The Jones' Boys Discount

National Labor Relations Board - Board Decisions

Jun 2, 1975

218 N.L.R.B. 135 (N.L.R.B. 1975)

THE JONES' BOYS DISCOUNT 135
Stiftler Stores, Inc. d/b/a The Jones' Boys Discount
and Retail Clerks Union, Local No. 1059, Retail
Clerks International Association , AFL-CIO. Case
9-CA-8499
June 2, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On January 7, 1975, Administrative Law Judge
Jennie M. Sarrica issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, fmdings,l and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Stiffler Stores, Inc.
d/b/a The Jones' Boys Discount, New Lexington,
Ohio, its officers, agents , successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, except that the attached notice is substitut-
ed for the Administrative Law Judge's notice.
1 The Administrative Law Judge found, and the record shows, that a
majority of 'Respondent's employees in the unit found appropriate had
expressed support for the Union, and therefore we deem it unnecessary to
comment on or adopt the remarks in fn. 7 of the Administrative Law
Judge's Decision insofar as they suggest that the Union's preexisting
showing of majority support was not a factor in issuing the bargaining order
herein.
2 The request by Respondent for oral argument 1s hereby denied as the
record , including Respondent 's brief, adequately presents the issues and
positions of the parties.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to give
evidence it has been decided that we have violated
the National Labor Relations Act and we have been
ordered to post this notice:
218 NLRB No. 2
The National Labor Relations Act gives you, as
employees, certain rights, including the right to
support and join a labor union and to bargain
through your representative, without fear of reprisal
or other interference, restraint, coercion, or discrimi-
nation.
WE WILL NOT threaten or cause loss of
employment or loss of hours of employment by
not replenishing our stocks of merchandise or
otherwise purposely causing our business to fall
into a general state of decline giving the impres-
sion that our purpose for such conduct is to go
out of business should our employees select the
Retail Clerks Union, Local No. 1059, Retail
Clerks International Association, AFL-CIO, as
your collective-bargaining representative.
WE WILL NOT in any other manner discourage
membership in that Union or any other union by
discriminating against any of our employees
because of their union or concerted activities, or
otherwise interfere with, restrain, or coerce our
employees in the exercise of their right to self-
organization, to form, join, or assist any labor
organization, to bargain collectively through
representatives of their own choosing, and to
engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all
such activities.
WE WILL offer to Peter James Finck and any
other employee whose employment terminated by
reason of our cutback in available working hours
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to equivalent
jobs, with all seniority and other rights and
privileges previously enjoyed by them, and make
all of our employees whole for any loss of
earnings they may have suffered because of our
unlawful cutback in store operations and in
available working hours, with interest at 6 percent
per annum.
WE WILL bargain, upon request, with Retail
Clerks Union, Local No. 1059, Retail Clerks
International Association, AFL-CIO, as the
exclusive bargaining representative of all employ-
ees in the unit consisting of:
All full-time and regular part-time selling
and nonselling employees of the Employer's
retail store located at 126 South Main Street,
New Lexington, Ohio, including the cashier,
but excluding cooperative students, the store
manager, guards, and supervisors as defined
in the Act.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STIFFLER STORES, INC.
D/B/A THE JONES' Boys
DISCOUNT
DECISION
STATEMENT OF THE CASE
JENNIE M. SARRICA, Administrative Law Judge: This is a
proceeding under Section 10(b) of the National Labor
Relations Act, as amended (29 U.S.C. 151, et seq.),
hereinafter referred to as the Act. Based on charges filed
on May 9 and July 11, 1974,1 a complaint was issued on
July 31, and amended on September 30, presenting
allegations that Stiffler Stores, Inc., d/b/a The Jones' Boys
Discount, hereinafter referred to as the Respondent,
committed unfair labor practices within the meaning of
Sections 8(a)(1) and (3) and 2(6) and (7) of the Act.
Respondent filed an answer and amended answer denying
that it committed the violations of the Act alleged. Upon
due notice, the case was tried before me at Lancaster,
Ohio, on November 7. Representatives of all parties
entered appearances and had an opportunity to participate
in the proceeding.
Based on the entire record, including my observation of
witnesses, and after due consideration of briefs, I make the
following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent, an Ohio corporation, is engaged in the
operation of a retail general merchandise store at New
Lexington, Ohio, under the terms of a franchise agreement
with The Jones' Boys, Inc. During the past 12 months,
which is a representative period, Respondent had gross
volume of business in excess of $500,000. During that same
period, Respondent had a direct inflow of goods and
products valued in excess of $50,000, which it purchased
and caused to be shipped directly in interstate commerce
to its New Lexington, Ohio, location from points outside
the State of Ohio.
Respondent admits, and I ford, that at all times material
herein, Respondent is, and has been, an employer as
defined in Section 2(2) of the Act, engaged in commerce
and in operations affecting commerce as defined in Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
Respondent admits, and I find, that at all times material
herein Retail Clerks Union, Local No. 1059, Retail Clerks
International Association, AFL-CIO, the Charging Party,
1 Unless otherwise indicated , all dates are in 1974.
2 At the hearing I reserved ruling on a motion by the Respondent to
dismiss pars. 8, 9, and 10 of the complaint as improper and immaterial
because they cover matters which relate to violations of Sec. 8(a)(5) of the
Act, and an allegation o} that nature was refused on a request for review
made by the Charging Party. Respondent's motion which I interpret as a
motion to strike is hereby denied , as those paragraphs cover evidence which
would be relevant in determining the appropriate remedy "on a lesser
is, and has been , a labor organization as defined in Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES 2
A. The Issue
1. Whether Respondent by reducing its stock of
merchandise, discontinuing its advertised sales, and reduc-
ing employee hours of work committed the various unfair
labor practices alleged. If so,
2. Whether such unfair labor practices are so serious
and substantial in character and effect as to warrant an
order requiring recognition and bargaining without fording
an unlawful refusal to bargain.
B. The Events Involved
The undisputed facts are that on February 19 six of the
seven employees of Respondent at the store herein
involved signed union authorization cards for Union
Organizer Ronald Marcaletti who obtained a signed
authorization card from the other employee on February
20, then took the cards to the store manager, Ellis B . (Brad)
Rador, and informed Rador the Union was prepared to
begin the process of collective bargaining. Rador examined
the cards, observed and commented that everyone but the
assistant manager had signed, and told Marcaletti he
should contact James A. Stiffler, president of The Jones'
Boys Discount and vice president of Stiffer Stores, Inc.
Marcaletti again met with the employees and each signed a
document requesting their Employer to recognize and meet
with the Union as their collective-bargaining agent. On
February 21 Marc_aletti contacted Stiffler who referred him
to Respondent's attorney and supplied a telephone
number. Marcaletti called Attorney Schaub, repeated his
oral claim of representation and offer to meet, and
informed Schaub that Rador had looked at the cards.
Schaub told Marcaletti that Stiffler had told him Rador
had not looked at the cards. Marcaletti advised Schaub to
check this out and that the Union would be prepared to
meet at Schaub's earliest possible convenience to begin
bargaining. Marcaletti asked Schaub for his address but
Schaub refused to give Marcaletti anything other than a
box number, insisting that this would suffice. After this
conversation, Marcaletti sent a copy of the employees'
signed request that the Employer recognize the Union as
their representative to both Schaub and Stiffler. In
response Marcaletti received in the mail an undated letter
declining to recognize the Union except upon certification
after an election by the National Labor Relations Board.
As a result of these communications of Marcaletti to
Schaub and Stiffler, Rador was instructed by Stiffler not to
replenish the stock of merchandise in the store. According
to Rador whose duty it is to place all orders for the store,
showing of employer misconduct" [than "outrageous" and "pervasive"] but
"which nonetheless still have the tendency to undermine majority strength
and impede the election process." NLRB. v. Gissel Packing Co., Inc., 395
U.S. 575, 615 (1969). this is not intended as a holding that such allegations
in a complaint are necessary to a determination that the remedy sought
herein would be appropriate but they do put the Respondent on notice of
the nature of the evidence the General Counsel intends ' to introduce and the
type of remedy he intends to seek.
THE JONES' BOYS DISCOUNT 137
Stiffler's orders remained in force from late February until
the Monday before the hearing in this case. Consequently
deliveries stopped the very week the cards were shown to
the Employer, and within 2 weeks from that time the store
was out of a number of staple items such as paper towels,
toilet paper, pampers, and laundry detergents - items
generally requiring weekly deliveries. Stocks of other items
became very low and some were completely depleted in a
short time. The only items on which deliveries were made
were bread, milk, pop-records, and cigarettes. In addition,
certain merchandise was boxed and removed from the
store, and the store's weekly sales advertising was discon-
tinued.
In consequence of Respondent's almost total discontin-
uance of stocking merchandise the number of employees at
the store was reduced from eight to three and the total
payroll hours of work for the store was reduced from 287-
1/2 for the week of February 17 to 117-1/2 on June 2, as
low as 96 and 97 in some weeks in June, July, and August,
and between 100 and 107 in September.
Peter James Finck, worked as the stockboy at the store.
After he obtained employment with Respondent he was
placed under a school-release cooperative education
program. However, he was removed from this program but
continued in Respondent's employ. He worked between 35
and 40 hours per week during the Christmas season but his
hours dropped to the high 20's for several weeks in
January. They had risen to the low 30's in February as
Store Manager Rador had indicated to him they would.
Finck experienced an immediate decline in hours, general-
ly in the 20's but as low as 9 in early May and for each of
the last 2 weeks ending May 26 when he was released
Finck worked only 15 hours. Manager Rador admitted
that Finck's reduction in hours was a direct result of the
lack of incoming merchandise. To Finck's inquiry and
concern over his loss of hours, Rador explained that the
percentage of the payroll to the store's business was too
high. When, as stockboy, Finck had first observed that no
shipments of merchandise were coming to the store, he
asked Rador why. Rador stated he did not know. On a
second inquiry by Finck, Rador stated that the Employer
might be going to fill a new store. Sometime later Finck
asked again about the discontinuance of merchandise
shipments to the store and Rador stated that the employees
could not expect the Employer to fill up its store if they
were going on strike.
Respondent asserts that it instituted the drastic curtail-
ment of merchandise purchases for the store with the
commensurate reduction in working hours immediately
following the Union's demand, in anticipation of a
threatened strike, and a decision that the store would not
3 In this connection, Stiffler testified that on February 19 there had been
a meeting of the directors of Jones Boys' corporation at which time the
fiscal year's statement for this store was read and it was reported, after an
audit and physical inventory, that the store herein had a loss ofjust under
$3,000 for the fiscal year attributable to an $18,000 inventory shortage in the
food department. He further testified that at that meeting although the
question of closing the store was raised , because it was not showing an
adequate return on investment , that question was tabled . Stiffler admitted
that at that time no consideration was given by the directors to curtailing
the operations of the store by cutting back inventory, or otherwise.
Respondent does not seriously contend that any of its actions were to rectify
the loss situation that had just been revealed by the annual inventory and
be operated if the employees went on strike. As a basis for
its alleged fear of an imminent strike, Respondent points to
the undisputed fact that on the evening when employees
signed the authorization cards for the Union they also
voted unanimously to authorize a strike if the Respondent
engaged in unfair labor practices.
In the face of Marcaletti's firm denial that he even
mentioned to Schaub the strike vote taken by the
employees, Attorney Schaub testified:
I received a call from Mr. Stiffler in relation to this
particular matter on or about the . . . 20th or 21st of
February. I had not previously met Mr. Stiffler,
although ... one of his directors was a long time client
of ours. He explained the situation to me, and indicated
that this store had been in severe economic crisis and I
told him that one consideration he should make before
a decision was reached the fact that the labor board
would never believe that the coincidence was quite that
close, due to my previous experience with the board.3 I
was also informed that the letter had been received[.
O]n February February 21st of 1974 I received a
telephone call from Mr. Ron Marcaletti . . . I have my
original office notes which were made in the usual
course of business which are here and I am going from
that. Mr. Marcaletti told me that he represented the
Retail Clerks . . . . He told me that the store manager
had looked at the cards and he recognized the fact that
there was everyone in the store except for one person.
He further related to me that on the Tuesday previous
to that, there had been at the New Lexington Store,
Jones' Boys had, the employees had voted unanimously
to strike and he was making a verbal demand to
bargain and it would be a violation if we did not.
He read me a demand that had been signed by
several employees and stated that a copy would be sent
to the store and a copy to, my notes say Stiffler, that
would be Jim Stiffler. He further stated that the cards
were, had not been refused by the manager and there
were three witnesses. I had told him that my under-
standing of what he told me was not precisely the way
this was. He asked me if we would bargain and I told
him that a written reply would be sent in response to
his demands for bargaining. And I might add this has
been our position, pretty consistent since then ... .
Admittedly, Schaub did not attempt to explore with
Marcaletti when, and in what circumstances such strike
might be anticipated, nor did he at that time or at any later
date, although he had contact with the Union at the
representation case hearing, attempt to obtain clarification
audit, and none of its actions were directed toward identifying the cause of
inventory loss in the grocery department , which would have been the logical
business corrective measure. Stifller also testified that the directors decided
they would not operate the store . during a strike . He did not indicate when
such decision was made by the directors except that it was the result of his
conversations with his attorney after the Union made its demand for
recognition upon the attorney. Stuffier testified that the cessation of placing
merchandise orders was pursuant to his "intent to try to work down the
inventory in the event of a strike because the family did not want to add any
more investment, in that store if there was not going to be anyone there to
operate it.,,
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on this subject. Stiffler testified that Schaub told him a
strike vote had been taken and that he expected that there
would be a strike immediately. However, like Schaub, he
made no effort to obtain any information as to when the
strike might occur although he made contact with
employees, both oral and written, concerning the Union.
Nor did the Respondent file a representation petition with
the National Labor Relations Board until after the Union
did so about a month later. As further support for its
position that it was under a threat of strike, Respondent
produced a notice from a transfer and storage company
dated February 22, identifying a shipment of merchandise
which that firm was holding and stating "due to the strike
at your Company, please advise when and where we may
deliver this shipment." Rador testified that, when he
received this notice, he called the transfer company and
asked what it meant since there was no strike at his store,
and that he was advised that a driver had brought the
merchandise back with such a report. Stiffler testified he
received a call from Rador when the latter -received the
notice at the store but he never made an attempt to learn
why the transfer company sent the notice, that he never
found out what the basis of the transfer company's
assertion was, and that he did not know whether they
received the merchandise but assumed that they had.
Also as support for the alleged strike threat, Respondent
elicited testimony concerning an incident that took place in
a meeting by Stiffler with employees at the store when
Stiffler was presenting his position in opposition to the
Union and employees were talking about why they wanted
a union . On that occasion Stiffler was asking individual
employees hypothetical questions as to what they would do
in certain eventualities . Stiffer asked Finck what they
would do if the, parties went on in negotiations for an
indefinite length of time and Finck replied, "Well, [if it]
looks like you aren't going to do anything you know, in
good faith to bargain with us, we could go on a strike .. .
if you do something like that, we could go on a strike."
Stiffler testified that restocking of the store has been
under active consideration for more than 3 months and an
affirmative decision was reached with the result that some
$22,000 worth of merchandise has been reordered "aver a
period of time" from distributors and manufacturers with
another $10,000 to $15,000 being transferred from other
4 In this respect I place no reliance upon the testimony of Attorney
Schaub in his attempt to establish that such a strike threat was made to him.
I found Marcaletti a wholly credible witness, not only in the candid content
of his testimony and the clarity of his recollection but also in his forthright
manner and general demeanor. I note that Schaub's testimony was based, as
he proclaimed, upon office notes rather than his independent recollection,
and the instance when he read directly from those notes demonstrated that
they were extremely sketchy requiring his interpolation . Further there is no
indication that such notes on the case were confined to that particular
phone call rather including the call from Stiffler on the subject ' In this
respect I further note his testimony that he received a call from Stiffler on
February 20 or 21 and that in that call Stuffier informed him that the letter
from the Union had been received, while in the same narrative Schaub
stated that in the subsequent telephone conversation with Marcaletti on
February 21 the latter read to bun the demand signed by employees and
advised him that a copy would be sent to the store and to Stiffler, Finally,
even if the fact that the employees had taken a vote authorizing a strike had
come to the attention of the Respondent , this fact does not constitute a
strike threat , much less a basis for believing that such action is imminent or
even likely. And it strains credulity to even surmise that an experienced
labor attorney would so interpret such a mere statement of fact, even if
stores. He further testified that grocery distributors could
deliver within a week of an order, that most distributors
could deliver within 2 weeks, but that factory orders take
longer.
C. Analysis and Conclusions
The totality of the foregoing evidence convinces me that
the drastic merchandising cutback instituted immediately
upon the Union's recognition demand was not because of
fear of an imminent strike4 and an effort to reduce
inventory in anticipation of such strike. Genuine fear of an
imminent strike logically would bring forth some steps to
ascertain not only whether, but also when, the strike would
occur, so that the employer could take steps to prevent
losses from perishable merchandise, etc. Admittedly, no
such steps were taken. Instead, Respondent not only issued
orders to stop all merchandise purchases for the store, but
it also boxed and shipped to other stores merchandise
currently in the store, and stopped all but a few types of
incoming deliveries, however, continuing the ordering and
receipt of perishables. In this respect,-I accept as accurate
Fmck's testimony that the trucks, except for a few items
such as milk, bread, and cigarettes, stopped coming in the
very week that the Union showed the cards to Rador.5
Further, the discontinuance of weekly advertising for the
store hardly comports with the avowed purpose of
reducing the stock of merchandise which would be tied up
in the store while a strike was in progress.
The fact that Respondent continued its program of slow
attrition of personnel and merchandise for a full 8 months,
right up to the eve of the hearing herem, despite the fact
that a representation petition was filed by the Union and
processed through a hearing on the unit and a decision by
the Regional Director, and despite investigation of charges
and settlement conferences, clearly demonstrates that fear
of an imminent strike was not the force behind Respon-
dent's decision with respect to contraction of its opera-
tions. Rather, the evidence compels the conclusion, and I
find, that Respondent had a far more comprehensive
purpose than to protect itself from the economic conse-
quences likely to flow from an anticipated strike. In the
absence of a showing of any other valid business reason, I
conclude that the Respondent's purpose for such action
made , and not probe for clarification , but would, on that basis alone, cause
a client to take such drastic business action as was taken here. I conclude
that no strike threat existed, and none was ever suggested.
5 Stuffier testified at length and in detail with respect to the timelag
between the placement of orders for merchandise and receipt of shipment
from the various sources both from order-to-shelf and from order-to-
delivery. Applying Stiffler's timetables , if Respondent had not taken steps to
stop deliveries of orders in process, with a normal flow of merchandise,
deliveries should have been arriving at the store for at least a month after
Rador stopped placing orders . Accordingly, in the absence of probative
evidence as to the source of the information which brought forth the storage
notice of February 22, and in light of Stiffler's complete disinterest in
ascertaining the basis for the statement thereon , particularly in view of his
claimed fear of a strike, I conclude that he knew the notice was brought
about by Respondent's efforts to intercept and stop incoming merchandise.
Most of this could be done at the central warehouse where shipments
generally arrive, and are broken down for distribution among Respondent's
several stores in the area and delivery by Respondent's own trucks.
However this shipment had come consigned directly to the store from a
manufacturer in Tennessee.
THE JONES' BOYS DISCOUNT 139
was related to the very event that precipitated the entire
program, namely, the Union's demand for recognition as
representative of Respondent's employees, and Respon-
dent's opposition to unionization and its attempt to thwart
the desire of the employees with respect to representation.
The cessation of the vital function of restocking
merchandise, the discontinuance of store advertising and
the reduction of working hours of employees with the
resulting state of decline in business speaks louder and
more continuously than any announced threat to go out of
business should employees maintain their desire for union
representation and I find that this was Respondent's intent
and purpose. Nothing short of the shock of a complete
shutdovm of operations could have a more telling impact
upon employee awareness of Respondent's economic
power over their very livelihood and its ability and
willingness to impose its will and resources in opposition to
their right to express a desire for representation. In these
circumstances, I find that such deliberate cutbacks were a
retaliation against the employees, all of whom had signed
the authorization cards shown to the manager and the
demand petition presented to the Employer. Indeed, the
degree of overkill engaged in here suggests a design far
beyond the handful of employees in the store involved. Be
that as it may, I fmd that the institution of such changes in
working conditions as a weapon in opposition to the
exercise of protected Section 7 rights by employees not
only ini erfered with, restrained, and coerced employees in
the exercise of those rights in violation of Section 8(a)(1) of
the Act, but also discriminated against them by reducing
their hours of work because of their union activities in
violation of Section 8(a)(3). I further find that Finck's
employment was terminated on or about May 26, 1974, not
because of the cessation of the school release program, in
which he was not at that time a participant, but because of
Respondent's unlawful destruction of work opportunity,
and his outspoken support for union representation and
collective action, and that Respondent thereby violated
Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. Stiffler Stores, Inc., d/b/a The Jones' Boys Discount,
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Retail Clerks Union, Local No. 1059, Retail Clerks
International Association, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By engaging in a course of conduct set forth in
section III, above, Respondent interfered with, restrained,
and coerced employees in the exercise of rights guaranteed
them in Section 7 of the Act, in violation of Section 8(a)(1)
of the Act, and discriminated against them in matters
6 See Steel-Fab, Inc., 212 NLRB 363 (1974), Howard Creations, Inc., 212
NLRB 179 (1974); Moore Mill and Lumber Company, 2D2 NLRB 264 (1974),
A. Rotondo & Sons, Inc., 212 NLRB 28 (1974); Premiere Corp., 212 NLRB
382 (1974); King Arthur Toyota, Inc., 212 NLRB 159 (1974), Oahu Refuse
Collection Co., Inc, 212 NLRB 159 (1974); Abe Munn Picture Frame
Manufacturing, Inc., 212 NLRB 487 (1974); Old Angus, Inc., of Maryland,
212 NLRB 539 (1974).
7 Where, as here, employees were firm enough in their unanimous desire
for representation to not only sign authorization cards, accompany the
union representative to the manager, and permit the examination of such
affecting wages, hours, and working conditions in violation
of Section 8(a)(3) of the Act.
4. At all times material herein, the Union was the
designated bargaining representative of employees at the
store in which an appropriate unit of Respondent's
employees for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act is, and has been, as
follows:
All full-time and regular part-time selling and non-
selling employees of the Employer's retail store located
at 126 South Main Street, New Lexington, Ohio,
including the cashier, but excluding cooperative stu-
dents, the store manager, guards and supervisors as
defined in the Act.
5. The aforesaid acts of Respondent are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action in order to effectuate the policies of the Act.
The pervasive and drastic impact of the 8(a)(1) and (3)
violations found herein are so egregious as to negate the
likelihood that employees could exercise a free choice in an
election, even if the Employer were to discontinue his
unlawful conduct. It is in just such circumstances that the
Board finds a bargaining order most desirable and
necessary as a means of remedying the effects of the unfair
labor practices,6 and I fmd such an order appropriate here,
as requested by the General Counsel.? I further find that
the impact of Respondent's conduct upon the hours of
work available warrants requiring that Respondent reim-
burse its employees for any losses they may have incurred
as a result of the unlawful reduction in hours of work
available.8 I shall further recommend that Respondent be
ordered, to the extent it has not already done so, to offer all
persons employed by it on February 22, 1974, immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, with
seniority and all other rights and privileges previously
enjoyed, and to make them whole for any loss of earnings
suffered by reason of the unlawful reduction in hours by
payment to each of them, including Peter James Finck, a
sum equal to what they would have earned in the absence
of the discriminatory reduction in hours of work, less net
earnings during such period, with backpay computed on a
quarterly basis in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and the
cards by him, but also to sign and have the union representative submit to
their Employer a petition requesting the Employer to extend recognition to
their representative, there can be no contention that this did not represent
the free choice of the employees before Respondent 's massive coercive
conduct. Such evidence would, under Gissel, fn. 2, supra, justify a bargaining
order as a remedy, even if the unlawful conduct of Respondent had been
less pervasive . In the circumstances here, I find it unnecessary to rely upon
such evidence establishing the Union's majority status as justification for a
remedial bargaining order.
8 See Moore Mill and Lumber Company, fn. 6, supra
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
backpay to each employee shall carry interest at the rate of
6 percent per annum as established in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
In order to determine the rights of reinstatement and the
backpay due under the foregoing recommendations, I shall
also recommend that the Respondent be ordered to
preserve and make available to the Board, upon request, all
payroll records, social security payment records, timecards,
personnel records and reports, seniority records, and all
other records necessary and useful to effectuate the
recommendations made above.
Inasmuch as the unfair labor practices committed by the
Respondent are of such nature and character as to strike at
the basic rights of employees safeguarded by the Act, I
shall further recommend that the Respondent be ordered
to cease and desist from infringing in any other manner
upon the rights of its employees guaranteed by Section 7 of
the Act .9
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case, I
hereby recommend that the Board issue the following:
ORDER to
Stiffler Stores, Inc., d/b/a The Jones' Boys Discount,
New Lexington, Ohio, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, and coercing employees
at its New Lexington, Ohio, store by not replenishing its
stocks of merchandise and otherwise purposely causing its
business to fall into a general state of decline, and giving
the impression that its purpose for such conduct was to go
out of business should its employees select the Union as
their collective-bargaining representative.
(b) By such conduct discriminatorily reducing the hours
of work of employees including Peter James Finck,
because of their sympathies for, or activities on behalf of,
the Union.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form, join, or assist labor organizations, 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 as guaranteed by Section 7 of the Act, or to
refrain from any and all such activities.
2. Take the following affirmative actions designed to
effectuate the policies and purposes of the Act:
9 N.LR B. v. Entwistle Manufacturing Co., 120 F.2d 532, 536 (C.A. 4,
1941).
10 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
(a) To the extent it has not already done so, restore to
full operation the activities at the store located at 126
South Main Street, New Lexington, Ohio, and offer any
employees whose employment terminated by reason of the
cutback in available working hours, including Peter James
Finck, immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, with all seniority and other rights and
privileges previously enjoyed, and make them whole for
loss of earnings they may have suffered by reason of the
discrimination against them in the manner set forth in the
section hereof entitled `"The Remedy."
(b) Upon request, recognize and bargain with Retail
Clerks Union, Local No. 1059, Retail Clerks International
Association, AFL-CIO, as the exclusive collective-bargam-
ing representative of the employees in the appropriate unit
at the aforesaid store, respecting rates of pay, wages, hours,
and other terms and conditions of employment and, if an
understanding is reached, embody such understanding in a
signed agreement. The appropriate unit is:
All full-time and regular part-time selling and non-
selling employees of the Employer's retail store located
at 126 South Main Street, New Lexington, Ohio,
including the cashier, but excluding cooperative stu-
dents, the store manager, guards and supervisors as
defined in the Act.
(c) Preserve and, upon request, make available to the
National Labor Relations Board or its agents, for examina-
tion and copying, all payroll records, social security
records, timecards, personnel records and reports, seniority
records, and all other records necessary and relevant to
determine the reinstatement rights and the amounts of
backpay due under the terms of this recommended Order.
(d) Post at its New Lexington, Ohio, store copies of the
attached notice marked "Appendix." 11 Copies of said
notice on forms provided by the Regional Director for
Region 9, after being duly signed by the Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
deemed'waived for all purposes.
Il In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."