Sullivan Surplus Sales, Inc.

National Labor Relations Board - Board Decisions

Apr 27, 1965

152 N.L.R.B. 132 (N.L.R.B. 1965)

132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pruett also related a conversation with Burgess occurring sometime in January of
1963 in which, according to Pruett, Burgess said that if Hawkins did not quit filing
so many grievances and causing so much trouble, he was going to fire him. I credit
Pruett's testimony and find this to be a threat of the type alleged in the complaint
and an unfair labor practice of the type defined in Section 8(a)(1) of the Act.
There is one final item in this area and that relates to a conversation occurring
among Burgess, Pruett, and Batchellor in a luncheon meeting in Mitchell sometime
apparently in April 1963. Appraising the evidence concerning any threats uttered
by Burgess at this meeting, it appears too indistinct to warrant a conclusion that it
preponderates in favor of a finding that threats were uttered by Burgess on that
occasion.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Employer set forth in section III, above, and
therein found to constitute unfair labor practices defined in the Act, occurring in
connection with the operations of the Respondent Employer as outlined in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce 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 herein that Respondent has engaged in unfair labor prac-
tices as alleged in the complaint, I shall recommend that it be required to cease and
desist therefrom and take certain affirmative action as appears necessary and appro-
priate to effectuate the purpose and policies of the Act. In view of my finding that
Respondent discharged Charles Hawkins because of his participation in concerted
activities I shall recommend that Respondent be required to offer him reinstatement
to his former or a substantially equivalent position and make him whole for loss of
earnings in accordance with the remedial policies outlined in F. W. Woolworth Com-
pany, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent Employer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the purview of Section 2(5) of the
Act.
3. By the statements of its terminal manager that discharge could or would be
visited upon employees for filing grievances, Respondent engaged in unfair labor
practices defined in Section 8(a) (1) of the Act.
4. By discharging its employee Charles Hawkins because he engaged in filing
grievances under the collective-bargaining agreement and complaints as to equipment
with the Interstate Commerce Commission, Respondent engaged in unfair labor prac-
tices defined in Sections 8(a)(3) and 2 ( 6) and (7) of the Act.
[Recommended Order omitted from publication.]
Sullivan Surplus Sales, Inc. and Local 1687, Retail Clerks Inter-
national Association , AFL-CIO. Case No. 3-CA-2280. April 27,
1965
DECISION AND ORDER
On January 11, 1965, Trial Examiner Owsley Vose issued his Deci-
sion in the above-entitled proceeding finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
152 NLRB No. 12.
SULLIVAN SURPLUS SALES, INC. 133
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that Respondent had not engaged in other unfair
labor practices alleged in the complaint and recommended dismissal
of those allegations. Thereafter, the Respondent,' the General Coun-
sel, and the Charging Party filed exceptions to the Decision and sup-
porting briefs.
Pursuant to the provisions of Section 3(b) of the Act, 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 the briefs, and the entire
record in the case, and hereby adopts the findings,2 conclusions, and
recommendations of the Trial Examiner with the additions and modi-
fications noted below.3
1. The Trial Examiner, although finding various violations of Sec-
tion 8(a) (1), was of the opinion that the Respondent did not violate
the Act by virtue of two questions directed to employees by its attorney
during prehearing interviews conducted on June 25 and 26 and on
July 1 and 2, 1964. We do not agree.
In preparation for the hearing herein, almost all of the Respond-
ent's employees were summoned individually to an office at the store
where the attorney, after identifying himself and telling the employees
the purpose of the interview and that he was not interested in their
union sympathies, asked a series of questions concerning the issues
raised by the General Counsel's complaint. Two employees were asked
who had approached them to sign union authorization cards, and sev-
eral employees were asked the further question, "Who was on the
Sullivan Surplus Organizing Committee?" The Trial Examiner
found that since the employees were given assurances that the attorney
was not attempting to ascertain the identity of union supporters, these
questions did not exceed permissible bounds, even though too broadly
drawn, because they were relevant to the Respondent's theory of de-
After submitting Its exceptions the Respondent moved to correct its exceptions. Since
these corrections are technical in nature and unopposed , the motion is hereby granted.
2 The Trial Examiner excluded Anna Shapiro and M Replansky from the appropriate
-unit because he found they enjoyed a special status since they were related to the Re-
spondent ' s owners. Member Brown would exclude these persons because of their family
relationship . Cheater County Beer Distributors Association, 133 NLRB 771, 774, foot-
note 12 ; P. A. Mueller and Sons , Inc., 105 NLRB 552
3In light of the numerous other 8 ( a) (1) findings , we find It unnecessary to pass
on the Trial Examiner's conclusion that the attempted bribe of employee Myrtle Smith
by Respondent's pharmacist , Herbert Weiss, was in fact made in jest, since it cannot
affect the scope of the remedy. Therefore we do not adopt his findings , recommendations,
and conclusions in this regard.
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fense that supervisors had been active in promoting the Union. While
we agree with the Trial Examiner that the subject matter allegedly
sought by these questions was within the limits of the issues, we never-
theless find that, despite the assurances given, the Respondent violated
the Act by asking the questions in the form used. For they had as
their only answer the identification of union supporters, and on their-
face intruded into employee activities which were irrelevant to any
defense. Clearly the information regarding supervisory participation
could have been obtained by asking the individual supervisors if they
engaged in union activities, or by asking the employees the direct ques-
tion whether supervisors gave them cards.
2. The Trial Examiner concluded, and we agree, that the Union'
requested recognition at a time when it represented a majority of the
employees in the appropriate unit and that the Respondent refused
to bargain collectively with the Union in violation of Section 8(a) (5)
of the Act. However, in determining whether the Union was in pos-
session of valid cards from a majority of the employees, the Trial
Examiner concluded that there were 43 employees in the unit, of whom
22 had signed cards, whereas we find that its showing of majority
status consisted of 24 valid cards, as set forth below.
The Trial Examiner, in determining the number of employees in'
the unit, included Jane Williams but in counting the cards did not
include one signed by her which he did not find invalid for any reason.
Since it is clear that her authorization card was valid and that the.
failure to count it was an oversight, we include it with those upon'
which the Union's representative status is determined.
The Trial Examiner also found that employee Dorothy Kuttner's-
card should not be counted. We do not agree.
Kuttner signed an authorization card on February 5, 1964, at the
request of employee Anna Cochran. Two days later she asked Cochran
to give the card back, or to destroy it, saying that "her husband was
having a fit." Although Kuttner again spoke to Cochran the next
day about the return of the card, it was never returned. Kuttner's
change of mind occurred before the Union requested recognition.
The Trial Examiner viewed the evidence as suggesting that this change
was unrelated to the Respondent's unfair labor practices. He was,
therefore, of the opinion her card should not be counted towards the
Union's majority.
However, the evidence shows that while the Respondent committed
its first 8(a) (1) violations on January 25, the bulk of its coercive con-
duct occurred on February 5, 6, and 7. Kuttner's request for the return
of her card occurred during the very time when the Respondent
engaged in this misconduct, and her second request was made almost
SULLIVAN SURPLUS SALES, INC. 135
immediately after the Respondent's president held an employee meet-
ing in which he spoke against the Union and about a pension plan as
an inducement for the employees to reject the Union. In view of this
sequence of events, and the absence of evidence showing that Kuttner's
request was unrelated to the unfair labor practices, we are impelled to
the conclusion that there was a direct casual relationship between
Respondent's conduct and Kuttner's request. We therefore find that
Kuttner's card should be counted.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner, and orders that Sullivan Surplus
Sales, Inc., Liberty, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Recom-
mended Order, with the following addition : 4
Add the following paragraph as paragraph 2(b), the present para-
graph 2 (b) and those subsequent being consecutively relettered :
"(b) Notify the above-named employee, if presently serving in the
Armed Forces of the United States, of her right to full reinstatement
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces."
4 The notice to all employees is similarly modified by adding the same language as a
note directly below the signature line
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed by the Charging Party on February 17, 1964, the General
Counsel on April 30, 1964, issued a complaint alleging that the Respondent had
engaged in various unfair labor practices in violation of Section 8(a)(1), (3), and
(5) of the National Labor Relations Act, as amended. With respect to the Respond-
ent's alleged violations of Section 8 (a)( 1 ) of the Act, the complaint as amended at
the hearing alleges that the Respondent's officials and supervisors questioned employ-
ees about union matters , threatened reprisals against employees because of their
union activities , engaged in surveillance of union meetings , solicited employees to
repudiate the Charging Party as their bargaining representative, and that the Respond-
ent's attorney in his pretrial questioning of employees had exceeded the permissible
limits of such questioning . The 8(a)(3) violations alleged in the complaint as
amended involve the discharge of Helen Brady on February 10, 1964, and the alleged
reduction in hours of work of Myrtle Smith on and after February 13, 1964. The
violation of Section 8(a)(5) of the Act stems from the Respondent 's refusal on
and after February 10, 1964, to recognize and bargain collectively with the Charging
Party (hereinafter called the Union) as the exclusive bargaining representative of its
employees . The Respondent filed an answer denying the commission of any unfair
labor practices.
The case was heard by Trial Examiner Owsley Vose at Liberty, New York, on
various dates commencing with July 20, 1964, and ending on August 3, 1964. All
parties appeared and were represented at the hearing and were afforded a full oppor-
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tunity to be heard, to examine and cross-examine witnesses, and to present oral
argument. Competent briefs have been filed by all parties, which have been care-
fully considered I
Upon the entire record and my observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE RESPONDENT'S BUSINESS
The Respondent operates a junior department store at Liberty, New York. In
the course of its business in the 12-month period preceding the issuance of the
complaint, the Respondent sold merchandise valued at more than $500,000. During
this same time the Respondent purchased and had shipped to the store from out-of-
State sources in excess of $50,000 worth of goods and merchandise. Upon these
facts I find, as the Respondent admits, that it is engaged in commerce within the
meaning of the Act, and that it will effectuate the policies of the Act to assert juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local 1687, Retail Clerks International Association , AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The organization of the store
Irving Shapiro, the president of the Respondent, and his brother, Sidney, own all
of the stock in the Respondent, and make all of the basic decisions with respect to
the operation of the business. Under the Shapiros are Alexander McIntyre, the
floor manager, and George Stephenson, the assistant floor manager. Stephenson is
also the department head of the sporting goods, hardware, and garden center depart-
ment. The other departments and the respective department heads are as follows:
Department Department Head
Ladies' fashions------------------------------- Madeline Banta
Infants'-------------------------------------- Dorothy Gillette
Men's wear---------------------------------- Daisy Brown
Shoes---------------------------------------- Beulah Rhyne
Housewares---------------------------------- Vincent Thorschmidt
Domestics------------------------------------ Rose Meddaugh
Furniture------------------------------------ Philip Cinquemani
Toys---------------------------------------- Virginia Puerschner
Gift----------------------------------------- Dorothy Kaplan
Cashiers------------------------------------- Helen Adolph
Pharmacy------------------------------------ Herbert Weiss
Burger Bar----------------------------------. Natilio Crespo
Office---------------------------------------. Richard Zandanoff
In addition to the foregoing individuals who admittedly are supervisors within
the meaning of Section 2(11) of the Act, there are two other employees whose super-
visory status is sharply disputed in this case. They are Anthony Smith, who is in
charge of the Respondent 's stockroom , and Helen (Sally) Brady , who is an assistant
to Madeline Banta, the department head of the ladies' fashion department. The
Respondent contends that both are supervisors within the meaning of Section 2(11)
of the Act. The General Counsel takes the opposing view. The facts concerning
this issue are discussed below.
' Motions to correct the transcript of testimony were received along with their briefs
from both counsel for the General Counsel and counsel for the Respondent . Counsel
for the Respondent subsequently filed an opposition to a few of the General Counsel's
proposed corrections . Except with respect to the six instances as to which there was
disagreement regarding the correction ( General Counsel's Corrections Nos. 21 , 48, 62,
68, 82, 85 ), these motions to correct the transcript of testimony are hereby granted.
The contested corrections are corrected in accordance with the General Counsel's request.
Clarification is necessary in two instances , as follows : Correction No. 48, page , 213, line
24, ruling• First "with" should be changed to in." Correction No. 62, page 856, line 18,
change "curred " to "curt."
SULLIVAN SURPLUS SALES, INC . 137
B. Preliminary statement
The complaint as amended alleges that the Respondent , by its conduct on Janu-
ary 25, 1964, and thereafter sought to undermine the Union 's majority status and that
therefore its refusal on and after February 10, 1964 , to recognize and bargain col-
lectively with the Union as the exclusive representative of all its nonsupervisory
selling and nonselling employees constituted a violation of Section 8(a)(5) of the
Act. These allegations necessarily require careful consideration of the events in the
period leading up to the Respondent 's receipt on February 10, 1964, of the Union's
telegraphic request for recognition and bargaining . The question of the Union's
majority status in the appropriate bargaining unit will be treated hereinafter.
It is admitted that on the morning of February 10, 1964, the Respondent received
the following telegram from the Union:
IRVING SHAPIRO , SULLIVAN SURPLUS SALES
LIBERTY NY
I WISH TO INFORM YOU THAT RETAIL CLERKS LOCAL 1687 REPRE-
SENTS A MAJORITY OF YOUR NON-SUPERVISORY SELLING AND
NON SELLING EMPLOYEES. WE ARE PREPARED TO SUBMIT OUR
AUTHORIZATIONS TO A DISINTERESTED PERSON FOR VERIFICA-
TION OF OUR MAJORITY STATUS IN VIEW OF OUR SELECTION AS
THE SOLE AND EXCLUSIVE BARGAINING AGENT OF YOUR
EMPLOYEES. WE DEMAND RECOGNITION AND WOULD APPRE-
CIATE HEARING FROM YOU SO THAT WE CAN PROMPTLY
ARRANGE A MEETING TO BEGIN CONTRACT NEGOTIATIONS. WE
ARE INFORMED THAT YOU HAVE ATTEMPTED TO DISSUADE YOUR
EMPLOYEES FROM UNION ORGANIZATION BY MAKING PROMISES
OF BENEFITS AND THREATS OF REPRISAL. SUCH ACTION IS
CLEARLY IN VIOLATION OF THE NATIONAL LABOR RELATIONS
ACT AND WE STRONGLY URGE YOU TO DESIST FROM SUCH
ACTIVITY.
FRED BLAIR SECTY TREASURER RETAIL CLERKS LOCAL 1678,
1228 MINERS NATIONAL BANK BLDG., WILKESBARRE, PENN
It is also admitted that on February 12, 1964, Respondent mailed the following letter
to Fred Blair , secretary-treasurer , Retail Clerks Local 1687, at the address given
above:
Dear Sir: Sullivan Surplus Sales, Inc. doubts, in good faith, that Retail Clerks,
Local 1687 represents a majority of its employees. In consequence, it must
decline to recognize Local 1687 as exclusive bargaining agent.
If, as you state, you are informed that Sullivan Surplus Sales, Inc. has made
promises of benefits and threats of reprisal to its employees in order to dissuade
them from union organization, then you are informed incorrectly; no such
activity has occurred.
C. Sequence of events
1. The union movement commences in January 1964
The first employee of the Respondent to become interested in the Union was
Myrtle Smith, who worked regularly as a part-time employee in the pharmacy.
Smith signed a card authorizing the Union to represent her for collective-bargaining
purposes on December 10, 1963, and gave it to Donald Eggleton, an organizer for
the International. Myrtle Smith became one of the most active supporters of the
Union. She was particularly active during the weekend of January 23-25, 1964,
and signed up seven employees on this weekend alone, including Anna Cochran and
Barbara Ackerley, who also became active in the union drive. Another employee
signed up by Myrtle Smith at this time and who later became active in enlisting
union adherents was Anthony Smith, whose supervisory status at the store is in
dispute.
The first meeting of the Union was held on the evening of February 4, 1964, at
the Lenape Hotel in Liberty. Present were James Sterns, a business agent of the
Union, International Organizer Donald Eggleton, and six employees. These were
Myrtle Smith, Anna Cochran, Barbara Ackerley, Lena Ray, Carol Young, and
Anthony Smith.
In the next few days the drive for signatures on union bargaining authorization
cards was intensified. Almost a dozen additional employees signed authorization
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards during this period.2 Anthony Smith was particularly active at this time , obtain-
ing four or more signed cards from employees of the store.
Helen Brady , the assistant in the ladies ' fashions department , also signed a card
during this period, and herself solicited several others who worked with her in the
department to sign cards . Department Heads Puerschner , Meddaugh , and Rhyne also
signed cards during this period or later Puerschner , at the request of Anthony Smith,
obtained Rose Meyers' signature on a union authorization card on February 7, 1964.
Meyers, who had just started to work for the Respondent , lived in the same town
as Puerschner and had known her for some time.
By Saturday night, February 8, the Union had obtained signed cards from 25
employees , not including those signed by department heads. The General Counsel
and the Union take the position that there were 43 employees in the appropriate
bargaining unit at this time, including Anthony Smith and Helen Brady, whose super-
visory status is in question . The Respondent contends that Smith and Brady are
supervisors and, therefore , should not be included in the unit , and that numerous
other employees , such as employees assertedly on leave and seasonal employees,
should be included in the unit . These questions will be considered hereinafter.
2. The Respondent 's officials and supervisors take steps to
counteract the union campaign
a. Respondent 's initial manifestations of disapproval of the union movement
On Saturday , January 25 , 1964, Assistant Floor Manager George Stephenson
approached Kenneth Storer in the store and engaged him in a conversation about the
Union . This was just a day or two after Myrtle Smith had signed up approximately
seven employees in the store, including Storer and Anna Cochran . In this conversa-
tion , according to Storer , Stephenson asked Storer if he "knew who was approaching
people," sought "to find out the date this thing started ... and more or less how
many people were involved ." Stephenson also asked Storer on this occasion "who
it was pushing the people and . . . who was behind it." When Storer stated that he
"didn't want to ... get other people in trouble," Stephenson declared, "We have the
whole case cracked wide open ." Later during this conversation Stephenson
announced that "he knew who was behind it, pushing the people . . . Ann Cochran
from upstairs." 3
On Saturday , February 1, Marie Boyle, who was employed in the Burger Bar, went
into President Irving Shapiro 's office and "asked him about the union." Shapiro,
according to Boyle's credited and undenied testimony , "said it is best I wouldn't join."
b. Events of February 5 and 6
As found above , the first union meeting was held the evening of February 4, and
the Union 's membership drive was stepped up on February 5 and 6. On February 5,
Madeline Banta, the department head in the ladies ' fashions department , admit-
tedly questioned her assistant , Helen Brady, as to whether she had attended the union
meeting. That evening Floor Manager Alex McIntyre asked Adeline Oare if she
had gone to the union meeting.
Also on February 5, President Shapiro summoned Anthony Smith from the stock-
room to his office. There , in the presence of Floor Manager McIntyre , Shapiro told
Smith that he "wasn't to be engaged in soliciting union cards during business hours."
2 Among these was Dorothy Kuttner who had signed a card on February 5 at the
request of Anna Cochran and Barbara Ackerley When Kuttner reported for work 2 days
later, on Friday morning , February 7, she asked Cochran for her card back , saying "her
husband was having a fit " Kuttner added on this occasion words to the following
effect: "If you cannot get it back to me, just take it and tear it up ." Cochran, who had
turned Kuttner ' s card over to Business Agent Sterns, said that she would see what she
could do Later that day Cochran talked with Sterns who told Cochran to tell Kuttner
not to worry , that the matter would be kept confidential , and that if Kuttner insisted
she could obtain her card back The next morning , Saturday , Kuttner again spoke to
Cochran about the return of her card . Cochran was busy at the time and told Kuttner
that she would talk to her about it later . Cochran failed to do so however
3 The foregoing findings are based upon the credited testimony of Storer . Stephenson's
testimony regarding this incident is as follows "I mentioned to Ken , says 'What benefit
do you think this union will do anyone " He replied to me, 'None of your business.'
That was the end of the conversation ." I am convinced that Stephenson was under-
stating the substance of his conversation with Storer and find that it occurred as related
above.
SULLIVAN SURPLUS SALES, INC. 139
Shapiro then questioned Smith as to why he wanted to join the Union and stated
that Smith could always come to him with any grievances , and that he ( Shapiro)
always wanted to find out what was wrong . Shapiro mentioned to Smith that Alex
McIntyre had been threatened by one of the union organizers that he ( McIntyre)
"would be the first to go when the union moved in." Shapiro further stated, in
Smith's words , that "if they could move a man like Alex [McIntyre], I wouldn't stand
a chance." 4
The next day , February 6, Shapiro and McIntyre had a second discussion with
Anthony Smith . Shapiro had Smith come to the office where he read a paragraph
in the collective -bargaining contract between Macy 's Department Store in New York
City and the union representing the employees there. The gist of the paragraph was
that the employer had the right to lay off employees as it saw fit , taking into consid-
eration seniority and other factors. Shapiro emphasized to Smith, who had worked
at the store less than 5 months, that this was the Respondent's policy. McIntyre
commented to Smith, who was then working up to 54 hours a week, that he "would
be better off like [he] was now than [he ] would be if the union came in .
because full time employees have to work 40 hours a week and they are the only
ones that receive benefits."
McIntyre and Assistant Floor Manager Stephenson stopped Helen Brady on the
floor on February 6 and asked her if she had signed a union card. When Brady said,
"No," Stephenson said, "We know you did." After Stephenson left, McIntyre
mentioned to Brady that he had been in a union at one time and that "he never saw
that it did any good." 6
That same day, McIntyre also talked to Virginia Behrens about the Union , inter-
rupting a conversation with Stephenson , to say to Behrens , "You signed one, didn't
you " Behrens denied having signed a card 7 Later that day, however , Behrens
and Helen Brady , the assistant to the department head in the ladies' fashions depart-
ment, both signed cards.
Anna Cochran went into the drugstore during her supper hour on February 6 to
make a purchase . As she walked over to Myrtle Smith, Herbert Weiss, the pharma-
cist in charge of the pharmacy, looked up and said , "You can tell who the leader is,
can't you ." Then Weiss added, "Oh, I hope you girls are getting paid for this." 8
About 8 that same evening Pharmacist Weiss engaged Myrtle Smith in conversa-
tion . According to Smith's testimony , the following ensued:
He said "What would you take to call off the pack?" and I said "I don't think
you can afford it" and he said-I think he said two or three hundred but he
didn 't use the word dollars and I said "That 's not enough" and I walked away
from him and in the meantime he had left and we got customers and then he
came back and when it got quieted down again he said to me "Four?" and I
said "No" and he said "Five , and that's tops" and I looked at him and I said
"Is this coming out of your pocket?" and he said "No I'll go in the office and
have a check wrote out for you" and I walked away from him laughing. That
was the end of it .9
That same night, or the next, Marie Boyle spoke to Natilio Crespo, her supervisor
in the Burger Bar , about the Union . Crespo, according to Boyle's undenied testi-
mony, warned Boyle that "anybody who joins the Union gets fired."
4 The foregoing findings are based on the undenied testimony of Anthony Smith
8 Neither Shapiro nor McIntyre was questioned about this talk with Anthony Smith and
consequently Smith's testimony , upon which the above findings are based, stands un-
,denied in the record
8 This is Brady ' s uncontradicted testimony
7 McIntyre did not recall any such incident involving Behrens, but he was not sure
that he had not had such a conversation with her I credit Behrens' testimony above
quoted.
8 Weiss denied having made any such comment Both Cochran and Smith gave mutually
corroborative testimony concerning this incident. Both Cochran and Smith exhibited
a good memory for detail on the stand and in general appeared to be sincerely trying
to avoid overstating matters. Weiss, on the other hand, in my opinion, too glibly denied
all the testimony possibly implicating the Respondent in unfair labor practices As
appears below , Weiss' testimony concerning the reduction of Myrtle Smith ' s hours is
completely confused I find Weiss to be an unreliable witness and credit Cochran's testi-
mony which is quoted above
9 Weiss denied having any such conversation with Myrtle Smith. I have found Weiss
to be an unreliable witness and do not credit his denial In crediting Smith ' s testimony,
as I do, I do not intend to imply that President Shapiro had any knowledge of, or had
authorized Weiss to make , this proposal, which I find lie made in jest.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That evening, February 6, a group of the principal union supporters, including
Myrtle Smith, Anna Cochran, and Anthony Smith, had arranged to meet with
Union Business Agent Sterns after work for a little "get together." They were to
meet outside the Triangle Diner, which shares a parking lot with the Duchess
Lounge. Anna Cochran arrived first and met Sterns. Then Myrtle Smith came and
parked her car outside the Duchess Lounge. As she was getting out of her car she
observed Cochran and Sterns approaching her. Just then Pharmacist Weiss drove
up and parked nearby. Weiss rolled down the window and waved at Myrtle Smith.
Sterns asked Weiss to join them, but Weiss declined, and drove off in his car. The
next day Weiss remarked to Myrtle Smith, "That was a cute trick you pulled the
other night." Smith replied, "Well, you knew we were having a meeting. Why
didn't you join us."
c. President Shapiro's questioning of three of the Union's
most active supporters on February 7
As indicated above, Wednesday, February 5, and Thursday, February 6, were days
of active union solicitation, although not all of it took place in the store. Eight addi-
tional employees signed union authorization cards during these 2 days. On Friday,
February 7, Shapiro spoke to three of the Union's most active supporters about their
union activities. (Two days earlier, as I have found, Shapiro had spoken about union
solicitation to Anthony Smith, another employee who had been very active in signing
up employees during this period.) The first to be called to the office was Barbara
Ackerley. The following conversation then took place, according to Ackerley's
testimony:
Well, he asked me if I had been approached by anybody about the union, and
I said I was. Then he asked me if I was contributing, or trying to get people
to sign cards for the union, and I said, "Yes, but as yet I haven't had anybody
sign them." And he asked me who approached me and I said I wasn't going
to say any names. And he asked me to call in Ann Cochran and some of the
others and I told him I don't care who he called in. Then he asked me if I
had any complaints about the store. and I said, "Yes, ... my hours." And he
said, "What complaints do you have about them? You are getting forty hours
a week." And I said, "I am only getting thirty-four." Then he explained that
they had to be cut because the store business was slow at that time. . He said
that if the Union did get in a lot of employees would go because there wasn't
any real need to keep some of them on. He was just keeping them on as more
or less a favor, he really didn't need them.10
At 4 that afternoon Shapiro told Anna Cochran that he would like to speak to her
in his office. Cochran testified that the following then occurred:
Yes. We went in, and he closed the door, ... and he turned to me, and, with
sort of an angry look on his face, he shook his finger at me and said, "I have proof
you have been intimidating the girls to get them to sign cards." He said, "I
don't know why you are doing this. If you have any complaints, why didn't you
come to me?" And then he said something about, "Do you want me to call
Barbara and the rest of them in?" And I said-I don't think I said anything.
He was asking questions so rapidly, I didn't have a chance to answer, and he
said something about "Barbara should realize, that during the months of
January and February, the store loses quite a bit of money, and that we just
keep people like Barbara on, trying to make jobs for them, so we won't have
to lay people off." And then he said something about his war record and how
hard he and his brother had worked to build up the store, and he said something
about these men that were coming into the store-he said one of them had
threatened Alex McIntyre, . . . and he said something about the kind of men
that would threaten a man like Alex. He said, "Are you going to place your
future in the hands of a man like this, even if you did have coffee with him?" .. .
Oh, he said, "I won't stand for any subversive activities in this store, and I just
want to warn you, don't let me catch you with any of those cards or talking
to any of the girls about the union while in this store or on the premises." 11
At some point in the conversation Shapiro told Cochran that he recognized that she
had a right to join a union.
20 Shapiro admitted having a conversation with Ackerley on this occasion and did not
specifically deny any part of Ackerley's testimony above quoted. It is credited.
n Shapiro's testimony regarding this conversation in part confirms that of Cochran's.
None of it was denied by Shapiro.
SULLIVAN SURPLUS SALES, INC. 141
That evening Shapiro summoned Myrtle Smith from the drugstore to his office.
Dorothy Gillette , the head of the infants ' wear department , was present in the office
when Smith arrived . There Shapiro angrily reproached her for being a "union
organizer" and accused her of "soliciting in the store ." Shapiro went on to say that
she and Anna Cochran "were sort of in cahoots with each other with the Union" and
inquired why she would want a union. When Smith finally had a chance to say a
word, she denied that she was a paid organizer for the Union and asserted that she
had been soliciting for the Union only on her own time. Smith went on to say that
she thought that the union benefits were very good: "It's a five-day a week and it's
time and a half overtime." Shapiro asked, "Are you speaking for the whole store?"
Smith replied, "I'm speaking for a majority of the store." Then, holding a piece of
paper in his hand, Shapiro indicated that he had proof that Anna Cochran and
Barbara Ackerley had urged an employee to sign an authorization card in the store.
Shapiro recounted his war record, his establishment of the store upon his return from
overseas , noted the growth of the store from its small beginnings , and stated that the
employees would grow with the store. Then Shapiro angrily inquired "why anybody
would do anything like this to him" and asserted that "he wouldn't tolerate it."
Shapiro concluded with the comment that the store was having a farewell party for
Mary Daly at 9 o'clock the next morning and Shapiro asked Smith to attend.12
That same evening, Friday, February 7, while Marianne Walter was working at
the cash registers , Assistant Floor Manager Stephenson asked her if she had "signed
any paper or anything." Walter replied that "it wasn't any of his business if [she]
did or didn't." Very shortly thereafter, Helen Adolph, who was the head of the
cashiers, asked Walter if she had signed a card. When Walter failed to reply,
Adolph commented that "she wouldn't join the union because you have to pay too
many dues." 13
d. President Shapiro's appeal to the employees to- renounce the Union on
February 8; the efforts of other supervisors to obtain union repudiations
A notice was posted in the bulletin board on Friday, February 7, notifying all
employees to report for work at 9 a.m. on Saturday, February 8. (The store normally
opened at 9:30 a.m. on Saturdays.) After the employees had arrived on Saturday
morning, Shapiro announced that the store was honoring Mary Daly, who was leaving
the store after having rendered years of valuable service. Shapiro gave Daly a gift.14
Then coffee and doughnuts were served to the group. After the refreshments were
consumed, Shapiro made quite a lengthy talk to the employees, the highlights of
which are given below. Except with respect to the one aspect of the talk discussed
in a footnote below, there is no substantial difference between the versions of the
talk given by the employees and Shapiro's own version.
Shapiro opened his talk by saying that he was aware of the activities that had
been going on in the store for the past week or so, and that he wanted the employees
to know that they did not need to be intimidated by the union organizers, whom he
referred to as "these men." Shapiro continued by saying that if any of the orga-
nizers should try to threaten them, they should come to him for protection. Shapiro
mentioned that one of the organizers had threatened Floor Manager McIntyre by
telling him "when we get in you are the first one to go." He then asked the
employees to consider whether they wanted to place their affairs in the hands of
such a man . Shapiro then remarked that the employees might have "signed cards
not knowing what we had done, and that we could come to the office and sign a
statement to this effect." 15
12 Shapiro , in his testimony, confused this conversation with a conversation with Smith
the day before in which he countermanded Smith's layoff by Pharmacist Weiss. This
is discussed below in connection with Smith's subsequent reduction in hours . Because
of Shapiro's confusion regarding the two conversations there is no effective denial of any
part of Smith's testimony, discussed above
13 The foregoing findings are based upon Walter's undenied testimony.
34 This was not Mary Daly's last day at the store, however. She worked at least the
next four workdays . The record does not disclose how much longer she remained in the
Respondent's employ.
'-This finding is based on the credited testimony of Dlitzi Kelly. It is corroborated
in detail by that of Carol Young Kelly's testimony is inferentially corroborated by
Anna Cochran ' s undenied testimony concerning a similar suggestion made by Shapiro to
a group of employees on the following Monday afternoon This incident is discussed
below. Virginia Behrens also testified that Shapiro had said during his talk that some
of the employees had come to him and told him that they had not known what they
were doing when they signed union cards. Shapiro testified regarding this aspect of his
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shapiro then recounted how the business had had a small beginning after he had
returned from overseas service, and referred to the growth of the business and the
efforts he was making to enlarge the business so as to be able to increase job oppor-
tunities in the area . Shapiro pointed out the substantial progress Alex McIntyre and
George Stephenson had made in their years at the store . After remarking that the
store employed persons without regard to color and that he believed that each person
should be judged according to his own individual worth, Shapiro commented, "You
never see a colored person working in the A & P." (The Union represents the
employees at the local A & P store.)
Shapiro called the employees ' attention to the fact that the store 's hospitalization
plan was one of the best available and referred to the benefits which Beulah Rhyne,
one of the department heads, who had just undergone an operation , was then receiv-
ing through the hospitalization plan. Then Shapiro stated that his lawyers were
studying a pension plan, that it would take a while to decide on a suitable plan, but
that someday the employees might have such a plan . Shapiro concluded his talk
with the comment that he was aware that the employees favored a 5-day week, but
that such a move was impossible at that time because it would increase the payroll
too much. Shapiro then dismissed the employees , and the store opened about 10
minutes late that morning.
Department Head Madge Banta arrived at the store that morning at 10 o'clock,
after Shapiro had completed his talk and the meeting was over. Brady, her assistant,
remarked to Banta that she had missed the coffee and the doughnuts and added that
she thought that the meeting concerned the Union . According to Brady's credited
and undenied testimony , Banta replied that "if the union came in that she would walk
out." Brady said that she "thought they were as good as in, they had over 50 percent
signed up." Banta declared , "In that case I'll leave right now." At this point Brady
had to leave to help a customer . When Brady returned , Banta commented , "Friends
will put a knife in your back."
About an hour after the meeting was over Assistant Floor Manager George Ste-
phenson went up to Richard Reinshagen , a 17-year-old part-time salesman in the
men's wear department , and asked him whether he had joined the Union When
Reinshagen did not reply , Stephenson said, "If you did there is a way out . You can
go in the office and sign a paper." Reinshagen said, "George , just leave me alone." 16
About 11 that Saturday morning Eva Goldschmidt and Marianne Walter went to
Stephenson and told him they wanted to make a statement releasing them from the
Union. Stephenson said that "it wasn 't any of his business and he couldn 't tell us
what to do but he thought everyone would be better off if the union didn ' t get in
and if we wanted to speak to Mr. Shapiro he would make an appointment for us to
go to the office." 17
When Goldschmidt returned from lunch she was notified by Floor Manager
McIntyre that she could go in and speak to Shapiro . Shapiro asked Goldschmidt
whether she had signed a union card and whether it was Anna Cochran or Barbara
Ackerley who had approached her. Shapiro then asked whether she wanted to sign
a statement . When Goldschmidt answered affirmatively , Shapiro handed her a pad
and told her "to write what [she] wanted in [hei] own words and to leave it on the
desk when [she] was finished ." Shapiro then left the office. Following the sugges-
talk as follows . "I think I further said that it had been called to my attention , several
days before , by a few individuals who came to me that they were seeking to get out of
whatever union activity they had been in , if they had signed cards , they wanted to
withdraw." In view of the extent to which employees that day and thereafter sought
to sign statements to the effect that they had not known what they were doing when
they signed union cards and the subsequent solicitation of employees by the Respond-
ent's supervisors to sign such statements , I ain convinced that the original suggestion
that employees come to the office and sign such statements was made by Shapiro in his
talk on February 8, as was testified to by Kelly and Young.
16 Stephenson 's testimony concerning this incident is as follows:
Q. . . . Tell us what was said in that conversation "
A. Well , actually very little. I approached Richard and I merely said to him,
I says, "Richard , do you have-do you have anything to do with these goings on,"
I used the term, "goings on."
Q. And what did Richard say to you, if anything"
A He said , "Leave me alone," which I did That was all that was said at that
moment.
I conclude that Stephenson understated his remarks on this occasion
17 Stephenson testified that he merely told the two girls that he could do'nothing for
them, that they "would have to see Mr. Shapiro "
SULLIVAN SURPLUS SALES, INC. 143
tion made by Shapiro in his talk that morning, Goldschmidt wrote on the pad some-
thing to the effect that she had not known what she was signing when she signed
the union card and that she wanted to get out of it. She then signed the statement
and left it on the desk and departed.18
A few minutes later Marianne Walter was called into Shapiro's office. Shapiro
said that he was glad to see her and that Eva Goldschmidt had been in and signed a
statement. Pursuant to Walter's request, Shapiro gave her Goldschmidt's statement
and left the office. Walter wrote out a statement along the lines of that written by
Goldschmidt and then went out, leaving the statement on Shapiro's desk.
Shortly thereafter, according to Marianne Walter's undenied testimony, Helen
Adolph, the department head in charge of the cashiers, asked Walter if she had
"signed the card." When Walter answered, "Yes," Adolph said that "she knows
[Walter] did because she has a list of the people that signed it."
In the early afternoon on Saturday, February 8, Floor Manager McIntyre called
Gene Froelich over to him and the following occurred, according to Froelich's
credited testimony:
. [McIntyre] asked me first if I knew what I was doing when I got into the
union and I told him "I think I do" and he told me that most of the employees
that had signed for the union had gone down into the office and signed a piece
of paper to get them off. He wanted me to do this but he said he wasn't going
to force me . . . . He said he'd give me time to think it over 19
A short time later McIntyre was discussing with Department Head Daisy Brown
the possibility of the Union's organizing the store. Richard Reinshagen was nearby.
Among other things, Brown remarked, "I'd like to know when the next union meeting
would be." McIntyre, referring to Reinshagen, said, "Ask him." Reinshagen walked
away without saying anything. Later on that afternoon, while Gene Froelich was
discussing with Reinshagen the advisability of signing a statement in the office,
McIntyre came up and asked them if they had yet made up their minds about signing
a statement. However, McIntyre added that whatever they decided, it would not
affect their jobs. Reinshagen and Froelich did not reply.20
Reinshagen credibly testified that about 5 p.m. that day Assistant Floor Manager
Stephenson came over to him and said, "I know you joined the union and also those
two clowns upstairs " (Froelich and Kenneth Storer, who worked in the stockroom
upstairs, were two of the employees who had previously signed cards.) Reinshagen
became very upset and again pleaded with Stephenson, "Just leave me alone." 21
Reinshagen further testified that Stephenson came back to him later and said,
"You don't see me signing a card.... The union won't do the part-time help any
good" (Reinshagen, as found above, was a high school student who regularly worked
part time at the store). Then Stephenson said, "Do you want to come in the office
now9" Reinshagen replied that he "might as well." Stephenson accompanied
Reinshagen to Shapiro's office and stated to Shapiro, "Dick has something to tell you."
Reinshagen told Shapiro, "I'd like to sign the paper ... that everybody is signing to
get out of the Union." Shapiro replied, "Well, most of the ... ones who signed
didn't know what they were signing and they just wanted to get out." Shapiro gave
Reinshagen a tablet and left the office. Reinshagen wrote that he did not know what
he was signing when he signed the authorization card and that he wished to "dissolve"
his membership in the Union. Reinshagen left the statement on Shapiro' s desk and
walked out.22
18 This finding is based on Goldschmidt's credited testimony Shapiro testified that
Goldschniidt stopped by his office and asked to sign a statement withdrawing from the
Union and that when she asked what she should say, he merely said, "You say what-
ever you like in your own words."
10 McIntyre admitted having a conversation with Froelich on this occasion. Although
he had difficulty in remembering what he had said to Froelich, McIntyre's version does
not differ substantially from that of Froelich, which I have credited.
20 This finding is based on Froelich's testimony McIntyre admitted having a con-
versation with Froelich and Reinshagen and did not deny Froelich's testimony above set
forth
21 Stephenson admitted having such a conversation with Reinshagen However,
Stephenson's version omits reference to "those two clowns upstairs."
21 Stephenson denied telling Reinshagen that the Union would not do the part-time em-
ployees any good, and, according to Stephenson, it was Reinshagen who volunteered to
him that he wanted to sign a statement repudiating the Union, and that he (Stephenson)
merely said to Reinshagen that he could go to the office and make such a statement if he
wished to do so Shapiro testified that when Reinshagen came to his office that afternoon
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
e. The events of February 10; the Respondent receives the Union's request for
recognition and bargaining; the discharge of Helen Brady
Early in the morning on February 10, Helen Adolph, who was in charge of the
cashiers, asked Mitzi Kelly, one of the cashiers, if anyone had approached her about
the Union and if she had signed a card. Adolph added that if Kelly had signed a
card, "she would break (Kelly's) darn neck." Adolph also made a statement to
the effect that if the Union was successful in its drive, she was "going some place
else to look for work." 23
On the morning of February 10, Natilio Crespo, the supervisor in the Burger Bar,
questioned Barbara Ackerley concerning her union sympathies as follows.
He asked me if any of the union men had approached me about the union and I
said "yes." Then he said ... he asked me if I was interested. And I said
"yes," I thought it was a very good thing for the union to get in. And he went
on about what would happen if the union got in and he continued running it
down and I didn't say anything more to him.
As found hereinabove, it was on the morning of February 10 that the Respondent
received from the Union the telegram asserting its majority status and requesting a
meeting to begin contract negotiations. The Respondent, as above noted, by letter
dated February 12, declined to recognize the Union, stating that it doubted that the
Union represented a majority of its employees.
It was also on the morning of February 10 that Shapiro made the first move
towards getting rid of Helen Brady. Thus, during that morning Shapiro came into
the marking room, where Helen Brady did most of her work (the marking room is
the back room of the ladies' fashions department where the various items sold in
the department are received, price-marked, and stored prior to being placed on the
selling floor), and told her in a loud tone of voice that she "had to do her work"
and "to respect Madge" (Madeline Banta, the head of the ladies' fashions depart-
ment). When Brady protested that she did her work, Shapiro told her, "Well, stop
looking out the window." Shapiro started to read to Brady a paragraph out of a
pamphlet containing the contract between Macy's in New York and the Union at that
store (the particular paragraph dealt with the employer's right to hire and fire), but
before he could do so, Shapiro's brother, Sidney, came in, and the two Shapiros left
taking the pamphlet with them
During the afternoon of Monday, February 10, Floor Manager McIntyre notified
a group of employees, including Helen Brady, Adeline Oare, Josephine Pappochia,
Lena Brown, and Rose Meyers, that they were wanted in Shapiro's office. Anna
Cochran's credited and undenied testimony concerning this incident is as follows:
... Mr. Shapiro did most of the talking, and he said that he just wanted to
remind us not to be intimidated by any of these men that were coming in the
and told him that he wanted to sign a statement to get out of the Union and asked him
(Shapiro) what he should say, he (Shapiro) merely told him "to say whatever you want."
I find that this incident involving Remshagen, Stephenson, and Shapiro occurred as testi-
fied to by Reinshagen. As indicated above, McIntyre, Stephenson's superior at the store,
did not deny soliciting Reinshagen and Froelich to sign statements repudiating the Union
McIntyre was involved with Stephenson in making appointments for several employees to
see Shapiro about signing statements disavowing the Union. As indicated above, several
employees gave mutually corroborative testimony to the effect that Shapiro in his talk that
morning had stated that employees had cone to him and said that they had not known
what they were signing when they signed union cards and might want to sign statements
to this effect. Reinshagen appeared to be sincerely trying to tell the truth at the hearing.
Under all the circumstances, I find that Stephenson took the initiative about approaching
Reinshagen on this occasion and that Shapiro suggested language which Reinshagen could
use to get out of the Union.
m According to the uncontradicted testimony of Marianne Walter, Helen Adolph was
involved in another questioning incident after the February 12 union meeting Walter's
testimony is as follows:
She asked me if I had gone to the meeting and I told her yes She asked me how
many people were there ; I told her approximately twelve. She asked who they were
and I mentioned a couple of names . . . I think Ginny Puerschner, Gene Froelich,
Ann Cochran and I think that is about all I mentioned . She mentioned a
couple names and I couldn't-I just answered her . . . . She asked me who was
there I told her as many as I recalled. Then she started mentioning names and
I just answered yes or no whether they were there or not.
SULLIVAN SURPLUS SALES, INC. 145
store, and that he was happy that so many people had come in and signed state-
ments saying that they didn't know what they were signing when they signed
these cards, and that-I believe he said if any of the rest of us would like to do
so, that we-he would be happy to have us.
As Brady was leaving the store after work on Monday, McIntyre notified her that
Shapiro wanted to see her in his office. Brady testified that after she arrived the
following conversation ensued:
Well, he was standing behind his desk when I walked in and he picked up the
check and he says "Here's your check, you're fired, you're no longer with us,"
and I said "What's the reason?" He said "You don't do your work, you don't
listen to Madge and the last three or four days all you're doing is walking
around the store talking about the union" and I looked up and I said "Irving,
you know that's not true ." He says "You heard me, you're fired." He says
"We were nice to you and you turned against us." I says "If that's the way you
want it, it's all right with me" and I walked out.24
f. Incidents involving Marianne Walter and George
Stephenson, February 8 to 12
As Marianne Walter was leaving the store on Saturday, February 8, she passed
by George Stephenson and Alex McIntyre. Stephenson asked Walter as she passed
when the next union meeting was going to be held. She told Stephenson that it was
going to be held at 8 p.m. the following Monday at the Arlington Hotel in Livingston
Manor. Stephenson then requested Walter "to keep [her] ears open and to let him
know what happens." 25
Between 7:30 and 8 p.m. Monday, February 10, Stephenson encountered Walter
in Livingston Manor, New York, where both lived. Stephenson, as he admitted,
asked Walter if she was going to the meeting. She said that she had been to the
hotel and that there was no meeting being held there. Walter said that she was
going to drive up to the Antrim Lodge at Roscoe, New York, to see if the meeting
was being held there. The upshot of this conversation was that both Stephenson and
Walter drove to the Antrim Lodge in Roscoe, New York, in separate cars. Finding
no union meeting in progress there, they spent 10 or 15 minutes "shooting the breeze,"
after which Walter said she had to leave. Stephenson followed Walter's car back
to her home, and after a short conversation there Walter announced that she had to
go in, whereupon Stephenson left.
The next union meeting was held Wednesday night, February 12, at the Willow-
emoc Motel at Livingston Manor, New York. According to Walter's testimony, she
received a telephone call from Stephenson just before she left the house to attend
the meeting in which he asked her if she was going to the meeting. When she
24 According to Shapiro, he told Brady on this occasion "that she had not been doing
her work, that she had been undermining the position of Madge Banta . . . that she
[Brady] was part of management as an assistant department head, and that she had
to support the views of management, and that she could not participate in any union
activity whatsoever" Shapiro's testimony continues: "I said, in view of the fact that
she did not support the position of management, she was discharged." When asked
what Brady's response was, Shapiro answered that Brady said nothing, merely turned
around and walked out of the store Under all the circumstances of the case, and for
reasons more fully explained hereinafter, including the fact that Shapiro, according to
the undenied testimony, just 2 hours earlier had included Brady in a group of rank-and-
file employees to whom he appealed a second time to sign statements repudiating the
Union, I conclude that at this time Shapiro was not thinking in terms of Brady's being
a supervisor owing a duty of loyalty to management. Accordingly, I find, contrary to
Shapiro's testimony, that he made no reference at the time of Brady's discharge to her
being a part of management and therefore obligated to support management. Brady's
testimony regarding the circumstances of the discharge interview is credited.
The above finding and the findings which follow are based upon my resolution of the
conflicts in the testimony between Walter and Stephenson. In some instances I have
credited the testimony of Walter, and in others, the testimony of Stephenson, as I have
concluded that both were capable of stretching a point or two in their testimony to avoid
embarrassment. The version of events I have arrived at is the one which is I believe
the most consistent with the portions of the testimony in which both are in agreement
and is consistent with the logic of the situation as a whole.
789-730-66-vol. 152-11
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
answered, "Yes," Walter's testimony continues, Stephenson asked her to keep her
ears open and also whether he should meet her afterwards. According to Walter,
she declined to do so.26
g. The reduction in Myrtle Smith's hours commencing on February 13
Myrtle Smith had been hired as a full-time employee in the pharmacy during the
summer of 1963, and beginning in September had started working regularly part time.
During January and February, which are slack months in the pharmacy, Smith had
regularly worked Thursday and Friday evenings and all day Saturdays. Smith missed
only two Saturdays during this period, and one of these was at Smith's request and
with the Respondent's consent.
About 11:30 a.m., February 6, Pharmacist Weiss called Myrtle Smith at her home.
According to Smith's credited testimony, Weiss told Smith that "they were laying
[her] off because work was slow and that he'd call [her] when they needed [her]." 27
At 4:30 p.m. that day Smith went to the pharmacy to make a purchase. Observing
Mitzi Kelly, who normally worked as a cashier at the checkout counter, working in
the pharmacy, Smith asked Weiss "if things were slow, how come Mitzi was in
that Department." Weiss replied, "Well, she will only be in there for a few hours."
Smith told Weiss that she would like to see Mr. Shapiro.
About 4.45 p.m., Smith was informed that she could see Shapiro in his office.
Smith opened the discussion by stating that she understood that she was being laid
off and she asked whether she was being treated this way because of "union activity."
Shapiro replied, "If you want to use this as a basis for leaving or an excuse for leaving,
you are welcome to do so." However, Shapiro went on to say that Smith was not
being laid off, that he was very satisfied with her woik in the pharmacy, and that the
Respondent could use her services full time, if they were available. To this end
Shapiro requested Smith to furnish him a schedule of the maximum hours she could
work. Smith said that she would try to see if she could get someone to take care
of her children. Smith started to work at 5 o'clock that evening.28 Smith worked
the following Friday night, February 7, and all day Saturday, February 8.
However, despite Shapiro's statement that Smith was not laid off, Smith was not
notified to work at all the following pay period, that ending Thursday, February 20.
Smith credibly testified that sometime after February 8, Weiss told her that "things
were slow and they really wouldn't need [her] any more Saturdays." Then Weiss
added, "This has nothing to do with a union " Thereafter Smith worked only on
Thursday night in the pay period ending Thursday, February 27; and the week after
that Smith worked only Thursday and Friday nights. Sometime thereafter Smith quit.
h. Shapiro's assault on Business Agent Sterns 29
On February 17 Business Agent Sterns and International Organizer Eggleton
visited the store about 4 p.m. As they walked through the store they saw President
Shapiro and greeted him, and then they decided to go on and speak to George
Stephenson, who, in addition to being assistant floor manager, was the department
head in the sporting goods and hardware department. (During the union campaign
the union supporters and officials alike thought that department heads were eligible
for membership in the Union.) After asking Stephenson if he were not the assistant
manager of the store and receiving a negative answer, Sterns asked Stephenson what
he thought about the Union. Stephenson replied that the Union would not do him
any good. Stephenson agreed, however, to permit the two men to call on him at
his home that evening to discuss the matter further.
26 Stephenson testified in response to a leading question that Walter volunteered to him
the fact that a union meeting was being held at the Willowemoc Motel and asked him
whether he wanted her to attend. Walter's testimony on this point was plausible and in
some detail while Stephenson's testimony to the contrary was little more than a rephras-
ing of counsel's question I credit Walter's testimony in this regard
21 Shapiro testified that earlier he had discussed with Weiss the problem of slack busi-
ness in the pharmacy and that he had authorized Weiss to use his own judgment about
utilizing Myrtle Smith's services
The foregoing account of this incident is based upon the combined testimony of
Smith, Shapiro, and Weiss As stated above, Shapiro, in his testimony, confused the
discussion which he had with Smith on Thursday night with a second discussion he
had with Smith in the presence of Dorothy Gillette on the following night, Friday,
February 7.
20 My findings in this regard are based upon my reconciliation of the conflicting testi-
mony of Sterns and Shapiro In some respects I have credited the testimony of Sterns,
and in others , that of Shapiro.
SULLIVAN SURPLUS SALES, INC. 147
After this short conversation the two union men retraced their steps , and on their
way back Shapiro walked over to them and said, "Get out of my store." Sterns
declared that they had a perfect right to be there . Whereupon Shapiro stated that
it was against the law for them to be soliciting employees for the Union during work-
ing hours . Sterns replied in a somewhat raised tone of voice, "Don't go interpreting
the law for me. You have broken the law up to your neck." Sterns admitted that
he may also have told Shapiro at this time to "Take a powder ." Shapiro sought to
quiet Sterns and to get the two men out of the selling area . They finally consented
to go to the office.
As the three men reached the threshold of the office the two union men stopped.
Shapiro said in a loud tone of voice, "Sit down." When Sterns said , "No," Shapiro
stated in a louder tone of voice, "I said sit down ." Sterns, raising his voice, said,
"I will not sit down, you are not talking to one of your employees ." Shapiro at that
point turned and laid down some papers , and then stepped up, as he admitted "toe-
to-toe" with Sterns, saying , "So you are not going to get out of my store ," simul-
taneously grabbing Sterns by the lapels and pushing him backward . 30 From then
on there was a confused scuffle down the corridor with both men attempting to strike
blows against the other and being restrained by other supervisors and by Eggleton.
During the scuffle Shapiro managed physically to propel Sterns down the corridor
out the employees ' door within the view of at least two employees , Anna Cochran
and Lena Ray . 31 Sterns ended up falling backward outside the door over Sidney
Shapiro and Irving Shapiro ended up with a bloody chin . The State police were
called and a trooper investigated , but no charges were placed by any of the parties.
i. The interviews conducted by Attorney Conrad in June and July
Francis B . Conrad, the Respondent's attorney , conducted interviews with almost
all of the Respondent 's employees on June 25 and 26 and on July 1 and 2. The
employees were summoned individually to an office at the store where Conrad intro-
duced himself to each employee, stated that he was the attorney representing the
store in a case before the National Labor Relations Board, and that he was conduct-
ing an investigation in order to prepare for the trial of the case. Conrad informed
each employee that he was not interested in knowing whether he was for or against
the Union and asked each not to volunteer such information . However, Conrad said
that he would have to ask the employee whether he had signed a union authorization
card because this was one of the issues in the case . He explained that while this
might seem contradictory , in his experience , some employees signed cards who were
not in favor of a union , while others who favored a union did not sign. Conrad told
the employees that the store would take no action against any employee because of
anything they might tell him and that he was only interested in learning the truth
about the facts.
After this introduction Conrad commenced propounding a series of questions
from a list which he had before him dealing with the matters raised in the General
Counsel 's complaint . A few of the employees refused to answer questions. As to
the others , who did answer , Conrad jotted down their answers as the employees gave
them on the list from which he was questioning . Among the questions which Conrad
asked were questions about supervisors attending or spying upon union meetings and
questions about the supervisory status of Helen Brady and Anthony Smith Conrad,
as indicated above, asked the employees whether they had signed a union card. In
two cases Conrad asked the employees who had approached them to sign a union
authorization card. Conrad also asked several employees the further question, "Who
was on the Sullivan Surplus Organizing Committee ?" The General Counsel asserts
that Conrad 's questions about the identity of employees on the "Sullivan Surplus
Organizing Committee " and as to who had approached them to sign union cards
exceeded permissible bounds. My conclusions regarding this contention are set forth
hereinafter.
D. Conclusions concerning the Respondent's
violations of Section 8 (a)(1) of the Act
As found above , a number of the Respondent 's officials and supervisors , namely,
President Shapiro, Floor Manager McIntyre , Assistant Floor Manager Stephenson,
and Department Heads Banta and Adolph , questioned employees about their union
30 While Shapiro testified that Sterns pushed him backward first , I am convinced after
considering the testimony about this incident as a whole and after observing Shapiro on
the witness stand ( Shapiro exhibited a hot temper on the stand) that Shapiro was the
aggressor in this incident
31 Lena Ray was able to observe only a part of the scuffle.
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sympathies, why they wanted to join the Union, who had approached them to sign
cards, who were the union leaders, where the union meetings were being held, and
who attended union meetings. At the same time some of the Respondent's super-
visors made statements to employees seeking to impress upon them that the Respond-
ent was aware of their support of the Union, knew who the leaders of the union
movement were, and that it was keeping a close watch on the progress of the union
movement. The asking of such questions of employees and the making of such
statement which are calculated to dissuade the employees from adhering to the
Union, in the context of events in this case, including, as found below, threats of
reprisals and acts of discrimination, constitute well-recognized forms of interference,
restraint, and coercion in violation of Section 8(a) (1) of the Act.
Floor Manager McIntyre, as found above, in effect threatened Anthony Smith with
a drastic curtailment in hours and pay in the event the Union succeeded in organizing
the plant. Thus he told Smith, who was then working 52 to 54 hours a week, with
time-and-a-half overtime for all over 44 hours, that full-time employees would be
limited to 40 hours a week "if the Union came in." Department Head Crespo
bluntly warned Marie Boyle, one of his employees, that "anybody who joins the Union
gets fired." President Shapiro uttered a veiled threat of discharge when he told
Ackerley "that if the Union did get in a lot of employees would go because ... he was
just keeping them on as more or less a favor." Such threats of reprisals against
employees because of their union activities are unquestionably violative of Section
8(a)(1) of the Act.
As I have found, President Shapiro called the employees to a meeting early Satur-
day morning, February 8, at which, after alluding to the union activities then going
on at the store and mentioning the possibility of having a pension plan for the
employees sometime in the future, he pointed out that the employees might not have
known what they were doing when they signed cards, and that if this were the case
they could well remedy the situation by coming to his office and signing a statement.
Later that day both Floor Manager McIntyre and his assistant, Stephenson, sought
to induce employees to go to the office to sign such statements.
The necessary effect of Shapiro's entire conduct at this meeting including his sug-
gestion concerning the possibility of inaugurating a pension plan was to induce
employees to reject the Union as their bargaining representative, and was therefore
violative of the employees' rights to be free of such employer interference. Likewise
violative of the employees' statutory rights were the efforts of Floor Manager
McIntyre and Assistant Floor Manager Stephenson to induce employees to go to
Shapiro's office and sign statements repudiating the Union. S. H. Kress & Co., 137
NLRB 1244, 1246-1249; Austin Powder Company, 141 NLRB 183. The coercive
impact of the Respondent's conduct was not neutralized by the statements of McIntyre
and Shapiro that the employees' jobs were not in jeopardy regardless of whether
they signed the disavowal statements. S. H. Kress & Co., supra, at 1249.
The credited testimony above set forth establishes that Assistant Floor Manager
Stephenson on two occasions, after inquiring of Marianne Walter as to when a union
meeting was going to be held and as to whether she was going to attend, asked her
.,to keep her ears open and to let him know what happens." Such a request to an
employee to report back to the employer on matters observed at a union meeting
constitutes attempted surveillance of a union meeting and is a further infringement
of the rights guaranteed in Section 7 of the Act. See Ken Lee, Inc., 133 NLRB 1598,
1600-1601, 1605; Minnesota Manufacturing Company, Inc., 132 NLRB 1398,
1404, 1412.
However, insofar as the complaint alleges that Stephenson engaged in actual surveil-
lance of union meetings at the Arlington Hotel in Livingston Manor, New York,
and at the Antrim Lodge at Roscoe, New York, I conclude that the evidence is
insufficient to show that when Stephenson followed Walter to Roscoe, his purpose
was to spy on a union meeting. I reach a similar conclusion regarding Pharmacist
Weiss' alleged surveillance of union activities outside the Duchess Lounge on Febru-
ary 6, 1964. Weiss frequently stopped at the Duchess Lounge after work, sometimes
accompanied by Myrtle Smith, one of those whom Weiss is accused of spying on.
I find the record insufficient to establish that Weiss was engaged in surreptitious activ-
ity on this occasion.
President Shapiro's assault on Business Agent Sterns on February 17, 1964, which
was seen by at least two employees, constituted a further violation of Section 8 (a) (1)
of the Act Regardless of whether Shapiro rightly or wrongly believed that the
presence of the two organizers was unlawful, Shapiro was not justified in taking the
law in his own hands and forcibly ejecting Sterns from the store. The normal effect
of Shapiro's conduct, which so forceably demonstrated to the employees witnessing
the attack the intensity of Shapiro's opposition to the Union, is to restrain them in
SULLIVAN SURPLUS SALES, INC . 149
the exercise of the rights guaranteed in the Act. Accordingly, Shapiro's conduct in
this regard violated Section 8(a) (1) of the Act. N.L.R.B. v. H. R. McBride, d/b/a
W. R. McBride Construction Co., 274 F. 2d 124, 126-127 (C.A. 10); N.L.R.B. v.
Gibbs Corporation, et al., 297 F. 2d 649, 650-651 (C.A. 5).
I cannot agree with the General Counsel's contention that Attorney Conrad's
questioning of employees in the course of his preparation of this case for trial
exceeded permissible bounds. The two questions to which the General Counsel
excepts-the questions concerning the employees on the "Sullivan Surplus Organizing
Committee" and as to who approached them to sign a union card-were relevant to
Conrad's theory of defense that supervisors had been active in promoting the union
movement. While these questions were not as narrowly drawn as they might have
been, I find from the course of the questioning as a whole and the nature of the
assurances given the employees at the outset of the interviews that Conrad had no
intention of attempting generally to ascertain, on behalf of the Respondent, the
identity of union supporters. Conrad was merely seeking to find out the extent to
which supervisors were active on behalf of the Union. While such questions, if asked
directly of an employee by a supervisor, might well be regarded as violative of Section
8(a)(1), it does not necessarily follow that the asking of such questions by an
attorney who is in good faith attempting to prepare his case for trial must be
similarly condemned. See Montgomery Ward & Co., 146 NLRB 76; Nachman Cor-
poration, 146 NLRB 23; Atlantic & Pacific Tea Company, 138 NLRB 325, 334;
N.L.R B. v. Katz Drug Co., 207 F. 2d 168, 171 (C.A. 8). Accordingly, the allega-
tion of the complaint based on Attorney Conrad's questioning of employees is
dismissed.
E. Conclusions concerning the Respondent's violations of
Section 8(a) (3) of the Act
1. Helen (Sally) Brady
The credited testimony establishes that on Monday, February 10, 1964, President
Shapiro, when he discharged Brady, told her that she did not do her work properly,
that she did not listen to her department head, and that all she had been doing "the
last three or four days" was "walking around the store talking about the union."
This testimony, considered against the background of events leading up to Brady's
discharge, including the Respondent's extensive efforts to induce employees to repudi-
ate the Union, convinces me that Brady was discharged for antiunion reasons, and
that her discharge violated Section 8(a)(3) of the Act, unless, as contended by the
Respondent, Brady was a supervisor within the meaning of Section 2(11) of the Act,
and therefore outside the protection afforded employees under the Act. (Section
2(3) of the Act states that "the term `employee' . . . shall not include ... any individ-
ual employed as a supervisor....") The Respondent does not contend to the con-
trary in its brief. Accordingly, the fundamental question to be determined in connec-
tion with this aspect of the case is whether Brady was a supervisor within the mean-
ing of the Act.
Section 2 (11) of the Act provides as follows:
The term "supervisor" means any individual having authority, in the interest
of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or responsibly to direct them, or
to adjust their grievances, or effectively to recommend such action, if in connec-
tion with the foregoing the exercise of such authority is not of a merely routine
or clerical nature, but requires the use of independent judgment.
The facts set forth below relating to Brady's status must be considered in the light
of the criteria set forth in the above-quoted section. It is undisputed that Brady did
not have the authority to hire, transfer, suspend, lay off, recall, promote, or discharge
employees, and the question in her case is whether, in the sense used in Section 2(11),
Brady possessed the authority to assign, reward, or discipline other employees or
responsibly to direct them, or effectively to recommend the discharge of employees.
As Madge Banta, the department head in the ladies' fashions department, testified,
Brady was her "assistant" in the department. Six to twelve employees worked in
the department. Banta, who had worked 2i/2 years in the department, was paid
$77.50 per week, which was more than some of the department heads, whose super-
visory status is admitted, received. This sum is considerably more than other employ-
ees in the department were paid. As Banta further testified, Brady's main work was
to receive merchandise for the department, to check it against the invoices and the
Respondent's orders, and to prepare the merchandise for price-marking. Brady did
not, however, send so-called "speed letters" to the manufacturers checking up upon
any discrepancies which she found between the merchandise received and either the
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
invoices or the orders. This was Banta's responsibility. Brady testified that she
spent 90 to 95 percent of her time in the marking room. Banta testified that Brady
ordinarily spent about an hour a day performing supervisory functions, and that
when Banta was away Brady "possibly, spent two or three hours a day on actual
supervision."
Department Head Banta was the buyer for the department. She frequently went
to New York City on buying trips, often accompanied by Sidney Shapiro.32 Banta
was usually away Thursdays and Fridays for this purpose. During Banta's absence,
so Banta testified, she told Brady that Brady was "to take over" Banta's duties.
However, it appears that when Banta went away she left detailed written instruc-
tions for Brady if she was aware that anything nonroutine was coming up. This was
usually the case, as Banta testified.
When Banta was not at the store, Brady would spend very brief periods making
the rounds of the department as a whole and would seek additional sales help from
Floor Manager McIntyre, if needed. On such occasions Brady would correct employ-
ees who were not keeping their boxes properly lined up; would compliment girls
who kept their stock neat and clean; would obtain from the office information regard-
ing prices and relay it to the employees in the marking room; and would answer
questions from the employees regarding the stock. However, Brady's credited testi-
mony indicates that she had little discretion with respect to the placing of stock on
the selling floor, for her suggestions in this regard to the employees were regularly
countermanded by Banta on her return to the store.
Pursuant to previous instructions from Banta, Brady occasionally transferred
employees from one location in the department to another and placed new employees
on the job. Also Brady instructed new employees in their duties. Once instructed
in their duties, very little supervision was required, as Department Head Banta
admitted when she testified that the "employees in the department who had been
there for any length of time knew their duties after they were once assigned and
accustomed to them without having them assigned each day."
Brady was consulted by employees when they wanted to take their breaks or to
change their lunch hours, as was Virginia Behrens, a rank-and-file employee in the
department. In two emergency situations, Brady was consulted by employees about
time off. In one of the cases Brady said that she would report the situation to
McIntyre. Brady on occasion also authorized "markdowns" on soiled or damaged
goods and authorized, or refused to authorize, merchandise returns. Virginia
Behrens, a rank-and-file employee in the ladies' fashions department, also had this
latter authority.
In several instances Brady discussed either with Banta, McIntyre, or with Shapiro
an employee's poor performance on the job. Subsequently, after independent investi-
gations were made by higher-ups at the plant, these individuals were discharged.
Brady denied making any recommendation of discharge in any of these cases, and
there is no affirmative testimony that Brady ever did make such a recommendation.
The Respondent merely relies on the sequence of events-Brady's discussion with
Banta, McIntyre, or Shapiro and the subsequent discharge-as indicating that Brady
exercised the authority effectively to recommend discharge. In one instance involv-
ing an employee whom Banta regarded as a poor employee and whom Brady looked
upon favorably, the employee was discharged despite Brady's good words in her
behalf. I find the evidence in this case insufficient to show that the Respondent
conferred on Brady authority effectively to recommend discharges. See Plastics
Industrial Products, Inc., 139 NLRB 1066, 1067-1068.
Aside from the facts concerning the nature of Brady's duties at the store, there is
another factor to be considered in determining Brady's supervisory status-her attend-
ance at two meetings of department heads The meeting in January 1964, which was
the first meeting of department beads which Brady was invited to attend, was for the
purpose of discussing the taking of inventory. Brady was invited to attend by Banta
on the spur of the moment. When Brady demurred, saying she was not a department
head, Banta declared, "It doesn't matter, you're here when I'm not." Floor Manager
McIntyre sent Brady a message to attend the second meeting of department heads,
which she attended on February 7. Shapiro made a talk along the lines made by him
the next morning to the employees as a whole. Among other things, Shapiro men-
tioned the threat of one of the union organizers to McIntyre, and he stated that
employees who were part of management owed a duty of loyalty to management.
At this meeting on February 7 Shapiro commented to Brady how "very pleased" he
was with Brady's work.
33 Brady had no buying responsibilities However , on three occasions on which sales-
men were displaying various items Irving Shapiro consulted Brady in Banta ' s absence
about her views as to whether these items would sell.
SULLIVAN SURPLUS SALES, INC. 151
From the foregoing it can be seen that for 90 percent of Brady's time when Depart-
ment Head Banta was present at the store, Brady was engaged in normal nonsuper-
visory functions, such as receiving merchandise, unpacking it, checking it, and han-
dling the pricing of it. In Banta's absence Brady spent more time in overseeing the
work of the department, but in directing the work of others, transferring employees,
authorizing breaks, setting lunch periods, and granting time off, Brady was acting
pursuant to specific instructions of Banta or following a well-established pattern laid
down by Banta. The record establishes that in Banta's absence Brady had no author-
ity to exercise her independent judgment regarding the matters placed before her for
decision. As Brady credibly testified, with respect to any nonroutine matter coming
up in Banta's absence, she would either have to consult Floor Manager McIntyre or
let the decision await Banta's return. Such exercise of limited authority to direct
employees in routine situations does not satisfy the criteria of Section 2(11) of the
Act for exercising independent judgment in responsibly directing employees. See
Precision Fabricators v. N.L.R B., 204 F. 2d 567, 568-569 (C. A. 2); Matthews
Drivurself Service, Inc, 133 NLRB 1513, 1516-1517; Bugle Coat, Apron & Linen
Service, Inc., et al, 132 NLRB 1098, 1100; Proctor-Silex Coip., 131 NLRB 57, 58;
Schott Metal Products Company, 129 NLRB 1233, 1234-1235. As in the last cited
case, Brady's responsibilities in the department appear to reflect more "the relation-
ship of the more experienced to the less experienced employee," than that of a super-
visor having authority responsibly to direct the work of subordinates.
There is no testimony that any responsible official of the Respondent ever informed
Brady that she was the assistant department head in the ladies' fashions department.
See Phillips Petroleum Company, 129 NLRB 813, 815. Apart from the facts con-
cerning the nature of Brady's duties and responsibilities, the evidence is conflicting
as to whether the Respondent regarded Brady as a supervisor and a part of manage-
ment prior to the commencement of the events involved in this case. Thus, the evi-
dence concerning McIntyre's summoning Brady to the department heads meeting on
February 7 suggests that McIntyre at least by that time regarded Brady more as a
supervisor than a rank-and-filer. On the other hand, the undisputed evidence as to
Shapiro's summoning of a group of employees, including Brady, to the office on
February 10 and reminding them not to be intimidated by the union organizers and
entreating them to sign statements disavowing the Union is completely inconsistent
with the notion that Shapiro regarded Brady as a supervisor whom he could order to
have nothing to do with the Union.
I have found that the evidence fails to support the Respondent's contention that
Brady exercised the authority effectively to recommend discharges and that in direct-
ing employees and in performing her other supervisory functions Brady was acting
in a routine manner and was not exercising independent judgment. Upon all of the
facts of the case I conclude that Brady was not a supervisor within the meaning of
Section 2(11) of the Act. Accordingly, Brady's discharge was violative of Section
8(a)(3) of the Act.
2. Myrtle Smith
As found above, Smith was hired to work in the pharmacy in June 1963 and
worked full time during the summer. She became experienced in selling the numer-
ous items sold in the pharmacy and was an able and valued employee, as the testimony
of both President Shapiro and Pharmacist Weiss indicates. In September 1963, Smith
notified the Respondent that she could only work part time, mainly Thursday and
Friday nights and Saturdays. Although the Respondent sought to have Smith work
full time, she was unable to arrange it and continued to work part time from Septem-
ber 1963 into February 1964
During January and early February, the slack months in the pharmacy, the staff
consisted of Pharmacist Weiss, Lena Brown, a full-time employee, and Smith, a regu-
lar part-time employee. Lena Brown became ill and was out almost the full week
ending Saturday, February 8. This left Pharmacist Weiss alone in the pharmacy
during the day. Consequently he requested Shapiro to give him full-time help in
the pharmacy during the day. Shapiro transferred Mitzi Kelly, a full-time employee,
to the pharmacy. It was on February 6, while Kelly was assigned to the pharmacy,
that Weiss notified Smith of her layoff, the layoff which was countermanded that
evening by Shapiro. Smith worked Thursday evening, February 6, the following
Friday evening, and all day Saturday, February 8.
Lena Brown recovered from her illness and returned to work on Monday, Febru-
ary 10. This left the Respondent with two full-time employees in the pharmacy during
its slack season. For the previous 6 weeks, as indicated above, one full-time employee
during the day, with Myrtle Smith helping out Thursday and Friday evenings and
Saturdays, had been a sufficient staff in the pharmacy.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As stated above, Smith worked February 6, 7, and 8. However, thereafter Smith
was called to work only 3 half-days in the next 3 weeks. As found above, previously
Smith had worked regularly part time 3 days a week. It is this reduction in working
hours, allegedly put into effect because of Smith's union activities, which the com-
plaint alleges to be a further violation of Section 8(a) (3) of the Act.
In its brief the Respondent contends that Smith was not put to work because there
was not enough work for her to do. However, other than Smith's testimony regard-
ing Weiss' conversation with her about not needing her further on Saturdays, I have
been unable to find support for this contention in the record.33 Weiss' statement to
Smith, of course, merely reflected the situation after Kelly had been substituted for
Smith in the pharmacy. With Kelly continuing to work full time in the pharmacy,
along with Lena Brown it would appear that more hours were put in in the pharmacy
during the period of Smith's reduced work schedule than before Kelly replaced Smith.
This would tend to indicate a need for more help in the pharmacy during the period
in question, rather than less. The Respondent failed to offer records showing the
number of hours worked by employees in the pharmacy commencing on February 10.
This would have been the best evidence of the availability of work in the pharmacy
in the period after February 10.
Pharmacist Weiss' testimony about Smith's reduced hours is hopelessly confused.
At first Weiss testified that Smith did not work reduced hours during the period in
question. Then, after prodding by the Respondent's counsel, Weiss testified that he
could not recall. Still later, after being shown the exhibit prepared by the Respond-
ent which shows the reduction in Smith's hours, Weiss testified as follows: "When
the question is asked of me, `Did Myrtle Smith work a reduced number of hours,' it
seems to imply that I reduced her hours, but I didn't. If she worked less hours, it was
because she didn't come in at the time she was supposed to, or she couldn't give the
hours she was required to." Smith's testimony clearly indicates that she did not work
because she was told by Weiss that she was not needed. There is no evidence that
Smith refused a request to work during the period in question.
The record suggests that the true explanation for Smith's reduction in hours lies
elsewhere. As found above, Smith was the first employee to become interested in
the Union. She signed up seven employees the weekend of January 23 to 25, 1964,
including Anthony Smith, Anna Cochran, and Barbara Ackerley, who thereafter be-
came active in the Union's behalf. On Thursday evening, February 6, Smith had been
observed by Pharmacist Weiss in the company of Anna Cochran and a strange man
whom Weiss, as his testimony indicates, took to be a union organizer. The next
evening, Friday, February 7, President Shapiro called Smith into his office where
he openly indicated his opposition to the Union and, among other things, angrily
reproached her for being a "union organizer." Smith, in reply, was outspoken in
her support of the Union Thereafter, the Respondent utilized Smith's services for
just 1 more day, and then almost ceased using her services altogether, although
Smith's replacement in the pharmacy, Mitzi Kelly, was inexperienced, and as Pharma-
cist Weiss' testimony indicates, Smith was a more competent employee.
In view of the foregoing facts and upon the entire record I find that the Respondent
substituted Kelly for Smith in the pharmacy and drastically curtailed Smith's working
hours commencing on February 13, 1964, in an attempt to induce her to quit, as she
ultimately did, and thereby eliminate from the store an outspoken union supporter.34
The Respondent thereby violated Section 8(a) (3) of the Act.
F. Conclusions concerning the Respondent's violation of Section 8(a)(5)
of the Act
1. The appropriate unit
The complaint alleges that "all selling and nonselling employees employed by
Respondent at the store, exclusive of all guards and supervisors as defined in the
Act," constitute a unit appropriate for the purposes of collective bargaining with the
Respondent. The Respondent does not contest the appropriateness of the unit alleged
as While Shapiro testified that Smith ' s hours were cut back in January 1964 because
of "lack of business in the pharmacy " this does not explain the further reduction in her
hours in February in view of the fact that the volume of nonprescription sales in the
pharmacy was up a little in February over January.
$* While Kelly had signed a union authorization card, there is no evidence that Kelly's
support of the Union had come to the Respondent's attention at the time she was trans-
ferred to the pharmacy.
SULLIVAN SURPLUS SALES, INC. 153
in the complaint . The unit is a customary one for retail establishments , and I find
that the unit alleged in the complaint is a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9 (b) of the Act.
2. The Union's majority status in the appropriate unit
There is no dispute between the parties that the following persons had employee
status and were in the appropriate unit on February 10, 1964, the day upon which
the Respondent received the Union 's telegram requesting recognition and the open-
ing of bargaining negotiations:
1. Barbara Ackerley 14. Marie Galbraith 28. Helen Roosa
2. Virginia Behrens 15. Eva Goldschmidt 29. Juan Rosado
3. Wilma Bonnell 16. Arthur Haake 30. Catherine Schmidt
4. Marie Boyle 17. Katherine Harden 31. Myrtle Smith
5. Lena Brown 18. Mitzi Kelly 32. Charles Snyder
6. Helen Burr 19. Carol Krug 33. Kenneth Storer
7. Anna Cochran (on maternity leave ) 34. Virginia Temple
8. Nancy Cook 20. Dorothy Kuttner 35. Corliss Van Deuser
9. Elizabeth Crespo 21. Betty Martin ( on vacation)
10. Mary Daly 22. Rose Meyers 36 . Sarah Van Dunk
(on maternity leave) 23. Adeline Oare 37. Marianne Walter
11. Elizabeth DuVall 24. Josephine Papocchia 38. Jane Williams
12. Gene Froelich 25. Paul Ratzel ( on sick leave)
13. Glennie Fuller 26. Lena Ray 39. Carol Young
27. Richard Reinshagen
However, there is a serious controversy between the parties regarding the inclusion
in, or the exclusion from, the unit of numerous other individuals . The Respondent
also advances various other reasons why the Union should not be held to represent
a majority of the Respondent 's employees on February 10, 1964. These questions
and contentions must be disposed of before the Union 's majority status in the appro-
priate unit can be determined.
a. The status of Anthony Smith
The Respondent contends that Anthony Smith is a supervisor and should therefore
be excluded from the appropriate unit. The General Counsel and the Charging Party
urge that Smith should be included in the unit.
Anthony Smith was hired in the Respondent 's stockroom in the fall of 1963. After
Clifford Tuey left the stockroom in October , Shapiro came to Smith and asked him
if he wanted to be in charge of the stockroom . Smith readily accepted Shapiro's offer.
At this time Smith and two others were the only employees in the stockroom. Upon
being placed in charge of the stockroom Smith's rate of pay was raised to $1.35 per
hour, with time and a half for over 44 hours. Smith worked a 52-hour week. Many
of the Respondent 's nonsupervisory sales persons are paid more than $ 1.35 per hour.
After Christmas Smith 's pay was raised to $1.40 per hour with time and a half for
all over 44 hours. This is the wage Smith was receiving at the time of the events
involved in this case.
While Smith had two helpers in the stockroom he spent 75 to 80 percent of his
time performing physical labor . This involved loading and unloading trucks, placing
the merchandise in the bins in the stockroom , delivering merchandise to the various
departments , and transferring merchandise to the warehouse . Among Smith 's duties
were removing the garbage and the trash from the Burger Bar and the restrooms,
taking it to the dump in a truck , and keeping the truck clean.
In the fall of 1963, Shapiro 's uncle, Michael Replansky , returned to work in the
stockroom , and in January and February Replansky was the only other employee in
the stockroom . Saturdays during the Christmas rush Smith was given two extra
helpers in the stockroom . Before Replansky started to work in 1963 , Floor Manager
McIntyre informed Smith of Replansky 's hiring, advising him that Replansky was to
handle the mail and was not to do any sweeping or cleaning . Replansky , being an
elderly man , was not to do any heavy lifting either . Smith was instructed not to
give Replansky any orders . However, Replansky voluntarily gave Smith consider-
able help doing his stockroom chores. Replansky was paid $70 for a 40-hour week
at the time of the events involved in this case.
During the brief periods when Smith had additional help in the stockroom besides
Replansky , Smith instructed new employees in the performance of their work, and
thereafter directed them in their day -to-day tasks. Smith would correct employees
if he found them doing their work improperly . Smith was consulted by Shapiro on
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one occasion regarding his helper's work performance. Smith grants permission to
employees to take breaks and arranges their luncheon schedule, subject to the
approval of McIntyre. On one occasion Smith switched lunch periods with an
employee without consulting McIntyre.
Smith communicates with McIntyre when he needs additional help in the stock-
room. It was always supplied when he requested it. However, during the period
here pertinent Smith had nothing to do with the hiring of employees for the depart-
ment and was not consulted when they were hired. Nor did Smith have authority
to fire employees or to make recommendations regarding the firing of employees.
Smith is the employee within the stockroom with whom the department heads
communicated when they had business with the stockroom; however, he has no
authority to accept a damaged shipment. Smith always had to consult the depart-
ment head or a higher official in the store about such matters. Smith credibly testi-
fied that whenever a nonroutine question came up in connection with the operation
of the stockroom, which happened frequently, he consulted McIntyre for the answer.
At all times pertinent herein Smith had no authority to order maintenance supplies
needed in connection with his duties. Shortly before the hearing in this case in July
1964, Smith was given such authority. On March 18, about a month after the charge
was filed in this case, Shapiro informed Smith that he had the authority to recom-
mend hiring and firing of employees. On this day Shapiro had Smith talk to two
employees whom Shapiro had interviewed and asked Smith to give Shapiro his rec-
ommendations about hiring them
During the investigation of this case, Shapiro furnished Stanton, the attorney for
the General Counsel, with a list of the Respondent's full-time employees as of Febru-
ary 10, 1964. The employees were listed by departments in two columns, one cap-
tioned "Head" and the other captioned "Employees." In this list, as it was originally
given to Stanton, Anthony Smith's name appeared in the "Employees" column. On
Friday afternoon, March 13, after a luncheon conference with Conrad, the Respond-
ent's attorney, Shapiro informed Stanton that Smith's name should be changed to
the "Head" column. Further evidence that Shapiro did not regard Smith as a super-
visor and a part of management at the time of the events involved in this case, is
found in the conversations which Shapiro and McIntyre had with Smith on February 5
and 6, in which they instructed him not to engage in union solicitation during busi-
ness hours and warned him of the adverse consequences of the store's becoming
organized Obviously Shapiro and McIntyre were speaking to Smith at this time as
a rank-and-file employee.
Upon all of the facts I conclude that Anthony Smith on February 10, 1964, did not
possess any of the attributes of a supervisor, as that term is defined in Section 2(11)
of the Act. While Smith did direct other employees in the performance of their
work, I find that he did so only in routine situations not calling for the exercise of
"independent judgment" within the meaning of Section 2(11) of the Act. Accord-
ingly, Anthony Smith should be included in the appropriate unit.
b. Supervisory or managerial status of Roy Lambert
The Respondent contends that Roy Lambert is a rank-and-file employee who should
be included in the appropriate unit. The General Counsel, while originally contend-
ing that Lambert was a supervisor within the meaning of Section 2(11) of the Act,
asserted first in his brief that Lambert was a "managerial" employee who should be
excluded from the unit, but cited no authority for this assertion. Then in his tally
of employees in the appropriate unit the General Counsel includes Roy Lambert.
From this I conclude that the General Counsel no longer contends that Lambert
should be excluded from the appropriate unit. The facts of the case support this
view and I find, as the Respondent contends, that Roy Lambert should be included
in the appropriate unit.
c. Madeline Brundage and Carol Lambert
During the hearing I ruled that Madeline Brundage, who was replaced as office
manager at the opening of business on February 10 and continued as an office
employee, should be included in the unit, and that Carol Lambert should be excluded
because she quit her job before February 10. The parties have not taken issue with
these rulings and I adhere thereto.
d. Employees having a special family relationship to the Shapiros
Michael Replansky is the uncle of the Shapiros and Anna Shapiro is the mother
of the Shapiros. As found above, Irving and Sidney Shapiro are the controlling
SULLIVAN SURPLUS SALES, INC. 155
owners of the Respondent. The General Counsel and the Charging Party take the
position that both Replansky and Mrs. Shapiro receive special treatment from the
Respondent because of these close family ties, and that both should therefore be
excluded from the unit. The Respondent opposes.
The statutory exclusion from the definition of "employee" of "any individual
employed by his parent or spouse" (Section 2(3) ), of course, does not apply to either
Replansky or Mrs. Shapiro. Under the controlling Board decisions, however, the
matter to be determined in situations where there is a family relationship between
the employer and the employee is whether the employee in question "because of such
relationship ... enjoys a special status which allies his interests with those of manage-
ment" Adam D. Goettl et al., d/b/a International Metal Products Company, 107
NLRB 65, 67; Garden Super Market, Inc., 148 NLRB 583.
Michael Replansky usually works for the Respondent commencing shortly after
Labor Day each year and continues until late spring when he returns to the bungalow
colony which he operates during the summer. Since the Respondent is located in
the Catskills, a great resort area, the summer is the Respondent's busiest season.
Replansky works in the stockroom at an hourly rate of pay higher than that of
Anthony Smith, who is in charge of the stockroom. Replansky was not subject to
Smith's directions and was not to do menial work such as sweeping and cleaning of
the selling floor. Nor was Replansky to do any heavy lifting.
Anna Shapiro works a flexible schedule of hours in the gift shop and receives $23
per week regardless of the hours which she works. Mrs. Shapiro sets her own sched-
ule of hours.
Upon the facts above set forth I conclude that both Replansky and Mrs. Shapiro,
because of their relationship to the Shapiros, receive such special treatment that
their interests are wholly allied with management rather than with the employees
as a whole. In view of this special status I conclude that Replansky and Mrs. Shapiro
should be excluded from the appropriate unit.
e. "Employees on leave of absence"
The Respondent urges that Margaret Meehan, Laurie Wexler, and Nancy Lott
were on a leave of absence and should be included in the unit. The General Counsel
and the Charging Party oppose. Shapiro testified that an employee obtains a leave
of absence by speaking to the floor manager or himself and explaining "what the
circumstances are of their leave of absence that they desire." Shapiro's approval is
not necessary before a leave of absence is granted. The Company keeps no records
indicating that an employee is on a leave of absence.
Margaret Meehan. The contention that Meehan was on a leave of absence on
February 10, 1964, is based upon Shapiro's testimony that when Meehan left on
December 19, 1963, she said that she was returning to Scotland to visit her mother
for 2 or 3 months and would like to come back. According to Shapiro, he told her,
"We await your return."
Carol Lambert, who was hired about the middle of December, was the first replace-
ment for Meehan. After Lambert left in the last half of January, the Respondent
hired Rose Meyers to work in the gift shop in the place of Meehan.
Meehan had not returned to the store by the time the hearing closed in August
1964 In view of this fact and the circumstances discussed below, I do not credit
Shapiro's testimony that Meehan told him that she would be gone for 2 or 3 months.
General Counsel's Exhibit No. 9 is a list of the Respondent's employees which was
furnished to counsel for the General Counsel during his investigation of the case. As
originally furnished counsel for the General Counsel, this list did not include Meehan.
Later on March 18, 1964, Shapiro added to the list of full-time employees in the gift
shop the names of Margaret Meehan and Carol Lambert, and initialed the following
notations after their names: "(L/O/A)." Carol Lambert was called to the stand
and her testimony establishes, in my opinion, that Lambert did not go on a leave of
absence but quit her job because of illness. Shapiro later admitted at the hearing
that the information about Carol Lambert on General Counsel's Exhibit No. 9
apparently was not correct. Under all the circumstances I conclude that Meehan
did not inform Shapiro that she would return in 2 or 3 months. Rather I find that
she left the date of her return open and that Shapiro invited her to come back
when she desired to.
Laura Wexler. Wexler was a student who had worked full time in the summer of
1963 and worked regularly part time during the fall and winter of that year. Shapiro
testified that Wexler's mother, who formerly was the Respondent's office manager,
had lost her eyesight in October 1963, and that when she returned to her home in
November with her eyesight recovered to a great degree it became necessary for
Laura to take care of her mother. According to Shapiro, when Laura reported this
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fact to him, he told her to come back as soon as she could. Wexler was not called
as a witness. Between the middle of November and the week ending April 2, 1964,
Wexler worked a total of 11 hours. Commencing about April 2, 1964, Wexler
worked part time at the store for about 2 months. Wexler does not appear to have
worked for the Respondent thereafter.
Nancy Lott. Lott was a high school student who worked part time for about 2
months prior to the summer of 1963, worked regularly full time during the summer
of 1963, and thereafter worked very irregularly part time until December 12, 1963.
During 8 of these weeks Lott did not work at all and in 4 other weeks during this
period Lott worked only half a day. McIntyre testified that he "was continually
calling Nancy Lott to come in but she was involved in so many school activities
[that he] couldn't get ahold of her too much."
With respect to the alleged leave of absence, McIntyre testified that Lott informed
him in December that "she couldn't promise to come to work any more because of
school activities, and, as soon it was all over, then she was coming back." Accord-
ing to McIntyre, he told her that when she was ready to come back to work to let
him know. Lott came back to the store about the middle of March 1964 and
McIntyre asked her if she could work Thursday and Friday nights and Saturdays.
She came back for 3 weeks, but never worked the hours requested of her, as McIntyre
admitted. Lott was not called as a witness.
With respect to Meehan, Wexler, and Lott, I find that the testimony fails to estab-
lish that they were actually granted a leave of absence of the kind that would war-
rant my finding that they should be included in the appropriate unit as of February 10,
1964. The credited testimony shows that all three employees, upon leaving the
Respondent's employ, contemplated being away an indefinite length of time. In the
cases of Meehan and Lott, the date of their return was left up to the whim of the
employee. In Wexler's case, while circumstances beyond her control required her
to leave the store, her mother might have required her services indefinitely. While
Wexler returned in April after an absence of over 4 months and started working part
time, after but 2 months she left the payroll. Meehan, as found above, never
returned to the store, and Lott returned for 3 weeks only beginning the middle of
March.
Under all the circumstances I conclude that Meehan, Wexler, and Lott were not
on a leave of absence in the ordinary sense of the word. Rather the Respondent
entered into a loose arrangement with these three individuals to take them back at
some unspecified time in the future when they sought to come back, if circumstances
permitted the Respondent to do so. Such a loose arrangement, in my opinion, does
not constitute a leave of absence, which implies a continuing employer-employee
relationship. I conclude that these individuals are not to be regarded as employees
of the Respondent on February 10, 1964, and that Meehan, Wexler, and Lott should
be excluded from the unit 35
f. "Laid-off" employee, Francis McCoy
The Respondent contends that Francis McCoy was on layoff status on February 10,
1964, and should be included in the appropriate unit. The General Counsel and
the Charging Party oppose. McCoy, a high school student, commenced working for
the Respondent on December 12, 1963. McIntyre testified that at Christmas time,
after McCoy had worked almost 2 weeks, he told McCoy that "as soon as we got busy
we would call him back." McCoy replied that "he would be ready to come back
whenever we wanted him." The Respondent's records show that McCoy reappeared
on the Respondent's payroll during the payroll period ending March 19, 1964. The
circumstances of McCoy's return to the store are not given in the record, but the
record does show that after March 19 McCoy continued as a regular part-time
employee during the school year, that he worked full time during the summer, and
was still in the Respondent's employ at the time of the hearing. McCoy's name does
not appear on the list of "part timers as of 2/10/64" which is a part of General
Counsel's Exhibit No. 9, although this list was corrected by Shapiro on March 18,
1964, upon the advice of his attorney.
In my opinion, McIntyre's testimony above quoted, considered against the back-
ground of the Respondent's hiring practices generally, is not sufficient to establish
that this very short-term employee hired to help out during the Christmas rush is to
se I would exclude Lott from the unit for the further reason that she worked so
sporadically for the Respondent in the last few months before her asserted leave of
absence that she is not entitled to be regarded as a regular part-time employee In view
of her employment record, Lott must be regarded as a temporary or casual worker.
SULLIVAN SURPLUS SALES, INC. 157
be regarded as a regular part-time employee on layoff status. Like the arrangements
with the individuals assertedly on a leave of absence, the arrangement with McCoy
did not commit the Respondent to take back McCoy at any particular time. As I
read the record, the Respondent had similar arrangements with numerous other
temporary and part-time employees who had served it satisfactorily in the past.
McCoy's chances of being among those recalled when work picked up were too
remote to warrant the conclusion that he had a reasonable expectation at the time
he was separated in December of being recalled within the foreseeable future. Sea-
bell Chemical Company, Inc., 121 NLRB 1130, 1131, enfd. 267 F. 2d 922, 924
(C.A. 2).
Furthermore, as stated more fully below in my discussion of the Respondent's
contention regarding the eight "seasonal employees," even if McCoy be regarded as
being on layoff status, under the Board's normal procedure in representation cases
in seasonal industries, he would not be treated as a member of the unit on February 10,
1964, since he had not been recalled by that date. Madsen Wholesale Co., 139
NLRB 863; Cless B. Davis, d/b/a Queen City Transports, 141 NLRB 964. As the
Board explained in the Madsen case (at 863) :
unless there is a cutoff date for establishing employee status, it would be
virtually impossible for any party to verify majority representation. Thus, for
example, a labor organization seeking to prove that it was the majority repre-
sentative would be required to canvass persons who unknown to it might have
had employee status at various times in the past and who might, or might not,
depending upon the circumstances, reestablish employee status at some inde-
terminate time in the future.
For these reasons I find that McCoy should be excluded from the appropriate unit.
g. "Seasonal employees"
The Respondent contends that the store, being located in a resort area, is a sea-
sonal business requiring additional employees during its peak seasons, which are
during the summer and before Christmas, and that a group of eight employees, largely
students, who have worked for it before in one or more peak periods, should be
included in the unit as "seasonal employees." None of these eight employees was
on the Respondent's payroll for the period ending February 13, 1964, and most of
them had not worked for the Respondent since the summer of 1963. Two of them,
however, had worked during the 1963 Christmas rush. Seven of the eight returned
to work for the Respondent in 1964, either at the end of March or in the summer of
1964.
In support of its position regarding the "seasonal employees" the Respondent cites
several Board decisions involving seasonal industries. However, these were all cases
involving the ascertainment of the employees' choice of representatives through an
election. The procedure in such situations, as the Board pointed out in Madsen
Wholesale Co., 139 NLRB 863, is as follows:
In a representation case involving a seasonal industry, the Board directs an
election at or near peak season in order to obtain an expression of desires from
a representative number of employees. Such a direction provides that those
eligible to vote shall be all employees working during the payroll period imme-
diately preceding the date of the notice of election. Of course, employees who
are ill or on vacation or temporarily laid off are eligible, but this presupposes
that such employees have been working during the current season but were out
during the given period. Those who worked during a previous season but who
have not yet been recalled are not considered to be on leave or temporary layoff
status for purposes of eligibility to vote. Accordingly, upon the issuance of a
notice of election, eligibility is determined by actual prior and continuing employ-
ment during the current season.
In situations like the present, where, as found below, the employer's unfair labor
practices require the ascertainment of the employees' choice of representatives by a
card check at a time other than the peak season, the rule is otherwise. In such
cases, as the Board stated in the Madsen decision (at 864) :
where the Respondent has a seasonal operation with a widely fluctuating
employee complement, the use of a payroll period which reflects the actual
employment of a representative number of employees is appropriate for deter-
mining the Union's majority status, and persons who may have worked in prior
seasons but who have not yet been recalled are not properly includible.
See also Cless B. Davis, d/b/a Queen City Transports, 141 NLRB 964, 965.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent's contention regarding the eight seasonal employees is rejected
and Sandra Bertholoff, Karen Bossley, Audrey DuVos, Helen Glowiak, Albert Ken-
nedy, Laura Orseck, Ronnie Schrager, and Gloria Weiss are excluded from the appro-
priate unit.
h. The Respondent's contention that the Union's majority status was tainted
by supervisory participation
The Respondent's contention regarding supervisory participation in the Union's
organizing campaign is based largely on the activities of Anthony Smith whom I have
found not to be a supervisor within the meaning of Section 2(11) of the Act. The
Respondent relies also on the conduct of Helen Brady, whom I have also found not
to be a supervisor, and that of Virginia Puerschner, an admitted supervisor.
With regard to Puerschner, the Respondent relies solely on the fact that she
solicited Rose Meyers, a longtime acquaintance of hers, to sign an authorization card
and contends that Meyers' card may not be counted towards the Union's majority
status. Neither the General Counsel nor the Union seriously disputes this point.
I agree that Meyers' card should not be counted.
While the Respondent also cites the activities in support of the Union of Rose
Meddaugh and Beulah Rhyne, both of whom are department heads, there is no evi-
dence of any participation by them in union affairs until after the Union's request
for recognition and bargaining was made on February 10, 1964. There is no evi-
,dence that any employee, other than Anna Cochran, who was one of the Union's
earliest supporters, even knew, prior to February 10, that Meddaugh and Rhyne were
interested in the Union. The Respondent's contention that the Union's organizing
,drive was "shot through" with supervisory participation is rejected as not being sup-
ported by the evidence.
i. The Respondent's contention that Dorothy Kuttner's authorization card
should not be counted
Relying on the facts set forth in footnote 2, supra, relating to Kuttner's request to
Anna Cochran to return her authorization card or "tear it up" because her "husband
was having a fit," the Respondent contends that Kuttner's authorization card should
not be counted towards the Union's majority status. While this matter is not free
from doubt, for, as found below, the Respondent's unfair labor practices had com-
menced before Kuttner requested her card back, as the undenied testimony suggests
that Kuttner's change of mind was unrelated to the Respondent's unfair labor prac-
tices, Kuttner's card will not be counted.
j. The Respondent's contention that Carol Krug's authorization card
should not be counted
The facts upon which this contention is based are as follows. Carol Krug entered
a hospital to have a baby on February 7. That evening she received a message from
a nurse about an hour before the baby arrived that a union representative wanted to
speak to her on the telephone. She told the nurse that she did not feel like talking to
anyone. Her baby was born at 10 p.m.
Early the next afternoon Business Agent Sterns and International Organizer
Eggleton went to the hospital to see Krug and they encountered her in the corridor
with a group of persons who were looking at the babies. They asked her if they
might speak with her a few minutes about the Union. Krug's husband joined them
in the room a minute or two later. Sterns sought to persuade Krug as to the advan-
tages of having a union in the store, Krug's husband, a small storeowner, at the
start of the conversation was opposed to the idea of unions. The union men con-
tinued to discuss the matter, and in the course of the discussion handed Krug a
pamphlet entitled "It Pays to Belong." In the course of the discussion, which lasted
about 45 minutes, the pamphlet was passed back and forth between Krug and her
husband. At the end of the conversation, after Krug's husband told her to "go
ahead and sign the card," Krug signed a card.
The foregoing account of this incident is based on my reconciliation of the ver-
sions of Krug and Stems, which in the matter of emphasis were widely divergent.
Krug testified that she told the union men two or three times that she did not want
to sign a card and that they just kept on talking to her. Krug also testified in response
SULLIVAN SURPLUS SALES, INC. 159
to leading questions that she was not feeling well 36 and that she signed just to get
rid of the union men. I do not credit Krug's testimony in this regard. Krug, a
young woman 20 years of age or less, facing her employer, Shapiro, and his attorney
in the hearmg room, appeared to be trying to testify just as her employer would like
to have her testify. Any suggestion in a question as to the answer, or the phraseology
thereof, Krug quickly adopted. There is no suggestion in the record that the union
men refused to leave the room. Their presence in the room for 45 minutes, by
Krug's testimony, suggests an amicable discussion. Upon all of the testimony regard-
mg this mcident I conclude that Krug, although reluctant at first to sign a union card,
after listening to the union representatives' appeal and considering the union litera-
ture, decided to ally herself with the others at the store who had signed cards. I
further conclude that this decision was reached voluntarily and that Carol Krug's
authorization card should be counted.
k. The Respondent's contention that Elizabeth DuVall's card
should not be counted
This contention is based upon the fact that Business Agent Sterns, when he solic-
ited DuVall's signature on an authorization card, mentioned to her, among other
things, "that when you start a campaign, you have to have so many cards before the
National Labor Relations Board would ever entertain a petition for an election."
Sterns testified that he further discussed with DuVall on this occasion the wages,
hours, and working conditions which the Union customarily sought, and then he told
her "the more [cards] we had, the better position we would have in the negotiations."
In my opinion the Respondent's contention must be rejected. Sterns solicited
DuVall's signature oh February 3, early in the campaign, before the first union meet-
ing, and before the Respondent's unfair labor practices commenced in earnest. At
such a stage of an organizing drive when only a few employees have signed up it is
customary for a union organizer to explain the procedure followed in obtaining rec-
ognition, including the use of the National Labor Relations Board election procedure.
There is no suggestion in the testimony of either Sterns or DuVall that he repre-
sented to her that she was signing a card only for the purpose of having an election
held or that the card would not be used as a basis for seeking recognition. Only
where cards are obtained after the making of such representations can objection
validly be made to the placing of reliance on such cards. Accordingly, DuVall's
authorization card will be counted.
1. Recapitulation
In view of the findings hereinabove made regarding the inclusion and exclusion
of employees from the appropriate unit on February 10, 1964, the date of the Union's
request for recognition and bargaining, I find that there were 43 employees in the
appropriate unit on this date (the 39 employees stipulated to be in the appropriate
unit on that day, plus Brundage and Roy Lambert, who I ruled at the hearing were
to be included in the unit, and plus Brady and Anthony Smith, whom I have found
not to be supervisors within the meaning of Section 2(11) of the Act).
Testimony and exhibits which I credit establish that a total of 22 employees, whose
cards I have found are entitled to be counted towards the Union's majority in the
appropriate unit, signed cards authorizing the Union to act as their bargaining rep-
resentative before February 10, 1964.37 These 22 employees are as follows:
1. Barbara Ackerley 8. Glencoe Fuller 16. Anthony Smith
2. Virginia Behrens 9. Eva Goldschmidt 17. Myrtle Smith
3. Marie Boyle 10. Katherine Harden 18. Charles Snyder
4. Helen Brady It. Mitzi Kelly 19. Kenneth Storer
5. Anna Cochran 12. Carol Krug 20. Sarah VanDunk
6. Elizabeth DuVall 13. Betty Martin 21. Marianne Walter
7. Gene Froelich 14. Lena Ray 22. Carol Young
15. Richard Reinshagen
3e Krug further testified that her doctor did not visit her during her entire time in the
hospital
37 While the Respondent points out that most of the cards were originally left undated
and that some of them are inaccurately dated, the credited testimony convincingly shows
that all of the cards relied upon herein were signed before February 10, 1964.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union thus represented a majority of the 43 employees in the appropriate unit
on February 10, 1964 , and I so find.
3. The Respondent's refusal to bargain collectively
As found above, on February 10, 1964, the Union notified the Respondent by tele-
gram that it represented a majority of the Respondent's employees and offered to
submit its authorization cards to a disinterested person for verification. On Febru-
ary 12, 1964, the Respondent, by letter to the union secretary-treasurer declined to,
recognize it, asserting that it doubted the Union's majority status. The above facts
are undisputed and clearly establish a refusal to recognize and to bargain collectively.
The only question remaining, therefore, is whether the Respondent, having engaged
in unfair labor practices which precluded the employees from making a free choice
in an election , can be heard to assert that it doubted the Union's majority status.
The record in this case shows that as soon as they became aware of the Union's
organizational efforts, the Respondent's officials and supervisors commenced ques-
tioning employees about the identity of the union leaders and various other aspects
of the organizational campaign; in a few instances outright threats of reprisals were
made against employees because of their union activity; and finally, just as the Union
had succeeded in signing up a majority of the employees, President Shapiro sum-
moned the employees to a meeting where he in effect requested them to abandon their
union affiliation. Even after receiving the Union's request to bargain, the Respond-
ent's unfair labor practices continued, and included the discriminatory reduction in
hours of the originator of the union movement and the discharge of a less active
union supporter. It is well settled that where an employer has engaged in unfair
labor practices tending to dissipate a union's majority status, he cannot be heard to
assert a good-faith doubt of a union's claim of majority status. Joy Silk Mills, Inc. v.
N.L R.B., 185 F. 2d 732, 741 (C.A.D.C.), cert. denied 341 U.S. 914; N.L.R.B. v.
Stow Manufacturing Co, 217 F 2d 900, 904-905 (C.A. 2), cert. denied 348 U.S. 964;
N.L.R.B. v. Loien A. Decker, d/b/a Decker Truck Lines, 296 F. 2d 338, 341-342
(C.A. 8). Upon all of the facts of the case I find that the Respondent cannot validly
assert a doubt as to the Union's majority status, and that its refusal to recognize and
bargain collectively with the Union violated Section 8(a) (5) of the Act.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices in viola-
tion of Section 8(a)(1), (3), and (5) of the Act, my Recommended Order will pro-
vide that it cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
My Recommended Order will contain the conventional remedial provisions for
the Respondent's violations of Section 8(a)(3) of the Act; namely, that it reinstate
Helen Brady,38 and that it make Brady and Myrtle Smith whole for their losses
resulting from the Respondent's discrimination against them, such backpay to be
computed in accordance with the formulas set forth in F. W. Woolworth Co., 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716.39 My Recommended
Order will further contain the usual affirmative bargaining order and will direct the
posting of appropriate notices.
The unfair labor practices herein found, including discriminatory acts against two
employees and a refusal to bargain collectively, are such as to indicate an attitude of
opposition to the purposes of the Act generally. In these circumstances a broad
cease-and-desist provision is necessary to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. By questioning employees concerning union matters and making statements to
employees seeking to impress upon them its awareness of their support of the Union
38 I am not including the usual Armed Forces provision in the Order and notice be-
cause Brady , the only employee ordered reinstated , is a woman in her forties, and un-
likely to serve in the Armed Forces
39 While the General Counsel in his brief urges that Smith should be reinstated with
backpay, the complaint alleges merely that the Respondent discriminatorily reduced
Smith's hours from February 13, 1964, to on or about April 16, 1964. The circum-
stances of Smith's quitting the Respondent's employ were not litigated at the hearing,
and in these circumstances, in my opinion, it would not be proper for me to direct
Smith's reinstatement Myrtle Smith is entitled to backpay only from February 13,
1964, until she quit the Respondent's employ
SULLIVAN SURPLUS SALES, INC. 161
in the coercive circumstances of this case, by threatening employees with reprisals
because of their union activities, by seeking to induce employees to repudiate the
Union by means of promises of benefit or other coercive means, by requesting an
employee to report to it on the events at union meetings, and by assaulting the union
business agent under the circumstances of this case, the Respondent has interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act, thereby engaging in unfair labor practices in violation of
Section 8(a) (1) of the Act.
2. By discharging Helen Brady and reducing the hours of work of Myrtle Smith,
the Respondent has discouraged membership in the Union by discrimination in
regard to their tenure or terms or conditions of employment, thereby engaging in
unfair labor practices in violation of Section 8 (a) (3) and (1) of the Act.
3. By refusing on and after February 10, 1964, to recognize and bargain collec-
tively with the Union as the exclusive bargaining representative of its employees in
an appropriate bargaining unit, the Respondent has engaged in unfair labor practices
in violation of Section 8 (a) (5) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record, and pursuant
to Section 10(c) of the Act, it is recommended that the Respondent, Sullivan Surplus
Sales, Inc., Liberty, New York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with discharge, or other reprisals, because of their
union activities; coercively questioning employees about union matters; making coer-
cive statements intended to impress upon employees its awareness of their union sym-
pathies; using or attempting to use the services of employees to report on union activi-
ties; soliciting employees to repudiate the Union or any other labor organization; and
assaulting union representatives in circumstances tending to interfere with, restrain,
or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act.
(b) Discouraging membership in Local 1687, Retail Clerks International Associa-
tion , AFL-CIO, or in any other labor organization, by discharging or reducing the
hours of work of employees, or in any other manner discriminating in regard to their
hire or tenure of employment or any term or condition of employment.
(c) Refusing to bargain collectively with Local 1687, Retail Clerks International
Association, AFL-CIO, as the exclusive bargaining representative of all selling and
nonselling employees at its Liberty, New York, store, excepting guards and super-
visors as defined in the Act.
(d) In any other manner interfering with, restraining, or coercing employees in
the exercise of their right to self-organization, to form labor organizations, to join or
assist the above-named or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or to refrain from
any or all such activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of employ-
ment , as authorized by Section 8(a) (3) of the Act, as amended.
2. Take the following affirmative action which is necessary to effectuate the poli-
cies of the Act:
(a) Offer immediate and full reinstatement to her former or a substantially equiva-
lent position , without prejudice to her seniority or other rights and privileges, to
Helen Brady and make her and Myrtle Smith whole for any loss of pay they may
have suffered as a result of its discrimination against them, in the manner set forth
herein in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay due.
(c) Upon request, bargain collectively with Local 1687, Retail Clerks Interna-
tional Association, AFL-CIO, as the exclusive representative of all selling and non-
selling employees at its Liberty, New York, store, excepting guards and supervisors
as defined in the Act, with respect to rates of pay, wages, hours of work, and other
terms and conditions of employment, and embody in a signed agreement any under-
standing reached.
789-730-66-vol. 152-12
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its Liberty, New York, store copies of the attached notice marked
"Appendix ." 40 Copies of said notice , to be furnished by the Regional Director for
Region 3 , after being duly signed by an authorized representative of the Respondent,
shall be posted by the Respondent immediately upon receipt thereof and 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 said notices are not altered , defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 3, in writing, within 20 days from
the receipt of this Recommended Order, what steps it has taken to comply herewith.41
40 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order."
41In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read* "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT threaten employees with reprisals because of their union sympa-
thies or activities, coercively question employees about union matters, or make
statements to employees seeking in a coercive manner to impress upon them our
awareness of their support of the union, seek to induce employees to abandon the
union by means of promises of benefit or other coercive means, request employ-
ees to report on union meetings or other union affairs, and WE WILL NOT assault
union representatives in circumstances tending to interfere with, restrain, or
coerce our employees in the exercise of their rights under the Act.
WE WILL NOT discharge or otherwise discriminate against any employee
because of his support of Local 1687, Retail Clerks International Association,
AFL-CIO, or any other labor union.
WE WILL, upon request, bargain collectively with Local 1687, Retail Clerks
International Association, AFL-CIO, as exclusive bargaining representative of
all our selling and nonselling employees, excepting all guards and supervisors as
defined in the Act.
WE WILL offer immediate and full reinstatement to Helen Brady to her former
or a substantially equivalent position, without prejudice to her seniority and other
rights and privileges, and will reimburse her for any loss of pay she may have
suffered as a result of being discharged.
WE WILL reimburse Myrtle Smith for any loss of pay she may have suffered
as a result of our having reduced her hours of employment.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of these rights.
All our employees have the right to form, join, or assist any labor union, or not to
do so.
SULLIVAN SURPLUS 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.
Employees may communicate directly with the Board's Regional Office, 4th Floor,
The 120 Building, 120 Delaware Avenue, Buffalo, New York, Telephone No. TL
6-1782, if they have questions concerning this notice or compliance with its provisions.