Tradeway of Anderson, Inc.

National Labor Relations Board - Board Decisions

Dec 4, 1979

246 N.L.R.B. 732 (N.L.R.B. 1979)

D)ECISIONS OF NATIONAL I.ABOR RELATIONS BOARI)
Tradeway of Anderson, Inc.; Diamond Mercantile,
Inc., d/b/a Diamco; Nobil Shoe Company; LaRich
Distributors, Inc., d/b/a Alvin Jewelers; DeKoven
Drugs, Inc.; and Unishops, Inc., d/b/a M & B of
Indiana and Indiana Joint Board and Retail, Whole-
sale and Department Store Union, AFL-CIO. Case
25- CA- 10508
December 4, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND M MBIRKS JENKINS
ANt) PNEI.I.()
On September 6, 1979, Administrative Law Judge
Josephine H. Klein issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended. the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order,2 as modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that Respondent. TradewaN
of Anderson, Inc.; Diamond Mercantile, Inc., d/b/a
Diamco; Nobil Shoe Company: LaRich Distributors,
Inc., d/b/a Alvin Jewelers; DeKoven Drugs, Inc.:
and Unishops. Inc., d/b/a M & B of Indiana, Ander-
son, Indiana, its officers, agents, successors, and as-
signs, shall take the action set forth in the said recom-
mended Order, as so modified:
'The Administrative Law Judge found, based n the credited testimony ot
employee Beane. that Respondent violated Sec (a) I) by threatening to
eliminate pay advances As an alternative theory, the Adninistratise Ilaw
Judge indicated that a violation would exist even if Respondent's version of
the incident were accepted. While we agree that a violation occurred. we find
it unnecessary to rely on the Administrative aw Judge's alternative theory
in light of her having credited the testimony of employee Beane
2 No exceptions were filed with regard to the Administrative Law Judge's
recommendation that the complaint be dismissed insofar as it alleges that
Respondent coercively interrogated employees
] The Administrative l.aw Judge's Order included a reference to a shop
closure threat and is inconsistent with her (Conclusions of I.aw, which did not
find such a violation. We find that the record does not support the conclu-
sion that Respondent threatened to close its shop in v iolation of Sec 8(a)( I).
and the Adminlstraltive law Judge's recommended Order shall he modified
accordingly.
1. Substitute the following for paragraph (a):
"(a) Threatening employees with layoff, or discon-
tinuance of the policy of' granting pay advances or
other employee benefits if the employees join, sup-
port, or choose to be represented by Indiana Joint
Board and Retail. Wholesale and Department Store
Union, AFL C1O, or any other labor organization."
2. Substitute the attached notice for that of the
Administrative l.aw Judge.
API'ELN )IX
No1 (' To ENIF)I. OYI1S
PosI II) BY ORDER ()I 1111:
NAIIONAI. L.AB()KR RI.AII()NS BOARI)
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present their evidence and arguments, it has
been found that we have violated the National Labor
Relations Act, as amended, and we have been or-
dered to post this notice. We intend to abide by the
following:
WE WILL NOI threaten employees with layoff
or with discontinuance of the policy of granting
pay advances or other employees benefits if they
join, support, or choose to be represented by In-
diana Joint Board and Retail, Wholesale and
Department Store Union. AFL-CIO,. or any
other labor organization.
WE WILt. N) in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in Sec-
tion 7 of the National Labor Relations Act.
All our employees are free to become, remain, or
refrain from becoming or remaining, members of In-
diana Joint Board and Retail, Wholesale and Depart-
ment Store Union, AFL-CIO. or any other labor or-
ganization, except to the extent that such right may
be aflected by an agreement requiring membership in
a labor organization as a condition of employment as
authorized by Section 8(a)(3) of the Act.
TRAWI)I:AY O(i ANI)I:RSON, IN(.
DIAMOND MIR(AN IN., I'.. I)/B/A DI-
AM( (
NoBil. SotL (C()NMIANY
LARI(It [)ISIRIBKI)RS, IN(.. I)/B/A A.VIN
Jl 11 I RS
DIK()OV N D)R:(;S. IN(.
UNISII()oS, IN(., I)/B/A M & B ()F INI)IANA
[)lD.ISION
JOSirl'PIN: I. K I. Administrative Law Judge: Pursu-
ant to a charge iled on January 8. 1979.' by Indiana Joint
I- ept where olerss, e ndicated. all dates herein are in 1979
246 NLRB No. 130
732
TRADEWAY OF ANDERSON INC.
Board and Retail Wholesale and Department Store Union,
AFL-CIO (RWDSU or the Union), a complaint was issued
on February 12 against the Companies named in the cap-
tion of this Decision. Since it was stipulated for the purpose
of this proceeding that the named Companies are joint em-
ployers, they will generally be referred to collectively as
Respondent. The complaint alleges that on January 3
through 5 Respondent violated Section 8(a)(1) of the Act'
by unlawfully interrogating employees concerning activities
on behalf of the Union and by threatening employees with
layoffs and other reprisals for membership in or support of
the Union.
Pursuant to due notice, this case was heard before me in
Indianapolis, Indiana, on May 10. All parties were repre-
sented at the hearing and were afforded full opportunity to
present oral and written evidence and to examine and cross-
examine witnesses. The parties waived oral argument. Post-
hearing briefs have been filed on behalf of the General
Counsel and Respondent.
Upon the entire record, together with careful observation
of the demeanor of the witnesses and consideration of' the
briefs, I make the following:
FINDIN(;S OF FA(I
I. PREL.IMINARY FINDINGS
A. Respondents. incorporated in Indiana, Illinois, or
Ohio, jointly operate a retail department store in Anderson.
Indiana, the only facility involved in this proceeding. Dur-
ing the past year, a representative period, Respondent, in
the course and conduct of its business operations, sold and
distributed products the gross value of which exceeded
$500,000. During the same period Respondent purchased
and received at the Anderson, Indiana, store goods valued
in excess of $50,000 which were transported from States
other than Indiana. Respondent is and was at all times ma-
terial herein an employer engaged in commerce within the
meaning of Section 2(2). (6). and (7) of the Act.
B. The Union is and was at all times material herein a
labor organization within the meaning of Section 2(5) of the
Act.
11. Tll AI.I.E(iED UNFAIR LABOR PRA(ITI(ES
A. Back ground and Setting
Tradeway of Anderson, Inc., operates a discount retail
department store in Anderson, Indiana, as one of a 14-store
chain of such stores operated in a three-state area. The
other named Respondents operate leased departments in
Tradeway's Anderson store. Of the 14 stores in the chain, 4
are located in Indiana. In none of the Indiana stores are the
employees unionized, while the 10 located in other States
are unionized and conduct operations under collective-bar-
gaining agreements)
In August 1977 an organizing campaign on behalf of the
Retail Clerks Union resulted in an election which the union
2 National Labor Relations Act, as amended, 29 U.S.C. §151, et seq.
In its brief Respondent sa)s: "Ten of those stores have collective-bar-
gaining agreements with various unions." However, Respondent refers spe-
cifically only to locals of the Retail Clerks International Association
lost. Thereafter. an organizing campaign was instituted on
behalf of the RWDSU, the Charging Part) herein. Pursuant
to a representation petition filed by RWI)SU. a Board elec-
tion was scheduled for January 12, 1979. However, that
election was blocked by the filing of the present charge on
January 8, alleging unfair labor practices in the first week of
1979.
B. Interrogation
I. Assistant Store Manager Sonia King
Sonia King and Rosetta Beane had been fellow employ-
ees in the housewares department of the Anderson store in
1977. during the unsuccessful organizing campaign of the
Retail Clerks Union. At that time King and Beane fre-
quently discussed union matters. Thereafter King was pro-
moted to the supervisory position of assistant manager. At
some point, not clearly specified, Beane transferred from
the housewares department to work in the snackbar.
Beane testified that on January 3 or 4, while she and
King were discussing a display in the giftware department.
King asked if Beane had "heard that the, were petitioning
for a union again." Since King did not testify, Beane's testi-
mony was undisputed. However. it appears improbable.
With an election then scheduled for January 12. it is doubt-
ful that any employees could have been unaware of the
petition, particularly in view of the undisputed fact that
both RWDSU and Respondent engaged in active cam-
paigns, including the distribution of considerable literature
among the employees.
In any event, even itf credited.4 Beane's testimony does
not establish any' coercive interrogation. There is no sugges-
tion in Beane's testimony that King pursued the matter
with any question or statement which might be calculated
to elicit information concerning Beane's union sympathies
or activities or those of any other employees.'
Accordingly. I find that Beane's testimony concerning
King does not establish unlawful interrogation, as alleged
in the complaint. Thus I shall recommend dismissal of the
complaint insofar as it alleges unlawful interrogation bhi
Assistant Store Manager King.
2. Store Manager Randall S. Patrell
On or about January 5, emplayee Beane spoke to Store
Manager Randall S. Patrell concerning some campaign lit-
erature that had recently been distributed among the em-
ployees. Patrell stated that the Union could increase its
dues without giving Respondent's employees any opportu-
nity to be heard or vote thereon. Beane expressed some
doubt as to the accuracy of Patrell's statements and then
stated that, in any event, if the Union turned out to be a
"bad" union, it could be voted out in the same manner that
it had been voted in. At that point Patrell asked Beane it
In its brief Respondent expressly dsasows ans contention tha Breane or
the two other witnesses called by the General Counsel kniowingls gave false
testimony. At most. Respondent questions the accuracv of the memories of
the General C(ounsel's witnesses.
Beane testified that In the 1977 campaign she had opposed the Retail
Clerks Union hut fa'ored the RWDS[ In the present campaign
73.3
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union had so advised the employees. After Beane re-
plied in the affirmative. Patrell prepared and distributed
among the employees a leaflet stating, in effect, that once a
union has been voted in it cannot be eliminated as the em-
ployees' representative for a minimum of I year.6
Patrell's asking Beane if the RWDSU had advised the
employees that unions could be voted out in the same man-
ner in which they had been voted in appears to me to be a
legitimate and noncoercive question. There was no sugges-
tion that the answer to the question would (or even could)
be used in any manner harmful to Beane or other employ-
ees. Since Respondent had a legal right to comment on and
to correct what it believed were misstatements by the
Union, it had reasonable grounds for inquiring concerning
statements and arguments presented by the Union.7 Where,
as here an employer's inquiries carry no express or implied
threats or suggestions of coercion, they cannot be deemed
violative of Section 8(a)(1) of the Act.
Accordingly, I shall recommend that the complaint be
dismissed insofar as it alleges that Patrell coercively interro-
gated employees Beane in violation of the Act.
C. Threats
The implementation of the standard retail store con-
tract at T-Way would eliminate many part-time jobs.
At present, there are approximately 59 employees
working in the store. Most of these are part-time help.
If the store were reduced to only full-time employees,
the number of people needed to staff the store would
be approximately 38 employees. This would eliminate
21 or 22 jobs. At T-Way's store in Ashland, Ohio, there
are approximately 41 employees at this time. That
store is approximately 1/3 larger than the Anderson
store but operates with a 1/3 smaller staff. The reason
is that more full-time employees are being used. Also,
there are no employees at Ashland working less than
20 hours per week. This store does have several em-
ployees who want to work less than 20 hours but still
want their job. The typical union contract would make
this impossible.
T-Way perfers to use part-time employees and
would oppose any effort by the union to change this
policy. However, the union has been very successful in
forcing retail stores to a "full-time employee" situation
and T-Way may not be able to continue its present
practice.
* . . * *
I. Layoff or other reprisals
The complaint alleges that on January 4 Store Manager
Patrell threatened employees "with lay-off, or other repri-
sals if they became or remained members of the Union, or
gave any assistance or support to it."
A major theme in Respondent's preelection campaign
was its contention that unions generally favored full-time
employees to the detriment of part-time employees. Ac-
cording to Respondent, application of such union prefer-
ence to the Anderson store would require the layoff or ter-
mination of several part-time employees. Respondent's
progaganda approach in this respect was set forth in a
document distributed to supervisory personnel around
January 4, 1979. After defining "part-time" employees as
those working less than 35 hours per week, the instructions
proceeded:
Retail store unions typically do not like part-time
employees and attempt to force the company to use
mostly full-time help ....
e The Company's flyer reads, in part:
Q. If the union were to win the election, and the members were dis-
satisfied could the R.W.D.S.U. be voted out?
A. It would be a minimum of ONE YEAR before the N.L.R.B.
would conduct another election.
Read the Official N.L.R.B. Notice posted in the employee's lounge
However, members who encourage an effort to de-certify the
R.W.D.S.U. could be brought to trail and could be suspended for activi-
ties against the R.W.D.S.U., in the past some members have even been
fined for said "Unbrotherly Conduct."
Voting a union out may be more easily said than done, how many
Companies do you know, who successfully voted out a union? Remem-
ber the union is not a "FREE TRIAL OFFER." If it wins it is here to
stay forever.
Since distrinbution of the quoted flyer is not alleged as violative of the Act, it
is unnecessary here to determine its accuracy and legality under the Act.
? Indeed, if it failed during the preelection campaign to "correct" misstate-
ments by the Union. Respondent would run a risk of being foreclosed from
registering post-election objections based thereon.
POINT 10 CONVEY TO MPI.()YIS
A union is no friend to the part-time employee ....
Implementation of the standard retail store contract at
T-Way would eliminate many part-time jobs.
At about the same time that the foregoing instructions
were given to supervisory personnel, Respondent distrib-
uted among the employees a flyer reading in part:
Most of the employers at T-Way are part-timers,
working 35 hours or less per week. It is the policy of
this store to use part-time help because it provides
more jobs fior more people. Also, many employees need
part-time work to fit their own personal schedules. We
want to and intend to continue this policy.
However. should the union win the election and de-
mand the typical retail store contract, the jobs of
many, many part-time employees could be termi-
nated ...
The work schedule for the second week in January
at the store includes approximately 1,460 working
hours. Under this schedule, 59 employees will be work-
ing. If only full-time employees were used, the work
force would be cut back to 37 employees. THIS
MEANS 22 PEOPLE WOULD BE LAID OFF. At
T-Way's store in Ashland, Ohio, which is a union
store, there are 41 employees staffing a store much
larger than the Anderson store. Anderson has 18 more
employees, but in a smaller store. As a part-time em-
ployee, this should be of some concern.
It is unlikely that any employees could read this litera-
ture without concluding that a union victory in the sched-
uled election would necessarily result in the "layoff." more
734
TRADEWAY OF ANDERSON. INC.
accurately designated the "termination," of 22 employees in
the Anderson store.
It may be assumed, for the sake of the argument, that
Respondent's message would not constitute an unlawful
threat if it were true and actually reflected a reasonably
based fear on the part of Respondent. However, Respon-
dent's statements so distort the facts and contain such half
truths as to lose any free speech protection under Section
8(c) of the Act.
Notice may first be taken of Respondent's assumption
that "anyone working less than 35 hours per week" is con-
sidered a "part-time" employee. Yet Respondent itself in-
troduced into evidence portions of four collective-bargain-
ing agreements between Local 7251 of the Retail Clerks
Union and four other companies.9 One of those contracts
defines a "regular full-time employee" for the purpose of
seniority as "an employee who regularly works twenty-
three (23) or more hours per week," with the requirement
being reduced to 21 hours per week as of January 1, 1975.
Another of the four contracts introduced by Respondent
defines a "full-time employee" as one who "is hired by the
Employer as such, and who averages twenty (20) hours or
more per week in any four (4) consecutive weeks," while a
"part-time employee is an employee who is hired as such
and who works less than twenty (20) hours per week." A
third of the contracts provides: "A full-time employee who
is hired as such, as a part-time employee who averages
thirty (30) hours or more per week for eight (8) consecutive
weeks will be classified as a full-time employees, and will be
entitled to all benefits negotiated in this Agreement." The
excerpts from the fourth contract do not contain definitions
of "full-time" and "part-time" employees.
Similarly, attached to a flyer entitled "Unions and Part-
Time Employees," which Respondent distributed to the
employees during the campaign, were excerpts from two
documents which Respondent claimed were "typical retail
store contracts." Respondent headed one of the documents
"Retail, Wholesale and Department Store Union Contract
at Anderson, Indiana Company." The other is headed
"Tyical Retail Store Union Contract for Indianapolis Store
(Now Out of Business)." Neither employer is identified, and
there is no similarity in the formats of the two contracts. In
neither of the documents are the terms "full-time" and
"part-time" defined. One of the two merely provides for
separate seniority lists for full-time employees and part-
time employees; it does not give full-time employees any
greater seniority rights than are given to part-time employ-
ees. The other excerpt, not stated to be from a RWDSU
contract, does favor full-time employees in seniority rights,
but it does not appear to provide that the "Store [is]
committed to use only full time employees," as stated in a
marginal note by Respondent.
Thus, the provisions of the union contracts produced by
Respondent fail to establish its apparent contention that a
"typical" retail store contract greatly favors employees
working 35 or more hours per week. Respondent's literature
Three of the agreements are between individual companies and Local
725 of the Retail Clerks; the fourth is between Robert Hall Clothes and four
locals of the Retail Clerks. including Local 725.
' None of the agreements introduced is currently in effect, the most recent
apparently having expired on July 1, 1976. On the cover of each agreement
Respondent has wntten the legend: "OUT OF BUSINESS."
states that "seveal employees [at the Anderson store] want
to work less than 20 hours" per week. Since the actual num-
ber of such employees is not disclosed. Respondent's "pre-
diction" that unionization would entail the layoff of 22 em-
ployees is unsupported. In its handbill entitled "Unions and
Part-Time Employees." which was distributed to the em-
ployees, Respondent said that the elimination of part-time
employees would reduce the number of employees during
the second week in January from 59 to 37. (However, Pat-
rell testified that "Anderson T-Way customarily employs"
38 employees.) The figures set forth in the handbill reflect
an assumption that the 37 full-time employees would all
work 40 hours per week.'0 There is no evidence that an
employee must regularly work 40 hours per week to be con-
sidered a "full-time" employee under any of the contractual
provisions referred to by Respondent.
In cross-examining witnesses, Respondent's counsel es-
tablished that Patrell frequently spoke of the anticipated
effect of "the typical union contract." However, as hereto
noted, there is no reliable evidence concerning any "typi-
cal" contract, even among those executed by a single local
(Local 725) of the Retail Clerks Union. Even more note-
worthy is Respondent's failure to present any of the 10 col-
lective-bargaining contracts to which it is a party. It must
therefore be assumed that Respondent's own experience
does not support its prediction of dire results from union-
ization.
Significantly, the employees at Respondent's Anderson
store had rejected the Retail Clerks Union in 1977. Thus,
evidence concerning that union's contracts can have no
probative value in the present proceeding." Accordingly, on
all the evidence, I find and conclude that Patrell unlawfully
threatened employees with layoff or termination when he
purported to describe or predict the detrimental effect of a
"typical" union contract.
The same considerations apply to Respondent's emphasis
on the alleged fact that many unionized shops had gone out
of business. Such observations were made under such cir-
cumstances as to be reasonably understood by the employ-
ees as threats that Respondent's Anderson store would dis-
continue operations if the employees chose to be
represented by the Union. Patrell's statements in this con-
nection might have been permissible if they represented Re-
spondent's honest belief or prediction based on all facts
available to it. However, the evidence establishes that only
one of Respondent's unionized stores has closed. That clo-
sure occurred about 2 years ago, and there is not an iota of
evidence as to the reason therefor.
Because of the lack of any supporting evidence for Re-
spondent's statements, and the obvious withholding of rel-
evant information concering Respondent's own experience.
I find and conclude that Respondent's statements concern-
ing potential loss of jobs, particularly by "part-time" em-
ployees, in the event of unionization cannot qualify as per-
missible "predictions" based on economic facts beyond
0' 1,460 hours divided by 37 employees arithmetically results in 39.46
hours per employee
" Respondent sought to adduce testmon b Patrell that a collective-
bargaining agreement between a store named "ZodI's" and the Amalga-
mated Clothing Workers Union favored full-time employees over part-time
employees. The evidence was rejected as irrelevant. That eidentiary ruling
is hereby reaffirmed.
735
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's control. Cf. N.L.R.B. v. Gissel Packing Co.,
Inc., 395 U.S. 575, 618 619 (1969). There can be no doubt
that Respondent's statements would necessarily have a
strong tendency to coerce employees by the threat of broad
scale discharges if they chose to be represented by
RWDSU. Thus, they are not protected by the free speech
provision in Section 8(c) of the Act. See Internaional Paper
Company, Inc., 228 NLRB 1137, 1141 (1977). Accordingly,
I conclude that, as alleged in the complaint, Respondent
violated Section 8(a)(1) of the Act by threatening employ-
ees with "lay-off, or other reprisals if they became or re-
mained members of the Union, or gave any assistance or
support to it."
2. Pay advances
The complaint (as amended at the outset of the hearing)
alleges that on or about January 5 Patrell threatened em-
ployees "that the practice of granting pay advances would
be discontinued" if the employees joined or supported the
Union.
Until the time here involved, Respondent had permitted
employees to receive advances on their pay out of petty
cash. Employee Beane testified that on or about January 5
Patrell told her that Ableson, Respondent's vice president,
"could very well cut [pay advances] out because of all this,"
obviously referring to the union campaign. Beane's testi-
mony continued: "[Patrell] said you could call it a revenge
tactic, or you can call it-oh, how will I put it-anyway
something pertaining to that, that-spite tactic, but that he
didn't have to do this. He didn't say they would do it, he
just said they very well could."
Patrell, Respondent's only witness, denied having told
Beane "that if the union won, pay advances would be cut
out" or that "pay advances would be cut out of spite .. [o]r
out of revenge." But Patrell was not asked if he had said
pay advances "might" or "could" be discontinued as retali-
ation for a union victory. He testified that the tenor of his
statements to Beane was that pay advances, like all other
terms and conditions of employment, would be negotiable
and thus would not necessarily be continued if the employ-
ees were represented by the Union,
Neither Beane nor Patrell was specific as to how the par-
ticular matter of pay advances happened to be mentioned.
The major thrust of Respondent's campaign was based on
the Union's presumed favoritism toward full-time employ-
ees and the issue of union dues. Respondent maintained
that the Union could raise its dues without giving Respon-
dent's employees any voice in the matter, and that members
would be required to pay "per capita taxes" in addition to
dues. 2
Beane was disturbed about her status as a full-time or
part-time employee and its effect on her seniority rights,
since her service with Respondent had previously been in-
terrupted. There is nothing in the record to suggest that she
was concerned about pay advances. On the other hand, the
12 Respondent presented no support for this latter position. A newspaper
story that Respondent distributed to employees reports increases in RWDSU
dues and per capita payments. But it does not suggest that per capita pay-
ments were to be made by the employees in addition to dues. It appears that
the Union correctly stated that the per capita payments were included in the
employees' dues.
record does show that management was interested in that
matter. In March, after Craig was promoted from the posi-
tion of division manager to that of president of the entire
chain of stores, he ordered discontinuance of the practice of
granting pay advances in all of Respondent's stores."
I credit Beane's testimony that Patrell said that Respon-
dent might discontinue pay advances in retaliation if the
employees chose to be represented by the Union. Such
warning or threat would not be rendered lawful if Patrell
said, as he claimed, that the discontinuance might result
from contract negotiations. The cases cited by Respondent 4
are clearly distinguishable from the present case. In the
cases cited the Board carefully noted that the employer had
merely indicated that unionization would not necessarily
lead to improved wages and working conditions and that
the union might trade some benefits for other new benefits
deemed more desirable. See, e.g., Stumpj Motor Company,
supra, where the Board held certain statements valid under
Section 8(c) of the Act, "since in all cases [the possible loss
of overtime] was explained on the basis of economic consid-
erations or was communicated in the context of one of the
existing benefits which could be traded away in the course
of negotiations, and there was no overtone in the conversa-
tion that the action would be taken unilaterally by the Em-
ployer for retaliatory reasons." As stated above, in the pre-
sent case I credit Beane's testimony that Patrell spoke of the
discontinuance of pay advances as a possible retaliatory
measure. In any event, even Patrell's version of the conver-
sation would establish a violation since he presented no
"reasonable basis in fact" for the suggestion that pay ad-
vances might be lost through negotiations. Ibid.
Accordingly, on all the evidence, I find that, as alleged in
the complaint, Respondent threatened the discontinuance
of pay advances as a possible retaliatory measure if the
employees voted for representation by the Union.
CONCLtUSIONS OF LAW
I. Tradeway of Anderson, Inc.; Diamond Mercantile.
Inc., d/b/a Diamco; Nobil Shoe Company: La Rich Dis-
tributors, Inc., d/b/a Alvin Jewelers; DeKoven Drugs.
Inc.: and Unishops, Inc., d/b/a M & B of Indiana, collec-
tively, constitute a joint employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Indiana Joint Board and Retail, Wholesale and De-
partment Store Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By threatening that employees would be laid off, and
that Respondent's practice of granting pay advances might
be discontinued if the employees chose to be represented by
the Union, Respondent engaged in unfair labor practices
within the purview of Section 8(a)( I) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
The Anderson employees were told of this discontinuance but were not
informed that, as Patrell testified, such advances would still be granted, with
the specific approval of President Craig or Vice President Abelson, in cases
of extreme emergency.
" Conmputer Peripheral, Inc., 215 NLRB 293 (1974); Bulk Haulers. In(..
200 NLRB 389 (1972); and Stumpf Motor Comnpany. Inc., 208 NLRB 431
(1974).
736
TRADEWAY OF ANDERSON. INC.
5. It has not been shown that Respondent coercively in-
terrogaled any employees in siolation o' Section 8(a)(I) of
the Act.
'Il I R I 51l)Y
Respondent contends that ans unfair labor practices
found herein are tit, miinitr, and do not arrant the issu-
aince of a remedial order. losever. threats of loss of t'jobs
either through plant closure or b indixidual lasofl's or ter-
minatiolis, are especially cercise and seriousl! interfere
with employees' statutorily protected righ t of tFree choice as
to union representation. See \. I.. R . . v .(;ist, rPcLkin (Jo..
m.Irr Accordingly having ;'otuld IIhal Respondent has un-
lawfiully threatened emploees ill contravcltion o' Sectioll
8(a)( I) of the Act. I shall recommend that it be required to
cease and desist from such conduct and similar misconduct
and take certain affirmative action designed to effectuate
the policies of' the Act. as s customar 5 in cases such as this.
ULpon the foregoing findings o(f fact and conclusions of
law, and pursuant to Section 10(c) of' the Act. I hereby issue
the iollowing recommended:
ORI)DER'
The Respondents, Tradewia of Anderson. Inc.: )ia-
mond Mercantile. Inc.. d/hb/a [)ianico: Nobil Shoe ('om-
pany: l.a Rich Distributors Inc.. d/b/a Alvin Jewelers: [e
Koen D)rugs. Inc.: and lnishops. Inc., d/h/a M & B of
IS In the eent no excepions are filed as provided hb Sec 102.46 of the
Rules and Regulations of the National abor 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 deemed
waived for all purposes
Indiana Anderson. Indiana, their officers, agents sacces-
sors. and assigns, shall:
I. ('ease and desist from:
(a) T'hreatening emploecs \xith possible laoff's and/or
closure of Respondent's store in Anderson. Indiana. and/or
discontinlua nce of;an existing emploee benelits if the em-
ploeses join support. ald/ or choose to he represented hb\
Indiana Joint Board and Retail. W\holeale and D)epart-
ment Store Utnion. Al. ('10. or an\ labor oriani7ation.
(h) In any like or related manner interfering with e-
strailling. or coercilng eplo ees iin the eerccise of their
rights under Section 7 of the Act.
2. lake te lollowin airmatie action necessarN to ei-
tectiuate the policies of the Act:
(a) Post at Respondents' lacilit\ in Anlderson. Indiana.
copies of the attached notice marked "Appcndix." ' (Copie
of said notice. on forms pro,idcd hb\ the Regional D)irector
ftr Region 25, after being dull signed hb Respondents' au-
thorized representa;tives. shall be posted hb\ Respondents
immediatel\ upon receipt thereof, and shall he maintained
by them for 60 consecutive da,s thereafter, in conspicuous
places, including all places where notices to emploees are
customarily posted. Reasonable steps shall be taken b Re-
spondents to insure that said notices are not altered. de-
fliced, or covered b any other material.
(b) Notify the Regional Director for Region 25, in writ-
ing. within 20 days from the date of this Order, what steps
Respondents have taken to comply herewith.
11 Is t-'RII IR ORt)LRI) that the complaint be dismissed
insofar as it alleges that Respondents coercively interro-
gated emploxees.
i' In the event that this Order is enlorced hb a Judgmenl of a Ulnted
States Court of Appeals, the vords in the nolice reading "Posted b) Order
the National Labor Relations Board" sh.all read "Posted Pursuant to a Judg-
ment of the United States (Court of Appeals Enlrc ing an Order of the Na-
Ilonal Labor Relations Board"
737