
your job." Burkle denied that Hathorn had ever spoken
to her about being away from her work station. Based on
the general unreliability of Hathorn's testimony, the pre-
cision of Burkle's testimony, and careful observation of
the demeanor of the witnesses, I credit Burkle." Korcz
testified:
21 In its brief, Respondent says. "Burkle admitted that when she left
her position she usually didn't get someone to watch it while she was
gone." In support of this statement, Respondent cites a portion of Bur-
kle's cross-examination, which reads, in pertinent part:
Q. Did [Mr. Genung] give you any Instructions about what to do
when you left the secunty booth, were you to get somebody to take
your place?
On the day after Labor Day [Hathorn] had men-
tioned that he had a problem with Denise [Styles]
and Kristin Burlde and he felt that the problem was
serious enough that he was going to be taking
action on it. I explained my viewpoints.
Korcz did not reveal the "viewpoints" he imparted to
Hathorn and Hathorn did not corroborate Korcz' testi-
mony that the two men had discussed the matter before
the discharges. Korcz testified that he had not observed
any deficiencies or problems in Burkle's work before her
discharge and he did not retreat from the statement in
his pretrial affidavit that he had not discussed any work
problems of Burkle or Styles with Hathorn before the
latter's departure on Friday, August 31. In view of Hath-
orn's and Korcz' testimony, it is impossible even to spec-
ulate on what basis Korcz might have believed that the
two employees should be discharged. Yet, it is incon-
ceivable that Hathorn would have fired them against
Korcz advice; Hathorn had been at the store for less
than 3 weeks, while Korcz had supervised it for many
years and, according to his testimony, had visited each
store at least once a month.
Respondent's case against Styles is no better or clearer
than that against Burkle. Styles had commenced working
at the store in April 1977 and had spent about 75 percent
of her time in security for some 6 months before her dis-
charge. She testified that she had never been disciplined
and had never been criticized for her security operations.
She said that she had been criticized only twice, and
then not for security operations: once, while Genung
was still manager, Korcz told her "[t]o stop eating
potato chips at [her] booth," and once Hathorn directed
her to don her smock, which she had eliminated because
of the heat caused by the breakdown of the store's air-
conditioning. Respondent adduced no evidence of any
written warnings or other discipline ever given to Styles.
Korcz' testimony concerning his observation of Styles
after August 20 was characteristically devoid of specifics
as follows:
I noticed that security was not being handled
properly. On several occasions upon leaving the
A. If it was an emergency situation or [you] were called to an-
other part of the store by another employee and didn't have time to
look for someone to relieve us. During breaks and lunch we had to
have a relief.
. . . .
Q. When you left the security booth did you always get someone
to take the position?
A. Yes.
. . .
Q. Were you asked [at the unemployment compensation hearmg],
did you get someone to watch it while you left and did you answer,
not usually?
A. We were asked by other employees to get change and do a
price check. Usually the employee who asked us would keep an eye
on the security booth while we were gone.
Q. I want to ask you whether or not you were asked that question
and gave that answer at the unemployment compensation hearing,
"Did you get someone to watch it while you were goner' Answer,
"not usually?"
A. Yes.
I do not read the colloquy as an "admission" of any wrongdoing by
Burkle.
574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
store I had to have my bags checked and I had to
summon her to check it. 22 On several occasions she
was munching at the security desk. I personally told
her to straighten up and look like a store security
personnel.
Respondent apparently does not content that Styles was
fired for not "look[ing] like a store security personnel," a
condition never described.
In its brief, Respondent says: "It is also clear from her
own testimony that Styles was likewise inattentive to her
duties." Respondent adds two record references: the first
to Styles' testimony that after lunch on August 31 she
telephoned 12 to 15 employees about walking out the
next day, and the second to her testimony that on Sep-
tember 1, while she was running a cash register, she tele-
phonically solicited employees to sign union cards. There
is no evidence that employees were forbidden to use the
store intercom telephone for personal conversations or
that Styles' calls delayed or interfered with work. And
Hathorn did not mention this incident when he dis-
charged Styles. Indeed, Respondent could not make any
such contention while it maintained that it did not know
of Styles' involvement in a proposed walkout or in any
union activities."
On the foregoing considerations, I find that Respond-
ent has failed to establish that either Burkle or Styles
was discharged for cause. The credited evidence as a
whole compels the conclusion that they were terminated
solely for their union and/or other concerted activities.
B. Section 8(a)(1)
1. General comments
The complaint, as amended, alleges several independ-
ent violations of Section 8(a)(1), which will be discussed
individually. But certain general observations should be
made initially.
Most of the alleged 8(a)(1) violations occurred during
a series of employee meetings conducted by Korcz on
and after September 4. Thus, the conduct in question oc-
curred in the shadow of the blatantly unlawful discharge
of all the union activists, after the employees' anxieties
had already been aroused by the precipitous discharge of
Genung.
It has previously been found that the testimony of
Korcz and Hathorn was unreliable. An additional consid-
eration arises concerning the employee meetings. Undis-
puted testimony by employees called by the General
Counsel establishes that Respondent had all the employ-
ee meetings taped and/or stenographically recorded."
Yet, Respondent did not offer in evidence any transcripts
and did not explain its failure to do so. Because there is
frequent conflict concerning what was actually said at
22 An unexplained lese majeste.
23 However, it appears that at the unemployment compensation hear-
ing Respondent's counsel did argue that Styles' "allowing herself to be
diverted from her activities" by these telephone calls was at least part of
the cause for discharge, which would make her ineligible for unemploy-
ment compensation
24 In the later district court trial Brecker, Respondent's president, testi-
fied that all employee meetings were taped.
some of the meetings and the context in which state-
ments were made, verbatim transcripts would be of ines-
timable value. Accordingly, I infer that the transcripts
would not support Respondent's position and resolve
against Respondent's witnesses all conflicts of evidence
concerning statements made by Respondent's representa-
tives at employee meetings. Taylor Bros., 230 NLRB 861
(1977).
2. Specific allegations
a. 25 Threat of discharges
As set forth above, employee Goldsmith credibly testi-
fied that, when she asked Madison, an admitted supervi-
sor, if Reinhardt had been fired for union activities, he
replied that "he couldn't say," adding that "there would
be more to go, it wasn't the end." In context, Madison's
statement could not be understood other than as a threat
of further discriminatory discharges.
In its brief, Respondent says: "Since Madison testified
that he had no conversations with Korcz concerning
union activity . . . he obviously could not have made
the alleged statements to Goldsmith." That argument is
an obvious nonsequitur even if Madison's testimony is
accepted as true. Madison was aware of what had tran-
spired and thus was in a position to draw inferences
without confirmation by Korcz. Even if he was actually
stating his own inference (or even conjecture), his state-
ment would be attributed to Respondent because he was
an admitted supervisor.
Accordingly, I find that, as alleged, Respondent violat-
ed Section 8(a)(1) by Madison's statement to Goldsmith
on September 3 shortly after Reinhardt's discharge.
b. Solicitation of complaints with promises of
rectification
Employee Fred Pumilio testified that, in a meeting of
about 10 employees on the morning of September 4,
Korcz said that Hathorn's new schedules, a source of
employee complaints, would not be put into effect. Pu-
milio also testified that, at one of the meetings, Korcz so-
licited employee suggestions for improvements. One em-
ployee recommended installation of a suggestion box,
which was promptly effectuated.
Employee Robert Price testified that, when Korcz so-
licited complaints at one meeting, employee Diana
Buono said that she had unsuccessfully asked Assistant
Manager Levy about a raise due her, whereupon Korcz
said "he would take care of it."
Goldsmith testified that at an employee meeting, in re-
sponse to Korcz' asking if there were any problems, one
employee said she needed a clock and lights. Within a
few days the clock was provided. Goldsmith did not
know if a light was installed.
Employee Klimacek testified that at one meeting an
employee said she had not received jury duty pay and
Korcz said that he would remedy the matter, which he
did. Klimacek also testified that she asked about a raise
25 The letter designations in this section are taken from the relevant
sections of the complaint.
S. E. NICHOLS, INC. 575
and Korcz replied that he and Hathorn were reviewing
the payroll. She also asked about Blue Cross-Blue Shield
coverage and Korcz said that Respondent "did not sell
insurance but there was a benefit [the employees] could
have by paying a computer fee." Respondent's employee
handbook lists life insurance and hospitalization as exist-
ing benefits. None of the foregoing testimony was con-
tradicted.
Respondent contends that the Korcz' statements were
merely restatements of Respondent's established "open-
door policy." Korcz testified:
I don't solicit employees' complaints or griev-
ances; the company has always tried to have an
open-door attitude towards our employees; if they
had a question or problem pertaining to store
policy—whether it be pay raise, whether it be life
insurance, whether it be time off—if it's about a
complaint I will take care of it because it was my
job to make sure that company policy and rules
were being followed.
The evidence is undisputed that before the union cam-
paign began no meetings had ever been held in which
employees were encouraged to ask questions or state
their complaints. Neither Korcz nor any other represent-
ative of Respondent stated when or how employees were
invited to discuss their problems with management. It
may also be noted that Korcz testified that a major
reason for Genung's discharge was his failure to carry
out company policies, including the grant of automatic
raises at the end of an employee's first 6 months. Because
Korcz testified that he visits each store under his super-
vision at least once a month, it appears that the claimed
"open-door" policy was not so widely known as to
assure employees the benefits supposedly due them.
The employee handbook is revealing. The following is
a portion of the section of the handbook entitled "Your
Employee Rights Under a Union Organization Drive."
In this quotation, the portions italicized were deleted and
the sentence in bracks was added in 1980.
Your company's automatic pay increases, vaca-
tion plan, sick leave benefits and promotional ad-
vantages are the best in your community. These are
discussed on previous pages of this booklet given to you
when you are hired. Do not be deceived. Any prob-
lems which you wish to discuss and to which you
have not received a satisfactory answer, write to:
ATTENTION: PERSONNEL DIRECTOR
[New York City]
You will receive a satisfactory answer to the best
of our ability. Remember, you are the first and last
link between Nichols and our customers. If you are
not happy, our customers will know it, and this can
hurt us. [Our goal is to make you happy.]
In closing, remember to stay out of problems, the
only paper to sign is your pay receipt, which will get
bigger the longer you work at your job doing the best
you know how.
While the section concerning unions ended the earlier
handbook, in the 1980 revision some further material was
appended, concluding:
Our company encourages good communications.
We invite you to talk with any member of the man-
agement team whenever you feel the need to do so.
Sincerely,
Store Manager
It thus appears that the employee handbook originally
referred to communication by employees only which the
personnel director, at the corporate office in New York
City, and only during a union organizing campaign. The
manifest purpose of such communication was to give Re-
spondent an opportunity to keep the employees from
being "deceived" into supporting a union and signing
union cards. It was only belatedly that Respondent invit-
ed employees "to talk with any member of the manage-
ment team whenever [they felt] he needed to do so." At
the same time Respondent added the Company's "goal
. . . to make [the employees] happy." Thus, when an
"open-door" policy was suggested, the message still was
that the employees did not need a union because Re-
spondent would make them happy without one.
On all the evidence, I find that, as alleged, Respondent
violated Section 8(a)(1) of the Act by soliciting employee
grievances and complaints and promising to remedy
them for the purpose of dissuading employees from sup-
porting a union.
c. Promises of wage increases
As set forth in the preceding section, employees credi-
bly testified that Korcz told employee Buono that he
"would take care of" the raise she said she had unsuc-
cessfully sought through Levy. Goldsmith testified that
Korcz said Genung did not "go over raises periodically"
as he should have, and added that "after this thing blew
over [Korcz] would have the new manager go over our
raises and give us periodic raises." And Klimacek testi-
fied that Korcz said that Hathorn "was reviewing the
payroll." Pumilio testified that Korcz "said he couldn't
promise any [raises] at the time [because] that would be
bribery," but "he would go over raises with Mr. Hath-
orn in the future." As noted below, Korcz made it clear
that there was no assurance of raises if the Union became
the employees' bargaining representative. Thus, there can
be no doubt that Korcz clearly implied that raises would
be forthcoming if the employees rejected the Union.
Respondent contends that Korcz was simply promising
to effectuate the Company's established policy of grant-
ing each employee a wage increase at the end of his first
6 months. According to Korcz, he was called up to do
so because Genung had failed to execute that policy. But
Korcz had been Genung's supervisor and, as such, vis-
ited the store at least on a monthly basis. Thus, if it was
true that Genung had ignored the "policy," it follows
that it was not uniformly applied. Indeed, the employee
handbook provides for a 10-cent-per-hour raise after an
employee's first 6 months, but "Whereafter, increases
576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
will be made at the discretion of the manager." 28 Korcz'
promise to "review" wages during the union campaign
were not shown to conform to any established pattern.
The same is true of the raises actually given shortly
before the election.
I conclude that, as alleged, Respondent, through
Korcz, promised wage increases to dissuade employees
from supporting the Union, in violation of Section 8(a)(1)
of the Act.
d. Solicitation of employees to withdraw union
authorization cards
There is considerable uncontradicted and credited em-
ployee testimony that on several occasions, always on his
own initiative, Korcz told employees that they could
recall or withdraw union cards that they might have exe-
cuted. Korcz testified that he told the employees they
could talk to him about such retractions. He offered to
give employees an address to which to send retractions.
Respondent's employee handbook contains specific in-
structions in this connection" and Korcz discussed the
matter in virtually all his numerous meetings. Additional-
ly, Klimacek testified, without contradiction, that em-
ployee Chet Cornaccio gave her, at the store, a prepared
form for retraction addressed to the president of Local
345. 28 Respondent argues:
It is not a violation of the Act for an employer to
suggest that it is possible for employees to with-
draw their union authorization cards. 1V.L.R.B. v.
Monroe Tube Company, 545 F.2d 1320, 1325 (2nd
Cir. 1976). That is all that occurred here and there-
fore there was no violation of the Act.
In Monroe Tube, the court held only that solicitation of
employees to withdraw their union cards was not per se
violative of the Act. As the court said in Monroe Tube,
cited by Respondent (545 F.2d at 1325):
While it is certainly true that an employer's solicita-
tion of withdrawal letters may violate the Act under
some circumstances, the propriety of such conduct
must be assessed in the light of all the facts in the
case, particularly the employer's prior and contem-
poraneous conduct in dealing with union activities.
26 The manual also says "Nichols has a system of automatic pay in-
creases which go mto effect from the day you start working This system
saves you the trouble of asking for pay raises." (Emphasis added.)
27 This handbook provision is.
If you have signed a Union Card and you change your mind and
you now wish to withdraw your card for any reason you decide,
YOU CAN DO SO AT ANY TIME.
Write to the President of the Local to whom you have given your
signature and simply say you no longer want your card to be used,
and keep a copy.
Goldsmith testified that in the employee meetings Korcz orally advised
employees to "make sure you have a copy [of your retraction] and give it
to a friend so someone else knows that you have retracted your card."
22 Cornaccio had been recently employed part-time at the Herkimer
store. His functions do not appear and the testimony was that he spent
his time going through the store and spent considerable time talking and
drinking coffee with management personnel, who frequently summoned
him.
Unlike Monroe Tube, the present case involves much
more than a suggestion that employees have a right to
retract their union cards. The frequency of Korcz' rep-
etitions of the unsolicited advice surrounds it with an
aura of inordinate importance that would naturally tend
to cause employees to fear future adverse action if not
heeded. Additionally, the portion of the handbook in
which the information is contained has a general, overall
coercive tone and effect. Cf. S. E. Nichols of Ohio, Inc.,
supra, 195 NLRB at 941, 943. Most significantly, this
repetitious "advice" was given after the four instigators
of the union campaign had been fired and Korcz attrib-
uted the discharges in substantial part to their having so-
licited union cards. And, finally, the "advice" was an in-
tegral part of what is here found to be an overall pattern
of coercive misconduct.
It may be conceded that Korcz did not in haec verba
"ask" employees to withdraw or retract their authoriza-
tion cards, but, against the backdrop of Respondent's
animus and other coercive conduct, his repeatedly volun-
teering the suggestion and the emphasis thereon in the
employee manual would clearly suggest to employees
that they would be well advised to withdraw their cards
to avoid the fate of their four discharged colleagues. The
eschewal of a direct "request" amounts to unsuccessful
"brinkmanship." Cf. NLRB v. Gissel Packing Co., 395
U.S. 575, 620 (1969) (quoting Wausau Steel Corp. v.
NLRB, 377 F.2d 369, 372 (7th Cir. 1967)). 28 Within the
court's language in Monroe Tube, Respondent's "contem-
poraneous conduct in dealing with union activities" is
described in this decision; its "prior" conduct is graphi-
cally revealed in other Board and court decisions cited
above. It was largely on the basis of the absence of prior
or contemporaneous misconduct that the Second Circuit
distinguished Monroe Tube from numerous other cases in
which courts have sustained Board findings of 8(a)(1)
violations consisting of soliciting employees to recall
their union authorization cards.
It may be added, although this is not necessary to the
present decision (NLRB v. Monroe Tube Co., supra, 545
F.2d at 1327), that several employees did in fact with-
draw their union authorization cards.
Accordingly, I find that, as alleged, Respondent violat-
ed Section 8(a)(1) of the Act by soliciting employees to
withdraw their union authorization cards.
e. Threat of loss of benefits
Considerable employee testimony establishes that, in
one form or another, Korcz repeatedly expressed vari-
ations on the theme that if the Union became the em-
ployees' representative "bargaining would start from
scratch" and existing benefits, which Respondent de-
22 In Trojan Battery Co., 207 NLRB 425 (1973), it was held that, in
context, "advice" amounted to "admonition," violative of the Act. In Air-
porter Inn Hotel, 215 NLRB 824, 826 (1974), overruling Trojan Battery
pro tanto, a Board majority rejected the view that "all admonitions are
unprotected by Section 8(c)." But it was recognized that the decision
must be made m the light of the context. It may further be noted that
two of the three-member majority m Airporter Inn (Chairman Miller and
Member Kennedy) are no longer on the Board, Whereas present Chair-
man Fanning and Member Jenkins dissented in Airporter, citing Trojan
Battery (215 NLRB at 827 fn. 10).
S. E. NICHOLS, INC. 577
scribed as "the best in the area," could be lost. In consid-
ering Korcz' conduct, it is perhaps best to start with his
own testimony as to what he said. On direct examina-
tion, he testified:
Q. . . . Did you inform employees that in the
event the Nichols employees selected the union, all
existing benefits would be removed?
A. No, I did not. I informed the employees that
if a union would be established, their rights would
go back to where they would have to go back to step
I.
Q. They would have to bargain?
A. They would have to bargain. I did not tell
them they would lose everything since I had no
knowledge of what they would lose or what they
would not. [Emphasis added.]
He repeated the same thought on redirect examination:
A. The employees had mentioned that fact that
what if we have a union and what benefits do you
have and I said, I don't know what benefits you
have, you'd have to start at Step I. You have to go
back and negotiate for what you want.
Q. What do you mean by Step 1?
A. They would have to negotiate for wages, they
would to negotiate for life insurance and benefits
that would either remain the same or improve or be
deleted.
It will be noted that Korcz' basic thought was "going
back to Step I," the concept of bargaining being injected
first by a leading question by Respondent's counsel. And
even with the help of counsel, Korcz never indicated
that he had suggested that "horse-trading" or "give-and-
take" nature of bargaining.
Goldsmith attributed to Brecker the more common
terminology that they would "have to start all over if
they got a union in, [they] would start from scratch."
According to Goldsmith, Korcz warned: "You don't
know what you are going to end up with, you might not
do so well." Employee Sheppard quoted Korcz as saying
"[t]hey would wipe the booklet clean and have to start
all over again."
The Board has recently clearly restated the governing
principles in Taylor-Dunn Mfg. Co., 252 NLRB 799, 800
(1980), as follows:
It is well established that "bargaining from
ground zero" or "bargaining from scratch" state-
ments by employer representatives violate Section
8(a)(1) of the Act if, in context, they reasonably
could be understood by employees as a threat of
loss of existing benefits and leave employees with
the impression that what they may ultimately re-
ceive depends upon what the union can induce the
employer to restore. On the other hand, such state-
ments are not violative of the Act when other com-
munications make it clear that any reduction in
wages or benefits will occur only as a result of the
normal give and take of negotiations. . . . In our
view, [the respondent's representative's] remarks
clearly conveyed to employees a threat of loss of
existing benefits. In this regard, [his] statements
were unaccompanied by any assurances that such
losses, if any, would be the result of the normal
give and take of collective-bargaining and not of
employer retaliation. In addition, these comments
were made in the context of a preelection campaign
replete with numerous unfair labor practices com-
mitted by Respondent, including its declarations of
an anticipatory refusal to bargain with the Union.
. . . Therefore, we find that [his] statements violat-
ed Section 8(a)(1) of the Act, and that issuance of a
remedial order for this violation is fully warranted.
The present case falls within the holding in Taylor-Dunn.
Accordingly, I find that Respondent violated Section
8(a)(1) of the Act by threatening loss of benefits if the
employees chose to be represented by the Union.
f. Threat of company knowledge of union cards
Employee Pumilio testified that at two employee meet-
ings Korcz "said that his lawyer can receive the union
cards." Despite Korcz' conclusory denial of having told
the employees that Respondent's attorney would be in-
formed of all employees who signed cards, I credit Pu-
milio.
Korce statement, as reported by Pumilio, might rea-
sonably place employees in fear that their signing union
cards might well become known to Respondent. In view
of the known fate of Reinhardt, Vincent, Styles, and
Burkle, even the least timid employee might well refrain
from signing a union card out of fear of possible disclo-
sure. As the General Counsel observes, such conduct by
Respondent is not unprecedented. See, e.g., S. E. Nichols
Marcy Corp., supra, 229 NLRB at 79, 80, in which a
Nichols district manager informed an employee that Re-
spondent was "going to subpoena the cards," and it was
found that Respondent had violated Section 8(a)(1) by,
inter alia, "warning employees that the Company would
find out from the Board who had signed cards."
Accordingly, I find that Respondent violated Section
8(a)(1) of the Act by indicating to employees that their
signing union cards might become known to Respondent.
g. Threat to discharge discriminatees if reinstated
Employee Goldsmith testified that at one employee
meeting Korcz was asked if the four discriminatees
would be reinstated, to which he answered, "[Y]es, but
once they're reinstated, they don't last too long"; in
other words, pretexts would be found for their later dis-
charge. I credit Goldsmith, despite a blanket, conclusory
denial by Korcz.30
It is concluded that Respondent violated Section
8(a)(1) of the Act by threatening to discriminate against
any employee whom the Board might order reinstated.
30 As the General Counsel observes, such conduct is m line with Re-
spondent's past course. See NLRB v. Nichols of Ohio, Inc., supra, 100
LRRM 2840, in which Respondent was held in contempt for failure to
comply with a reinstatement order
578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
h, i, and 1. 31 Distribution and solicitation
Respondent's employee handbook, as in effect during
the period here involved until January or February 1980,
contained the following provisions:
An employee shall not solicit or distribute literature
to other employees for any cause or purpose during
the working time inside Company buildings or on
Company property. [Emphasis added.]
In Essex International, 211 NLRB 749 (1974), the Board
held that a rule prohibiting employee solicitation during
"working time" is presumptively valid because "the term
'working time' or 'work time' connotes the period of
time that is spent in the performance of actual job
duties," as distinguished from "working hours," which
"connotes the period of time from the beginning to the
end of a workshift." Without nitpicking, in the present
context a distinction may well be drawn between "work-
ing time" and "the working time"; "working time"
would reasonably be understood as referring to the time
the particular employees involved were working, where-
as "the working time" could reasonably be understood as
more general, meaning "the working time in the plant."
Had Respondent meant to limit the prohibition to the
time during which an employee was working, it could
have said just "working time." Thus, use of the phrase
"the working time" creates an ambiguity.
In any event, the revised version, using the phrase
"working hours," is presumptively invalid under Essex
International. Although it is possible that the earlier rule
was adopted before the Board spelled out the presump-
tions, the revision came some 4-1/2 years after the Essex
decision. Respondent has not explained the change in
wording. In view of Respondent's extensive involvement
with Board law, the change appears to have been made
in advertent defiance of applicable Board law.32
To rebut the presumptive invalidity of the rule under
Essex International, Respondent had the burden of re-
moving the ambiguity. Cf. Our-Way, Inc., 238 NLRB
209, 214 (1978). It could meet this burden by extrinsic
evidence establishing that "the 'working hours' rule was
communicated or applied in such a way as to convey an,
intent clearly, to permit solicitation during breaktime or
other periods when employees are not actively at work."
Essex International, supra, 211 NLRB at 750. To meet
this burden, Respondent relies primarily on the testimony
of Goldsmith and Korcz. On cross-examination, Gold-
smith's testimony was:
Q. Did Mr. Korcz say anything about how the
employees in the store could solicit for a union if
they wanted to?
A. He said the only way we could was off-store
premises or when we were punched out on lunch-
time but not on company time.
32 These letters conform to the subpars of pt. V of the complaint in
Case 3-CA-9304. However, the complaint in Case 3-CA-9714, which
contains a related allegation and evidence from the district court record,
is included in this decision.
32 Respondent does not argue that the Essex rule is improper or in-
valid; it argues only that its written rule is not the rule actually in effect.
Q. He told you it was all right to solicit for a
union but not on company time?
A. Right.
Korcz did not testify that he ever had informed the em-
ployees that the rule in effect was different from that ap-
pearing in the handbook, as Respondent's counsel ex-
pressly stated before Judge McCurn. The publication of
the 1980 revision belies any such contention. And in tes-
tifying, Korcz failed to "clarify" the rule so as to render
it valid. He testified that, in employee meetings on Sep-
tember 5, he told employees not to hand out union cards
on working hours. In later meetings he "told them there
should be no solicitation of union cards on the company
property, to do it on your own time." He proceeded:
Q. Did you tell them they couldn't do it at all on
the store premises?
A. I told them to do it on their own time.
Q. Did you tell them they could not do it in the
lounge when they were on breaks?
A. I didn't tell them that; I said if you want to do
it, do it on your own time in the lounge or what-
ever.
Nor did the employees have any clear understanding
of the rule. Before Judge McGurn, employee Rose Cene-
viva, called by Respondent, testified:
Q. [By Respondent's counsel] Is there a rule
about distributing literature in the store?
A. On store time, there is.
. . . .
THE COURT: . . . Is there a rule about . . dis-
tributing literature on the premises?
THE WrrNEss: Yes, you shouldn't be doing any-
thing.
THE COURT: Now, is there such a rule, is there a
company rule about distributing literature on, the
premises of Nichols Department Store which em-
ployees are made acquainted with?
THE WITNESS: I can't remember.
It is clear that the rule, as interpreted by Respondent,
is invalid. The evidence establishes that employees are
entitled to a 10-minute break during each 4 hours.33
Such breaks are nonworking time but are paid for. Yet,
in its brief Respondent says: "It is clear from the testimo-
ny of district supervisor Korcz and employee Margaret
Goldsmith that solicitation is permitted in nonwork areas
. . . and while the employee is clocked out on a break."
There is no evidence that employees "clock out" for
their breaks.
The ambiguity goes not only to the temporal restric-
tion, but also to the spatial limitation. As indicated
above, at least Ceneviva claimed to understand that em-
ployees were not to do any distribution on company
premises. In its brief, Respondent apparently attempts to
equate "inside Company buildings" and "inside Company
buildings or on Company property" with "non-work
33 This privilege was wntten into the 1980 revision of the employee
handbook, but apparently existed before then.
S. E. NICHOLS, INC. 579
areas," saying: "The enforcement of this rule to limit
union solicitation to non-work areas is proper." Respond-
ent cites Montgomery Ward & Co., 145 NLRB 846 (1964),
enfd. in pertinent part 339 F.2d 889 (6th Cir. 1965). But
that case permits total prohibition of employee solicita-
tion in public portions of retail stores; a "ban [of] all
union solicitation on company property" was held un-
lawfuL
On the foregoing considerations, I find that, as alleged,
Respondent's no-solicitation and no-distribution rule,
both before and after its revision early in 1980, violates
Section 8(a)(1) of the Act.
It is also alleged that the rule was discriminatorily ap-
plied against union solicitation. It was apparently dis-
cussed only at employee meetings called in connection
with the union campaign and, so far as it appears, the
discussion concerned only union solicitation and distribu-
tions.
At various times Respondent's representative main-
tained that Reinhardt, Vincent, Styles, and Burkle had
been discharged in part for union solicitation in violation
of the rule. Pumilio was given a written warning for
"distributing union handbooks on Company time and
using the Company equipment to store such matter."
Employees Reinhardt, Ptunilio, Sheppard, Goldsmith,
Klimacek, Styles, and Burkle testified to frequent solici-
tations by employees at the store during working hours.
They ran the gamut from charitable fundraising, through
collections for gifts to employees and management repre-
sentatives on various occasions, sales of Avon products,
Tupperware, Sarah Coventry jewelry, etc., to baseball
pools. Without expressly so stating, Korcz sought to
create the impression that all such solicitations were to
be conducted on luncheon breaks and in nonwork areas.
However, he did not so state." Yet, there is no evi-
dence—not even conclusory testimony—that any em-
ployee had ever been reprimanded for, or told to cease,
soliciting or distributing for nonunion purposes.
For the foregoing reasons, I find that, as alleged, Re-
spondent discriminatorily applied and enforced a restric-
tion on union solicitation and distribution.
The employee handbook originally also contained the
following provision:
Employees shall not accept any literature distribut-
ed, for any purpose, by persons not employed by
the Company inside Company buildings or on Com-
pany property.
In the 1980 revision, the words "during working hours"
were added at the end of the sentence. The vestibule of
34 On direct examination he testified.
A. If an employee wanted to collect for something within the
store, meaning a funeral or a fire, March of Dimes or something
worthwhile and it was done in a low-keyed manner such as in the
lounge and It was not blown out of proportion, we accepted it
Q. What about these Tupperware, Avon sales and promotions of
that kind, what was the procedure that was supposed to be followed
in the Company concerning that/
A. The procedure that was to be followed at that point, if an indi-
vidual was on their lunch hour and there was a book there for Tup-
perware or Avon or anything else and the individual wanted to
select something from that book and they were on their lunch break,
they could do so
the store was also posted against any solicitation. The
General Counsel maintains that the quoted rule violates
the Act.
Because an employer, may legitimately prohibit all so-
licitation and distribution by nonemployees on his prem-
ises, it appears reasonable that he may also forbid em-
ployees to abet such proscribed conduct by accepting
material from outsiders on his property. I read the rule
under consideration as forbidding employees only from
receiving literature on company premises only directly
from outsiders, i.e., as not prohibiting accepting literature
from other employees merely because it may have origi-
nated with nonemployees. So read, the rule is permissi-
ble. McGraw Edison Co., 216 NLRB 460, 464 (1975),
enfd. in pertinent part 533 F.2d 1266 (D.C. Cir. 1976),
cited by the General Counsel, is not to the contrary be-
cause the rule there invalidated on its face forbade all
sales and solicitations.
j. Request for employee reports of union activities
Respondent's employee handbook, in both the original
and the revised versions, says:
Remember, do not sign a card because you are
threatened, tell us and we will protect you. It is
your right to have a union. It is your right not to
have a union. Our Company will try to see to it
that your rights are preserved no matter how you
choose. Tell us if someone is trying to stop your
freedom of choice.
At employee meetings Korcz repeatedly advised em-
ployees to report "harassment," "threats," or "trouble"
to management, whose counsel would "help [the em-
ployees] out as far as the union harassing" them Klima-
cek also testified that Korcz said that if the employees
"had any problems, [they] could go to him, or M. Hath-
Korcz also told the employees that "if they felt
they were threatened, if they felt they had problems, and
they did not have an attorney or they couldn't afford an
attorney, that they could see [Respondent's] attorney,"
Korcz said that two employees "wanted to see an attor-
ney." However, he then conceded that he had first
broached the subject and offered the services of Re-
spondent's counsel. He added: "The only thing that em-
ployees said that led to the fact if they needed an attor-
ney was the fact that one girl had mentioned that date
she went out and her tire was slashed and she was con-
cerned." The employee purportedly quoted did not testi-
fy. There is no evidence that the Union was in any way
involved or that Respondent made any investigation or
attempt to "protect the employee."
Because Korcz equated "harassment" with solicitation
of union support and "freedom of choice" with the ab-
sence of union solicitation, it is clear that he was inviting
employees to report any union solicitation to Respond-
ent's management and its counsel. The Board had previ-
ously condemned such conduct and the corresponding
portions of Respondent's employee handbook. S. E.
Nichols of Ohio, Inc., 195 NLRB at 942-943. On that au-
thority, I find that, as here alleged, Respondent violated
580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Section 8(a)(1) of the Act by soliciting employees to
report on union activities at the Herkimer store.
k. Instructing employees not to sign union cards
The General Counsel contends that Respondent's em-
ployee handbook unlawfully instructs employees not to
sign union cards. It contains the following statements:
Do not sign a card because you are told that if
you sign now, you will not have to pay initiation
fees, and that non-signers will be forced to pay such
fees if the Union gets certified.
Remember, do not sign a card because you are
threatened, tell us and we will protect you. It is
your right to have a union. It is your right not to
have a union. Our Company will try to see to it
that your rights are preserved no matter how you
choose. Tell us if someone is trying to stop your
freedom of choice.
Respondent's emphasis on only the words "Do not sign a
card" in the first paragraph quoted above makes that ad-
monition stand out, relegating the qualification to rela-
tive insignificance. However, despite that deceptive em-
phasis, those statements by themselves would fall within
the permissible limits set in Airporter Inn Hotel, 215
NLRB 824, cited by the General Counsel.
But the quoted statements do not stand by themselves.
In the pre-1980 revision, which was in effect during a
large part of the preelection campaign, there is further
flat advice: "In closing, remember to stay out of prob-
lems, the only paper to sign is your pay receipt, which
will get bigger the longer you work at your job doing
the best you know how." Against the background of the
four discriminatory discharges, employees would reason-
ably infer that their job futures depended on their not
signing union cards. This message is underscored by the
further message, at the beginning of the section on
unionization, telling the employees of "one more benefit
your company gives you," namely, protection from
"being exploited or taken advantage of by outsiders,"
most notably "Union Organizers." As previously noted,
the Board has previously adopted an administrative law
judge's decision giving weight to such handbook provi-
sions in appraising Respondent's conduct. S. E. Nichols of
Ohio, Inc., supra, 195 NLRB 939.
Again, Respondent has failed in its brinkmanship. I
find that, as alleged, Respondent has violated Section
8(a)(1) of the Act by coercively discouraging its employ-
ees from signing union cards.
1. Offer to provide counsel in employee interviews with
Board agents
Goldsmith testified that Korcz told employees that
Board agents would visit the store the next week and
might want to interview them. He then said that "if
[they] needed any protection he would get his lawyer to
sit in on the meeting." After considerable fencing and
equivocation, Korcz conceded that, on his own initiative,
he told employees they could see Respondent's attorney
if they needed help in connection with anticipated re-
quests by Board agents for employee statements.
As the General Counsel argues, Florida Steel Corp.,
233 NLRB 491, 494 (1977), is authority for fmding
Korcz' conduct violative of the Act. In Garry Mfg. Co.,
242 NLRB 539 (1979), the Board reaffirmed its Florida
Steel view. I am bound by the Board's decisions, even
though, as to the point under consideration, both were
reversed by a court of appeals: 35 Florida Steel by the
Fifth Circuit, 587 F.2d 735 (1979); Garry Mfg. by the
Third Circuit, 630 F.2d 934 (1980). Although the Board
has well articulated the statutory and policy consider-
ations underlying its rulings, the very recent reversal by
the Third Circuit suggests the advisability of some fur-
ther explication.
In Florida Steel, the court stated (587 F.2d at 752):
"The Board concedes that employees do have a right to
obtain legal counsel, if they so desire, prior to talking to
an agent of the Board." 36 However, at the time both
Florida Steel and Garry Mfg. arose and wound their way
through the Board and the courts, the Board had not an-
nounced any such policy, either in its binding Rules and
Regulations or in its nonbinding Field or Casehandling
Manuals. 3 7
The original 1967 Field Manual governing unfair labor
practice proceedings contained no provisions for or ref-
erence to any right to counsel in Board investigations.
The 1975 version of the Casehandling Manual contained
a carefully restricted provision for the right of a cooper-
ative respondent's counsel or representative to be present
when a Board agent interviewed "any supervisor or
agent whose statements bind a respondent." 38 In No-
vember 1978 a provision was added giving a charging
party the right to have counsel or a representative
present during a Board agent's interview "of the charg-
ing party or any supervisor whose statements or actions
35 Hotel & Restaurant Employees Local 28, 252 NLRB 1124, 1133-1134
(1980)
36 The Board's brief in Florida Steel contains a passing, ambiguous
"concession" as follows "While it is true that employees are free to seek
legal counsel, this does not immunize from violations employer state-
ments that tend to coerce employees from giving evidence to the Board."
I do not know if any further "concession" was made in oral argument.
37 The Board's first publicly available Field Manual was issued in 1967.
At that time, portions of the previously existing internal instructions to
field employees of the Board were withheld from publication However,
with the publication of the Casehandhng Manual, in 1975, confidentiality
of general instructions to field personnel was ended The Casehandhng
Manual has at all times contained the following prefatory statement.
Purpose of Manual
This manual has been prepared by the General Counsel of the Na-
tional Labor Relations Board pursuant to his authority under Section
3(d) of the Act It is designed only to provide procedural and oper-
ational guidance for the Agency's staff in administering the National
Labor Relations Act, and is not intended to be a compendium of
substantive or procedural law, nor a substitute for a knowledge of
the law The guides are not General Counsel or Board rulings or di-
rectives and are not a form of authonty binding upon the General
Counsel or upon the Board.
38 The Casehandhng Manual also provides for advising parties of their
right to counsel in the initial notification of the receipt of a charge. How-
ever, such initial notice is cursory and does not define the nature or
extent of the nght to counsel. The provisions discussed m the text herem
relate specifically to investigations
S E. NICHOLS, INC. 581
would bind the charging party." It was not until March
17, 1980, that the manual contained any provision con-
cerning a right of witnesses to have counsel in the course
of a Board investigation."
This matter is of particular importance in view of the
apparent underpinning of the courts' decisions in Florida
Steel and Garry Mfg.. For example, in Florida Steel, the
court said (587 F.2d at 752):
Our case involves the advising of employees of one
of the most treasured and sacred rights possessed by
citizens of this nation. Thus we need go no further
than to say that we can conceive of no circum-
stances where accurately informing an employee of
his right to counsel could amount to an interfer-
ence, restraint, or act of coercion.
On innumerable occasions the Federal courts, includ-
ing the Supreme Court, courts of appeals, and district
Courts, have pointed out that there is no constitutional
right, under the 5th, 6th, or 14th amendments, to repre-
sentation by counsel except in criminal proceedings. See,
e.g., Hannah v. Larche, 363 U.S. 420 (1960); FCC v.
Schreiber, 329 F.2d 517 (9th Cir. 1964), modified on other
grounds 381 U.S. 279 (1965); Smith v. U.S., 250 F.Supp.
803, 806 (D.N.J. 1966), appeal dismissed 377 F.2d 739
. (3d Cir. 1967); U.S. v. Wierzchucki, 248 F.Supp. 788
(W.D.Wis. 1965); Suess v. Pugh, 245 F.Supp. 661
(N.D.W.Va. 1965); Ferguson v. Gathright, 485 F.2d 504,
506 (4th Cir. 1973), and cases cited at footnote 3 therein,
cert. denied 415 U.S. 933 (1974). The absence of a right
to representation by counsel in noncriminal proceedings
has been upheld even where the "witness" involved is
the "target" of the proceeding and personally subject to
adverse action therein. A Presidential Order expressly
prohibiting Selective Service registrants from being rep-
resented by counsel before local draft boards ' has been
upheld even though their draft classifications could be
subjected to only very limited review in subsequent
criminal trials for draft evasion. Cf. U.S. v. Wierzchucki,
supra. A doctor has been held not entitled to representa-
tion by counsel in a hearing on charges against him that
could result in termination of his temporary employment
by the Veterans Administration. Suess v. Pugh, supra.
And the respondent in a state proceeding to revoke a
driver's license was held not to have a constitutional
right to representation by counsel even though he could
later be (and was) convinced of a criminal offense and
39 That provision (not present at the time here involved) reads.
16056 2 Interviews of Witnesses: Where a witness, whether offered by
the charging party or the charged party, who is not a representative
or an agent of any party to the proceeding is represented by counsel
or other representative and the witness requests that counsel or other
representative be present during an interview, the interview should
be conducted with counsel or other representative present so long as
this presence does not delay or hamper the interview This policy
will normally not prevail where counsel or other representative also
represents a party to the case unless the Region, m the exercise of its
discretion, wishes to proceed with the interview under such circum-
stances. In the event the Region declines to proceed with the inter-
Vim of the witness in the presence of counsel or other representa-
tive, the witness should be advised that he or she may submit docu-
mentary evidence or a statement which, if timely submitted, will be
considered.
have his existing parole revoked if he drove after the
revocation. The absence of a constitutional right to rep-
resentation by counsel is a fortiori applicable to "investi-
gations . . . of a fact-finding, non-adjudicative nature."
Smith v. U.S., supra, 250 F.Supp. at 806.
Any right to representation by counsel in noncriminal
proceedings must be dependent on a statutory or regula-
tory provision. The only statutory provision possibly rel-
evant is Section 6(b) of the Administrative Procedure
Act (now 5 U.S.C. § 555(b)), which reads, in pertinent
part:
A person compelled to appear in person before
an agency or representative thereof is entitled to be
accompanied, represented, and advised by coun-
se1.40
As was noted in U.S. v. Steel, 238 F.Supp. 575, 577
(S.D.N.Y. 1965), affd. 359 F.2d 381 (2d Cir. 1966), and
Smith v. U.S., supra, 250 F.Supp. at 806, "[T]he Supreme
Court has not decided the question as to whether the
Administrative Procedure Act affords the right to coun-
sel in a fact-finding non-adjudicative investigation." What-
ever the proper answer to that question, it is clear that
the statutory provision applies only "to persons com-
pelled to appear." Ibid.; U.S. v. Murray, 297 F.2d 812,
820-821 (2d Cir. 1962), cert. denied 369 U.S. 828 (1962);
Suess v. Pugh, supra, 245 F.Supp. at 664-665 (quoting the
Attorney General's Manual on the Administrative Procedure
Act, 1947, 61-62).
An underlying vice in an employer's advising his em-
ployees that they are entitled to representation by coun-
sel in interviews with Board agents is the necessary im-
plication that the employees might need protection. The
present case involves a charge against the Employer. In
no way could the interview result in any adverse action
against or legal detriment to any employee. 4 ' But the
employer's indication that employees might need the
protection of counsel manifestly would tend to dissuade
them from cooperating with the Board's investigation.
Respondent's conduct in the present case is improper
and clearly coercive for an additional, and perhaps more
telling, reason. Respondent offered the services of its
own attorney in the Board's investigation of charges
against Respondent—charges that it had violated the em-
ployees' rights vis-a-vis Respondent. An employee who
accepted Respondent's suggestion that he be accompa-
nied by counsel would reasonably also accept the offered
services of Respondent's attorney because securing inde-
pendent counsel would entail expense and, probably, in-
convenience. Respondent is thus temptingly proposing a
serious conflict Of interests. There is no apparent way
that an attorney could properly advise and represent
both employees and the employer who has been accused
of violating their rights.
49 The section also provides- "A party is entitled to appear in person or
by or with counsel or other qualified representative in an agency pro-
ceeding." (Emphasis added.) As previously noted, the Board expressly
recognizes this right of parties. It is unnecessary here to define the word
"proceeding" within the purview of this provision.
41 Of course, the employee's fifth amendment rights would be protect-
ed if necessary,
582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As shown above (fn. 39), the Board, as a general rule,
expressly prohibits representation of witnesses by counsel
for any party to the proceeding. Other administrative
agencies and courts have been sensitive of the dangers,
both to "witnesses" and to the regulatory agencies, in-
herent in multiple representation by counsel. See, e.g.,
U.S. v. Smith, 87 F.Supp. 293 (D.Conn. 1949), in which
the court held that, under Section 6(b) of the Adminis-
trative Procedure Act, an officer, a director, and a stock-
holder of a corporation were entitled to representation
by counsel when subpoenaed to appear before a special
agent of the Bureau of Internal Revenue in an investiga-
tion of the corporation, but then (at 294) restricted them
to "the presence only of outside counsel (other than
counsel for the taxpayer) for the witnesses to advise
upon their constitutional rights." Similarly, in U.S. v.
Steel, supra, 238 F.Supp. 575, the court sustained a regu-
lation and ruling of the SEC that a person subpoenaed in
the course of a fraud investigation could be
accompanied, represented and advised by counsel,
but such counsel may not represent any other wit-
ness or any person being investigated unless permit-
ted in the discretion of the [SEC] officer. . . upon
being satisfied that there is no conflict of interest in
such representation and that the presence of identi-
cal counsel for other witnesses or persons being in-
vestigated would not tend to hinder the course of
the investigation.
The most fearless employee would find it difficult to
provide the Board with information against his employer
when he was accompanied and being "advised" by the
employer's counsel. The Board, with judicial approval,
has consistently held that an employer violates the Act
when it requests that employees furnish him copies of, or
repeat to him the substance of, statements they have
given to the Board. Winn-Dixie Stores, 143 NLRB 848,
849-850 (1963), enfd. 341 F.2d 750, 752-753 (6th Cir.
1965), cert. denied 382 U.S. 830 (1965); Siegel Co., 143
NLRB 388 fn. 1 (1963), enfd. 328 F.2d 25, 27 (2d Cir.
1964). If such requests are coercive, a fortiori, the pres-
ence of the employer's counsel when such statements are
given would be coercive. Even if an employee sua
sponte requested representation by the employer's attor-
ney, the Board could properly deny the request because
of the inhibiting effect of such representation on the em-
ployee's freely providing full and accurate information.
Cf. Hannah v. Larche, supra, 363 U.S. at 454-485.
Accordingly, on the authority of the Board's decisions
in Florida Steel and Garry Mfg., supra, and for the fur-
ther considerations set forth above, I find that, as al-
leged, Respondent coerced the employees and interfered
with their Section 7 rights when Korcz volunteered that
they could be represented by counsel in interviews with
Board agents and offered them the services of Respond-
ent's counsel.
The evidence establishes that Korcz advised the em-
I that they need not speak to Board agents who
might seek interviews with them. Although the amend-
ment to the complaint made orally at the trial does not
specifically allege such statements as violative of the
Act, they are intertwined with the statements alleged.
Although Korcz testified after employees attributed such
statements to him, he did not disavow them. According-
ly, their lawfulness may be decided herein. Pioneer Natu-
ral Gas Co., 253 NLRB 17 fn. 2 (1980); Gordonsville In-
dustries, 252 NLRB 563, 564 fn. 7 (1980).
The Board has held that an employer violates the Act
when he advises employees "that they need not cooper-
ate in the Board investigation" even though "it may be
technically true that an individual may not be forced to
give statements to a Board agent unless subpoenaed."
Certain-Teed Products Corp., 147 NLRB 1517, 1520-1521
(1964); R. G. Barry Corp., 162 NLRB 1472, 1476 (1967),
enfd. as modified 405 F.2d 1212 (6th Cir. 1969), cert.
denied 396 U.S. 838 (1969). On the basis of these deci-
sions, I also find that Respondent violated Section 8(a)(1)
of the Act by Korcz' stating at employee meetings that
the employees could refuse to speak to Board agents in-
vestigating the charge in this case. Bryant Chucking
Grinder Co. v. NLRB, 389 F.2d 565, 567 (2d Cir. 1967),
cert. denied 392 U.S. 908 (1968).42
C. Case 3-CA-97I4
1. Preliminary considerations
As previously stated, on April 2, 1980, the Union filed
a second charge, on which a complaint was issued on
May 8, alleging, in the main, that Respondent had com-
mitted numerous unfair labor practices connected with
or arising out of the prior proceeding. The General
Counsel then petitioned the United States District Court
for the Northern District of New York for an injunction
under Section 10(j) of the Act pending Board decision.
After a trial, the court (District Court Judge Neal P.
McCurn) denied the petition. The General Counsel's
appeal from that decision is pending in the Court of Ap-
peals for the Second Circuit. The Second Circuit denied
a request for injunction pending the appeal.
When the second case came on for trial before me on
September 15, 1980, after a pretrial discussion," I grant-
ed the joint request of all parties that I accept the tran-
script of the trial before Judge McCum in lieu of testi-
mony presented directly to me. Before me, the district
court trial record was supplemented by certain additional
material.
In its posttrial brief, Respondent apparently contends
that Judge McCum's decision is binding on me as to
credibility of the witnesses, at least so far as demeanor is
involved. However, Judge McCurn made no express,
specific findings as to credibiity. The record before me
clearly shows that all parties understood that I was to
appraise credibility independently. Not only did I have
42 As held in Bryant, Chucking Grinder Co, 160 NLRB 1526, 1564
(1966)
Respondent was thus unerfenng with the employees' right to utilize
the statutory protection of their Section 7 rights without fear of re-
prisal for giving information or testimony adverse to it. This conduct
had the tendency to obstruct and impede the Board in its investiga-
tion and trial procedures and to depnve employees of vindication by
the Board of their statutory rights
* 3 The credibility problem was discussed and I was assured that most
of the witnesses had appeared before me in the first
E. NICHOLS, INC.
575, 613-614 (1969); Chromalloy Mining & Minerals v.
NLRB, 620 F.2d 1120 (5th Cir. 1980); PayW Save Corp.,
247 NLRB 1346 (1980); NLRB v. Gissel, supra, 395 U.S.
at 613-614. Although the Union claimed a majority and
requested a card check on September 5, 1979, the com-
plaints do not allege violation of Section 8(a)(5) and the
General Counsel did not attempt to establish a union ma-
jority. The Union could not expect to gain anything by
pursuing election objections; in the absence of a majority
showing, it could not hope for a bargaining order45 and,
until the unfair labor practices were remedied and the
employees were assured that their statutory rights would
be protected, the Union could not reasonably hope to
win a second election. And it was virtually impossible
for any relief to be forthcoming within the year before a
new petition could be filed. A second election loss
within that year might well further undermine the
Union's chances for ultimate success. Thus, rejecting Re-
spondent's argument, I draw no adverse inference from
the Union's failure to file objections to the conduct of
the election. In any event, the General Counsel would
not be bound by any express or implied "concession" by
the Union unless the Regional Director formally granted
a request to withdraw the charges.
2. The alleged violations
The complaint alleges that after the trial in Case 3-
CA-9304 Respondent harassed employees who support-
ed the Union and/or cooperated with the Board in the
earlier proceedings. Employees who had been subjected
to the coercive and intimidating conduct heretofore
found would normally be particularly sensitive to the
message conveyed by further action by the Employer,
no matter its sophistication. Coercion is not rendered less
violative of the Act by an increase in the employer's sub-
tlety. Ohio Hoist Mfg. Co., 189 NLRB 685, 687-688
(1971). The detailed allegations of the complaint will
here be considered in the light of Respondent's past con-
duct.
583S.
the district court record, but I also had had the opportu-
nity at the first trial to observe many of the witnesses
who testified before Judge McCurn. As will appear here-
inafter, demeanor plays no part in my resolution of the
credibility of persons who did not testify before me.
Indeed, all my credibility resolutions are supported by
considerations other than mere demeanor.
No evidence was presented to Judge McCurn concern-
ing the matters involved in Case 3-CA-9304 and he ex-
pressly refused to receive the transcript of the trial in
that case. Although the substance of the first case may
not be germane to the question whether an injunction
should issue during the pendency of the second case, the
facts in the earlier case are of inestimable value as back-
ground. Conduct alleged as violative of the Act in the
second complaint which might, by itself, appear innocent
and/or inconsequential may take on a more ominous col-
oration when seen as a continuation of a flagrantly un-
lawful course of conduct. Thus, although Judge
McCurn's decision on the evidence before him is entitled
to careful and respectful consideration, it is not disposi-
tive of the issues presented in this proceeding.
Judge McCurn held, as a conclusion of law, that the
Regional Director "did not have reasonable cause to be-
lieve" that Respondent had engaged in the unfair labor
practices alleged in the complaint This conclusion was
based at least in part on implicit interpretations of the
Act in conflict with the Board's. The court's decision
contains no discussion or citation of any decisions under
the Act. The Board is the agency statutorily charged
with administering the statute and its decisions can be re-
viewed and reversed only by courts of appeals or the Su-
preme Court under Section 10(e) and (f) of the Act.
Thus, in this proceeding, I am bound by Board prece-
dents even if they conflict with a judicial decision in an
ancillary proceeding.
In his brief to the Second Circuit, in support of his un-
successful attempt to obtain an injunction pending the
appeal, the Regional Director said that much of his evi-
dence had been contradicted by Respondent's "and the
ultimate merits of the case may not be entirely free from
doubt." Respondent would apparently read that state-
ment as somehow a "concession," calling for dismissal of
the complaint, But conflict and doubt are in the heart of
litigation. This decision sets forth the resolutions, which
I have been charged with making.
Respondent also argues that the Union's failure to file
objections to the conduct of the election, which it lost,
amounts to an "admission" of the absence of merit to the
present complaint, which alleges preelection misconduct.
So far as it appears, the Union made no attempt to with-
draw its charges or to have the complaints dismissed.
There is an obvious reason why the Union might reason-
ably follow the course it did.44 It has long been recog-
nized that egregious and pervasive unfair labor practices
can, and frequently do, so Undermine a union's support
and contaminate the atmosphere as to make it impossible
to hold a fair election within the immediate or presently
forseeable future. NLRB v. Gissel Packing Co., 395 U.S.
44 Union counsel briefly addressed this matter before Judge McCurn
However, the transcript does not clearly show counsel's position.
a. Section 8(a)(1)
(1) Conduct of President Manfred Brecker
On April 2, 1980, Respondent's president, Manfred
Brecker, paid an unusual visit to the Herkimer store.46
On April 2 and 3 and thereafter he conducted meetings
of small groups of employees, attended also by the em-
ployees' supervisors. He then held meetings of all store
employees and supervisory personnel on April 18 and
June 5. It is alleged that in the course of these meetings
Brecker committed numerous unfair labor practices.
46 All the events involved antedated the Third Circuit's decision in
United Dairy Farmers v. NLRB, 633 F 2d 1054 (1980),
46 There is no evidence of any prior visit, and in a letter to the em-
ployees, dated April 15, the Union said: "Recently, the president of S. E.
Nichols Co., paid a visit to Herkimer for the first time in many years.
Stop and think about it, all these years before he [never] bothered to
leave New York City to come Upstate and show his 'concern."
584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) Credibility
At the outset, it should be noted that Brecker did not
testify before Judge McCurn. Further, no tapes or steno-
graphic transcripts of these or other employee meetings
were offered in evidence, although tapes and/or tran-
scripts were made. 47 Korcz and Hathorn did not testify
at any length or in any depth about Brecker's meetings.
The General Counsel's witnesses were Klimacek,
Goldsmith, and Pumilio, alleged as discriminatees in
Case 3-CA-9714. In addition to supervisory personnel,
four employees were presented by Respondent. Specific
deficiencies in their testimony will be noted below. How-
ever, some general observations are appropriate at this
point.
Before Judge McCurn, Respondent's counsel argued
that one employee, Joseph H. Nicolette, "who has no ax
to grind. . . took courage to come in and testify against
someone he works for." Nicolette was called by and tes-
tified in favor of Respondent. Additionally, he had re-
ceived a wage increase in May. Similarly, employees
Rose Stagliano and Judith Guise also had received raises
in May. Stagliano also circulated an antiunion petition
and passed out "No" buttons to employees while work-
ing in the store. Edward Lintz had recently transferred
to the Herkimer store from the Marcy store, where he
had been vocally and conspicuously antiunion. These
four employees testified in favor of Respondent. On the
other hand, Klimacek, Goldsmith, and Pumilio obviously
desired to keep their jobs, yet testified against Respond-
ent. Thus, it is the General Counsel's employee witnesses
who are entitled to the benefit of the principle invoked
by Respondent's counsel. Rodeway Inn of Las Vegas, 252
NLRB 344 (1980).
(b) The alleged violations
The complaint alleges that Brecker threatened a loss of
benefits if the Union were voted in and said that "Re-
spondent would not negotiate with the Union." Klima-
cek testified that on April 2 Brecker "said that if the
Union got in he would negotiate with them but we
might end up with less than what we have already." Al-
though Assistant Manager Bifora had attended the meet-
ing, he did not testify. Klimacek also testified that at a
storewide meeting Brecker "said he didn't have to nego-
tiate with the Union but he would; but we would prob-
ably end up, we could end up, with less than we had
now." Goldsmith testified that Brecker said:
[W]hen the Union comes in you will lose your ben-
efits . . . we will have to start all over negotiating;
you don't know what you are going to earn . . .
right here I have your benefits and you know what
you have, so we should keep them.
In my opinion, Brecker's statements, as quoted, do not
amount to anticipatory refusals to bargain as alleged.
However, they carry on the "bargaining from scratch"
47 The evidence establishes that Respondent regularly records such
campaign meetings. Respondent introduced into evidence a tape of a
meeting conducted by Brecker m the Marcy store S. E. Nichols Marcy
Corp., 229 NLRB 75, 80 fn. 10 (1977)
motif of Korcz' statements previously found to be viola-
tive of Section 8(a)(1). In the context of Respondent's
unrelenting assault on unionization, the statements would
naturally engender a fear in the employees that they
would lose existing benefits if they chose union represen-
tation.
Klimacek testified that on April 2 Brecker also said
that "Dottie Reinhardt was fired for being the head of
the walkout and that it was her fault that Kris Burkle
and Denise Styles got fired." When Klimacek interjected
that Reinhardt had not sponsored the proposal for a
walkout on September 1, 1979, but rather had "told ev-
erybody to stay in the store and to get some kind of rep-
resentation," Brecker, obviously angry and agitated, re-
plied that Klimacek "didn't now what [she] as talking
about and that he knew more about what was going on
in that store than [Klimacek] did." This undenied testi-
mony by Klimacek establishes that Brecker violated the
Act by informing employees that other employees had
been discharged for protected concerted activities.48
Pumilio and Goldsmith testified that in April meetings
Brecker said the Board was a "kangaroo court," the ad-
ministrative law judge was a "kangaroo," and Board em-
ployees and agents were "idiots and jerks." Guise testi-
fied that she did not recall any such statement and Stag-
liano did not recall Brecker's ever having said anything
derogatory about the Board. In the June 5 all-employee
meetings, Brecker adopted "humor" as his major
weapon." The principal buts of Brecker's ridicule were
the Board and its agents, along with the present com-
plaint and the employees named therein as discrimina-
tees. Brecker read the complaint paragraph by para-
graph, commenting on each. According to Klimacek,
Brecker indicated disagreement with the allegations,
which he indicated were worthy only of ridicule and dis-
dain. Theatrically, he mocked the notion that he and the
management representatives named in the complaint
could be considered "criminal." In mock histrionics, he
had each named company agent rise to deny the com-
plaint allegations against him. The charade produced
considerable laughter. As Klimacek stated, Brecker "read
[the complaint and] went through [it] calling everybody
a criminal and had everybody laughing and making a big
joke out of it." He also called on the three alleged discri-
minatees to comment on the allegations concerning them.
Against the backdrop of manipulated hilarity, the discri-
minatees could scarcely receive any sympathetic reaction
but, on the contrary, could only be embarrassed.
Goldsmith testified that at the June 5 meeting Brecker
denied ever having referred to the Board as a "kangaroo
court" or to Board agents as "idiots and jerks." Accord-
ing to Pumilio and Goldsmith, Brecker said he could not
remember his own past statements. He indicated that the
49 Brecker's statement also appears to have created the impression of
employer surveillance of employees' protected activities However, be-
cause no such specific allegation is made in the complaint, no corre-
sponding finding of violation is here made.
49 This is apparently Brecker's established tactic See S. E. Nichols
Marcy Corp., supra, 229 NLRB at 80. "Brecker further stated that his
meeting's] with employees were 'pretty happy ones,' jokes were told, dif-
ferent employees also spoke, and he said he was under the impression
that everyone enjoyed his meetings"
S. E. NICHOLS, INC. 585
employees must have equally faulty memories and, thus,
if they claimed they "knew word for word what he said,
[they] had to be lying." Stagliano also testified that
Brecker denied the "kangaroo court" and "idiots and
jerks" allegation. 50 The hearsay testimony concerning
Brecker's self-serving denials on June 5 are entitled to no
weight. He did not testify and subject himself to cross-
examination. Additionally, Respondent did not present
any tapes or stenographic transcripts of the April meet-
ings. The "kangaroo court" allegation is circumstantially
corroborated by documentary evidence. In a letter to
employees dated April 15, the Union referred to
Brecker's first meetings and said:
[Brecker] proceeded to make wild attacks on unions
in general, Local One in particular, and even the
National Labor Relations Board.. . . The NLRB is
far from being a kangaroo court.
The Union's reference to a "kangaroo court" would
appear strange except as a response to a prior statement
by Brecker.
Many of Brecker's criticisms of the Board were not
made under the guise of humor. There was considerable
testimony that, in one form or another, Brecker im-
pressed on the employees that Board proceedings would
be entirely futile in protecting employees' statutory
rights because the Board had no concern for the employ-
ees and Respondent was adept at frustrating the Board's
remedial process. For example, Pumilio testified that at a
meeting with about eight employees on April 2 or 3
Brecker
said there would be no way in hell that [Reinhardt,
Vincent, Styles, and Burkle] would ever come back
and work in his store; they would have to go to the
Supreme Court before he would let them in.
Employee Klimacek also quoted Brecker as saying that
"hell would have to freeze over before they would get
hired again." Similarly, Goldsmith testified that Bre,cker
said that he would not reinstate people that partici-
pated in Union activities . . . and he also said some
of these cases will go to court for eight to ten years;
they will take a long time; he will keep appealing
them until they get to the highest [Supreme] court
and he said he would never give any back pay and
he hoped they didn't ever expect it especially for
eight years back.
Goldsmith testified that when she stated her understand-
ing that some employees had been reinstated at the
Marcy store, Brecker
said "Well, wait a minute, let me think" and he goes
.on, "Yes, I do recall two people being reinstated,"
he goes, "but I just did that to settle, it." He goes,
"A few people I have given back pay just to get rid
of them," and then he said "When they do come
52 She placed Brecker's demal at a small employee meeting early in
March But the first trial did not start until March 17 and Brecker did not
meet with any employees until April 2. The complaint was issued on
June 8.
back they don't last because people don't get along
with them and I consider them troublemakers and
then they leave."51
Pumilio testified that in a meeting with a small group
of employees on April 2 or 3
[Brecker] said that the Federal Labor Board didn't
care about us, they weren't really worried about it,
and he mentioned something about—I didn't really
understand what he meant by it, but he said the
people who worked on the side of the Federal
Labor Board if a Union came in, they would have
no need for us and we would probably be fired.
Goldsmith cast a little more light on the subject. She tes-
tified that Brecker said "the Labor Board is working for
the unions" and, if the Union got in, it would control
employment, jeopardizing the jobs of present employ-
ees. 52 The purport of the statements was clear: Brecker
was effectively saying Respondent eventually could, and
probably would, fire union supporters with impunity be-
cause the Board would have no interest in protecting
them after they had testified in support of the pending
complaints.
There was credited testimony that Brecker bragged
that, although it might lose some cases before the Board,
it won its "big" cases in the courts. As set forth below,
Korcz repeated this message. However, the facts do not
support the boast. Respondent's batting average before
the Board and the courts is low by any objective stand-
ard.
The foregoing evidence establishes that Brecker pro-
claimed that the Board was furthering unions, but was
both unable and unwilling to protect employees' statuto-
ry rights. He boasted of his past success in resisting the
remedial processes of the Act and exuded consummate
optimism of his continued success in the future. He left
no doubt that the Board was no match for Respondent
and thus employee resort to the Board would be futile.
And the fate of the employees who had initiated the
union campaign advanced futility to extreme danger. The
message, in short, was that the employees were at the
mercy of Respondent, on whom they were economically
dependent, and could expect no protection from the
Board.
The right to criticize and satirize the Government and
its agents is a basic privilege of citizens in a democracy.
Whatever one may think of the taste of crass ridicule of
a tribunal by a party to a pending case, it does not of
itself constitute an unfair labor practice. The Board has
survived intact at least its fair share of criticism, includ-
ing parody and ridicule.
5i Contrast Respondent's protestations, in the employee handbook and
in employee meetings, that Respondent will protect employees from
being "harassed" by sohcitation of umon cards and "threats" by union
supporters
52 Her testimony was: "[Brecker] said the unions are working—the
Labor Board is working for the inuons and he said that the Labor Board
is not, you know, you would get hired out through the unions, that is
how they are making their money"
586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
It has clearly held that criticism of the Board is not in
itself violative of the Act. McGraw-Edison Co., 195
NLRB 462 (1972). But the precious right of free speech
does not extend to protect an employer's intimidating his
employees not to use statutorily provided protection
from depredations by their employer. Statements by an
employer not unlawful in themselves may be violative of
the Act "in a context of unfair labor practices." Id. at
463 fn. 1 (referring to Brearley Co., 163 NLRB 637, 638
fn. 1 (1967)). Respondent's offense lay not in its criticism
of the Board, but in its message that resort to the Board
would be futile. Scott's, Inc., 159 NLRB 1795, 1796-1797
(1966), enfd. as modified sub nom. Electrical Workers
IUE v. NLRB, 383 F.2d 230 (D.C. Cir. 1967). 53 Particu-
larly where, as here, the employees had already seen the
severe punishment Respondent meted out to employees
who exercised their statutory rights, it is difficult to
imagine more coercive and threatening conduct than
propounding the futility of resort to the Board, which
was asserted to be no match for Respondent. The use of
humor does not render noncoercive, and thus lawful,
conduct that has a necessary, natural tendency to dis-
suade employees from using their statutory tools to pro-
tect their rights. As Respondent has previously been
told, the test of employer conduct is "whether the con-
duct is reasonably calculated or tends to interfere with
the free exercise of the rights guaranteed by the Act." S.
E. Nichols Marcy Corp., supra, 229 NLRB at 80.
The present record clearly establishes that, through
coercion and misrepresentation, Brecker interfered with
Respondent's employees' availing themselves of the pro-
tections of the Act." In the course of committing this
violation, Brecker also managed to violate the Act by,
inter alia, stating that other employees had been dis-
charged for union and protected activities, threatening a
loss of benefits in the event of unionization, threatening
loss of job security in the event of unionization, and
threatening refusal to reinstate or retain discriminatorily
discharged employees.
(2) Conduct of Division Supervisor Henry Korcz
Korcz' campaign activities before the trial in Case 3-
CA-9304 have been discussed above. The evidence es-
tablishes that he followed much the same pattern during
the rest of the preelection period.
The complaint alleges that Korcz participated in a
campaign of "[d]isparaging the Board's processes by in-
forming [Respondent's] employees that the Labor Board
wins the small cases but Respondent always wins in the
end." IClimacek credibly testified that Brecker had made
statements to that effect at a small meeting on April 2
and at a meeting of all employees and supervisory per-
sonnel on June 5. Korcz testified to having repeated
Brecker's views at a meeting on April 18.55
53 Cases cited by Respondent sustaining employees' right to criticize
unions obviously have no bearmg on the Issue here involved.
54 At least to some extent, Brecker's efforts were successful. At the
June 5 meeting Goldsmith was placed on the defensive, protesting that
she had not intended that information she provided to a Board agent
would be used as the basis of charges against Respondent.
55 He testified that before holding employee meetings, he discussed
them with Brecker. He proceeded to state that in such a discussion
Again, Respondent was attempting to convince the
employees that the Board was powerless to protect them
from Respondent's misconduct. The facts are that in liti-
gated cases courts have ordered enforcement of Board
orders against Respondent and Respondent has been held
in contempt of judicial enforcement orders. Respondent's
dubious success has not been achieved in the courts but
in its contumacious flouting of the courts and the Board.
The Union's letter of April 15 to the employees said
that at Herkimer Respondent was using the same tactics
as it had at Marcy. In an employee meeting on April 26
Korcz said that the Union was right in that statement.
According to Korcz, Respondent's tactics at Marcy had
been to disseminate the truth. As hitherto noted, howev-
er, the Board disagreed and found that Respondent's
Marcy campaign included massive unfair labor practices.
The complaint further alleges that Korcz "[d]iscour-
aged its employees from attending a Union meeting."
Goldsmith testified that on March 31, at a meeting with
about six employees, Korcz referred to an announcement
of a union meeting and said "he wanted to let everyone
know they did not have to attend even though it sound-
ed like they were forcing you to attend, it's up to you."
The union announcement does not expressly or impliedly
indicate that attendance at the meeting was compulsory.
Titus, Korcz went out of his way to suggest that em-
ployees not attend. However, he did leave it up to the
employees. They were able to read the meeting an-
nouncement and appraise Korcz' comment. I find that,
under the circumstances, Korcz' conduct did not violate
the Act.
(3) Store Manager Robert Hathorn
The complaint alleges that Hathorn improperly ques-
tioned employees as to the testimony they were going to
give at the first trial. Klimacek and Pumilio both in-
formed Hathorn when they were subpoenaed by the
General Counsel to appear at the hearing in March. Kli-
macek testified that Hathorn "asked [her] if [she] knew
what it was all about and [she] told him not really and
he said it was to do with the Union." Thereafter, Hath-
orn asked her if she had received any telephone calls
about the subpoena and she replied in the negative. Pu-
milio testified that, when he first told Hathorn about the
subpoena, Hathorn merely said that it was nothing to
worry about and Pumilio should "just tell the truth and
everything will be all right." Later that day, however,
Hathorn joined Pumilio, who was talking with another
employee. According to Pumilio, Hathorn "was wonder-
ing why the Federal Labor Board wanted [Pumilio] to
testify." Pumilio said he did not know and then ignored
Hathorn's repetition of the inquiry. Hathorn in essence
corroborated Klimacek's testimony and Pumilio's testi-
mony concerning his first conversation, but denied
having had the second conversation reported by Pumilio.
I credit Pumilio.
before the April 18 employee meeting "and during the time of that con-
versation, Mr. Brecker said that he had won a big case, or he had won,
and he said in Board hearings we lose, but m the courts we wm. And this
is what I told the employees, that we won a case in the courts, but we
lose them before the Board."
S. E. NICHOLS, INC. 587
Hathorn did not directly ask either Pumilio or Klima-
cek what they would testify to at the hearing. But Hath-
orn knew that the subpoenaes had been issued on behalf
of the General Counsel and therefore presumably the
employees' testimony would support the complaint.
Thus, by wondering out loud why they had been sub-
poenaed, Hathorn clearly was inviting the two employ-
ees to reveal what information, if any, they had given to
the Board and what testimony Respondent would have
to meet at the trial.
Particularly when viewed in the context of Respond-
ent's aggressive campaign, which included attempts to
frustrate Board processes, Hathorn's implied probing of
Klirnacek's and Pumilio's prospective testimony consti-
tuted coercive interrogation violative of Section 8(a)(1)
of the Act.
(4) Edward Lintz
The complaint alleges that Edward Lintz, an agent of
Respondent, threatened employees with possible closure
of the Herkimer store if the employees chose to be repre-
sented by the Union. The evidence leaves no doubt that,
at an employee meeting held by Brecker on April 18,
Lintz spoke for about 15 minutes. He said that, if the
Union got in, wages would probably rise, but the store
would be unable to absorb such increases for all employ-
ees, with the result that some would be laid off and the
rest would have to work twice as hard as they had in the
past. Additionally, Lintz said that grocery stores had
been going out of business and retail stores could not
continue operations with a union. According to Gold-
smith, Lintz "said other stores have closed down from
unions being there but it doesn't mean the Herkimer
store will close down." There was no contradiction of
testimony by Klimacek, Pumilio, and Goldsmith that
throughout Lintz' speech Korcz smilingly nodded his ap-
proval and agreement. Goldsmith testified that Brecker
said he agreed with Lintz' statement. Brecker also said
that if Lintz was considered Respondent's agent, Gold-
smith, Puna°, and Klimacek, the alleged discriminatees,
would be deemed agents of the Union.
In reviewing the present complaint at the June 5 meet-
ing, Brecker called on Lintz to comment on the allega-
tion concerning him. Lintz seized the opportunity to
repeat his previous message. According to Goldsmith,
Lintz said that he had previously "said a lot of stores
had closed down but he didn't say the Herkimer store
would close down." Klimacek said that Lintz then said
that the Union had been defeated at Marcy and repeated
that under a union "there would be less manpower for
more money and that [the employees] would be working
harder and that the store could possibly close," Accord-
ing to Klimacek, Brecker said that Lintz was merely an
employee "and that anything Edward Lintz said was not
any kind of reflection on the company." But there is no
evidence that Brecker or Korcz ever disavowed the sub-
stance of Lintz' statements.
Respondent's only defense to the allegation concerning
Lintz is that he was not an "agent" of Respondent and
thus Respondent cannot be held responsible for his state-
ments. Lintz had been working at the Herkimer store
only about a week before the meeting at which he spoke.
He had previously worked at the Marcy store, where he
ardently worked against the Union. His unexplained
transfer during the active preelection campaign strongly
suggests that it was motivated by his known antiunion
sentiments. Although the complaint specifically alleged
that Lintz was an "agent" of Respondent, Respondent
did not present him as a witness. Respondent argues that
an adverse inference should be drawn from the General
Counsel's failure to subpoena Lintz. But the General
Counsel was not required to present the targets of the
complaint. I fmd that Respondent's unexplained failure to
call Lintz and Brecker warrants an inference that they
could not corroborate Korcz' denial that he knew Lintz
would speak at the meeting.
By permitting Lintz to speak at length on April 18 and
then inviting a repetition on June 5, and signifying ap-
proval and agreement, Brecker in effect adopted Lintz'
views. Thus, Respondent is responsible for Lintz' state-
ments, which contained threats of store closure, loss of
employment, and increased work burden, in violation of
Section 8(a)(1) of the Act. Telex Corp., 171 NLRB 1155,
1156 (1968). See also Litho Press of San Antonio, 211
NLRB 1014, 1015-1016 (1974), enfd. 512 F.2d 73 (5th
Cir. 1975); Dal-Tex Optical Co., 152 NLRB 1317 (1965),
enfd. 378 F.2d 443 (5th Cir. 1967).
(5) Shrinkage bonus
An amendment to the complaint alleges that on June
5, shortly before the election, Brecker announced that
the Herkimer store would receive a $2000 "shrinkage
bonus," to be distributed among the employees and su-
pervisors. No such bonus had ever been granted before
at the Herkimer store.
According to Korcz, Respondent has a practice of
granting bonuses to stores where the amount of loss from
shoplifting, pilferage, etc., had been reduced during the
preceding year. There is no written statement of any
such policy or practice and, so far as it appears, the Her-
kimer employees had never previously been informed
thereof. Respondent provided no details, such as the
method or formula for determining a store's entitlement
to a bonus or the timing and amount thereof. The only
evidence concerning bonuses granted to other stores was
that those in Marcy and New Hartford had recently re-
ceived their first. Herkimer is about 13 miles from Utica
and, according to a system map placed in evidence by
Respondent, the Marcy and New Hartford stores are in
the Utica metropolitan area. Korcz, who had previously
served as manager of each of these stores, has been
found to have committed numerous unfair labor practices
at Marcy. By itself, the fact that such bonuses had re-
cently been awarded for the first time at Marcy and
New Hartford has no tendency to prove any established
company policy.
An amendment to the complaint made on September
3, 1980, alleges that on that date Respondent unlawfully
granted the promised shrinkage bonus. At the hearing on
September 15, the General Counsel withdrew that allega-
tion. Repondent argues that the withdrawal "constitutes
an admission by the Board that it does not have evidence
to show that granting the bonuses was an unfair labor
588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
practice" and thus it "follows as a matter of logic that
promising the shrinkage bonus was not done to discour-
age Union activity." As noted above, on September 15
all counsel desired to submit the case on the district
court record. Because the bonus was allegedly granted
on September 3, obviously it could not have been litigat-
ed in the district court trial in July Under the circum-
stances, no adverse inference can be drawn from the
General Counsel's withdrawing the allegation that the
bonus was granted.
The promise of a new benefit made before the election
was clearly violative of the Act. Whether the subsequent
grant of the bonus (which is impliedly confirmed in Re-
spondent's brief) also violated the Act is not before me.
b. Section 8(a)(3) and (4)
(1) June E. Klimacek
Klimacek works in the automotives department. She
and Hathorn testified that before the trial he passed
through the automotives department just a few times a
day. Klimacek testified that, beginning on March 19, the
day after she testified, Hathorn visited the department
more frequently and for longer periods, standing around,
"just keeping an eye on" Klimacek.
Toward the end of March, Klimacek was instructed to
load 39 cases of snowmobile oil in a tractor-trailer onto a
pallet for transfer to a Nichols truck. When she asked for
some assistance, Hathorn spoke to the truckdriver and
then informed Klimacek that there was nobody to help
her. She testified that before then she had always been
given assistance in such loading or unloading operations.
Hathorn testified that when Klimacek asked for help, he
replied: "Why don't you get a stock boy to help you do
it." Hathorn did not provide any details, such as the
availability of a stockboy. I credit Klimacek's testimony
that, contrary to past practice, she had to perform the
job unassisted.
On the same day, Klimacek was paged to the front of
the store to pick up some refunds. As she was proceed-
ing, Korcz stopped her and asked why she had left her
department unattended and why she was wearing a
Nichols garage jacket rather than a smock. She explained
that she had been paged and the person operating the
home center keeps an eye on the automotives department
in such cases.
Female employees are required to "wear the store
smock56 whenever they're on the sales floor, in the
office, or at the register." However, Klimacek testified
that she has "always worn a garage jacket" and had not
previously been rebuked therefor. As described, the
jacket appears most suitable for loading tasks such as she
did that day. Korcz testified that wearing of smocks "is
important because by wearing the smocks, they identify
themselves as Nichols personnel," which "helps to pre-
vent shoplifting," and the smock "protects the clothing
of the individual." the garage jacket also contains the
56 This appears in the "Dress Code" in the 1980 employee handbook.
The "Dress Code" in the earlier version was considerably shorter and
very general, saying that, when dealing with the public, employees
"should choose the appropriate attire" and that "appearance and groom-
ing" largely determine the first impression one makes on others.
Nichols name, thus providing the desired identification.
The employee handbook tells employees to wear their
identification badges with their names "prominently dis-
played" at all times. Selling, as such, presents little
danger to an employee's clothing and the male sales per-
sonnel wear no smocks or similar "protective" garments.
The next day Klimacek bought some candy Easter
eggs. When, in answer to Hathorn's inquiry, she said she
was going to eat them in the department, he took them
from her, threw them on. a counter, and said they would
be in the front of the store when she wanted them. She
replied that other employees ate while on duty, but re-
fused to "squeal on" any. The employee handbook con-
tains no rule about eating. The absence is noteworthy be-
cause the "General Rules to Remember" (formerly
called "General Tips") do tell employees to "[a]void
chewing gum during working hours." Employee Beverly
Stagliano, called by Respondent, testified that Hathorn
had told the employees that they were not to eat or
smoke on the selling floor. Employee Rose Ceneviva did
not testify to any such general admonition, but opined
that "the employees should know that they shouldn't be
eating in front of customers." The evidence establishes
that, if there is any "rule" against employees' eating
while at work, it is more honored in the breach than in
the observance. For example, on cross-examination, Cen-
eviva testified that she had seen employees eat or drink
in their departments at least once a week; and that, de-
spite supervisory knowledge of such activities, the only
"enforcement" of the rule that she knew of occurred
about 5 months previously, when an assistant manager
told her not to take a drink onto the selling floor. Guise
testified that she was reprimanded "everytime [she] was
caught," but nonetheless she continued to eat and/or
chew gum in the store. Korcz testified that he had "en-
forced" the no-eating rule "many times," but the only
time he could recall involved the Styles incident dis-
cussed above (sec. II,A,2,d).57
On April 7, Klimacek was called to the office. Con-
trary to past practice, the office door was left open
during her meeting with Hathorn. Hathorn first dis-
cussed the possibility that Klimacek had received too
large a refund when she returned a purchased item. That
matter was adjusted and Respondent levels no criticism
of Klimacek because of this. Hathorn next said that em-
ployees Judith Guise, Ceneviva, and Marion Dygert
"hated" and "were against" Klimacek. He later eliminat-
ed Dygert, but said that Guise and Ceneviva had made
written statements. He then presented Klimacek with a
written "final warning" slip, which said: "Employee had
been harrasing [sic] other employees and embarrasing
[sic] them in front of customers. Has to cooperate with
other employees and not complain in front of custom-
ers." Klimacek refused to sign the warning slip.
Pursuant to her request, the next day Hathorn gave
her copies of typewritten statements by Guise and Cene-
viva dated March 28, 1980. Guise's statement recites
that, while she was relieving Ceneviva at the register in
57 Ceneviva thinks the antieating rule is "well enforced," but "the em-
ployees just don't listen to it"
S. E. NICHOLS, INC. 589
the home center, a customer asked for help in the auto-
motives department. Guise went to the department, re-
moved a stereo from behind the counter, and took it to
her register, where she rang up the sale, thereupon
making out a commission slip. When Guise told Klima-
cek about the incident, Klimacek became irate, rudely
asking why Guise had not followed the customary prac-
tice of calling Klimacek. Guise's statement adds: "Any
time we call June she get[s] mad." Apparently the
mutual anger on this occasion concerned entitlement to
the commission on the stereo sale. Hathorn, who had
seen Guise serving the customer in Klimacek's absence,
asked Guise if she would provide a written statement
concerning the incident. Guise agreed because, as she
testified, she "was mad enough at the time to do any-
thing." Ceneviva's statement recited that on her lunch-
eon breaks her register is usually watched by Guise.
However, Guise was out sick from March 22 through
26. According to Ceneviva, when asked to watch the
register in that period, Klimacek became upset and "gave
[Ceneviva] a hard time." Using a common obscene epi-
thet, Klimacek asked why there were not more employ-
ees so that she would not have to neglect her own duties
to watch the register. Ceneviva then adds a note of re-
sentment at having to mark merchandise for Klimacek,
saying: "Maybe if [Klimacek] would ask me instead of
telling me I wouldn't mind it so much." Although her
written statement does not so report, Ceneviva testified
that in the course of the March incident she twice spoke
to Hathom and Klimacek did not undertake to relieve
Ceneviva until spoken to by Hathorn. Neither Hathom
nor Klimacek testified to that effect.
Hathorn conceded that he had solicited the two em-
ployee statements and he had never previously requested
or received any such statements. In explanation, he testi-
fied:
[T]be reason being because I understood that June
[Klimacek] had testified before the Court, the Na-
tional Labor Board hearing, I felt it was necessary
for her to have another warning for her on the co-
operation that she was giving the employees in the
store, that she wasn't being cooperative at all, and
turned one of the written statements forward to our
attorneys to see if it warranted a warning or not kir
my own protection if I was to warn her.58
It is significant that Hathorn sought legal advice without
making any investigation. It is difficult to understand
how he could hope to act fairly without at least hearing
Klimacek's side. It is also unclear how counsel could
"advise" on a managerial decision without more informa-
tion.
The testimony of Guise and of Ceneviva clearly shows
that they were bent on supporting Respondent's position.
Ceneviva, especially, attempted to avoid answering ques-
tions that might have adduced evidence adverse to Re-
spondent." Her desire led to frequent inconsistencies
58 At another pomt Hathorn testified that he sent both employees'
statements to counsel. Respondent's counsel said that his office had
"receive[d] typed statements for review."
59 One example will suffice to refleci her testimonial attitude -
within her testimony. It is perhaps no coincidence that
Guise and Ceneviva both received 15-cent-per-hour
wage increases in May."
The record establishes that on December 8, 1979, Kli-
macek had received a written warning for being uncoop-
erative in helping at the home center register. In answer
to that warning, IClimacek maintained, inter alia, that
Ceneviva and Jennifer Talbot turned over the register to
Klimacek without sufficient money for operation and
overstayed the breaks for which Klimacek relieved them.
Klimacek testified that she had spoken to Assistant Man-
ager Worden, her immediate superior, who thereupon
timed the employees and reported that Klimacek was
indeed right—Ceneviva and her colleague did overstay
their alloted breaks. Klimacek testified that she had not
requested recall of that warning notice because Worden
had assured her that, although it would be in her file, "it
wasn't going to be sent to New York or anything." In
October or November 1979, after a complaint by Talbot,
Hathom had spoken to Klimacek about operating one of
the home center's two registers. Klimacek testified that
she had discussed the matter with Worden, who told her
to "keep a notebook and to tell him who was taking how
much time and when this happened." The notebook she
then kept was the basis for her defensive statement to the
December written warning, Because Worden did not tes-
tify, Klimacek's testimony concerning him is undenied
and is credited.
So far as it appears, Hathorn did not consult Worden
before issuing the April "final warning," which could
lead to discharge on the next claim of misconduct by
Klimacek. Thus, Hathom subjected Klimacek to severe
discipline on the one-sided complaints of other employ-
ees, solicited by him, without any investigation. Because
Hathorn himself testified that his procedure was dictated
by the fact that Klimacek had testified in the first hear-
ing, the inference is inescapable that he was building a
record for Klimacek's discharge for any claimed misstep
in the future.
As noted above, on June 5 Brecker conducted an em-
ployee meeting in which he reviewed the complaint item
by item. In carrying forward his parody of the com-
plaint, he questioned Klimacek about the allegations con-
cerning her. The evidence leaves no doubt that his
manner of questioning subjected her to ridicule and em-
barrassment. She refused to answer the questions or
make any comments."
Q. . . . Isn't it a fact that Mr. Hathorn asked you to write up a
statement against her, isn't that correct?
A. He didn't ask you [sic] He said it was up to me if I wanted to
do it it was my own free will. He didn't tell me I had to write it Up
or anything like that.
Q. Did he approach you or did you approach him?
A. I don't remember.
Q. Isn't it a fact that he approached you?
A All right, he approached me.
60 Hathorn testified that Staghano and Joseph Nicolette, the two other
employees who testified on behalf of Respondent, had also received
raises of 15 cents per hour in May.
61 To avoid the necessity of answering, she said that counsel for the
General Counsel had instructed her not to comment on the complaint,
but, in testifying, she acknowledged that she had not received any such
Continued
590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The foregoing summary of the evidence concerning
Respondent's conduct vis-a-vis Klimacke shows a con-
sistent pattern of badgering from the time she revealed
that she had been subpoenaed by the General Counsel to
testify at the first trial. Accordingly, I find that, as al-
leged in the complaint, Respondent discriminated against
Klimacek in violation of Section 8(a)(3) and (4) of the
Act. 6 2
(2) Margaret Goldsmith
Goldsmith had worked at the store since around the
beginning of 1978 and in the toy department since
August 1979. In January 1980 she was also given duties
in the furniture department and swimming pools were
added to her responsibilities in March. Her predecessor
in the toy department had not had such other duties.
Before March 24, 1980, when she testified in the first
trial, she had never been adversely criticized, disciplined,
or reprimanded. She testified, without contradiction and
credibly, that Hathorn and Worden, her immediate su-
pervisor, had praised her work.
Goldsmith testified that before the March hearing
Hathorn paid two or three brief visits per day, during
which he merely complimented her and never gave her
any instructions. However, beginning on Monday, March
24, Hathorn spent considerably more time in the toy de-
partment, criticizing and directing her work. She testified
that Hathorn prepared a written list prescribing the
order in which she was to perform her duties. Goldsmith
testified that at that time she "was behind in work" be-
cause of the hearing the previous week, death of her
grandfather, and her having been out of work for illness.
Hathorn corroborated that before March he had visited
the toy department "about the same as automotives,
home improvements, two, three, maybe four times a
day," but increased the visits to "five or six times" a day
after the hearing. He denied that he had prepared a list
of duties for Goldsmith, but maintained that the toy de-
partment remained a "mess." At Goldsmith's request to
Korcz, Hathorn provided her temporary assistance and
the department got straightened out. According to Hath-
orri, the department remained in good condition "about a
couple of weeks," but then "started looking bad again,
merchandise was scattered all over the place" through
April and May. However, Hathorn also indicated that in-
ventory in the toy department is normally low in Janu-
ary and February, following the Christmas season, and
comes in in large quantities in the spring, beginning in
March. Hathorn also failed to mention Goldsmith's
having been out sick and on vacation.
Linda M. Abramczyk, departmental supervisor for
eight stores, with her office in New York City, testified
that the department had been a "mess" in March and
April. She was vague about dates, saying: "1 can't give
you specific days. I go in there about every two or three
instruction. Contrary to Respondent's contention, I do not find that her
fib at the employee meetmg casts any doubt on her testimonial credibil-
ity.
62 Although prime motivation appears to have been retaliation for Klt-
macek's testifying at the first hearing, in violation of Sec. 8(a)(4), the sup-
port of the Union she revealed in testifying also played a part The af-
firmative remedy would be the same under either Sec. 8(a)(3) or (4).
times, four times, a month. . . . I would have to look it
up on my calendar." 63 She then testified that, during a
"full week" she spent there in April, she and Warden
straightened out the department. She then conceded that
Goldsmith could have done nothing "that particular
week" because she was on vacation. In any event, it ap-
pears that Abramczyk said nothing to Goldsmith until
June, despite her indication that the department's appear-
ance was satisfactory only when she and Worden
straightened it up. And then she testified that she had
had to work with Goldsmith straightening out the de-
partment 3 or 4 hours on each of 20 to 30 visits she had
made since January, belying Hathorn's contention that a
deterioration in Goldsmith's department required his in-
creased observation after the hearing.
Hathorn conceded that he had taken notes concerning
his observations. Goldsmith testified that he had never
previously done so. Stagliano testified, with no details,
that she had "occasionally" seen Hathorn take notes pre-
viously. But, because Stagliano works in the pharmacy,
and indicated that she does not have much occasion to
observe employees on the general selling floor, her cur-
sory testimony could not overcome Goldsmith's specific
testimony. In any event, for reasons shown elsewhere, I
find Stagliano to be a most unreliable witness, whose tes-
timony is unworthy of credit.
Before her vacation in April Goldsmith placed under a
counter some merchandise that she intended to purchase.
During her vacation, Hathorn saw the merchandise and
had it removed and placed back on the shelves. Despite
considerable testimony to the effect that it was custom-
ary for employees so to reserve merchandise for their
own purchase, and that supervisory personnel were fully
aware of this practice, Respondent maintains that Hath-
orn's action with respect to Goldsmith's merchandise
was proper because of claimed rule that all merchandise
to be purchased by employees was to be taken to the
layaway desk and held there until payment. There is no
such rule in the employee handbook or in any other
written form. There is considerable evidence that Re-
spondent's representatives knew that at least some em-
ployees did not know of any such rule. To establish its
existence, Respondent presented Ceneviva and Stagliano.
But both of them on cross-examination acknowledged
that no such general rule existed or was enforced,64
63 She also testified: "I have a specific set schedule that I am on"
64 Ceneviva's testimony in this connection is illustrative of her testimo-
ny generally and of much of the testimony of other witnesses for Re-
spondent:
Direct examination
Q. What should an employee do if they want to buy merchandise
for themselves from the store?
A. I usually put it m the office on the layaway section, hang it up
or on the shelves.
Q. And do you know that it is a rule that you shouldn't put it
under your counter'
A. Yes,
Q. Have you ever seen that rule enforced?
A. Yes—Well, I haven't, I mean I haven't seen anyone but I have
heard that— It is not m the handbook but I mean Mr. Hathorn
was said, Don't keep merchandise under your counters or stuff like
that.
Cross-examination.
Continued
S. E. NICHOLS, INC. 591
Stagliano said that Hathorn had asked employees not put
merchandise under the counters "before Christmas be-
cause he didn't want Christmas merchandise. . . under-
neath counters until after the holidays." And "a couple
of times" employees were told by a P.A. announcement
to pay by Friday, payday, or "[alt least before the sale is
over" for "any merchandise in their stockroom." The
best Hathorn could testify was that he "was under the
assumption at that time that all employees were aware of
this" rule.
During Brecker's employee meeting on April 2 Gold-
smith asked why she had not been given a wage raise in
view of her added responsibilities in furniture and pools.
After the meeting, Brecker spoke with Goldsmith. Korcz
and Hathom joined them. Brecker said they "were going
to have to straighten. . . out" the matter of Goldsmith's
pay. After Brecker and Korcz then spoke privately,
Brecker returned to Goldsmith and said: "Well, with
Union activity we cannot do anything aobut it right
now." When she protested that she had been promised a
raise in August, Brecker "said he couldn't do what the
previous manager didn't do and. . . Mr. Genung must
not have gotten along with" Goldsmith. 65 Brecker ad-
vised Goldsmith to "ask the Union to give [her] a raise."
She quoted Brecker as then saying: "If you want a raise,
write about [your] hardships to me, I will give it to the
Labor Board and the Labor Board will decide whether
you can get a raise without my getting any charges."
Not having testified, Brecker obviously did not deny
any of Goldsmith's testimony. Nor did Korcz or Hath-
orn deny it. Hathorn confirmed Brecker's expressed posi-
tion, saying: "We have constantly put employees off in
the store because of the union problems . . . and we
didn't want it to be considered as a bribe at that time."
Korcz testified to the same effect. When asked how he
squared the "bribery" fear with the actual grant of in-
creases to 10 other employees in the month or two
before the election, Korcz replied that he "had no con-
cern with the other employees. They were doing their
job," but he "excluded [Goldsmith]. . . because she was
not doing her job, and [Korcz] was afraid that [he] was
going to get accused of bribery." The logic of this posi-
tion is not apparent: Was he afraid that the Union would
claim that giving a raise to an identified union supporter
was a "bribe," while simultaneous raises to antiunion em-
ployees would go unchallenged? In any event, the pend-
ency of the Board proceedings was the only reason
Brecker gave Goldsmith for withholding her raise; she
was not told that her performance was unsatisfactory.
Q.. . [D]o you m fact know that employees do in fact put mer-
chandise under their counters?
A. Yes.. .
Q. Isn't it a fact what they do normally is if there is a sale, they
are allowed or they do take merchandise on sale and put it under the
counters for their purchase, is that correct?
A. Yes
Q. That is normal practice in your store, is that right?
A. A lot of employees do it, yes.
Q. And supervisors are aware of this?
A. I guess so, yeah
65 Contrast Respondent's claim that Genung was discharged for his
failure to grant wage increase.
Hathorn testified that because employees were de-
manding raises during the union campaign he and Korcz,
with advice of counsel, "devised a system [by] which we
would pass out raises in this respect to make it fair to ev-
erybody and what we decided upon was anniversary
dates. . . if an employee had been there a year without
another raise then they would get a raise." There was no
attempt to show that the 10 or so raises granted before
the election conformed to the anniversary formula and
the evidence does establish that one employee received a
raise in considerably less than a year.
During his satirical review of the second complaint on
June 5, Brecker questioned Goldsmith about the accusa-
tions involving her. She revealed that, pursuant to his
previous advice, she had sought Board approval of a
raise for her, but the Board could not help. Brecker's
calling on and questioning Goldsmith could not fail to
embarrass her before her peers.
The next day Hathorn told Goldsmith that "he didn't
want any more harassment charges brought up against
him" and in the future he would bring four witnesses
when he discussed her department with her. Goldsmith
replied that she had become involved only because she
thought Reinhardt's discharge was unfair and would not
press any further charges. Thereupon, Hathorn said he
would bring only one witness when he spoke to her
about her department. After initially protesting, Gold-
smith said she would not object to the presence of
Worden. Hathorn rejected the suggestion, saying that,
for his "protection," he needed a nonmanagement "wit-
ness in case something happened." At that, Goldsmith
said that if' Hathorn thought her work was not good, she
wanted to be transferred. The matter was then tabled.
Hathom testified that he wanted somebody to "verify"
that he had "talked to her about. . the condition of the
department . . . to protect [himself] against any unfair
labor practice charges." He added: "If there were
charges that would be brought up, I was going to bring
four people back . . and they would go through the
department with me to verify what the department looks
like and that I have not harassed" Goldsmith. Because
there is no evidence that Hathorn normally subjected
employees to the presence of "witnesses" to discussions
of work, it is clear that he was subjecting her to a dis-
criminatory working condition because of her testimony
at the earlier trial.
The record leaves no doubt that immediately after the
first trial Respondent embarked on a persistent course of
discrimination against Goldsmith with regard to wages
and working conditions in retaliation for her testimony
and designed to prevent any further erhployee recourse
to the Board. As such, it was clearbi violative of Section
8(a)(4) and (1) of the Act.
(3) Fred Pumilio
Pumilio, who has worked at the Herkimer store for
over 6 years, testified that, before the first trial, Hathorn
spent little time in the home center "because Mr. Bifora
was our boss" and Hathorn was called in only if there
were problems. However, after the hearing Hathom and
Korcz both spent more time than before in the home
592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
center and the adjacent automotives department where
Klimacek worked. Nicolette, a witness for Respondent,
testified that the home center "doesn't require a lot of su-
pervision from the store manager so on any given day,
he might come back to the Home Center once during
the day and browse around," but, beginning in mid-
March, Korcz visited the Herkimer store more than he
had previously and spent time "[w]alking around looking
at things talking to people" while Pumilio was in the
store. According to Pumilio and Klimacek, Hathorn took
notes while observing this area, which he had never pre-
viously been seen to do.
Pumilio testified that on the evening of March 24
Goldsmith gave him some union books for distribution
among the employees. He placed them in a manila enve-
lope, which he then put in his filing cabinet. The enve-
lope was a used one ready to be discarded. The next
evening he placed the books on a table in the front cafe-
teria. As he was leaving, he passed Supervisor Madison,
who thereupon paged Hathoni. 66 Later that evening,
Hathorn spent an hour or more in the home center
watching Pumilio. The next morning, Pumilio was called
to the front office, where, in the presence of about four
office employees and Hathorn, Korcz displayed the en-
velope full of union books and said that "[p]assing out
union books and storing them in Company equipment"
was "against store policy." Korcz rejected Pumilio's
claim that he had not acted "on store time," stating that
Hathorn had checked the lounge both at lunchtime and
during Pumilio's break and the books had not been there
then Korcz then handed Pumilio a previously written
warning slip for "[d]istributing union handbooks on com-
pany time and using company equipment to store such
matters." Korcz accused Pumilio of "harassing the
people in the store" and "walking around not doing [his]
job." Korcz directed Pumilio henceforth to stay in the
home center. According to Pumilio, during this meeting,
Korcz spoke in a loud voice and, contrary to usual prac-
tice, the office door was kept open so other employees
could hear what was going on.
Although Korcz testified that he could not recall
"restrict[ing] Pumilio's movement in the store," I credit
Purnilio's testimony that Korcz told him henceforth to
remain in his department. And, despite Korcz' testimony
that he spoke in his "normal tone of voice," I credit
statement that Korcz spoke in a "high-pitched" tone,
which could be heard by employees outside the office."
Respondent maintains that the General Counsel
waived any claim that the warning slip given to Pumilio
was discriminatory because the Board's brief in the
Second Circuit (on the appeal from Judge McCurn's
denial of a 10(j) injunction) states, in Respondent's
words, that the Regional Director "is not appealing the
finding . . . that there was no reasonable cause to be-
lieve that Nichols maintained rules barring solicitation
and distribution of union literature in order to prohibit
66 Hathorn later conversed with employee James Grates Punitho testi-
fied that Grates later reported that Hathorn had asked Grates if he was
being harassed about the Union or bothered m any way by Punnlio. This
hearsay testimony was received without objection
67 The encounter occurred before the store was open for business, so
that, as Punuho indicated, no customers could have heard it.
and/or discourage. . . union activities [or] the finding of
no reasonable cause to believe that Korcz had wrongful-
ly issued a warning to Pumilio in enforcement of this al-
legedly discriminatory rule." Before me, the parties stip-
ulated that the General Counsel did expressly exclude
certain allegations of the complaint from the appeal in
the injunction action. However, the stipulation is garbled
in the transcript and it is impossible to say whether Re-
spondent's statement of the exclusions is correct. In any
event, there are many possible reasons other than an "ad-
mission" for not appealing specific portions of an adverse
decision. The issues and decisional standards in Section
10(j) and Section 10(a)-(f) proceedings are different. The
General Counsel is fully within his legal rights in now
attacking the warning given Pumilio.
It is at least doubtful whether merely placing literature
on a table in the cafeteria would constitute "distribu-
tion." In any event, as previously held, the no-distribu-
tion rule was invalid. And it was discriminatorily applied
to Pumilio. His "distribution" could not have taken more
than a few seconds from his work because it occurred
near the office, where he had gone in the course of busi-
ness. It is clear that employees are permitted to conduct
personal business, such as making purchases, and engage
in personal conversations during working time. Nor did
Respondent establish the existence of any restriction on
employees' keeping personal property in company-pro-
vided file cabinets. 68 And the manila envelope had no
further utility to Respondent.
Respondent would justify Korcz' angrily reprimanding
Pumilio within earshot of other employees by his "false-
ly" denying having distributed union literature on com-
pany time. But the written warning and oral reprimand
were not for untruthfulness Manifestly, Korcz' anger
stemmed not from any untruthfulness or abuse of work-
ing time, but from the union orientation of Pumilio's con-
duct. The message could not have been lost on any em-
ployees who overheard.
Respondent further argues that Korcz would have
been justified in restricting Pumilio's movement because
Pumilio himself revealed that, as known to management,
he had engaged in fairly extended conversations with
employees Grates and Dave Marconi during working
time. The evidence shows that Hathorn joined the con-
versations. Pumilio had never before been reprimanded.
Neither Hathorn nor Bifora, Pumilio's supervisor, 69 testi-
fied that he neglected his work in favor of chatting with
fellow employees.
On Friday, March 28, Respondent included in the em-
ployees' pay a separate envelope indicating the amount
the union dues would probably be. Pumilio objected and
told Hathorn that he would file charges if he received
another such envelope. Shortly thereafter, Korcz and
Hathorn went to the home center, where Korcz loudly
68 The employee handbook does say: "Check purse and valuables at
the office. No personal belongings (this includes cosmetic-bags) are to be
taken onto the sales floor. All packages brought into the store should be
OK'd and checked at the store office." Respondent does not rely on, or
even mention, that rule, which, m any event, would undoubtedly be in-
valid as applied to statutorily protected distribution.
69 Bifora did not testify in the district court.
S. E. NICHOLS, INC. 593
said that "it was his business and he could do what he
wants"; adding that Pumilio was to stay in his work area,
away from other employees, and "to leave the rest of the
employees alone and not to harass" them. Respondent
would justify its conduct because Pumilio threatened to
file a charge for employer conduct, which the Board has
held to be permissible. Allison-Haney, Inc., 185 NLRB
852 (1970). But it is well established that an employee
must have full and ready access to the Board even
though his view of the law may be incorrect. Acme Paper
Box Co., 201 NLRB 240, 246 (1973). It does not appear
that Korcz told Pumilio (or even that Korcz knew) that
the Board had held such action to be permissible. In-
stead, he took the opportunity to express his anger
within the hearing of other employees. Such conduct
would naturally tend to discourage employees from exer-
cising their statutory rights.
And, as discussed above, Brecker subjected Pumilio,
along with Klimacek and Goldsmith, to ridicule and em-
barrassment at the general employee meeting on June 5.
As in the cases of Goldsmith and Klimacek, the record
shows that Pumilio was made the object of discriminato-
ry action after he testified in the first complaint trial.
There can be no doubt that Respondent's conduct was a
response to Pumilio's testimony and would tend to dis-
courage employees from engaging in union activities
and/or resorting to the Board for protection of their stat-
utory rights.
CONCLUSIONS OF LAW
1. S. E. Nichols, Inc. is an employer engaged in com-
merce or an industry affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Retail Store Employees Union Local No. 1 (includ-
ing former Local 345), United Food and Commercial
Workers International Union, AFL-CIO is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by:
promulgating, maintaining, and enforcing improper rules
restricting solicitation on behalf of a union and distribu-
tion of union literature; discriminatorily restricting solici-
tation and distribution on behalf of a union; telling em-
ployees that other employees have been discharged or
disciplined for solicitation or distribution on behalf of a
union; soliciting employees to withdraw union authoriza-
tion cards; threatening store closure, loss of benefits, loss
of employment, and increased work duties if employees
choose to be represented by a union; interrogating em-
ployees concerning their anticipated testimony in a
Board proceeding; advising employees that they need not
cooperate with the Board in its investigations; offering
employees the assistance of Repondents representatives
and counsel in connection with Board investigations; so-
liciting employees to report to Respondent concerning
union and protected concerted activities of other em-
ployees; soliciting employee grievances or complaints,
with express or implied promises to remedy them; prom-
ising bonuses or other benefits; informing employees that
Respondent will learn the identity of employees signing
union authorization cards; coercively advising employees
not to sign union authorization cards; informing employ-
ees that wage increases are being withheld because of a
union organizing campaign; telling employees that an
employee was discharged for engaging in protected con-
certed activities.
4. Respondent has violated Section 8(a)(3) and (1) of
the Act by discharging Dorothy C. Reinhardt, Douglas
Vincent, Kristin Burkle, and Denise Styles, and failing
and refusing to offer them reinstatement, because those
employees engaged in union activities and to discourage
membership in and support of the Union.
5. Respondent has violated Section 8(a)(3), (4), and (1)
of the Act by giving employees Fred Pumilio and June
E. Klimacek written warnings, by withholding a wage
increase from employee Margaret Goldsmith, and by
subjecting those three employees to increased supervision
and unfavorable working conditions because they testi-
fied on behalf of the General Counsel in a Board pro-
ceeding and/or because they supported the Union to dis-
courage employee resort to the Board and to discourage
membership in and support of the Union.
6. The unfair labor practices found above have an
effect upon commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend the customary cease-
and-desist and notice-posting remedies. Because of the
nature and extent of Respondent's unfair labor practices,
as found in the present, as well as past, proceedings, I
shall recommend issuance of a broad cease-and-desist
Order. St. Francis Hospital, 252 NLRB 1247 fn. 3 (1980).
Additionally, having found that Dorothy C. Rein-
hardt, Douglas Vincent, Kristin Burkle, and Denise
Styles were discriminatorily discharged, I shall recom-
mend that Respondent be required to offer them immedi-
ate and full reinstatement to their former jobs or, if any
such jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights
and privileges. Respondent maintains that Burkle and
Styles should not be reinstated because they "planned a
disruptive walkout for the Labor Day weekend" because
of Hathorn's posted schedule changes. There is no ques-
tion that these employees were engaged in protected
concerted activity. See S. L. Industries, 252 NLRB 1058,
1061-1064 (1980), involving a brief walkout, without
prior notice, to protest anticipated schedule changes and
the discharge of a supervisor. The timing of the pro-
posed walkout would not render it unprotected. M & M
Bakeries, 121 NLRB 1596 (1958), enfd. 271 F.2d 602 (1st
Cir. 1959). Respondent will also be required to make the
dischargees whole for earnings lost by reason of their
discharges. Additionally, having found that Margaret
Goldsmith was discriminatorily denied a wage increase, I
shall recommend that Respondent be required to grant
her one and compensate her for the loss she has suffered
by reason of the withholding of such increase since the
date of the first increase granted to any Herkimer em-
ployee in April or May 1980. The amount of such in-
crease shall be not less than 15 cents per hour, the
amount granted to some eight other employees in April
Or May 1980. Because it appears that some employees re-
594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ceived larger raises and Goldsmith claimed she had been
promised an increase around August 1979, when her
duties had been increased, a larger amount than 15 cents
per hour and/or a period beginning earlier than April or
May 1980 may be established if the Regional Director
decides to institute a supplemental backpay proceeding.
Backpay shall be computed in accordance with the for-
mula prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest computed in accordance with Flori-
da Steel Corp., 231 NLRB 651 (1977). See generally Isis
Plumbing Co., 138 NLRB 716 (1962). Additionally, Re-
spondent will be ordered to remove from its records and
destroy the written warnings given to Fred Pumilio and
June E. Klimacek on March 26 and April 7, 1980, re-
spectively, and to expunge from its records any reference
to such warnings.
Respondent will also be required to rescind its no-so-
licitation and no-distribution rules, which appear in its
employee handbook. As set forth above, the employee
handbook also includes a lengthy section purporting to
advise employees concerning their "rights" in connection
with union organizing campaigns. Contending that that
portion of the handbook "is fraught with illegal lan-
guage," the General Counsel requests that Respondent
be required to revise the handbook and, specifically, to
"excise" the section entitled "Employee Rights &
Unions—Your Employee Rights under a Union Organiza-
tion Drive." Normally, I should be reluctant to recom-
mend prohibition of any statements other than those spe-
cifically found to violate the Act. On the other hand, re-
quiring deletion or revision of specific paragraphs, sen-
tences, phrases, or words might constitute "censorship"
more restrictive of free speech than would requiring ex-
cision of an entire section. In the present case, elimina-
tion of specific offending statements would be virtually
impossible because the tenor of the entire section, read as
a whole, is coercive. For example, the section begins as
follows:
Dear Employees:
Now that you know what is expected of you and
what your privileges are as employees of the S. E.
Nichols Company, we want you to be aware of one
more benefit your company gives you.
We will protect all of our employees from being
exploited or taken advantage of by outsiders.. . .
The most frequent seller and exploiter of our em-
ployees will be various Union Organizers who will
try to sell their organizations to our employees
through various means, and will always try to sell
the idea that they are fighting your battles for you
against your "bad" employers.
Respondent's aim to give employees the "benefit" of
"protection" from unions, both at work and at home, is
repeated:
In conclusion, remember the following:
1.You are never alone—Your company will pro-
tect you.
2. Do not be threatened by anyone. Your compa-
ny will protect you.
. . . .
7. No one can force his way into your home if
you do not wish him to see someone. Tell him to
go. If he does not, call the Police. Your company
will protect you.
Just as the law of libel takes into account innuendo to
flesh out words used, in determining whether statements
are coercive, it is necessary to consider them as a whole
and in the context of surrounding circumstances. Re-
spondent gives the handbook to all new employees,
thereby gratuitously instilling a fear of unionization and
Respondent's predictable reaction thereto. The unioniza-
tion section thus of necessity tends to intimidate employ-
ees to reject exploration of their statutory rights. On bal-
ance, being fully aware of employers' free speech rights,
I agree with the General Counsel's contention that the
section of the employee handbook under discussion must
be withdrawn.
The General Counsel contends that Respondent's mis-
conduct at the Herkimer store, particularly when ap-
praised in the light of its extensive history of similar mis-
conduct in other stores, requires extensive additional pro-
visions. I agree that "the egregious facts of [this] case in-
volving a recidivist employer" require extraordinary
broad remedies. United Dairy Farmers v. NLRB, 633
F.2d 1054 (3d Cir. 1980). "Obviously, the discharge of a
leading union advocate is a most effective method for
undermining a union organizational effort." NLRB v.
Longhorn Transfer Service, 346 F.2d 1003 (5th Cir. 1965);
Pay' N Save Corp., 247 NLRB 1346 (1980). Here, all the
union instigators were discharged immediately on the ini-
tiation of the organizational campaign and Respondent
has been found guilty of similar misconduct in the
past. 7 ° Respondent has previously been found to have
engaged in virtually every type of unfair labor practice
found in this case. All conduct in opposition to unioniza-
tion has been directed from Respondent's corporate
headquarters in New York City, with Brecker and Korcz
conspicuously involved.
Respondent's obdurate flouting of the Act is most
similar to that found in J. P. Stevens & Co., 244 NLRB
407 (1979). Respondent's strategy, like Stevens', has all
been directed and largely executed by the corporate
office. During the period of their misconduct both
Brecker and Korcz have been rewarded by successive
promotions, so that now Brecker is corporate president
and Korcz is manager of a division embracing five stores
in New York and three in Pennsylvania. The employee
handbook is distributed to employees of all stores wheth-
er they have been involved in any union campaigns. As
the Board said concerning another chain of retail dis-
count stores, Respondent's history before the Board and
70 In addition to the present case, involving four discriminatory dis-
charges, orders have been issued for offers of reinstatement and backpay
to at least 26 other Nichols employees: 4 at Dover, Delaware (159 NLRB
1071, 165 NLRB 924, 167 NLRB 832), 1 at Shillington, Pennsylvania
(195 NLRB 189), 2 at New Philadelphia (195 NLRB 939); 10 at Marcy,
Utica, New York (229 NLRB 75); and 9 at Matawan, New Jersey (Cases
22-CA-8465, 22-CA-8646, and 22-CA-9100). Respondent was held in
contempt of the reinstatement and backpay order as to two employees of
the New Philadelphia store (100 LRRM 2840 at 2762).
S. E. NICHOLS, INC. 595
Board and the courts shows that it "has a labor policy in
all its stores that is opposed to the policies of the Act"
and "it is by now clear that Respondent's conduct here is
but part of a pattern of unlawful antiunion conduct en-
gaged in by Respondent's top officials throughout Re-
spondent's entire operations for the purpose of denying
to all of its employees the exercise of those rights guar-
anteed to the employees by Section 7 of the Act."
Heck's; Inc., 172 NLRB 2231 (1968) and 191 NLRB 886
(1971), enfd. sub nom. Meat Cutters Local 347 v. NLRB,
433 F.2d 541 (D.C. Cir. 1970), and 476 F.2d 546 (D.C.
Cir. 1973)," cert. denied 414 U.S. 1069 (1973).
Respondent maintains that it is not in Stevens' recidivist
class because it has been involved in violations at "only a
half-dozen locations over a period of fourteen years." (Em-
phasis added.) So far as it appears, these are the only lo-
cations at which union campaigns have been initiated.
Respondent maintains that it should not be brought to
brook unless and until a union campaign is initiated and
charges are brought against it at a particular location. If
the past holds any lessons, it must teach employees and
unions that any attempt by Nichols' employees to exer-
cise their freedom to make a choice contrary to Re-
spondent's desires will be both hazardous and doomed to
failure, at least without long and tortuous litigation,
which, as the present case shows, may itself pose danger
for the employees. The Act does not permit, let alone re-
quire, that employees be subjected to such odds, which
result from the "status quo" created by Respondent's un-
lawful conduct.
As previously found, Respondent has accused the
Board of favoring unions and furthering unionization.
Respondent repeats this charge in its brief as follows:
Nichols believes [the requested] relief . . . has
been improperly and unconstitutionally requested in
order to . . . initiate and promote unionization, of
Nichols' employees at the Herkimer and at other
Nichols stores.
It later speaks of "[t]he attempt by the Regional Director
. . . to try to initiate unionization of Nichols." In a simi-
lar vein, Respondent contends that extending the notice
requirements to stores in which there apparently have
been no union campaigns would "chang[e] the status quo
in favor of unionization rather than restoring the status
quo."
The repetition of Respondent's attack on the Board's
neutrality points up the need for firm preventive action
because public confidence in that neutrality is indispensa-
ble to effectuation of the congressional mandate of the
Act. The remedies here recommended are not designed
to promote unions or unionization; they have been reluc-
tantly recommended because it is necessary to clear the
atmosphere poisoned by Respondent's unrelenting, egre-
gious, and pervasive trampling on its employees' statuto-
71 The D.C. Circuit required the imposition of remedies in addition to
those prescribed by the Board. The Supreme Court, however, held that
the circuit court had exceeded its authority and remanded the case to the
Board for further consideration 417 U S. 1 (1974). On that remand, the
Board explained its reasons, based on the procedural history, for not en-
larging the remedial provisions in that specific case.
ry rights. The remedies have been designed for the sole
purpose of assuring an atmosphere in which the employ-
ees may freely choose, without fear or favor, whether
they want to make common cause, with or without a
union, in dealing with their employer. The aim is restora-
tion of the status quo before Respondent's massive viola-
tions of the Act.
For the foregoing reasons, I shall recommend the
notice and access requirements imposed in J. P. Stevens &
Co., supra, 244 NLRB 407, with modifications appropri-
ate to the Nichols situation.
Apparently, the same union has been involved at all
the Stevens facilities. With Nichols, however, different
unions have been involved at various stores. For exam-
ple, at Marcy the union was Amalgamated Meat Cutters,
Butcher Workmen and Affiliated Crafts of North Amer-
ica, AFL-CIO; at the Shillington store, the union was
Retail Clerks, Employees Union, Local 1393, Retail
Clerks International Association, AFL-CIO; at New
Philadelphia, it was Retail Clerks International Associa-
tion, Local 698, AFL-CIO; and the present Charging
Party is Retail Store Employees Union Local 345 (into
Local 1 has merged), United Food and Commercial
Workers Union, AFL-CIO. Because of the blanket
nature of Respondent's unlawful resistance to any union-
ization, proclaimed in the systemwide handbook, there is
no apparent reason to limit protection to activities by or
on behalf of the particular local union involved at the
Herkimer store. To confme the remedy in that manner
would invite unnecessary repetition of litigation like the
present. I shall therefore recommend that the remedial
provisions inure to the benefit of any labor organization
that may seek to organize employees at any of Respond-
ent's stores. 7 2
In Stevens, 244 NLRB 407, the Board required that
written instructions be given to supervisors only at the
specific facilities there involved. Although only the Her-
kimer store was directly involved in the present case, the
record establishes that Herkimer is only some 13 miles
from Utica, where Respondent operates two other
stores—Marcy and New Hartford. All three stores are
within the company division supervised by Korcz. The
recent union campaign at the Marcy store was frequently
referred to in the Herkimer campaign, with Respondent
indicating its approval and continuation of such tactics at
Herkimer. Lintz, an antiunion veteran of the Marcy cam-
paign, was employed at the Herkimer store and pursued
antiunion activities during its campaign:73 Thus, the situ-
ation is such that events at one of the three stores will
inevitably be known to an affect the conduct of the em-
ployees of all three. Accordingly, I recommend that Re-
pondent be required to give written instructions concern-
ing union organizing campaigns to all supervisors at the
Herkimer, Marcy, and New Hartford store.
In Stevens the Board rquired that union representatives
be granted reasonable access to nonworking areas of the
72 There is no evidence of any interumon disputes or rivalries m con-
nection with any of the past Nichols campaigns. Should any presently un-
forseen problems arise in the future, the Board will be available to take
appropriate action.
73 The same is apparently true of employee Cornaccio
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
company's premises for communication with employees
during their nonworking time. However, in other cases
such access has not been required. See, e.g., Heck's, Inc.,
supra, 191 NLRB at 887. The evidence in the present
case indicates that employees frequently work irregular
hours with no defined "shifts." Also, it appears that em-
ployee lunch and other breaks vary widely. Thus, to
communicate with all employees, it would be necessary
for union representatives to be present virtually all the
time a store was open. Balancing the employees' need for
full information and Respondent's right to control its
own property, I reject the General Counsel's request for
such an access requirement.
Respondent objects to being required to give unions
access to company bulletin boards because there is no
evidence that Respondent has used bulletin boards in its
antiunion campaigns. But Respondent has distributed its
employee handbook to all employees and has continuous-
ly available convenient, inexpensive means of communi-
cating with its employees. Because Respondent has im-
properly used its available arenas of communication un-
lawfully, it is appropriate to provide the unions concern-
ing "effective vehicles for making a substantive presenta-
tion of the fact that unions can be useful and effective, a
fact which Respondent has improperly sought to throw
into doubt by engaging in unlawful conduct" at stores
where there has been organizational activity. J. P. Stevens
& Co., 239 NLRB 738, 771 (1978). Reasonable access by
a union to company bulletin boards and other places
where notices to employees are posted is a moderate
measure, having minimal risk of interference with Re-
spondent's operations.
In line with J. P. Stevens & Co., supra, 244 NLRB 407,
I shall recommend having the prescribed notice and ac-
companying letter read at meetings called for that pur-
pose in all Nichols stores. Because the Herkimer and
other campaigns have been directed and largely executed
by Brecker and Korcz, I shall require that the notice be
signed by both, as well as by the manager of each store
in which it is read. In Stevens, loc. cit., the company was
given the option of having the notice read to the em-
ployees by a Board agent rather than by a company offi-
cial. Respondent objects to the absence of such options
from the remedies requested by the General Counsel
Brecker was a stellar performer in the Herkimer cam-
paign. Despite that fact, he failed to testify, thus appar-
ently attempting to disassociate himself from the Compa-
ny's conduct. It is essential that unequivocal assurance be
given the employees that Brecker, the director and per-
petrator of the wrongs, assumes responsibility for reme-
dial action and it will not be left to lower echelon man-
agement. In furtherance of this consideration, I shall also
recommend that all supervisors be required to attend any
meetings in their stores when the notice is read to em-
ployees. As Brecker's comrade in arms, Korcz will also
be required to attend the meetings.
In Stevens, 244 NLRB 407, the Board required Re-
spondent to reimburse the union for its organizational
costs and the Board for its litigation expenses. However,
no such remedies have been requested in the present
case. In the absence of any such request, I shall not rec-
ommend inclusion of such provisions in the present
order.
[Recommended Order omitted from publication.]