Squire Shops, Inc.

National Labor Relations Board - Board Decisions

Jun 2, 1975

218 N.L.R.B. 158 (N.L.R.B. 1975)

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Squire Shops, Inc. and Michael Louis Rider and
Charles K. Austin and Retail Store Employees
Union, Local 1001 , Chartered by Retail Clerks
International Association, AFL-CIO. Cases 19-
CA-6735, 19-CA-6751, 19-CA-6764, and 19-
CA-7293
June 2, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On January 31, 1975, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel and the Charging Parties each filed an
answering 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
Squire Shops, Inc., Seattle, Washington, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as herein
modified:
1. Delete paragraph 1(c) from the Administrative
Law Judge's recommended Order and reletter the
subsequent paragraphs accordingly.
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
i We do not adopt the Administrative Law Judge's 8(a)(1) finding that
Michael Rider was transferred from Respondent's Northgate store to its
downtown store in order to inhibit his union activities . Inasmuch as this
allegation did not appear in the complaint , was not discussed at the hearing,
and was not mentioned in the General Counsel's brief to the Administrative
Law Judge, we do not believe that the issue was sufficiently litigated to
permit a finding to be made as to it. Keller Industries, d/b/a American
Carpet Mills, Inc., 170 NLRB 1715, 1723 ( 1968).
218 NLRB No. 26
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees con-
cerning their union activities.
WE WILL NOT threaten to discharge our
employees for engaging in union activities.
WE WILL NOT solicit our employees' grievances.
WE WILL NOT unilaterally promise to resolve
our employees' grievances or adjust them, partic-
ularly where it involves a change in working
conditions.
WE WILL NOT unilaterally grant wage increases
to undermine or to discourage our employees'
union support.
WE WILL NOT discharge our employees for
testifying in Board proceedings or for engaging in
union activities.
WE WILL NOT refuse to recognize Retail Store
Employees Union, Local 1001, Chartered by the
Retail Clerks International Association, AFL-
CIO, as the exclusive bargaining agent of our
employees in the following unit:
All of the employees employed at the
Employer's four retail stores in King Coun-
ty, Washington (1428 Fourth Avenue; 4508
University Way Northeast; 761 Northeate
Mall and 820 Southcenter Mall), excluding
truckdrivers, warehouse employees, office
clerical employees, professionals, guards and
supervisors as defined in the Act.
WE WILL NOT refuse to negotiate with the above
Union concerning the rates of pay, wages, hours,
and working conditions of our employees in the
above unit or the adjustment of the grievances of
those employees.
WE WILL NOT refuse to execute agreements with
the above Union concerning the settlement of
such grievances or rates of pay, wages, hours, and
working conditions of those employees.
WE WILL offer Michael Rider full reinstatement
to his former job and pay him for any losses he
may have suffered since we discharged him for
engaging in union activities.
WE WILL recognize the above Union as the
exclusive collective-bargaining representative of
our employees in the above unit.
WE WILL negotiate with the above Union
concerning the rates of pay, wages, hours, and
working conditions of our employees in the above
unit.
SQUIRE SHOPS, INC.
WE WILL execute the contract we negotiated
with the above Union covering the rates of pay,
wages, hours, and working conditions of the unit
employees in July 1974.
WE WILL comply with all of the terms and
conditions of that agreement, both retroactively
and prospectively.
WE WILL negotiate with the Union concerning
any changes in the rates of pay, wages, hours, and
working conditions and adjustment of any of our
employees' grievances, and, if and when agree-
ments are reached concerning same, we will
execute agreements setting forth those agree-
ments.
SQUIRE SHOPS, INC.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge: On
October 1, 7, 8, and 9, 1974, I conducted a hearing at
Seattle, Washington, to try issues raised by a consolidated
complaint issued on September 18, 1974 on the basis of a
charge and amended charges filed by Retail Store
Employees Union, Local 1001, chartered by Retail Clerks
International Association, AFL-CIO ion November 16,1973
(19-CA-6735), November 26, 1973 (19-CA-6751), Novem-
ber 30, 19732 (19-CA-6764) and September 4, 1974 (19-
CA-7293).
The September 18, 1974, consolidated complaint3
alleged that the Company violated Section 8(a)(1), (3), (4),
and (5) of the National Labor Relations Act,.as amended
(hereafter the Act), by coercively interrogating, threatening
to discharge, transferring, reducing the hours, and dis-
charging employee Michael Rider for engaging in union
activities and testifying for the Union in a representation
proceeding. The consolidated complaint also alleged that
the Squire Shops, Inc.4 violated Section 8(a)(1) of the Act:
by granting wage increases to a substantial number of its
employees to undermine their support of the Union; by (in
the course of a series of employee meetings) soliciting
employee grievances, promising to correct employee
grievances , assisting, encouraging, and promoting the
formation of an employee grievance committee, promising
increased meal and/or rest breaks, promising to sign up
employees for insurance benefits; by subsequently lending
additional assistance and encouragement to the formation
of an employee grievance committee; and by subsequently
granting the promised increases in meals and/or rest
breaks and insurance benefits. The consolidated complaint
further requested that a bargaining order issue on the
ground the Company prevented a free election by the
aforementioned unfair labor practices and an order issue
1 Hereafter called the Union.
2 Hereafter, all dates are in 1973 unless otherwise stated.
3 An earlier consolidated complaint issued on March 20, 1974, on the
basis of the charges predating its issuance.
4 Hereafter called the Company
159
requiring the Company to sign a contract allegedly agreed
on by and between the Company and the Union.5
The Company denied the commission of the acts alleged,
dewed it committed any violation of the Act, and moved
(in its brief) for a mistral and to reopen the record.
The issues are: (1) Whether the Company coercively
interrogated, threatened to discharge, reduced the hours,
transferred and discharged Rider because of his union
activities and/or testimony in the representation proceed-
ing; (2) whether the Company granted wage increases for
the purpose of undermining the Union's support among its
employees; (3) whether the Company solicited employee
grievances, promised to correct employee grievances,
assisted, encouraged, and promoted the formation of an
employee grievance committee, promised increased meal
and/or rest breaks, promised insurance coverage to
employees, and granted increased meal and/or rest breaks
and signed up employees for insurance, all for the purpose
of undermining the Union's support among the employees;
(4) what is an appropriate unit of the employer's employ-
ees; (5) whether the Union represented a majority of the
Company's employees within that unit; (6) whether the
Company and the Union reached agreement on the terms
of a contract covered the rates of pay, wages, hours, and
working conditions of the employees within that unit; (7)
whether the Company subsequently refused to execute a
contract containing such agreement; and (8) whether the
Company committed unfair labor practices of a sufficiently
severe nature to warrant a bargaining order.
The parties appeared by counsel at the hearing and were
afforded full opportunity to produce evidence, examine
and cross-examine, witnesses, argue, and file briefs. Briefs
have been received from the General Counsel and the
Company.
Based on my review of the entire record, observation of
the witnesses, perusal of the briefs and research, I enter the
following:
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The September 18, 1974, consolidated complaint alleged,
the Company admitted, and I find that the Company at all
times pertinent was engaged in commerce in a business
affecting commerce and the Union was a labor organiza-
tion, as those terms are defined in Section 2(2), (5), (6), and
(7) of the Act.
U. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and the Company's Posthearing
Motions
The Company is a retailer of men's clothing. On October
16 the Union filed a petition for certification as the
exclusive collective-bargaining representative of the Com-
pany's employees at four of its stores in the greater Seattle
5 The General Counsel withdrew those portions of the consolidated
complaint allegmg that employee Charles Austin was discriminatorily
discharged and that statements at employee meetings, other than those held
at the South Center and University stores violated Sec. 8(axl) of the Act.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
area. (Case 19-RC-6852.) On November 14 a hearing was
conducted on the Union's representation petition. On
December 3 the Regional Director issued a decision
directing an election within an appropriate unit of the
Company's employees.
Between, the date the petition was filed and the date the
Regional ,Director issued his decision and direction of
election, the Union asked the Company to recognize it as
the exclusive collective-bargaining representative of the
unit employees and asked the Company to bargain with it
over their rates of pay, wages, hours, and working
conditions . During the same period , Rider testified in the
November 14 representation hearing and the Union filed
its Section 8(a)(1), (3), and (4) charges over his discharge
and treatment prior thereto . Shortly thereafter, the Union
filed the other Section 8(a)(1), (3), and (5) charges set out
heretofore other than, the 8(a)(5) allegation based on the
Company's alleged refusal to sign a previously agreed on
collective-bargaining agreement.
It is undisputed that following the issuance of the March
20, 1974, consolidated complaint containing allegations
other than the allegations ansing out of the Company's
alleged failure to execute a contract containing terms
previously agreed on, the hearing on the allegations of that
complaint was postponed once at the request of the
Company, once at the request of the Union, and then
indefinitely at the request of both parties (due to the fact
they were meeting and attempting to work out their
differences).
The Company moved, prior to the October 1, 1974,
hearing before me, to sever those allegations of the
September 18, 1974, consolidated complaint which were
not contained in the March 20, 1974, complaint (relating to
its alleged refusal to sign a contract containing a previously
reached agreement) on the ground the evidence concerning
the negotiation of the alleged contract terms involved its
attempt to settle the issues raised by the March 20, 1974,
consolidated complaint and should be barred and the
additional ground the Company would be prejudiced in
-the trial of the issues raised by the March 20, 1974,
consolidated complaint by the introduction of evidence
concerning those settlement negotiations . The Company
also contended, as added basis for its motion to sever, that
it would be required, in the trial of the purported contract
issue, to call the attorney who was going to handle its trial
of the other issues as a witness (inasmuch as he was the one
who participated in the alleged contract negotiations) and
this would prejudice its defense on the issues other than the
contract issue.
The Company's prehearing motion (renewed at the
hearing) to sever was denied on the ground the contract
issue and the other issues involved the same parties, arose
out of the same overall factual situation, the evidence
concerning the other issues constituted essential back-
ground to the contract issue , unnecessary, cost and delay
would be avoided by consolidating these matters, the
parties' motive for entering contract negotiations was
irrelevant to the issue of whether they reached agreement
in these negotiations on contract terms , and the prospect
that one of the Company's attorneys might testify in the
course of the proceeding was not prejudicial.
The posthearing motion for a mistrial is based on the
same grounds raised in the motion to sever ; in the motion
for mistrial, counsel asserts that the evidence concerning
the contract negotiations should not have been admitted
because the Company was motivated in those negotiations
by a desire to settle the issues raised by the previously
issued consolidated complaint and the trial of the contract
issue required testimony by its counsel . The motion for
mistrial is therefore denied, for the same reasons the
motion to sever was denied and the Company's objections
to the admission of evidence concerning the contract
negotiations were overruled.
Counsel also moved in his posthearing brief to reopen
the record to take additional testimony concerning the
"mental state of Respondent's vice president and counsel
in attending meetings with union officers." Evidence
surrounding such mental state was excluded (on objection
by the General Counsel) on the ground the best evidence
concerning whether a consensual agreement on contract
terms was reached by the parties was evidence concerning
the statements and conduct of the negotiators (the
Company's vice president and counsel, in the Company's
case) in the course of the negotiations and therefore any
present testimony by them concerning their alleged mental
reservations while making those statements and engaging
in that conduct was highly suspect and therefore barred. I
see no good reason to now reverse that ruling. The
Company's motion to reopen the record for taking of such
evidence is therefore denied.
B. Michael Rider
Rider was employed intermittently by the Company as a
salesman between January 1972 and his November 16
discharge . Most of his employment was rendered at the
Northgate store . His last continuous employment prior to
his discharge commenced in September.
On Sunday, October 14, Rider received a cut over his eye
in the course of a football game. After the cut was stitched
up at a hospital emergency room, Rider, 'called David
McMullen (assistant store manager at the Northgate store
and an admitted supervisor) and requested that he be
relieved from work the next day because of his appearance
and because he was not feeling too well . McMullen
excused him from reporting to work the next day.
By the afternoon of the following day, Monday , October
15, Rider felt better and made a trip to the Southcenter
store with two union organizers (Steve Gouras and Mike
Orth). Rider solicited two employees at the Southcenter
store to sign authorization cards for the Union in the
presence of the store manager (Cuz Lawrence , an admitted
supervisor). Rider, accompanied by Orth, then went to the
University store and repeated his organizational efforts. He
was observed in those efforts by the store manager there
(Ken Barnes, an admitted supervisor).
That evening , Rider received a telephone call from Carl
Miska, (store manager at Northgate, where Rider was
employed, and an admitted supervisor). Miska stated that
Rider was causing problems at the Northgate store and
discharged him. Approximately 5 to 10 minutes later,
Miska again telephoned Rider and told him he was rehired.
SQUIRE SHOPS, INC. 161
He also invited Rider to visit him at his apartment that
eve ring.
When Rider appeared at the Miska apartment, Miska's
fiance, Toni Orkney, was present. Orkney remained in the
living room seated on the couch watching television, while
Mirka and Rider seated. themselves at the dining room
table, conversed, and drank wine. Rider remained for
approximately an hour. The men discussed movies, sports,
Rider's injury and Miska's career. In the course of the
conversation, Miska asked Rider if he went to the
Southcenter store to organize for the Union. Rider replied
in the negative. Miska stated the Company had two girls
who said he had. Rider repeated his denial and asked
Miska why he asked. Miska replied that he didn't like
unions, they were not good for Squire .6
After leaving the Miska apartment, Rider went to a local
pub where he saw McMullen. McMullen told him he was
fired because of his activities on behalf of the Union. Rider
asked McMullen how he knew that. McMullen replied he
was there when Miska called and fired Rider and when
Miska called Rider back and rehired him after McMullen
advised Miska he couldn't fire an employee for engaging in
union activities.'
On November 7, Rider was transferred from the
Northgate store to the Downtown store. He did not request
the transfer and was simply advised he was being
transferred.s
On Rider's first day at the downtown store, Edvalds
invited Rider to join him for coffee in the basement. Rider
accepted the invitation. Edvalds told Rider if he was a
good worker he would be given approximately 30 hours of
work a week. Edvalds explained the merchandise carried at
the store and the kind of market the store catered to. He
also instructed Rider to work hard and to refrain from
using the company telephone during working hours for
personal calls. Rider asked Edvalds why Edvalds had him
transferred. Edvalds replied he did not have Rider
transferred, it was orders from Steil. Edvalds asked Rider
why ' he was for the Union. Rider replied, to help the
employees and make Squire a better place to work. Rider
asked Edvalds if he were for the Union. Edvalds replied he
couldn't answer that question and asked Rider which
employees in the store were for the Union.
Edvalds immediately recanted, however, saying he didn't
want to know which employees were for the Union.
At a later date, Edvalds asked Rider what action Miska
had taken at the Northgate store to restrict Rider's union
activities. Rider replied Miska followed him around, even
to the bathroom, and listened to all his conversations .9
On November 12, the Company called a meeting of the
employees at the downtown store. Rider attended. The
meeting was addressed by Company President Robert Steil
6 The above findings are based on Rider's testimony; Miska could not
recall but did not deny querying Rider about his Southcenter store activities
and was generally vague about the details of the conversation; Orkeny
stated she was watching television and did not hear all the conversation,
only bits and pieces of it. Rider was a forthright and direct witness and his
testimony is credited,'
9 This finding is based upon Rider's uncontradicted testimony.
8 Edvalds, the Downtown, store manager and an admitted supervisor,
testified the Company president, Robert Steil, telephoned him previous to
the transfer, informed him of Rider's role as a union activist and told
Edvalds he was transferring Rider to his store.
and Vice President George Wade, admitted supervisors. In
the course of the meeting, Rider took issue with statements
made by Steil and Wade, arguing their information
regarding wage rates of other stores where employees were
represented by the Union was inaccurate, etc., in effect
acting as an articulate spokesman in opposition to the
company position and for the Union. At the close of the
meeting, Rider asked Steil if he might attend the same type
of meeting scheduled for later that day at the Northgate
store. Steil replied that he might attend. When Rider went
to the Northgate store to attend the meeting, however, he
was barred from admission by Carl Miska, the store
manager.
A hearing was conducted by the Regional Office on the
Union's petition for certification on November 14 (Case
19-RC-6852). Prior to the hearing, Rider asked for and
was granted the day off to attend and testify at the hearing.
Edvalds was aware prior to Rider's request that Rider had
been subpenaed to attend the hearing and testify. Edvalds
asked Rider to keep his name out of the hearing.
On November 14, Rider attended the hearing and
testified on behalf of the Union.
On November 15, Edvalds asked Rider, while at work,
how the hearing had gone and whether Rider had brought
his name up in his testimony. Rider replied the hearing
went fine and there was no need to bring Edvalds' name
up. Edvalds commented that Rider better watch out, he
was the bad boy of the Company, if he made any mistakes
they were going to make Edvalds fire him.'°
Edvalds followed the policy of making up weekly work
schedules the Friday preceding each workweek. On Friday,
November 16, he made up schedules for the week of
November 19-23. He scheduled Rider for 14 hours of work
that week.tt On seeing the schedule, Rider asked Edvalds
why' he lowered his hours. Edvalds replied it was a holiday
week and business was slow. Rider asked Edvalds why he
did not decrease the hours of other employees. Edvalds
called Joe Rover, another salesman, and asked Rover if it
was okay with him to take a day off his schedule and add it
to Rider's. Rover assented. Rider asked Edvalds why he
asked Joe to do that. Edvalds replied he was the manager.
Edvalds changed the schedule, adding 8 hours to Rider's
schedule and taking 8 hours off Rover's schedule. He then
went to the phone, came back, and rescheduled Rider back
to 14 hours, restoring 8 hours to Rover. Rider asked him
why. Edvalds replied he was the manager.
Shortly thereafter, Rider made a call to Union Organizer
Steve Gouras on the company phone during working
hours. He had done so before, in Edvalds' presence,
without objection, and observed others make personal calls
during business hours.12 Edvalds was aware Rider was
9 The above findings are based primarily upon the testimony of Rider,
which is credited ; it was substantially corroborated by Edvalds, particularly
with reference to the order for the transfer, the information regarding
Rider's union role received from Steil , the promise of 30 hours' work, the
description of the merchandise and market , and the working instructions.
10 These findings are based on Rider's testimony. He was substantially
corroborated by Edvalds, who conceded he-asked Rider how the hearing
went and if Rider kept his name out of his testimony . Edvalds did not recall
but did not deny the "bad boy" statement.
11 That week included a holiday , Thanksgiving, on November 22.
12 Edvalds corroborated Rider's testimony to that effect.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
talking to Gouras.13 Edvalds interrupted the call, asking
Rider if it were a personal call. Rider replied it was.
Edvalds ordered Rider to get off the phone. Rider left a
message for Gouras to call him and got off the phone.
Edvalds advised Rider he was discharged. Rider asked
why. Edvalds replied because he didn't get off the phone
when ordered to do so. Rider replied he was off the phone.
Edvalds ordered him to leave the store. Rider started- out
then stopped and stated he wanted to finish his shift, he
was scheduled to work to 6 p.m. Edvalds stated he would
pay Rider for the full shift but wanted him to leave
immediately. The two went downstairs and Edvalds
informed Rider he was discharged for failing to get off the
phone, for insubordination. Edvalds conceded that while
he generally made known his preference that the company
phone not be used during business hours for personal calls,
the employees regularly used it for that purpose and he
never previously disciplined or discharged anyone for
doing so.
It is clear from the foregoing that Rider was the leading
inside organizer among the Company's employees and this
fact was known to supervision. Rider was observed by the
managers of several stores soliciting other employees to
sign union authorization cards and it is clear (from Miska's
remarks to McMullen) that this information was communi-
cated to Miska and figured in Miska's precipitate discharge
of Rider, which was only rescinded (at that time) when its
obvious relation to Rider's union solicitation effort the
same day was pointed out to Miska by McMullen.
It is further evident that Miska interrogated Rider about
his organizational activities on October 15, and maintained
a surveillance over Rider while at work at times subsequent
until Rider's November 7 transfer, to lower his organiza-
tional effectiveness.14
It is further clear that the downtown store manager,
Edvalds, was informed of Rider's role as a union activist
and that Edvalds kept a close eye on those activities at the
downtown store, as evidenced by Edvalds' eavesdropping
when Rider attempted to communicate with Gouras and
his inquiry concerning how Miska had restricted Rider's
organizational activities.
While Edvalds immediately retracted the question, it is
nevertheless true that on November 7 he questioned Rider
concerning his reasons for supporting the Union and
started to question him concerning how many union
adherents he had been able to gather at the downtown
store. Edvalds' (and, management) awareness and hostility
over Rider's activist role is more glaringly evidenced by
Miska's barring Rider from attending the employee
meeting at the Northgate store after Rider's union
advocacy during the employee meeting at the downtown
store.
Edvalds' November 15 advice to Rider, that he had
better watch out and Edvalds would have to fire him if he
made any mistakes, and Edvalds' conversion of that advice
and warning to reality the following day by discharging
Rider, over commission of an alleged offense which had
been condoned-at all times previous, lends further credence
to my conclusion that Edvalds was under instructions to
watch Rider closely and to fire him at his first misstep.
While the November 16 reduction in hours may be
considered a provocation to cause Rider to resign, the
evidence is insufficient to warrant the conclusion that the
reduction was made because of Rider's union activities.
The following week was a holiday week and Rider had
been working 20 hours per week at the downtown store
subsequent to his transfer.
Based on the foregoing, I find and conclude that by
Miska's discharge of Rider on October 15 for his
organizational activities at the Southcenter and University
stores, by Miska's subsequent interrogation of Rider
concerning those organizational activities at his apartment,
by the Company's November 6 transfer of Rider from the
Northgate to the downtown store to restrict his union
activities, by Edvalds' November 15 warning to Rider that
he was a "bad boy" due to his union activities and
testimony in support of the Union and would be fired if he
made any mistakes, and by Edvalds' November 16
discharge of Rider on the pretext Rider was insubordinate
in making a personal- telephone call on a company phone
during working hours, but actually because of Rider's role
as union activist and testimony, the Company violated
Section 8(a)(1), (3), and (4) of the Act.
C. The Alleged Company's Solicitations, Promises,
et al., at Employee Meetings and Subsequent
Performance Thereof
It is undisputed that the Company called successive
meetings to address the unit employees in early November.
The complaint alleges that in the course of the meetings
at the Northgate and downtown stores, George Wade, the
Company's-vice president,: 15 (1) solicited employee griev-
ances; (2) promised to correct employee grievances; (3)
assisted, encouraged, and promoted the formation of an
employee grievance committee; (4) promised increased
meal and/or rest breaks; and (5) promised to sign up
employees for insurance: the complaint also alleges that
the Company subsequently (6) gave additional 'assistance,
encouragement, and support to the formation of an
employee grievance committee; (7) granted the promised
increases in meal and/or rest breaks; and (8) granted the
promised insurance benefits.
Employees Michael Rider and Melody Bryant testified
concerning Wade's remarks at the downtown store
meeting.
Rider testified that unit employees of the downtown
store were requested to attend a meeting at 6 p.m. on
November 12, after store's closure; that the management
representatives in attendance were Robert Steil, the
company president, Wade, Steve Miska, assistant to the
president, Keith Barnes, store manager at the University
store, and John Edvalds, store manager of the downtown
store; and that all unit employees at the downtown store
and a few from other stores were present. He testified that
Steil introduced Wade and Wade did the talking. He stated
that Wade described the benefits of company employment,
13 Edvalds testified he heard Rider ask for Gouras and knew Gouras was the downtown store, so the transfer lessened Rider's opportunity to
a union organizer. organize.
14 There were more employees at the Northgate store than there were at 15 An admitted supervisor and agent of the Company.
SQUIRE SHOPS, INC. 163
including wage rates, a profit-sharing plan, a medical and
life insurance plan, etc., and then recited allegedly lower
rates and benefits contained in contracts between the
Union and the Company's competitors in the Seattle area.
He stated that he and Wade got into an argument over the
accuracy of Wade's purported comparison data.
Bryant testified that while she was a salesclerk at the
University store, she was brought to the downtown store to
attend the same meeting attended by Rider because she
had missed the meeting at the University store. She
confirmed that Keith Barnes, the manager at the Universi-
ty store, was present at the meeting at the downtown store,
as well as Steil, Wade, and downtown store employees. She
stated her major impression of the meeting was a continual
argument between Steil and Rider. She further testified
that Steil, at one point, said, if any employee present had a
problem, to come and talk to him. She testified she
accepted that invitation and talked with Steil after the
meeting, telling him that while she was hired to work
regular part time, she had been placed on call and could
not understand that, inasmuch as an employee from the
Ncrthgate store was working regularly on a part-time basis
at the University store. She testified Steil promised to see
what he could do.
Wade testified there were six employees in attendance at
the downtown store meeting, including Melody Bryant. He
stated that his remarks consumed approximately 15 to 20
minutes; Steil introduced him and he did the talking; he
announced the Company was aware that the Union was
conducting an organizational drive; he described the
Company's wage policies and fringe benefits so all
employees would be aware of them, including a medical
and life insurance plan and a profit-sharing plan for full-
time employees, as well the Company's policies concerning
promotion; he then compared the company benefits with
benefits contained in contracts between the Union and the
Company's competitors in the Seattle area; he was
challenged by Rider intermittently through his address,
with Rider disputing the accuracy of his comparisons and
generally arguing prounion positions. He conceded he
invited questions and discussion from the employees after
the close of his prepared remarks.
]Employees David Hoar, Daniel Brator, Stephanie Hare,
and Brad Clifton testified concerning the remarks made by
Wade at the subsequent Northgate store meeting. They
testified that management was represented by Steil, Wade,
and the two Miskas and that all the Northgate unit
employees were there. They testified that Wade, in his
prepared remarks, followed approximately the same format
described above; and that Wade then invited employee
questions, comments, and complaints.
Hoar testified he complained regarding the shortness of
his dinner break, stating he was only allowed a half hour
for dinner and this was insufficient, and that Wade
indicated he thought an hour was reasonable and instruct-
16 Rider and Brator made a similar complaint.
14 Who followed up after the meeting on Wade's statement that 40-hour
employees were eligible for insurance with a request therefor.
is The May Department Stores Company, d/b/a The M. ONeil Company,
184 NLRB 629 (1970); Capital Electric Power Association, 171 NLRB 262
(1968); National Food Stores, Inc., T/A Big Bear Super Markets, 169 NLRB
94 (1968)
ed Carl Miska (the store manager) to work this out. Hoar
testified he also complained he was not reimbursed for a
delivery to a customer with his own car; that Wade asked
him if he requested reimbursement, that he replied in the
negative, and that Wade stated it was the Company's
policy to reimburse. Hoar, testified that he further com-
plained this was the first time he heard about any
insurance availability to full-time employees; 16 he asked
what constituted a full-time employee; Wade replied, one
who worked 40 hours; he stated he worked 40 hours and
was not receiving insurance benefits; and Wade replied he
would look into it.
Brator testified he asked Wade how to get employee
gripes to higher management and was informed that Steil's
door was always open; he also testified that he suggested
the employees might form an employee grievance commit-
tee to bring employee complaints to the attention of higher
management and Wade replied that was a good idea.
Hare and Clifton corroborated the testimony of Hoar
and Brator.
Wade testified that the Northgate meeting consumed
approximately 15 minutes, that it started between 9:30 and
9:45 p.m., and that approximately 20 to 25 unit employees
attended. He confirmed that he followed the same format
he followed at the downtown store in his prepared remarks,
and that he invited employee questions, comments, and
complaints thereafter. He also confirmed testimony regard-
ing dinner breaks and customer delivery and Brator's
testimony concerning the formation of an employee
grievance committee. It is undisputed that following the
meeting, Hoar and Clifton17 were signed up for the
Company's medical and life insurance plan, that Hoar was
offered the option of taking a longer dinner break (up to 1
hour) if he desired, and that Steil asked Hoar how the
employees were coming along on the formation of a
grievance committee.
While it is generally true that a company may call mass
meetings of its employees when faced with a union
organizational campaign and exercise its free speech rights
under Section 10(c) of the Act without running afoul of
Section 8(a)(1), inform the employees of its benefits and
policies, and attempt to persuade them to refrain from or
oppose the union's efforts to secure their support,18
invitations addressed to employees during those meetings
to voice complaints and grievances, followed by implied
promises to remedy same and the subsequent grant thereof
exceed the limits of Section 10(c) and violate Section
8(a)(1), particularly where the grant of the promise involves
increasing an existing benefit or establishing a new one.19
Wade corroborated employee testimony that at both the
downtown and Northgate meetings he invited employee
complaints and comments; he further corroborated their
testimony that he answered Hoar's complaint over the
shortness of his half-hour dinner break with a comment
that 1 hour seemed reasonable followed by a direction to
19 N.L.R.B. v. Exchange Parts Company, 375 U.S. 405 (1964); N.L.R.B. v.
Tom Wood Pontiac, Inc., 447 F.2d 383 (C.A. 7, 1971), enfg. 179 NLRB 581
(1969); Texaco, Inc. v. N.LR B, 436 F.2d 520 (C.A. 7, 1971), enfg. 178
NLRB 434 (1969); Aldon, Inc., 201 NLRB 579 (1973); Flight Safety, Inc.,
197 NLRB 223 (1972); Reliance Electric Company, 191 NLRB 44 (1971);
Raytheon Company, 188 NLRB 311 (1971).
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the store manager to work it out with Hoar, which resulted
in a change from the half-hour limitation on the dinner
break to a 1-hour limitation; and he corroborated Hoar's
testimony that he answered Hoar's complaint that as a 40-
hour employee he was entitled to medical and life
insurance coverage with a promise to look into the matter,
which was followed by a grant of such coverage to Hoar
and to Clifton (who advanced a similar complaint
privately, at a later date). It is undisputed that Steil
answered Bryant's complaint over a change in her work
status with a promise to look into it (with the implication
he would resolve it) and that Steil questioned Hoar
concerning the employees' progress in forming a grievance
committee to meet with him to resolve their complaints or
grievances 20
On the basis of the foregoing, I find and conclude that
Wade, by inviting employee grievances at the Northgate
mass meeting following the Company's receipt of a copy of
the Union's petition for certification as the representative
of its employee and, in the course thereof, answering
Hoar's complaint over the inadequacy of the 1/2-hour
dinner break with a comment a 1-hour break appeared
reasonable and an instruction to Miska to work this out,
followed by a later change in working conditions to permit
a maximum 1-hour dinner break, promised and granted an
improvement in working conditions and thereby violated
Section 8(a)(1) of the Act.
On the basis of the foregoing, I further find and conclude
that Wade, by explaining that a medical and life insurance
plan had been instituted prior to the union campaign for
full-time employees (which he defined as employees
regularly scheduled to work 40 hours per week) and by his
promise to look into Hoar's claim to eligibility for plan
coverage, and by the Company's subsequent extension of
such coverage to Hoar (and to Clifton, on a similar claun)
did not violate Section 8(a)(1) of the Act, since the plan
and eligibility requirement were in existence prior to
Wade's explanation thereof and Wade's communication of
its existence and the requirement, his promise to look into
Hoar's claim of entitlement, and the Company's extension
of the plan to Hoar and another employee (Clifton) were
simply communication of an existing benefit, the require-
ments therefor, readily be justified as rectification of a
previously unknown mistake and inclusion therein of
previously overlooked employees.21 Lastly, I find and
conclude that Steil, by his implied promise to adjust
Bryant's grievance at the downtown meeting, violated
Section 8(a)(l) of the Act 22
D. The Wage Increase Issue
The complaint alleges that the Company violated Section
8(a)(1) of the Act by granting wage increases between
October 16 and December 31 to a substantial number of its
unit employees in order to weaken their support of the
Union.
The General Counsel relies on a document setting out
1973 increases to all company employees to support this
allegation (G.C. Exh. 36). That document reflects wage
increases granted to unit employees, as well as increases
granted to company employees at its other stores and
warehouse.
No increases were granted in December.
In November, 14 Northgate employees received increas-
es, 7 University employees received increases, 10 Southcen-
ter employees received increases, and 3 downtown employ-
ees received increases, for a total of 34 increases to unit
employees; 31 employees at the Company's warehouse and
its Tacoma, Eugene, Columbia Center, and Jantzen Beach
stores received increases that month (with no increases at
the Yakima store); for a grand total of 65 November
increases.
In October, one Northgate and one Southcenter employ-
ee received an increase, two University employees received
an increase, and no downtown employees received an
increase . Employees at the warehouse and the Tacoma and
Yakima stores received a total of five increases (three at
Yakima alone); no increases were granted at the Eugene,
Columbia Center, or Jantzen Beach stores.
A scattered or random pattern of just a few increases per
month appears for all the earlier months of 1973 other than
June, August, and September, when there was an average
of 21 increases for each of those months overall (at all nine
stores and the warehouse).
The General Counsel's case rests on the fact 65 increases
were granted to employees shortly after the Union filed its
petition to employees at all nine stores and the warehouse,
including 34 to unit employees, that these increases were 3
times as great overall, and 2-1/2 times as great within the
unit, as the largest number granted in any other month of
1973, and, together with the October increases, amounted
to a general wage increase for the unit employees.23
The Board, with the approval of numerous circuit courts
which have reviewed the question, has held that an
employer's grant of wage increases to a substantial number
of eligible employees after receiving notice of a Union's
petition for an election and prior to that election is
supspect, as an attempt to undermine the Union's support
among the employees particularly where, as here, the
increases are accompanied by other unlawful conduct,24
20 Since all agree it was an employee (Brator) who originally suggested
the formation of such a committee and Wade's response thereto contained
no promise to negotiate or adjust grievances with an employer committee, I
find that the exchange between Wade and Brator at the Northgate meeting
and Steil 's inquiry were not violative of the Act. Redcor Corporation, 166
NLRB 1013 (1967).
21 N.L.R.B. v. Tommy's Spanish Foods, Inc., 463 F.2d 116, enfd. 187
NLRB 235 (1970); MPC Restaurant, 198 NLRB 14 (1972).
22 Swift Produce, 203 NLRB 360 (1973), cases cited in fn. 17.
23 The petition was filed on October 16; in his December 3 Decision and
Direction of Election in Case 19 -RC-6582, the Regional Director stated
"there are approximately 40 employees in the unit"; 4 unit employees
received an increase in October, and 34 unit employees received an increase
in November.
24 Amen-Crete Ready Mix Corporation, 207 NLRB 509 (1973); Metzger
Machine & Engineering Company, 209 NLRB 905 (1974); Buffet Restaurants,
201 NLRB 515; Bechtel Corporation, 200 NLRB 975 ( 1972); International
Metal Specialties, Inc., 433 F.2d 870 (CA. 2, 1970); Colonial Knitting Corp.,
464 F.2d 949 (CA. 3, 1972); Semi-Conductors, Inc., 395 F.2d 257 (C.A. 5,
1968); Kawneer Company, a division of American Metal Climax, Inc., 413
F.2d 191 (C.A. 6, 1969); Furnas Electric Co., C.A. 7,463 F.2d 665; McGraw-
Edison Company, 419 F.2d 67 (C.A. 8, 1969); Bell Manufacturing Division,
SQUIRE SHOPS, INC. 165
unless the Employer justifies the increase as one decided
on prior to commencement of the union campaign, one
granted in accordance with previous practice, or one based
on valid business considerations.25
The Company's grant of increases to practically all the
unit employees, shortly after receipt of the Union's petition
for election and during a period when it was engaging in
antiunion and unlawful efforts to undermine and discour-
age employee support of the Union as set out heretofore,
which increases far exceeded the random pattern of
previous months, appears a calculated part of the Compa-
ny's antiunion and unlawful effort to undermine the Union
and discourage employee support thereof, and I so find
and conclude.26
I therefore find that by its grant of the October-
November increases to practically all its unit employees for
the purpose of undermining and discouraging employee
support of the Union, the Company violated Section
8(a)(1[) of the Act.
E. The 8(a)(5) Issues
1. The unit and the Union's representative status
therein
In his December 3 Decision and Direction of Election,
the Regional Director found appropriate for collective-
bargaining purposes a unit consisting of "all of the
employees employed at the employer's four retail stores in
King County, Washington (1428 Fourth Avenue; 4508
University Way Northeast; 761 Northgate Mall and 820
South Center Mall), excluding truckdrivers, warehouse
employees, office clerical employees, professionals, guards
and supervisors as defined in the Act."
The complaint alleges, the Company in its answer admits
and 1[ fmd that the above-specified unit is appropriate for
collective-bargaining purposes within the meaning of
Section 9 of the Act.
The General Counsel assert& that as of Saturday,
October 27,27 the Union had acquired 21 valid authoriza-
tion cards, thereby achieving majority representative status
within a unit consisting of 39 employees.
The Company asserts on October 27 there were 44
employees within the unit, the Union only had 16 valid
authorization cards on that date, and thus the Union never
acquired majority representative status within the unit.
The issues created by the above contentions shall be
treated below.
Payroll records submitted by the Company covering the
2-week period commencing Saturday, October 27, and
ending Friday, November 2, list 18 named employees at
DiGiorgeo Leisure Products, Inc., 483 F.2d 150 (C.A. 9, 1973); J. C. Penney
Co., Irrc., 384 F .2d 479 (C.A. 10, 1967).
25 Harvey Aluminum Incorporate4 156 NLRB 1353 (1967), Post Houses,
Inc., 151 NLRB 1159 (1966).
26 The only rebuttal offered by the Company consisted of testimony
unsupported by any documentation. Wade testified the Company followed
the practice for several years prior to 1973 of granting a larger number of
increases in November than at any time during the year . This testimony was
weakened, however, by Wade's admission he did not review the Company's
records for prior years to determine the accuracy of his purported
recollection of this alleged past practice and his testimony that a high
Northgate, 15 at Southcenter, 9 at University and 4
downtown, for a total of 46.
Dennis O'Bryan is listed twice on the Northgate payroll
and Pat Martin is listed both on the Northgate payroll and
the University payroll, which reduces the number to 44.
The General Counsel asserts that Douglas Greenup
should not be counted at Northgate on the ground he
ceased to work for the Company on October 20; Larry
Levitt should not be counted at Southcenter because he did
not commence work there 28 until October 30; Steve Bigler
should not be counted at University because he worked an
erratic schedule and was not a regular part-time employee;
and that Dennis O'Brien and Dirk Miller should not be
counted on the ground they were supervisors.
George Wade, the Company's vice president and
secretary, confirmed that Greenup ceased his employment
with the Company on October 20. He therefore shall not be
counted, reducing the number to 43.
The parties stipulated that Dirk Miller at times pertinent
was a supervisor within the meaning of the Act. A similar
determination was made by the Regional Director in his
December 3 Decision and Direction of Election. Dirk
Miller therefore shall not be counted; reducing the number
to 42.
With reference to Larry Levitt, the payroll entries show
"off' for Saturday, October 27, and Sunday, October 28.
On October 29, the entry reads: "Time records on office
sheet." Beginning October 30, entries show that Levitt
worked the balance of that pay period (and subsequently).
Answering an inquiry concerning when Levitt transferred
from the main office to Southcenter, Wade testified that
"he (Levitt) transferred down there from the office about
that time." Based on the October 29 entry showing that
Levitt's time records for that and earlier dates covered
work at the main office and entries showing his employ-
ment at Southcenter commenced on October 30, when
coupled with Wade's confirmation of his transfer about
that time, I fmd that Larry Levitt did not commence work
at Southcenter until October 30 and therefore cannot be
counted as an employee within the unit on October 27,
reducing the number to 41.
With regard to Bigler, the payroll entries show 3-3/4
hours on October 16; 4 hours on October 23; 5 hours on
November 2; 2 hours on November 8; and no hours
thereafter (at University). The payroll entries further
disclose that Bigler worked 7-1/2 hours on December 17 at
University; 8-1/4 hours on December 19, 8-1/2 hours on
December 20; 5 hours on December 21, 5-1/2 hours on
December 22; 7 hours on December 24; 6 hours on
December 26; 5-1/2 hours on December 27; 8-1/2 hours
on December 28; 5-1/2 hours on December 29 and 6 hours
proportion of the work force in October -November consisted of recent
hires. Based on these factors and my observation of his testimony, I do not
credit his statement concerning the Company's alleged past practice.
27 The fact the Umon's alleged majority representative status was not
achieved until October 27, a date subsequent to the date it filed its petition
and also subsequent to the date it made its demand for recognition , does not
alter any company obligation flowmg ,thereafter, inasmuch as the Union's
demand for recognition was a continuing one.
28 It was conceded by Wade that he worked at the Company's main
office prior to his transfer to Southcenter.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on December 31; as well as 6-1/2 hours on January 2,
1974, and 4 hours on January 3 , 1974,29 at downtown.
It appears from the above work schedule that between
October 13 and December 17 Bigler was called in
sporadically to work at University as and when need for
his services arose, and did not work regularly until after
December 19, at downtown . I therefore find that Bigler
was not employed on a sufficiently regular part-time basis
on October 27 to warrant counting him in the unit at that
time, reducing the number to 40.
As to O'Bryan, at times pertinent (around October 27),
O'Bryan was employed at Northgate . As noted heretofore,
the manager and assistant manager at Northgate at that
time were Carl Miska and David McMullen , respectively.
It is undisputed that Northgate employed the largest
number of unit employees at or about October 27, and that
O'Bryan spent most of his time working stock downstairs
(on the floor below the sales floor) with Andy Swanson and
Daniel Brator. Brator testified that the work downstairs
consisted of "working stock and handling shipping and
receiving"; and O'Bryan gave himself and Swanson
instructions on what to do and how to do it, maintained
records , and was the person he and Swanson consulted
with when they wanted a schedule change. Brator testified
O'Bryan did not handle requests concerning raises or
promotions . Swanson confirmed Brator 's testimony con-
cerning his duties and those of O'Bryan and Brator -
stating they consisted of "stocking pants and transferring
them out," that O'Bryan took care of the paper work, kept
order, and directed their work, but that O'Bryan did not
have authority to, recommend that the other two receive
raises or promotions , or be discharged . Swanson testified
however, that he was hired by Miska on O'Bryan's
recommendation . Carl Miska testified the Company
maintained a pants warehouse below the sales floor at
Northgate; he oversaw it and the sales floor ; and O'Bryan
was in effect a working leader on the lower floor. Miska
stated O'Bryan physically handled the work of receiving
and stocking pants; delivered them to the sales floor; and
made shipments of split orders for delivery to other stores.
He testified O'Bryan did not do any hiring or firing, or
exercise any control over promotions or wage increases. He
stated O'Bryan was the senior employee of the three
working downstairs and, pursuant to his directions,
directed the work of the other two employees . He stated
that occasionally O'Bryan granted requests for time off,
but only after informing the man who desired the time off
to check it out with Miska. He conceded O'Bryan had
authority to call in an employee to help with a sudden rush
load, but that such call was made at his direction. He
confirmed that Swanson was hired on O'Bryan's recom-
mendation and that O'Bryan decided when the other two
employees might take a break during their work shifts. He
testified that O'Bryan was paid a higher rate than the other
two employees because he was the senior employee;
O'Bryan sometimes worked on the sales floor when work
was slow in the downstairs warehouse and that if both he
and McMullen Were absent , occasionally he put O'Bryan
in charge . He stated this was rare and did not occur with
any degree of frequency.
Based on the above, I fmd and conclude that in the
absence of any power to hire, fire, grant wage increases or
promotions, such supervisory duties as O'Bryan performed
were slight and consisted mainly of acting as a working
leader in seeing to it the flow of work, checking in pants,
having them delivered upstairs to other stores , etc., flowed
smoothly. I therefore shall count O'Bryan within the unit
as of October 27, leaving the number at 40,
On the basis of all the foregoing, I fmd and conclude that
on October 27 there were 16 employees within the unit at
Northgate (Rider, Jablonski , McGaw, Olson, Morrison,
Stroud, Bourret , Saffeels, Clifton, Hoar, O'Bryan, Pat
Martin, Frank, Swanson, Brator, and Hare); 13 employees
within the unit at Southcenter (Palmer, Gregory, Austin,
Lawrence, Anderson, Spargo, Mitchell, Koucher, Aufforth,
Poth, Blomquist, Kimmerer, and Welfelt); 7 employees
within the unit at University (Davidson, Bryant, Vagoe,
Chelgroth, Rowan , McEhernan, and Mike Martin); and 4
employees downtown (Kedroske, Hudson, Rover and
Brown), for a total of 40 unit employees.
The Union submitted 21 signed authorization cards
dated October 27 or prior as proof of its majority
representative status on October 27. The Company
challenges the cards submitted by Rick Stroud, Jan
Saffeels, Michael Rider, Andy Swanson, and John
McGaw.
The Company contends Stroud's card should not be
counted because he testified he understood that he was
under no obligation if he signed the card , relying on the
following exchange:
Q.: What were they (the cards) for?
STROuD : Like I said - explained earlier, to get all
these people together. If enough people get together we
can start - sit down and talk about things like this,
and then we could go on further. '
The Company contends Saffeels' card should not be
counted on the ground the person who gave her the card
misrepresented its object , setting out her testimony "that
the only way I could - the Squire Shop could join the
Union was to sign the card , if everybody signed the card so
then we could all join the Union."
The Company seeks to avoid counting Rider's card on
the grounds it was solicited by Supervisor McMullen. The
Company states Swanson 's card should not be counted
because the union representative who secured it misrepre-
sented its purpose. The Company seeks to avoid counting
McGaw's card on the ground McGaw did not understand
its purpose when he signed it, relying on McGaw's
testimony that the union representative stated "that this
was - to sign this . First of all, I'd be protected without
being fired and that - that, you know, become unionized
and get the benefits that come with it."
Stroud testified he signed the card when it was presented
to him by Union Organizer Steve Gouras at a meeting in
the house of Stephanie Hare, another employee; he read
the card before he signed it ; and "what we were told was
by signing this card we could get enough people together
and then we could get together and have talks about, you
29 The payroll records covered the period October 13, 1973 , to January 4,
1974.
SQUIRE SHOPS, INC.
know, what we do and if they presented something to the
Company, then we could get together and have an election
... they didn't say anything about were we becoming
Union, I knew that anyway." On the basis of the foregoing,
I find and conclude that Stroud read and understood he
was signing a card authorizing the Union to represent him
in bargaining collectively with the Company over his
wages, hours, and working conditions. I therefore reject the
Company's, challenge and shall count the Stroud card as a
valid authorization.
Saffeels testified she was handed the authorization card
she signed by a fellow employee (Stephanie Hare) in the
ladies room and asked to sign it; Hare said by her signing
it the Squire Shop could be organized and she responded it
was a good idea, took the card, read it, signed it, and
handed it back to Hare. I'find and conclude that Saffeels
read and understood the card she signed authorized the
Union to represent her in bargaining collectively with the
Company concerning her wages; hours, and working
conditions. I therefore reject the Company's challenge and
will count the Saffeels card as a valid authorization.
Rider was the inside organizer for the Union. His
testimony does not establish that he signed his authoriza-
-tion card upon solicitation by Assistant Manager McMul-
len but rather, that he informed McMullen he had signed a
card after he signed it. The Company's challenge to
counting Rider's card is rejected and I shall count it as
valid.
Swanson testified he read the authorization card before
filling it in and signing it. He testified that after Stephanie
Hare gave him the card, she told him his signing of the
card would protect him against discharge if the Company
noticed him talking about the Union in the store. The card
clearly designates the Union as the employee's agent for
the purpose of bargaining collectively with the signatory's
employer concerning wages , hours, and working condi-
tions; Hare's explanation that it would also protect
Swanson in the event the Company discharged him for
union activity does not indicate that Swanson did not
understand that he was authorizing the Union to represent
him when he signed it. The Company's challenge to the
Swanson card is therefore rejected, and it will be counted.
As to McGaw, he signed two cards on different dates
because he was informed the first one was lost (and later
found). He stated he filled out and signed the cards at
Stephanie Hare's request at Northgate and that Hare made
the statements quoted heretofore. Those statements,
however, do not misstate the results flowing from such
authorization-Union representation, including protection
against arbitrary discharge and achievement of contract
benefits. I therefore reject the Company's challenge to
McGraw's card and will count it.
Inasmuch as I have rejected the Company challenges to
5 of the 21 authorization cards secured by the Union from
unit employees between October 8-27 and entered findings
that the unit numbered 40 employees on the latter date, I
find and conclude that on October 27 the Union attained
majority representative status within the unit.
30 Donnelly and O1well were familiars , having dealt with one another
many times over many disputes over many years; Donnelly represents a
F. The Contract Issue
167
Sometime in April 1974 (following issuance of the March
20, 1974, consolidated complaint), Company Attorney
Patrick Donnelly telephoned William O1well, president of
the Union.30 Donnelly suggested they confer regarding
possible settlement of the issues raised by the March 20,
1974, consolidated complaint (which encompassed the
allegations of the September 18, 1974, consolidated
complaint other than the allegations of contract agreement
and refusal to execute). Olwell agreed to meet with
Donnelly. Donnelly asked Olwell to contact the Union's
attorney (Schwerin) and instruct Schwerin to consent to a
Company motion to postpone the hearing scheduled
shortly thereafter on the March 20, 1974, consolidated
complaint. Olwell agreed and so instructed Schwerin. The
motion was duly filed and the hearing postponed.
The parties met that same month (April 1974) at
Donnelly's office. Company President Steil, Company Vice
President Wade and Attorney Donnelly represented the
Company. The Union was represented by Olwell and the
Union's first vice, president, Edward Hardy.
Donnelly expressed the Company's interest in working
out a settlement of the pending complaint. Olwell ex-
pressed an interest in accomplishing that objective.
Donnelly stated the Company could not accept the
Union's standard area contract (for men's retail clothing)
since the Company relied heavily on young, part-time help,
that it needed flexibility, and that it objected to provisions
requiring the payment of commissions, payment of supper
money, payment into a pension fund, payment of penalty
pay for Sunday work, and similar items. Olwell replied the
objections could be worked out, commission payments
were perhaps not suitable for the Company's operations
and could be dropped if wages were increased, since the
pay scales were too low; that the supper money provision
could be modified;, that no pension payments would be
required for the first contract; and, that the other items
could be worked out. Steil stated he could not attend future
meetings but suggested the Union submit a contract
proposal and work out terms with Donnelly and Wade.
Olwell stated that if the Company and the Union were able
to reach agreement on a'contract, this would render the
8(a)(1) and (5) charges of the complaint moot. He
suggested they try to reach agreement on a contract and
then look at the discriminatory discharge issue . Donnelly
expressed the Company's willingness, to try to work out
terms for a contract. Olwell stated he would send Donnelly
a written contract proposal.
On April 22 Hardy sent Donnelly a proposed, contract.
The parties met to discuss contract terms on May 9 and
15, 1974. Wade and Donnelly represented the Company.
O1well and Hardy represented the Union. The parties
agreed to request another postponement of hearing on the
March 20, 1974, consolidated complaint. They then began
going over the Union's contract proposal, clause by clause.
On several occasions Wade and Donnelly disagreed with
one another, as did Olwell and, Hardy. On a number of
those occasions, Donnelly made it clear he would act as the
large number of retailers in the area and the Union represents a large
number of their employees.
168 DECISIONS OF NATIONAL LABOR , RELATIONS BOARD
company spokesman and Olwell made it clear he would act
as the union spokesman . At the close of the May 15, 1974,
meeting, the parties were unable to resolve their differences
on a number of issues and agreed to let the N.L.R.B. case
proceed to hearing.
Shortly prior to May 22, 1974, Donnelly telephoned
Olwell and suggested one more try at a contract. Olwell
consented and they agreed to meet on May 22, 1974.
The same persons met on May 22, 1974; they reached
agreement on all issues but wage rates and one or two
other items . Wade and Donnelly went into a caucus over
the remaining items and Olwell and Hardy did also (in a
separate office). Following the caucuses , Olwell and
Donnelly met in a third office and settled the remaining
issues. Donnelly asked Olwell to have the Union's attorney
inform the Regional Office the parties had reached
agreement on a contract, thereby resolving all but the
discriminatory discharge allegations of the complaint.
Olwell agreed to do so. Donnelly asked Olwell what- it
would take to settle the remaining complaint issues. Olwell
replied he thought about $750, that he would talk to Rider
and contact Donnelly. Donnelly stated this was fine.
Olwell stated he would type up the agreed-upon contract,
and send it to Donnelly for his review and approval of
language or suggestions for revision, and would then make
up a final contract and send it to Donnelly for Company
signature . Donnelly and Olwell also agreed to request the
Regional Office to postpone the hearing indefinitely.31
Olwell instructed Hardy to prepare a written contract.
The four men then met and shook hands. Olwell
subsequently advised Hardy of the final terms and
instructed Hardy to prepare a written contract containing
the ' final agreement and to send if tot Donnelly for his
approval or revision of the language therein.
Hardy prepared a written " document setting out the
contract agreement as he understood it and-on May 30,
1974, sent it to' Donnelly, with the request that Donnelly
review it and advise him regarding any language errors.
On June 5, 1974, Donnelly sent a letter to Hardy stating
the contract language was incorrect with respect to 10
items.
On June 7, 1974, Olwell telephoned Donnelly and went
over the 10 items. He and Donnelly reached agreement on
language disposing of all 10 items. Olwell instructed Hardy
to redraft the contract with the changes agreed upon and
send it to Donnelly.
On June 7, 1974, Hardy sent five copies of a final
contract to Donnelly. He signed all five copies and, in his
cover letter, asked Donnelly to return three copies signed
by the Company.
On July 9, Donnelly telephoned Hardy and requested
two additional language changes. Hardy agreed to make
31 The parties subsequently requested an indefinite postponement of
hearing on the March 29, 1974, complaint and it was granted.
32 At the initial meeting Olwell offered to submit the Union's
authorization cards to Donnelly for verification of the Union 's majority
`representative status. Donnelly rejected the offer and commented the
Company was prepared to negotiate a contract. Wade commented ifthey
had not been busy with a number of problems the Union never would have
secured majority representative status.
33 The foregoing findings are based on the testimony of Orwell and
Hardy. Their testimony was for the most part uncontradicted and was not
the changes and on the same day, sent Donnelly 5 copies of
revised pages 1 and 4 containing the two changes.
In mid-July 1974, Olwell telephoned Donnelly and asked
Donnelly if he had received all the contract pages as
revised.. Donnelly acknowledged that he had. Olwellasked
him if there were any problems. Donnelly replied there was
not. Olwell asked Donnelly where the' contract was.
Donnelly replied that Steil and Wade had been traveling
and he and they had not been able to get together to get
the contract signed. Hardy also telephoned Donnelly that
month to ask if the revisions were complete and when the
Union might 'expect to receive its three signed copies of the
contract. Donnelly told him the contract was alright and
complete, that he just hadn't been able to get together with
Steil and Wade to have it signed. He told Hardy not to
worry, since he believed the Company was already
following its terms.
During the week of August 11, 1974, Olwell ran into
Donnelly at the Seattle Airport. Olwell told Donnelly he
wanted the contract. Donnelly replied it was the last day of
his vacation, he would be back in the -office on Monday
and would then contact Olwell.
Olwell telephoned Donnelly the last week of August 1974
and stated the Union wanted a signed contract or it would
have to file refusal to execute charges. Donnelly told
Olwell not to worry, the Company was living by the
contract and he would get it to him.
Shortly before Labor Day 1974, Hardy telephoned
Donnelly and told Donnelly the Union was getting tired of
waiting for the contract and was going to file additional
unfair labor charges if it was not received. Donnelly
suggested Hardy wait a few days and he .would get it
signed. Hardy replied the Union had already waited too
long. Donnelly stated he was going to Bellingham but
would get the contracts to the Union the Friday before
Labor Day. Hardy replied that if he did, not receive them
by then, the Union would file unfair labor practice charges.
On September 4, 1974, Donnelly left a message at
Olwell's office requesting that Olwell call Donnelly over a
problem regarding the Squire Shops contract.
On September 5, 1974, Olwell telephoned Donnelly to
ask what the problem was. Donnelly said the Company
doubted the Union's majority representative status. Olwell
became angry and stated the Company should have raised
that question earlier, before it negotiated the contract 32
There was an angry exchange, and the Union filed its
additional charge which led to the issuance of the
September 18 consolidated complaint 33
On the basis of the foregoing, I find and conclude that
on July 9, 1974, upon Donnelly's receipt of two pages
containing the final contract revisions,34 the Company and
the Union reached agreement on terms for a collective-
bargaining agreement covering the unit' employees.
directly denied by'the company principal witness, as evidenced by the
following testimony: "Q. Did you ever come to agreement on all terms of a
proposed collective-bargaining agreement with Local 1001? Donnelly: I
don't think we did. It was - wasn't signed by the Company." Donnelly's
response was ambiguous at best. Wade's flat denial that the Company ever
reached agreement on anything, not even aphrase or provision , is patently
incredible in view of the undisputed Hardy-Donnelly letter exchanges
concerning the contract language, and is not credited.
34 Which Donnelly confirmed constituted the final and complete
agreement in subsequent telephone conversations with'Olwell and Hardy.
SQUIRE SHOPS, INC.
I further find that at all times subsequent the Company
failed and refused to execute that agreement 35
The Company contends the agreement was not final
because it was conditioned on resolution of the complaint
allegations concerning Rider.
I have credited Olwell's testimony that the parties agreed
to attempt to resolve the bargaining charges of the March
20 complaint first, and separately from the balance of the
issues raised by that complaint, by attempting to negotiate
a contract. They succeeded in that effort.
There is no credited evidence on which to base a finding
that company execution of the contract was conditioned
on the parties reaching an agreement disposing of the
balance of the issues raised by the March 20, 1974,
complaint. Rather, the evidence is to the contrary -
witness Donnelly's assurances that the contract was
complete, it was alright, the Company was already
complying with its terms, and that it was unsigned only
because he had not been able to get together with his
principals (none of which was denied by Donnelly).
I therefore reject the Company's contention that its
agreement on contract terms was conditional upon
disposing of the Rider dispute.
The Company also alleges the agreement was not final
because it was not ratified by the affected employees. The
evidence establishes that the Union issued a call for a June
5, 1974, ratification meeting but no vote was taken because
of poor attendance.
Hardy signed the contract subsequent to the aborted
ratification meeting and both Olwell and Hardy testified
without contradiction (their testimony as credited) that:
neither the Union's constitution nor its bylaws require
ratification prior to signing a contract; union officials have
in the past signed contracts binding on the Union without
prior ratification; they were empowered by their Union
constitution and bylaws to, sign binding collective-bargain-
ing agreements without prior ratification.
I therefore find and conclude the Union's failure to
secure a ratification vote prior to Hardy's signing the
contract did not and does not invalidate the agreement.
On the basis of all the foregoing, I find and conclude the
Company, by its failure and refusal to execute the contract
prepared, signed and submitted to it by Hardy on June 7,
1974, as finally modified by the parties on July 9, 1974,
thereby violated Section 8(a)(5) and (1) of the Act.
G. The Bargaining Order tissue
Findings have been entered above that the Company
violated Section 8(a)(1) of the Act by: Miska's interroga-
tion of Rider concerning his union organizational activi-
ties ; Edvald's threat to discharge Rider because of his
union activities ; Steil's transfer of Rider from one store to
another to inhibit his union organizational activities;
Wade's solicitation of employee grievances at employee
mass meetings ; Wade's actual or implied promise at a mass
meeting to resolve Hoar 's grievance over dinner hours and
the Company's subsequent change in working conditions
to grant that grievance ; Steil's implied promise at a mass
meeting to adjust Bryant's grievance; the Company's grant
35 The Union previously executed it.
169
of wage increases to almost all its unit employees shortly
after its receipt of the Union petition; all for the purpose of
undermining union support among its employees and
discouraging its employees from supporting the Union.
Findings have also been entered that' the Company
violated Section 8(a)(1), (3), and (4) of the Act by
discharging Rider , the Union's leading adherent among the
unit employees, for testifying on behalf of the Union at the
representation hearing and for engaging in other activity -
on behalf of the Union.
Lastly, findings have been entered that the Company
violated Section 8(a)(1) and (5) of the Act by negotiating a
contract with the Union, stalling over its execution, and
finally refusing to sign it.
It is the teaching of the Gissel Case 36 that where a
company has committed unfair labor practices of suffi-
ciently serious a nature to dissipate a union's support
among its employees, the purposes of the Act are best
served by the issuance of an order requiring the Company
to bargain with that Union.
I find that the Company's serious and pervasive unfair
labor practices detailed above warrant such an order. I
therefore shall recommend that the Company be directed
to bargain with the Union at its request concerning the
rates of pay, wages, hours, and working conditions of the
unit employees.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
in a business affecting commerce and the Union is a labor
organization as those terms are defined in Section 2(2), (5),
(6), and (7) of the Act.
2. Since October 27, 1973, the Union has represented a
majority of the following employees: All of the employees
employed at the Employer 's four retail stores in King
County, Washington (1428 Fourth Avenue; 4508 Universi-
ty Way Northeast; 761 Northgate Mall and 820 Southcen-
ter Mall), excluding truckdrivers , warehouse employees,
office clerical employees, professionals, guards and super-
visors as defined in the Act.
3. The Company violated Section 8(a)(1) of the Act by:
(a) Miska's interrogation of Rider concerning his organiza-
tional activities on behalf of the Union; (b) Edvald's threat
to discharge Rider because of his union activities ; (c) Steil's
transfer of Rider from the Northgate to the downtown
store in order to inhibit his union organizational activities;
(d) Wade's solicitation of employee grievances at employee
mass meetings ; (e) Wade's actual or implied promise at an
employee mass meeting to resolve Hoar's grievance over
the length of his dinner hour and his subsequent lengthen-
ing of that dinner hour (a change in working conditions) to
adjust that grievance ; (f) Steil's implied promise at a mass
meeting to adjust Bryant's grievance ; and (g) the Compa-
ny's grant of wage increases to almost all of its unit
employees shortly after receipt of the Union 's petition for
certification.
All for the purpose of undermining and discouraging
employees support of the Union.
36 N.L.P-B. v. Gissel Packing Co., 395 U .S. 575 (1969).
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The Company violated Section 8(a)(1), (3), and (4) of
the Act by discharging Michael Rider for testifying on
behalf of thee Union at a representation hearing conducted
by the Regional Office and for engaging in other activities
on behalf of the Union.
5. The Company violated Section 8(a)(1) and (5) of the
Act by stalling and refusing to execute a contract
previously negotiated with the Union covering the rates of
pay, wages, hours, and conditions of the unit employees.
6. The Company did not otherwise violate the Act.
7. The unfair labor practices specified above affect
commerce as defined in the Act.
Tim REMEDY
Having found that the Company engaged in unfair labor
practices in violation of Section 8(a)(1), (3), (4), and (5) of
the Act, I shall recommend that the Company be directed
to cease and desist therefrom and to take certain
affirmative, action designed to effectuate the purposes of
the Act.
It shall be recommended that the Company , be ordered
to cease and desist from:,
1. Interrogating its employees concerning their union
activities.
2. Threatening its employees with discharge for engag-
ing in union activities.
3. Transferring its employees because of their union
activities.
4. Soliciting employee grievances.
5. Actually or impliedly promising to adjust employee
grievances, and adjusting them.
6. Making unilateral changes in working conditions.
7. Granting wage increases without prior notice to and
bargaining with the Union concerning same.
8. Discharging its employees for testifying on behalf of
the Union or engaging in other union activities.
9. Failing and/or refusing to execute agreements
previously reached with the Union concerning the rates of
pay, wages, hours, and working conditions of the unit
employees.
10. Failing and/or refusing to bargain with the Union
at its request concerning the rates of pay, wages, hours and
working conditions of the unit employees.
It will also be recommended " that the Company be
directed to offer Michael Rider immediate and full
reinstatement to his former job (or a substantially
equivalent position in the event his former position no
longer exists), without prejudice to his seniority and other
rights and privileges, and to make him whole for any losses'
he has suffered by reason of his discriminatory discharge
by payment to him a sum of money equal to that he would
have earned as wages from the date of his discharge to the
date of his reinstatement, less any net earnings he may
have had between the date of his discharge and the date of
his reinstatement. His earnings shall be computed in
accordance with the formula prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), with interest at 6
percent per annum computed in accordance with the
formula prescribed in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
It shall also be recommended that the Company be
directed to recognize the Union, to bargain withthe Union
at its request concerning the rates of pay, hours,. and
working conditions in the unit heretofore set forth, to
execute the collective-bargaining agreement whose-terms it
agreed to as set forth heretofore; and to grant such benefits
and to make such payments as were called for under that
agreement, either to the Union or to the employees, both
retroactively and prospectively, from, its effective date.
Upon the basis of the foregoing findings of fact,
conclusions of law and the entire record, and pursuant to
Section 10(c) of the Act, I recommend that the Board issue
the following recommended:
ORDER37
Squire Shops, Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interrogating their employees concerning their union
activities.
(b) Threatening its employees with discharge for engag-
ing in union activities. -
(c) Transferring its employees in order to inhibit their
union activities.
(d) Soliciting employee grievances.
(e) Actually or impliedly promising to adjust employees
grievances, and adjusting same, on a unilateral basis,
particularly when the adjustment involves a change in
working conditions.
(f) Unilaterally granting wage increases to discourage
and undermine employee support of the Union.
(g) Discharging employees for testifying on behalf of the
Union or for engaging in other union activities.
(h) Failing or refusing to recognize the Union, to
negotiate with the Union at its request concerning the, rates
of pay, wages, hours, and working conditions of the unit
employees and to execute any agreements reached as a
result of such negotiations.
(i) In any like or related manner interfering with its
employees in the exercise of their rights to self-organiza-
tion, to form labor organizations, to join or assist the
Union or any- other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of
collective bargaining for other mutual aid or protection, or
to refrain from any or all of the above.
2. Take the following affirmative action designed to
effectuate the purposes of the Act:
(a) Offer Michael Rider immediate and full reinstate-
ment to his former job (or a substantially equivalent job, if
his former job no longer exists), without prejudice to his
seniority or other rights and privileges and make him whole
in the manner set forth in the section of this Decision
entitled "The Remedy."
(b) Recognize the Union as the exclusive bargaining
representative of its employees set out in the unit described
37 In the event no exceptions are filed as provided by Sec. 102.46 of the 102.48 of the Rules and Regulations , be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions , and Order, and all objections thereto shall be
conclusions , and recommended Order herein shall, as provided in Sec. deemed waived for all purposes.
SQUIRE SHOPS, INC. 171
heretofore, bargain with it at its request concerning the
rates of pay, hours, and working conditions of the unit
employees, execute the contract it agreed to with the Union
on July 9, 1974, and make the Union and the unit
employees whole for any losses they may have suffered by
reason of the Company's failure and/or refusal to execute
that contract and comply with its terms from its effective
date.
(c) Comply with all of the terms and conditions of the
agreed-upon contract, both for the balance of its term and
retroactively.
(d) Preserve and, upon request, make available to the
Board or its agents, for examining and copying, all records
necessary for the determination of the amount of backpay
and other payments and obligations due under this
recommended Order.
ss In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
(e) Post at its four stores where unit employees are
employed copies of the attached notice marked "Appendix
A." Copies of such notice shall be furnished to the
Company by the Regional Director for Region 19 and shall
be signed by an authorized representative of the Company
and posted immediately upon receipt thereof, and main-
tained for at least 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken to insure that such notices are not altered,
defaced, or covered by other material. The Regional
Director for Region 19 shall be notified, in writing, within
20 days from the receipt of this Decision, what steps the
Company has taken to comply herewith.38
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act other
than those found in this Decision.
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."