Shopper's Fair

National Labor Relations Board - Board Decisions

Apr 13, 1965

151 N.L.R.B. 1604 (N.L.R.B. 1965)

1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity, and (e ) offering inducements to discourage adherence to or activity for the
Union, Respondent has engaged in unfair labor practices within the contemplation
of Section 8 (a)( 1) of the Act.
4. Said unfair labor practices are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not committed any other unfair labor practices alleged in the
complaint.
[Recommended Order omitted from publication ]
Shopper's Fair i (Superior Sales, Inc.) and Retail Clerks Union,
Local 483, AFL-CIO, affiliated with Retail Clerks Interna-
tional Association , AFL-CIO. Case No. 17-CA-24170. April 13,
1965
DECISION AND ORDER
On January 28, 1965, Trial Examiner Stanley Gilbert issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. He also found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint and recom-
mended dismissal as to them. Thereafter, Respondent filed excep-
tions to the Decision, and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Decision, the exceptions and brief, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.2
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Order recom-
1 As corrected at the hearing.
2 In the absence of exceptions thereto, we adopt pro forma the Trial Examiner's
recommended dismissal of certain of the allegations of unfair labor practices under
Section 8(a) (1) of the Act
In adopting the Trial Examiner's finding that Respondent violated Section 8(a)(5) of
the Act, we find it unnecessary to, and therefore do not , decide whether we would con-
clude as he did, that even without the Section 8(a) (1) and ( 3) violations , Respondent
violated Section 8 ( a) (5) of the Act. Rather, we find only that , in the totality of cir-
cumstances in this case, including the background of our finding of Section 8(a) (1)
and (3 ) violations , Respondent has violated Section 8 ( a)(5) of the Act.
151 NLRB No. 155.
SHOPPER'S FAIR (SUPERIOR SALES, INC.) 1605
mended by the Trial Examiner and orders that Respondent, Supe-
rior Sales, Inc., its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed June 18, 1964, by Retail Clerks Union, Local 483, AFL-CIO
(hereinafter referred to as the Local), affiliated with Retail Clerks International
Association, AFL-CIO (hereinafter referred to as the Union), the complaint herein
was issued August 19, 1964. Such complaint, as amended during the course of the
hearing,' alleges that Respondent violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended. Inasmuch as the legal entity responding
to the complaint was Superior Sales, Inc., references in this Decision to the Respond-
ent or Company are to said corporation. Although the answer to the complaint was
in the name of Shopper's Fair 2 as a corporation, Respondent apparently was merely
following the form of the complaint. Respondent, in its answer as amended during
the hearing,3 denied that it committed the unfair labor practices alleged.4 Respond-
ent, in its answer, also denied the allegation that on May 27, 1964, the Union was the
majority representative of the employees in the appropriate bargaining unit.
Pursuant to notice a hearing was held before Trial Examiner Stanley Gilbert on
September 22, 1964. At the close of the hearing oral argument was waived. Within
the time set therefor briefs were submitted by the General Counsel and Respondent.
Upon the entire record herein, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Superior Sales, Inc., a Nebraska corporation, maintains a store under the name of
Shopper's Fair at Fremont, Nebraska, where it engages in the retail sale of sundry
merchandise. In the course and conduct of its operation of said store, Respondent
annually sells and distributes merchandise of a gross value exceeding $500,000 and
annually purchases merchandise of a value exceeding $50,000 directly from sources
outside the State of Nebraska. As is conceded by Respondent, it is, and has been at
all times material herein, an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
As is conceded by the Respondent, the Union is, and at all times material herein
has been, a labor organization within the meaning of Section 2(5) of the Act.
'Paragraph VIII(b) of the complaint was amended to add an allegation of a threat
by one Elsie Greenwood, assistant manager. After the motion to so amend was granted,
the allegation was dismissed by the Trial Examiner based upon an offer of proof by the
General Counsel from which it was concluded that the evidence would not sustain said
allegation. Said paragraph VIII(b) was also amended to add the additional date of
September 15, 1964, with respect to conduct by Irvin C Levin. Further, the date of
May 30, 1964, which appears in paragraph VIII(b) and (c) of the complaint was changed
to June 2, 1964
2 This case was originally titled "Shopper's Fair, Inc. (Superior Sales, Inc " It
appears however, that name Shopper's Fair is not that of a corporation but is merely a
registered trade name for the store involved in this proceeding which is located in Fre-
mont, Nebraska, and is owned, among other stores, by Superior Sales, Inc Therefore,
the title of the case is corrected by the deletion of "Inc " after the name "Shopper's Fair,"
and the name of Respondent is designated herein as Superior Sales, Inc
3 Respondent was given leave to amend its answer to paragraphs I, II, and III of the
complaint by admitting the allegations in said paragraphs.
4 Although by its answer Respondent denied the allegation of paragraph IV of the
complaint as to the appropriate bargaining unit, a stipulation was entered into by the
parties of the appropriate bargaining unit (which is set forth hereinbelow).
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Summary of Events
The facts set forth in this subsection are not in dispute unless otherwise indicated.
On Wednesday, May 27, Edwin H. Arnold , a representative of the Union , accom-
panied by an officer of the Local, called upon Samuel D. Goodman , president of
Superior Sales, Inc., at his office in Omaha, Nebraska In the course of his conversa-
tion with Goodman , Arnold stated that the Union represented the majority of the
employees in Shopper 's Fair ( hereinafter also referred to as the store ) and requested
that it be recognized as the collective -bargaining representative of the employees at
said store . Goodman indicated his lack of knowledge of labor-management matters
and asked for an explanation . Arnold explained to him that , inasmuch as the Union
represented a majority of the employees , the Union was requesting a check of the
authorization cards to verify its claim of majority representation . He further
explained that the Union could be recognized either by making a card check or by a
representation election . Goodman indicated that he still did not understand the
procedures and that he would have to confer with an attorney . Arnold asked Good-
man to have his attorney "contact" him at the Union's office and gave him his business
card.
On that same day, May 27 , 1964, Goodman retained Irvin C. Levin , counsel for
Respondent in this proceeding . Later in the day, Goodman and Levin went to the
store in Fremont , Nebraska . While at the store, Levin engaged in conversations
with employee Mildred Umshler and with the store manager , James L. Morris. The
testimony with regard to these conversations is set forth hereinbelow . The next day,
May 28, employee Maxine Chapman was discharged .5 On May 29, Arnold had a
telephone conversation with Morris with regard to Chapman 's discharge . The testi-
mony with respect to their conversation is considered herembelow . Later that same
day, according to the uncontradicted testimony of Arnold, Arnold had a telephone
conversation with Levin in the course of which he requested recognition of the
Union as the collective -bargaining representative of the store employees . Arnold
stated that the Union represented a majority of the employees , and, when Levin ques-
tioned how the Company could be certain of the Union 's majority representation,
Arnold stated that he was willing to have a check made of the Union's authorization
cards. In the course of this conversation , Arnold also objected to Chapman's dis-
charge. Levin suggested a meeting during the following week . On June 1 Arnold
met with Levin in Levin 's office. The testimony with respect to their conversation
on that date is considered hereinbelow . On June 2 Levin addressed a meeting of the
employees at the store and had a conversation with a group of several employees.6
Although they had tentatively agreed to meet on June 3, on that day Arnold stated
to Levin that no purpose would be served in meeting with him unless the Respondent
agreed to recognize the Union.
In addition to the above -mentioned oral requests for recognition by the Union,
written requests were made by letters dated May 28 and June 4, 1964. The Respond-
ent made no written replies to said letters.
On September 15, Levin again addressed a meeting of the employees in the store,
the testimony with respect to which is considered hereinbelow.
B. The appropriate bargaining unit
It was stipulated by the parties that the following is an appropriate bargaining unit:
All full-time and regular part-time employees of the Respondent at its store,
Shopper's Fair, in Fremont , Nebraska , excluding professional employees , guards, and
supervisors, as defined in the Act, and those employees employed by Volume Dis-
tributors of Topeka , Kansas.?
The parties further stipulated the names of the employees within the above-described
unit as of the period between May 27 and June 4, 1964, numbering 22 in all. The
5 The issue of whether her discharge was discriminatorily motivated is considered
hereinbelow.
6 The statements made by Levin at said meeting and to the several employees are
considered hereinbelow.
7 Volume Distributors operates a leased department in said store and its employees are
apparently not under the control of Respondent This description does not, in effect,
differ from the description set forth in the complaint , for it merely clarifies by the ex-
ception as to employees of Volume Distiihutors that they do not come within the category
of "employees of the Respondent "
SHOPPER'S FAIR (SUPERIOR SALES, INC.) 1607
name of Donald Vyhlidal was not included in the stipulation, since General Counsel
took the position that he was a supervisor within the meaning of the Act and Respond-
ent was an employee and should be considered within the unit.8
C. The alleged violations of Section 8(a)(1)
It is alleged that Levin engaged in unlawful interrogation of employees on May 27.
The only incident in the record relating thereto is with respect to a conversation he
had with Umshler. Umshler's testimony of the conversation is as follows:
A. Well, Mr. Levin introduced himself to me and told me that he had heard a
rumor that the union was trying to organize in the store and wanted to know
I knew anything about it. I said I didn't. He said that was interesting. He
wanted to know if my husband belonged to a union and I said, "No." And he
wanted to know if I knew of any dissatisfaction or complaints of anyone in the
store that might cause them to seek union assistance, which I didn't.
Levin elected to testify, and corroborated Umshler's testimony except for the reference
to her husband. Levin denied questioning her about her husband, adding that he
had no knowledge of whether she was married or not. It does not appear necessary
to resolve this credibility issue. Even if Umshler's testimony were to be credited in
full, it does not appear that Levin's interrogation of her was coercive within the mean-
ing of Section 8(a)(1) of the Act. It did not constitute interrogation concerning her
own or other employees' union leanings and activities as alleged. While it is possible
to infer from the record that Umshler does have a husband, it is clear that he is not
an employee of Respondent. Consequently, it is concluded that General Counsel has
not sustained, by the evidence of this single incident, the allegation of unlawful inter-
rogation of employees.
It is alleged that the Respondent threatened employees with reprisals "if they con-
tinued with or engaged in union activity" and promised them benefits if they "aban-
doned" such action. These allegations apparently relate to statements made by Levin
at meetings he held with employees on June 2 and 15, 1964, and to statements he made
immediately after the meeting of June 2.
According to the General Counsel's witnesses, Levin, at the June 2 meeting,
expressed surprise that the Union was trying to organize such a small group or that
such a small group would be interested in having union representation. He stated
that, since they were so few in number, they could come directly to management with
any complaints without the need of having a union intercede for them. Levin's testi-
mony with respect to the June 2 meeting was in considerably more detail but
substantially in accord with that of General Counsel's witnesses. According to his
testimony, he explained to them what their rights were under the law. He stated
that, since they were such a small work force, "we could get along without a union,"
there being "easy contact between the employer and the employees." He further
told them they would have to pay dues to the Union and that they should take that
into consideration in making their decision. While his statements indicated that
Respondent was opposed to having a union, it does not appear that they were violative
of Section 8(a) (1), but rather within the protection of Section 8(c) of the Act.
Employees Majorie Story and Marie Searle testified that after the meeting Levin
remarked to a number of employees, including them, that if a union came in, there
may be strikes which would result in a loss of business and a decrease in employment.
Again, such a statement appears to be within the protection of Section 8(c) of the
Act. Searle also testified that Levin added the statement that "he personally could see
several things wrong or several things that could be improved within the store, such as
vacation benefits and insurance . . he said he personally, he wasn't speaking for
the store this was his own personal opinion." It is concluded that this statement of
opinion constituted an unlawful promise of benefits within the purview of Section
8 (a) (1) of the Act. Even though Levin was careful to emphasize that he was only
stating his personal opinion, the statement of his opinion must be considered in the
context of the circumstances in which it was voiced. He was present at the store in
the capacity of attorney for Respondent to address a meeting of the employees with
regard to their desire to have the Union represent them. It is clear that in his speech
to them he attempted to dissuade them from taking such action. In the absence of
8 For the purposes of this Decision it is not necessary to pass upon this issue, inasmuch
as it is found hereinbelow that the Union represented a majority of the employees in the
above-described unit even if Vyhlidal were counted among the employees in said unit
None of the authorization cards received in evidence (General Counsel's Exhibits Nos
2 to 16) bears the signature of Vyhlidal.
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any explanation for his having 'volunteered such an opinion immediately after the
meeting, it is concluded that it was calculated, and did tend, to convey to the employ-
ees the belief that if they would be willing to forego having union representation, he
would, in his capacity as labor counsel for Respondent, attempt to persuade Respond-
ent to grant them the benefits to which he indicated he thought they were entitled.
According to the record, Levin, in his meeting with employees on September 15,
stated that he had heard there were complaints because of the failure of Respondent
to make certain wage adjustments. It appears that shortly prior thereto certain of
the employees had been given a raise in compliance with the minimum wage law
requirement, but that other employees whose wages had met, or were over, the mini-
mum standard were not given a corresponding wage raise. Levin explained that
while the Company had made changes in terms and conditions of employment in
other of its stores, it could not effect any changes at Shopper's Fair because of the
pendency of this proceeding. In the course of the hearing when the Trial Examiner
questioned counsel for the General Counsel as to whether the granting of raises at
that point would have been considered by him to be violative of Section 8(a)(1),
he indicated that it probably would, but that the violation was in Levin stating this
explanation to the employees. In his brief General Counsel argued that Levin implied
that the wage adjustments would be granted if employees withdrew their support of
the Union In view of the discontent among the employees because of the failure
to make wage adjustments, it appears that Levin's explanation to them was a reason-
able attempt to meet the problem Furthermore, his explanation cannot be construed
as an implied promise of benefit if union support were withdrawn, as urged by General
Counsel, but, rather, it is concluded that he implied that the adjustments would be
made when Respondent was advised by its counsel that it was no longer barred from
doing so. It cannot be inferred that Respondent's motive in refraining from making
the adjustments at that time was merely pretextual or that the explanation for so
refraining had an unlawful purpose.
D. Unlawful refusal to recognize and bargain
The record demonstrates that, at the time the Union requested that it be recognized
as the collective-bargaining agent of the above-described unit, it had authorized cards
from 14 of the employees within said unit.0 Even if Vyhlidal 10 were counted among
the employees in the unit (which would have made the unit number 23 employees), it
is concluded that, at the time of its request for recognition, the Union represented a
majority thereof. Respondent elicited testimony from two employees in the unit,
Helen White and Judith Novotny, as to the circumstances in which they signed their
authorization cards which are among those in evidence. However, it appears from
their testimony that they understood, when signing the cards, the purpose thereof, and
there is nothing in their testimony which would support a conclusion that either of
their signatures was obtained by misrepresentation or coercion. Therefore, it is con-
cluded that it is appropriate to count their cards in determining the Union's claim of
majority. However, even if their cards were not counted and Vyhlidal were con-
sidered to be a member of the unit, the Union would still have had a majority (12
cards from a unit of 23 employees).
As above indicated, the Union's initial request for recognition and offer to submit to
a card check were made to Goodman on May 27, 1964. The request and offer were
repeated to Levin that same day, and a meeting was arranged by Levin and Arnold
for June 1. They both testified with respect to their meeting in Levin's office on June 1.
Arnold testified that: He again requested recognition and stated that he was
willing to submit to a card check; Levin said "people will sign almost anything"; Levin
0Fifteen authorization cards (General Counsel's Exhibits Nos. 2 to 16) were received
in evidence purportedly signed by people included among those named in the stipulation
of employees within the unit It is noted, however, that General Counsel's Exhibit
No 16 is signed by a Craig Story which name does not appear in said stipulation Among
those named in the stipulation are a Mark Story and a Shelton Story Since it cannot
be determined whether General Counsel's Exhibit No 16 was signed by one of the two
Stoiys named in the stipulation, General Counsel's Exhibit No 16 cannot be counted
as an authorization card signed by a member of the unit. The name appearing on the
other 14 cards match names appearing in the stipulation
iu There is insufficient evidence in the record to determine whether Vyhlidal was or
was not a supervisor. According to General Counsel's witness, Maxine Chapman, he was
"in training for manager " Her description of the duties he performed is lacking in
details and gives little indication of what authority he exercised The record discloses
that there were two in the store who were supervisors, James Morris, manager, and Elsie
Greenwood, his assistant
SHOPPER'S FAIR (SUPERIOR SALES, INC.) 1609
asked what the Union was hoping to get; Levin said the Company was in "not too
good a financial straits" 11 and was not willing "to buy a pig in the poke" to which
Arnold replied that it was the Union 's policy not to engage in negotiations regarding
such matters until it was recognized ; Levu said he would have to consult with
Goodman; and Levin also said the Company would prefer to go to an election so that
it would have time to talk to its employees . They agreed to meet again on June 3.
Levin, in testifying as to what occurred at the meeting on June 1, neither admitted nor
denied the above testimony of Arnold.'2 Therefore, Arnold's testimony is credited.
In a telephone conversation on June 3, according to Arnold's testimony, which
Levin neither admitted nor denied and is, therefore , credited , Levin told him that the
Company had held a meeting of its employees on June 2; that from this meeting he
felt that the employees had not made up their minds ; 13 and that they "ought to go to
an election to find out inasmuch as this would give the company more time to talk
with" the employees . Arnold informed Levin that no purpose would be served for
further meetings unless the Company was willing to recognize the Union. As a
result, they did not meet that day as planned. The Union made a subsequent request
for recognition by letter dated June 4, 1964 , to which Respondent made no reply.
Thereafter , as above indicated , the Union filed the charge herein on June 18, 1964,
alleging, inter alia, that Respondent did unlawfully refuse to recognize and bargain
with it.
It is well settled that an employer has a legal duty to recognize and bargain with
the representative of the majority of its employees upon receipt of a request therefor
unless it entertains a good-faith doubt concerning the union 's majority status, that
the employer does not have the right to insist upon a Board election in the absence
of reasonable doubt with respect to the appropriateness of the proposed unit or the
union's representative status; and that the existence of good faith in withholding recog-
nition is not established merely by the employer 's assertion of doubt of majority but
rather it is determined by the entire factual context in which the request for recogni-
tion is made and refused . Johnnie's Poultry Co., 146 NLRB 770; Fleming & Sons of
Colorado, Inc., etc., 147 NLRB 1271.
There is no showing that , at any time during the course of negotiations between
the Union and the Respondent , the Respondent raised a question of the appropriate-
ness of the unit with respect to which the Union requested recognition as collective-
bargaining agent . Although Respondent indicated its doubt of the Union 's majority
representation , there is nothing in the record which would support an inference that a
reasonable basis existed for a good-faith doubt. Levin merely made the general obser-
vation that "people will sign almost anything ." From all the circumstances revealed
by the record , it is concluded that Respondent 's refusal to recognize the Union and its
insistence upon an election was for the purpose of gaining time to afford it the oppor-
tunity to dissuade employees from their desire to have the Union represent them, or at
least to obtain a delay during which employees might change their minds . Therefore,
it is concluded that by refusing to recognize the Union , commencing on May 27, 1964,
and instead , insisting upon an election , the Respondent refused to bargain in good
faith with the Union in violation of Section 8(a)(5) and ( 1) of the Act.
Among the circumstances considered in context with the refusal of Respondent to
recognize the Union and its insistence upon an election , were the following . Levin's
statements to Arnold that Respondent wanted to go to an election to give Respondent
time to talk to its employees (evidenced by the credited testimony of Arnold); the
absence of any reasonable basis for a doubt of the Union 's claim of majority; the
demonstration in the record that it did have authorization cards from a majority of
the unit; Respondent 's unwillingness to accept the Union 's offer of a card check with-
out any reasonable basis for doubting the reliability of the authorization cards;
Respondent 's evident opposition to the Union ; the above finding of an unlawful
promise of benefits; and the finding hereinbelow of the discriminatory discharge of
Maxine Chapman 14
11Line 4 , page 44, of the transcript should be corrected as follows : the fifth word
should be "he" instead of "I."
13 Although Levin testified as to portions of their conversation which were not men-
tioned in Arnold's testimony, no puropse would be served in considering this aspect of
Levin ' s testimony inasmuch as it is not material to the issues in this proceeding.
13 There is nothing in the record which discloses a reasonable basis for such opinion
14It should be noted that the two findings of unlawful conduct ( the promise of bene-
fits and discriminatory discharge), although considered in the totality of the circum-
stances, were not controlling factors in arriving at the conclusion that Respondent violated
Section 8(a) (5) and (1) of the Act, since it would have been so concluded even if said
violations had not occurred
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its brief Respondent presented the argument that it did not unlawfully refuse to
bargain in good faith with the Union, since Levin was ready to meet with Arnold on
June 3 as scheduled and Arnold called off the meeting and made no further requests
for a meeting. There is no merit in this argument. In view of Levin's repetition on
that day of the statement that Respondent wanted to go to an election, it is concluded
that the Union did not have to go through the futile task of further meetings (to discuss
its request for recognition) which, because of the Respondent's apparently adamant
position, were "doomed to be sterile." Fleming & Sons of Colorado, Inc., etc., supra.
E. Discharge of Maxine Chapinan
Maxine Chapman, who entered the employ of Respondent in June of 1961, was
discharged at the beginning of her workday on May 28, 1964. She testified without
contradiction that she ranked fifth in seniority among the clerks in the store and that
she worked in the same section of the store throughout her entire employment. She
attended the union meeting on May 25. On the 2 days following the meeting and
preceding her discharge, she talked to a number of the employees about the advan-
tages of joining the Union and obtained signed authorization cards from two of the
employees.15
Chapman testified as follows with regard to the notification of her discharge:
I went to work at 1:30 that afternoon. I was standing there straightening up the
boys' swimsuits. Mr. Morris walked up beside me. I said, "These are sure a
mess." He said, "Yes." He said, "I am going to have to let you go, Maxine.
They said the department isn't making any money and I have to cut down some
place and I have to start here " He said, "It isn't because of your work." He
said he would give me a week's severance pay. And I told him I had vacation
pay coming. He said he would get that forme.
She further testified that neither Morris, the store manager, nor Greenwood, his
assistant and formerly in charge of the store, had ever indicated to her that the sales
were low in her department; that she had not observed any change in the amount of
sales in her department; and that no supervisor had ever complained about the way
she was performing her job. Upon cross-examination, Chapman denied that Morris
complained about her attitude, or told her that she was gossiping too much and
should pay more attention to her department.
Morris, who had only been employed at the store for approximately a month prior
to Chapman's discharge, testified as follows to the reasons for her discharge:
She was dismissed for various reasons. First of all, her department, which I con-
sider to be boys and ties department, wasn't in the condition I would have liked
to have seen it in, and also I kept finding Mrs. Chapman conversing with
employees or customers in various parts of the store other than in her own
department. This I had mentioned to her several times. It didn't seem to get
through. Also, when giving instructions or supervision, several times I noticed
an attitude of resentment, reluctance to go ahead and do what I had asked her
to do.
He further testified, as follows, as to what he said to her at the time of her discharge:
I told her I didn't think the department was doing what it should do and wasn't
kept the way I would like to see it kept.
He denied that he said "It wasn't her work that was the reason she was being laid off."
Morris further testified that he did not discuss her dismissal with anyone, but that he
did discuss her work performance with Greenwood on several occasions. He testified
that on May 28 he had no knowledge that Chapman had been engaging in union
activity and that he was not aware of any union activity in the store. Morris admitted
on cross-examination that he did have a conversation with Levin and Goodman on
May 27, the occasion when the two visited the store immediately after Goodman had
retained Levin as counsel. However, Morris denied that there was any mention made
of the Union, of union activity, or of a request having been received from the Union
for recognition. Later, he testified that Levin did ask him if he had heard of any
union activity to which he replied that he had not, and that that was the extent of their
conversation about the Union.
15 One of the two, Novotny, was called by Respondent as a witness to testify to the
circumstances in which Chapman obtained her signature in an unsuccessful attempt, as
found above , to prove that her authorization card could not appropriately be counted
toward establishing the Union ' s claim of majority.
SHOPPER'S FAIR (SUPERIOR SALES, INC.) 1611
Morris further testified that he had spoken to Chapman about the way she was
keeping her department approximately a dozen times. Greenwood, who was called
as a witness by Respondent, testified that she had three or four discussions with
Morris about Chapman's work performance and related occasions when she saw
Chapman out of her department talking to other employees. She further testified that
she acted as manager of the store for a considerable period of time before Morris
assumed the position. She admitted she had never admonished Chapman for her
work performance or for being out of her department, but explained that it was a
"touchy" period in the store when she was acting as manager and that she did not
admonish Chapman in her capacity as assistant manager, because it was the duty of
the manager to do so.
Morris was questioned as to when he arrived at the decision to discharge Chapman.
He testified that he had thought about it for "sometime" and had come to the decision
to discharge her "a couple of days" prior to taking such action. When asked why he
delayed for a couple of days before notifying her of his decision, he answered that he
waited until May 28, because it was a Friday and the end of the pay period. When it
was pointed out to him that May 28 fell on a Thursday, Morris stated "Well, Thusrday
is the day our pay period ends."
Arnold testified that when he talked with Morris on May 29 about Chapman's dis-
charge and requested that she be reinstated, Morris informed him that he "couldn't
do anything," that he was acting on orders from Goodman. Morris denied that he
made such a statement to Arnold.
Morris testified that he did not fill out the form (regarding Chapman's discharge)
for the unemployment compensation bureau, but that he sent a form to the office of
Respondent in Omaha in which he stated that the reason for Chapman's discharge
was that her "work was unsatisfactory." The Respondent, in its report to the
Nebraska Division of Employment, stated that the reason for Chapman's discharge
was "economy and poorly run department." 16 Kathleen Delaney testified that she
first applied for a job with Respondent in January of 1964 and around the 1st of May
helped in taking inventory. On May 29 or 30 Morris called her home, and, when she
later returned his call, she was informed that she could come in and complete an
application form on the following Monday, June 1, and could start working right
away. She completed her application form on June 1 and started working that same
day in the department in which Chapman had been employed.
It is concluded that Chapman was discriminatorily discharged in violation of Sec-
tion 8(a)(3) and (1) of the Act. This conclusion is predicated primarily upon the
following findings and conclusions: On the 2 days preceding her discharge Chapman
solicited authorization cards and encouraged employees to accept the Union as their
bargaining representative; on the day preceding her discharge the Union notified
Respondent of its majority status and requested recognition; on that same day, as a
result of the Union's sanction, Respondent retained Levin; also on that same day
(May 27, the day preceding Chapman's discharge), Goodman and Levin drove from
Omaha to Fremont to visit the store and it is inferred that the purpose of this visit
was directly related to the Union's action ; 17 in view of the comparatively small num-
ber of employees in the store it is inferred that they gained knowledge of Chapman's
activity; Morris was not a convincing witness and that portion of his testimony which
is contradicted is not credited , nor are his denials of other witnesses ' testimony cred-
ited; 18 the testimony of Arnold that Morris stated that Chapman's discharge was on
161n accordance with provisions made therefor at the close of the hearing, General
Counsel, by mail, offered in evidence a copy of Respondent's report to the Nebraska
Division of Employment regarding Chapman's discharge as General Counsel's Exhibit
No 20 Said exhibit is hereby received in evidence, it having been stipulated that the
exhibit is an exact copy of said report
ID Except for Levin's testimony regarding his interrogation of Umshler, set forth here-
inabove, neither he nor Goodman testified sith regard to their visit to the store on May 27.
18 Among the reasons for not crediting his testimony are the following observations
Morris was evasive when testifying as to the reason for the delay in notifying Chapman
of his decision to discharge her His testimony was not credible that the only mention
made with respect to the Union during the visit by Levin and Goodman to the store on
May 27 was a question by Levin of whether he (Morris) had heard of any union activity.
It is incredible that in the circumstances Levin and Goodman would have limited their
conference with the store manager (in face of the Union's claim of majority and request
for recognition) to that one question (Neither Goodman nor Levin testified with respect
to their conversation with Morris on that occasion ) Further, Morris was far from
candid in testifying that he had no knowledge of any union activity on May 28, although
he later admitted being asked the aforementioned question, on the previous day.
1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
orders from Goodman is credited, as is Chapman's testimony as to what Morris said
to her when he notified her of her discharge and as to her work performance; and
the fact that Respondent assigned (in its report to the Nebraska Division of Employ-
ment) as one of its reasons for Chapman's discharge "economy," but nevertheless,
immediately hired another employee in Chapman's department. The above findings
and conclusions,19 considered in the context of Respondent's actions which were
found hereinabove to constitute a violation of Section 8(a)(5) of the Act, support
the conclusion that Chapman's discharge was discriminately motivated and that the
reasons therefor ascribed by Respondent were pretextual.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a close,
intimated, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes, burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
In view of the findings detailed above that Respondent engaged in unfair labor
practices, it will be recommended that Respondent be required to cease and desist
from such unfair labor practices and take certain affirmative action designed to effec-
tuate the policies of the Act. It should be noted that, since the only store of Respond-
ent involved in this proceeding is its store, Shopper's Fair in Fremont, Nebraska, any
reference in this section of the Decision to Respondent's employees is limited to its
employees in said store.
Having found that Respondent did, commencing May 27, 1964, unlawfully refuse
to recognize and bargain with Retail Clerks International Association, AFL-CIO,
with respect to the unit of its employees described hereinabove which is an appro-
priate bargaining unit, it will be recommended that Respondent be ordered to recog-
nize and bargain with said Union, upon request, and if an understanding is reached,
such understanding be embodied in a signed agreement.
Having found that Respondent has discriminated against Maxine Chapman with
respect to her hire and tenure of employment by reason of her discharge on May 28,
1964, it will be recommended that Respondent be ordered to offer her full reinstate-
ment to her former or substantially equivalent position without prejudice to her
seniority or other rights and privileges. It will be further recommended that Respond-
ent make her whole for any loss of earnings she may have suffered because of the dis-
crimination against her by payment of a sum equal to the amount she normally
would have earned as wages from May 28, 1964, to the date of the offer of reinstate-
ment together with interest thereon as provided below. The loss of pay should be
computed in accordance with the formula and method prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289, and the interest, payable in accordance
with Isis Plumbing & Heating Co., 138 NLRB 716, should be computed at the rate of
6 percent per annum on the amount due in each instance for each calendar quarter
(under the Woolworth formula) beginning with the end of the first calendar quarter
and continuing with each succeeding calendar quarter until payment of such amount
is properly made.
Inasmuch as the unfair labor practices committed by the Respondent are of a
character striking at the root of employees' rights safeguarded by the Act, it will be
further recommended that the Respondent cease and desist from infringing in any
manner upon the rights guaranteed its employees in Section 7 of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Retail Clerks International Association, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
16 Which , in summary , disclose that Chapman ' s discharge occurred immediately aftei
her union activity and the Union ' s request for recognition , that it is appropriate to infer
that Respondent had knowledge of her union activity , that top management directed
Morris to dismiss her, and that Morris wa , not .i coninuing witness in testifying that
he dismissed her for unsatisfactory work performance or that her work performance v,as,
in fact , unsatisfactory.
SHOPPER'S FAIR (SUPERIOR SALES, INC.) 1613
3. The following is an appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time employees of the Respondent at its store,
Shopper's Fair, in Fremont, Nebraska, excluding professional employees, guards,
and supervisors, as defined in the Act, and those employees employed by Volume
Distributors of Topeka, Kansas.
4. By implying, through its attorney, that Respondent might grant its employees
economic benefits if they discontinued their adherence to the Union, Respondent did
unlawfully make them a promise of such benefits and did thereby interfere with,
restrain, and coerce its employees in violation of Section 8(a) (1) of the Act.
5. By refusing to recognize and bargain with said Union, commencing on May 27,
1964, as the collective-bargaining agent for the unit described hereinabove, Re-
spondent has violated Section 8(a)(5) and (1) of the Act.
6. The discharge of Maxine Chapman on May 28, 1964, was discriminatorily
motivated and Respondent did thereby violate Section 8 (a) (3) and (1) of the Act.
7. General Counsel has failed to prove by a preponderance of the evidence that
Respondent unlawfully interrogated its employees, as alleged in paragraph VIII(a)
of the complaint.
8. General Counsel has failed to prove by a preponderance of the evidence that
the Respondent unlawfully threatened employees with reprisals if they continued
with or engaged in union activities, as alleged in paragraph VIII(b) of the complaint.
RECOMMENDER ORDER 20
Upon the basis of the above findings of fact and conclusions of law and the entire
record in the case, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is recomended that Respondent, Superior Sales, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its employees in the exercise of the
rights granted under Section 7 of the National Labor Relations Act, as amended, by
unlawfully promising them economic benefits if they discontinue their adherence to
the Union.
(b) Refusing to recognize and bargain with Retail Clerks International Associa-
tion, AFL-CIO, as the collective-bargaining representative for the following
unit:
All full-time and regular part-time employees of the Respondent at its store, Shop-
per's Fair, in Fremont, Nebraska, excluding professional employees, guards, and
supervisors, as defined in the Act, and those employees employed by Volume
Distributors of Topeka, Kansas.
(c) Discouraging membership in said labor organization, or in any other labor
organization of its employees, by discriminating in regard to their hire and tenure
of employment, or any term or condition of employment.
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to join, form, or assist labor organiza-
tions, including the above-named labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
2. Take the following affirmative action which it is deemed will effectuate the
policies of the Act:
(a) Upon request, recognize and bargain collectively with Retail Clerks Inter-
national Association, AFL-CIO, as the exclusive representative of the employees
in the unit described in paragraph 1(b), above and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Offer to Maxine Chapman immediate and full reinstatement to her former or
substantially equivalent position without prejudice to her seniority or other rights and
privileges, and make her whole for any loss of earnings she may have suffered as a
result of the discrimination against her, as provided in the section of this Decision
entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records, and all other records necessary to determine the amount of
backpay due under the terms of this Recommended Order.
20 All references to Respondent's employees in this Recommended Order are intended
to apply only to its employees at its store, Shopper's Fair, in Fremont, Nebraska.
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its store, Shopper's Fair, in Fremont, Nebraska, copies of the attached
notice marked "Appendix." 21 Copies of such notice, to be furnished by the Regional
Director for Region 17, shall, after being signed by an authorized representative of
the Respondent, be posted immediately upon receipt thereof, and be maintained by
it for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that such notices are not altered, defaced, or
covered by any other material.
(e) Notify said Regional Director, in writing, within 20 days from the receipt of
this Decision, what steps the Respondent has taken to comply herewith.22
It is further recommended that the complaint be dismissed insofar as it relates to
the unlawful conduct alleged in paragraphs VIII(a) and (b) of the complaint.
21 If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order."
22If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 17, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO OUR EMPLOYEES AT SHOPPER'S FAIR, FREMONT, NEBRASKA
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relation Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT unlawfully promise our employees economic benefits condi-
tioned upon their discontinuing their adherence to Retail Clerks International
Association, AFL-CIO, or to any other labor organization.
WE WILL NOT discourage membership in Retail Clerks International Associa-
tion, AFL-CIO, or in any other labor organization of our employees, by dis-
criminating in regard to their hire and tenure of employment, or any term or
condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to join, or assist labor
organizations, including the above-named labor organization, to bargain, col-
lectively through representatives of their own choosing and to engage in other
concerted activities or other mutual aid or protection, or to refrain from any or
all of such activities.
WE WILL, upon request, bargain collectively with Retail Clerks International
Association, AFL-CIO, as the exclusive bargaining representative of all our
full-time and regular part-time employees at Shopper's Fair, Fremont, Nebraska,
with respect to wages, hours of employment, or other terms and conditions of
employment, and if agreement is reached WE WILL embody it in a signed agree-
ment. Excluded from the bargaining unit are all professional employees, guards,
and supervisors, as defined in the Act, and those employees employed by Volume
Distributors of Topeka, Kansas.
WE WILL offer to Maxine Chapman immediate and full reinstatement to her
former or substantially equivalent position without prejudice to her seniority
and other rights and privileges and make her whole for any loss of earnings as a
result of our discrimination against her.
All our employees are free to become or remain members of Retail Clerks Inter-
national Association, AFL-CIO, or of any other labor organization, or to refrain
therefrom.
SUPERIOR SALES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
FERGUSON-LANDER BOX CO. 1615
Employees may communicate directly with the Board 's Regional Office, 1200
Rialto Building , 906 Grand Avenue, Kansas City, Missouri, Telephone No. Baltimore
1-7000, Extension 731, if they have any questions concerning this notice or
compliance with its provisions.
Ferguson-Lander Box Co. and Printing Specialties & Paper
Products Union Local 415, AFL-CIO. Case No. 13-CA-6P227.
April 13, 1965
DECISION AND ORDER
On September 10, 1964, Trial Examiner Sidney Sherman issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and is engaging in certain unfair labor
practices alleged in the complaint and recommending that it cease
and desist therefrom and take certain affirmative action, as set forth
in the attached Trial Examiner's Decision. The Respondent filed
exceptions to the Trial Examiner's Decision and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief, and the entire
record in this case, and finds merit in certain of the Respondent's
exceptions. Accordingly, the Board hereby adopts the Trial Exam-
iner's findings, conclusions, and recommendations only to the extent
that they are consistent herewith.'
1. The Trial Examiner concluded that the following rule which
is in effect at the Respondent's plant is violative of Section 8(a) (1)
because it restricts the right of employees to solicit on behalf of
unions during nonworking hours :
"REASONS FOR REPRIMAND AND/OR DISCIPLINARY
ACTION
5. Soliciting or collecting contributions at any time without the
approval of supervisor."
'We find, in agreement with the Trial Examiner, that the Respondent, by interfering
with the administration of, assisting, contributing support to, and dominating the Shop
Committee, has violated Section 8(a) (2) of the Act. We further agree with the Trial
Examiner's general statement, in footnote 13 of his Decision, to the effect that, where
employers assist, contribute support to, dominate, or interfere with the administration
of labor organizations, decisions which affect employees are often made by management
alone, in contrast to situations in which the labor organization exists independently of
such unlawful employer conduct.
151 NLRB No. 158.