Zale Corp.

National Labor Relations Board - Board Decisions

Jan 15, 1974

208 N.L.R.B. 404 (N.L.R.B. 1974)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Butler's Shoe Corporation , a wholly-owned subsidiary
of Zale Corporation and Retail Store Employees
Union, Local 876, Retail Clerks International
Association , AFL-CIO. Case 7-CA-10270
January 15, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
Act alleged. Upon due notice, the case was tried before me
at Detroit, Michigan, on August 16. Representatives of all
parties were present and participated in the hearing. At the
close of the hearing the General Counsel presented oral
argument.
Based on the entire record, including my observation of
witnesses, and after due consideration of the briefs, I make
the following:
FINDINGS AND CONCLUSIONS
I JURISDICTION
On September 28, 1973, 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, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.'
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 the Respondent, Butler's Shoe
Corporation, a wholly-owned subsidiary of Zale
Corporation, Detroit, Michigan, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
i Respondent's exceptions directed to the credibility resolutions of the
Administrative Law Judge are without merit The Board will not overrule
the Administrative Law Judge's resolutions as to credibility unless a clear
preponderance of all relevant evidence convinces us that they are incorrect
On the entire record, such a conclusion is not warranted herein Standard
Drywall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A. 3, 1951)
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 April 3, 1973,' a complaint issued May 31, amended
August 3, presenting allegations that Butler's Shoe Corpo-
ration, a wholly owned subsidiary of Zale Corporation,
hereinafter referred to as the Respondent, committed
unfair labor practices within the meaning of Sections
8(a)(1) and 2(6) and (7) of the Act. Respondent's answer,
as amended, denies that it committed the violations of the
i Unless otherwise indicated, all dates are in 1973
Respondent, a Florida corporation with principal offices
in Atlanta, Georgia, operates a number of retail shoe stores
located in various States of the United States, among
which are seven located in and around Metropolitan
Detroit, Michigan. Respondent admits that during the year
ending December 31, 1972, a representative period, it
received gross revenues in excess of $500,000 from the
retail sale of shoes and related items, and that during the
same period it purchased, and caused to be transported
from locations outside the State of Michigan and delivered
at its Michigan stores goods valued in excess of $50,000.
It is admitted and I find that Respondent is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
11. THE LABOR ORGANIZATION
Retail Store Employees Union , Local 876, Retail Clerks
International Association , AFL-CIO, hereinafter called
the Union , is now , and has been during all times material
herein , a labor organization within the meaning of Section
2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
It is alleged in the complaint and denied in the answer
that Respondent, by certain specified conduct, engaged in
unlawful interrogation, made unlawful threats, and solicit-
ed employee grievances, all in violation of Section 8(a)(1)
of the Act. A threshold issue bearing on some of the
evidence presented is whether Fred Lewis Rosenstein was,
during the material time, a supervisor within the meaning
of the Act.
B. Background
Early in January the Union began its organizing
campaign among employees at Respondent's seven Detroit
metropolitan area stores. At that time union officials called
upon Randy Graham, manager of the Northland store,
and advised him that in connection with the impending
organizational efforts, Young Quarker, a regular part-time
salesman at that store, was on the organizing committee
and was protected by Federal law in such activity. Union
authorization cards were distributed by Quarker, who was
transferred to another store in rid-March; Linda Powers,
208 NLRB No. 61
BUTLER'S SHOE CORP.
counter-sales-cashier, who was discharged in early April,
and Rosenstein, a salesman, who left Respondent's employ
in June.
C. The Supervisory Issue
Fred Rosenstein was employed as a shoe salesman in
January 1972 and worked at the Northland store from
April 1972 until he resigned for personal reasons in June
1973. Respondent contends, in opposition to the position
of the General Counsel, that during the relevant period
Rosenstein, as assistant manager, was a supervisor within
the meaning of the Act. Sometime shortly before the union
drive began,2 Rosenstein was assigned the job title bf
assistant managers As such his hourly rate of pay was
approximately 10 percent more than other salesmen
received.
Rosenstein testified t that, when he became assistant
manager, Graham told him in the presence of other sales
persons that when Graham was not there Rosenstein was
"in charge" and that during such periods he was to make
sure that the store was running properly. He further
testified that he was never instructed more specifically as to
his authority but, as the person in charge, it was his duty to
take care of any problems which arose; that he had no
authority to hire, fire, or discipline the three or four other
salespersons on duty at such times, and that he was never
told that he had authority to grant permission to leave
early or otherwise change the assigned work schedule; nor
was he ever consulted with respect to changes in the rate of
pay of any employee. Rosenstein asserted he could,
however, make recommendations5 and did, on one
occasion, recommend that disciplinary action be taken
because a salesman who was performing stock duties
2 The combined testimony of Rosenstein and Graham indicates that
Arlie Hammond was made assistant manager around the first of the year
but before the union activity began and within a week was assigned to work
as manager at another store, whereupon Rosenstein became the assistant
manager at Northland within a couple of months, Hammond returned to
the Northland store where, thereafter, both men continued working with the
same title and rate of pay The store remained open until 9 p.m nightly and
Graham was not present for approximately 12 to 15 hours a week, generally
before closing. It would appear, however, that Rosenstein was the only
assistant manager at the store at least during January and February 1973
9 Respondent introduced into evidence a dtxunient entitled "Job
Description Assistant Manager" listing some 13 numbered statements of the
duties of an assistant manager Several of these use the word "supervise;'
but the context in which it appears fails clearly to bestow any of the specific
supervisory authority contemplated by the Act The General Counsel
presented copies of the pertinent parts of the transcript of hearing and the
Regional Director's decision in the concurrent representation proceeding.
pointing out that therein Respondent stipulated to the exclusion from the
multistore unit, as supervisory, only one named assistant manager The
effect of this stipulation was to include, as nonsupervisory employees all
other unnamed assistant managers (Case 7-RC-11707, Regional Director's
decision issued June 6, 1973-resolving other unit issues raised in that
proceeding The Employer's request for review filed June 20 was denied on
June 29. ) Such a stipulation in an ancillary proceeding. even if Rosenstein
had been specifically named as nonsupervisory, does not preclude a
contrary determination herein on the evidence presented it does, however.
contrary to the implicati•>n of the job description, suggest that not all
assistant managers were given the same authority. Consequently. the
determination of Rosenstein's supervisory status must rest primarily upon
the testimony presented herein with respect to the authority and responsibil-
ity actually conferred upon him
4 Rosenstein , who appeared under subpena, amply demonstrated his
antagonism toward the General Counsel and the Charging Party, and his
reluctance to give any specific information concerning the various
405
refused to report to the sales floor when he requested this
due to an influx of customers. On this occasion Rosenstein
reported the incident to Graham the following day.
Graham talked to the employee in the presence of
Rosenstein and another employee witness of the incident,
told the offending employee that he was wrong, and
directed Rosenstein to "write him up."6
Other duties for which Rosenstein was responsible
during periods when he was "in charge" included the
handling of customers' complaints, the authorization of
refunds, obtaining needed change for the cash register,
locking the store, initialing deposit slips, and making night
deposits. All money matters required the signature and
participation of two persons and such tasks were also
performed by certain other designated employees. All
salesmen participated with Rosenstein in the various other
duties which included the handling of stock, the prepara-
tion of displays, and general cleaning details.
The evidence does not present a clear indication that
Rosenstein, in fact, possessed the significant supervisory
authority contemplated by the Act. The one disciplinary
incident related would seem to indicate that all of his
recommendations were subject to the independent investi-
gation by the manager. Further, as little independent
judgment is required to determine, even without reference
to the store manual,7 that the primary function and first
call of duty of a salesperson is to serve customers when
they appear, and as any two employees could report on the
dereliction of duty of another employee, I find this
disciplinary incident, standing alone, insufficient to estab-
lish that Rosenstein had any real authority to effectively
recommend discipline. It is not asserted that Rosenstein
had any supervisory responsibility while Graham was
allegations in the complaint beyond what he had previously supplied in his
pretrial statement . He claimed he could not remember even such incidents
in any specific detail without first referring to or examining the statement
Ilis demeanor in responding to questions by the General Counsel, his
frequent unresponsiveness in matters alleged in the complaint, and his
eagerness repeatedly to voice his grievance against the General Counsel in
connection with the service of the subpena and against the Charging Party
in other respects, in marked contrast to the quickening of his memory
concerning other conversations and events concurrent in point of time with
those covered by the complaint, created the impression that he was being
deliberately vague In the face of this apparent hostility, I am compelled to
scrutinize all of his testimony in the light of his obvious prejudice
5 Rosenstein's testimony with respect to his authority and what he was
told by Graham contains many inconsistencies. e g. on redirect he asserted
that he was told initially by Graham he "had authority to make a
recommendation to somebody" for the discharge of employees. Since
Graham himself had authority to hire and discharge employees , and he was
the direct supervisor of Rosenstein and the other store employees, it would
seem highly unlikely he would vaguely designate "somebody" rather than
himself as the person to whom recommendations should be made, if.
indeed , he made any such statement 1 conclude that Rosenstein 's initial
version of what he was told, i.e., merely that he was "in charge." is the more
accurate testimony This is consistent with Graham 's testimony that
Rosenstein was to assist him and that he told employees that Rosenstein
would carry on in his absence
b ['his is a form of discipline in which a statement of the offense, signed
by two persons, is sent to the district supervisor and made a part of the
employees' record Graham and Rosenstein signed the statement in this
instance
r Item 13 of the assistant manager's job description reads as follows
"The learning , execution , and/or supervision of: All company policies and
procedures as outlined in the Store Manual Bulletin Binder to which he has
access at all times during normal store hours "
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present. Nor do I find in his other duties evidence that
Rosenstein responsibly directed the work of other employ-
ees even during those closing hours after Graham left the
store. Rosenstein's added responsibility during such time
related primarily to store functions and financial matters
rather than to the supervision of store employees. Moreo-
ver, the availability of the store manual and other
directives supplied by the district manager would appear to
obviate the possibility of any situation arising which would
require the use of independent or responsible judgment in
"carrying on" in Graham's absence.
On the basis of all the evidence presented, I find that
Rosenstein was not, during any relevant period, a
supervisor within the meaning of Section 2(11) of the Act .8
D. The Alleged Unlawful Conduct
Powers recalled a conversation with Graham which took
place around mid-to-late January in the lower level
stockroom. On this occasion Powers arrived at work later
than her scheduled time and was told by Rosenstein that
Graham wanted to see her downstairs. When she appeared,
Graham opened the conversation with the question "Do
you know that if the Union comes in they'll close the
store?" and when she replied that she did not know this, he
asked "How do you think you're going to vote?" After
Powers told Graham she would hear both sides and then
decide this question, he told her she could go upstairs.
Graham denied that he asked Powers how she would vote
or that he ever told anyone that if the Union came in the
Detroit stores would be closed.9
Powers impressed me as a credible witness. Her version
of this incident is consistent with, and buttressed by, the
position she later took and the questions she raised in the
meeting conducted by management in March. I do not
credit Graham's denials with respect thereto. His January
conversation with Powers conflicts with the testimony of
others which indicates that the subject of obtaining the
return of union authorization cards arose in late March.
Accordingly, I find that Respondent through Graham
threatened to close the store in retaliation if the employees
selected union representation, and interrogated an employ-
ee as to how she was going to vote in the anticipated
election, each violative of Section 8(a)(1) of the Act.
Quarker testified that at the Northland store sometime
after January 25, Graham said to him, "Do you belong to a
union? If you do, show me your card." Quarker recalled
that this occurred when Graham stopped a conversation in
the salesroom-stockroom doorway among employees Chris
Boyd, Kerry Bell, Rosenstein, and himself in which Bell
8 Big "N" Department Store No 307, Big "N", a Division of Neisner Bros,
Inc, 200 NLRB No 137, Pacific Drive-In Theatres Corp, 167 NLRB 661,
662. See Plastic Workers Union Local 18, International Union, Doll and Toy
Workers, AFL-CIO v. N L.R B, 369 F 2d 226 (C.A. 7, 1966)
9 Graham also denied ever calling Powers downstairs , asserting "We
went downstairs to get some handbags and she . told me that
she had signed a union card but planned on getting it back I said 'that's
up to you ' " His recollection was that this occurred sometime in January
rather than in March after the district manager met with the employees and
the subject of how employees could obtain the return or their cards was
discussed.
'a Although the transcript of testimony omits the word "not." contrary
to my recollection as to the sense of the testimony , its omission is in no way
crucial to any finding herein
stated that if they had a union in the store salesmen would
not 10 have to run stock, a task in which they were presently
engaged, and he had "instigated," i.e., voiced his agree-
ment with this and similar comments by the others.
Graham recalled a somewhat different setting for his
questioning of Quarker with respect to his having a union
card. According' to Graham, employees Gary Strat,
Powers, Boyd, and Rosenstein were standing with Quarker
near the end of the counter and Quarker was "bragging
... for five minutes" telling everybody he had a union
card. -Graham said to Quarker, "If you've got a union card,
let me see it.""
I find it unnecessary to reconcile the different versions
with respect to the context of Graham's remarks. Each may
reflect partial or selective, recollection of a single event or
they may have reference to two separate occasions. In
either case both attest to the fact that on at least one
occasion, in the presence of fellow employees, Graham
questioned Quarker as to whether he belonged to a union
and demanded to see his union card. Graham's own
version suggests that he was thereby attempting to discredit
Quarker whom he knew to be the union organizer at the
store. Such interrogation is clearly violative of Section
8(a)(I) of the Act.
District Manager Steve Fatovic came to the Northland
store 'in late March and met with employees in two groups
according to their work shift. The second meeting,
conducted between 5:30 and 6 p.m., was attended by
Graham, Rosenstein, Powers, and possibly Debbie John-
son and/or Craig Bell. The purported purpose of the
meeting was to discuss with employees "some policies and
also benefits of the company." Fatovic told employees the
Company was trying to improve their benefits and, using a
new booklet which had been printed for distribution to
employees the preceding month, Fatovic explained various
existing employee benefits. During the discussion of
benefits Powers raised various questions.
According to Powers, Fatovic told the group that if the
Union came in the Company would not have to meet the
Union's demands and would not have to give employees
anything; employees could even lose the benefits they
already had; Zale Corporation grossed some $400 million
and that Butler's Detroit stores contributed only about $4
million of this; and, if they closed the store he would still
get his salary every week. Powers responded "I'm a
gambler so I'm still going to hear both sides." Fatovic said
to her "would you write on a piece of paper your
grievances and we'll try to meet your demands." 12
Fatovic testified that at this meeting Powers made the
i i Graham explained that he had been a member of another union while
working for another employer in a different locality, and did not believe
Quarker had a membership card He further testified that he did not know
whether Quarker was aware he was not referring to an authorization card
but to a membership card
i2 Rosenstein recalled that at this meeting Fatovic said they were a $400-
million Company and that the Detroit stores produced only I percent of the
business, that if the Union came in these stores did not really matter He
also recalled that Fatovic told Powers that if the Union came in "you could
lose benefits or you could gain benefits" and she replied "I'll take a gamble
with the Union " Fatovic told her that " the Union was no guarantee you're
going to get more You could wind up losing too " I view his testimony as
corroboration and amplification of that of Powers
BUTLER'S SHOE CORP.
statement that the Employer could not afford to close the
Detroit stores because these produced $10 million in sales
which was 10 percent of Butler's business and that he
replied "Linda, if Butler's going to close the Detroit stores,
it's news to me. Where did you hear that?" She responded
"They can't afford to close the stores" and he said, "But
there is no intention of closing any stores." 13 Fatovic
admitted telling employees that through bargaining, if the
Union came in, benefits might go up or down. With respect
to grievances, Fatovic explained that he had received
through managerial channels a suggestion that manage-
ment hold a group meeting with employees of all stores to
discuss their problems. This suggestion was turned down
by his superior, but when he held the meetings at the
Northland store he told the employees that if anyone
wished to make any suggestions or complaints to manage-
ment "They could write it on a piece of paper and give it to
their store Manager and he'll see the proper people get it."
Graham, who was also present at this meeting, at first
testified that Fatovic did not ask employees to write down
their problems and submit them to him and that he did not
state anything in regard to having employees state their
problems to the company in this meeting. Later, when
asked whether in this meeting Mr. Fatovic said anything
about employee grievances or complaints, Graham testi-
fied that "He said, `If you have any, I'd like to hear them.'
.... He said they could be in writing," and that they did
not have to sign their names if they did not want to.
With respect to closing the stores, I do not credit
Fatovic's recitation of the exchange he had with Powers.
Nor do I find in the combined testimony of Powers and
Rosenstein a clearly stated threat to do so. However, in the
context of pointing out the insignificance of the Detroit
operations in relation to the overall sales of Respondent, I
find that Fatovic's comments, that if the Union came in
these stores did not really matter and if they closed the
stores he would still get his salary every week, constitute a
veiled threat that if employees chose representation the
stores could be closed. This threat is a violation of Section
8(a)(1). Additionally, I find that Fatovic not only solicited
employee grievances in writing as he attested, thereby
implying a promise of benefit, but also solicited from
Powers a written statement of her grievances and promised
to try to give them favorable consideration. Such conduct,
13 Fatovic further testified that Powers then stated "there's been some
conversation or some inquiry about people getting the union cards back"
and he said "I'm not suggesting nor am I telling anyone to get their cards
back However, if each person knows what he wants to do if he wants
to get his card back, you could write to NLRB with a copy to Local 876,
and if that address is needed, I'm sure your Manager would have it " On
cross-examination Fatovic was asked how the subject of getting back cards
came up at the meeting and he testified
A I said there had been some persons in the area inquiring about
getting their cards back. And I said, "we're not suggesting or telling you
to get your cards back But if a person is interested in that way, they
can write to NLRB with a carbon copy to Local 876 "
Q Neither of the employees at the meeting had made this
suggestion at the meeting?
A No, Sir
There is no specific allegation in the complaint covering this conduct and
the only evidence presented by the General Counsel was testimony by
Quarker that after these meetings he was approached by some of the
employees for the return of their authorization cards. This self-contradicto-
ry testimony is significant, however, in evaluating the credibility of witness
Fatovic and in relation to Graham's testimony concerning his stockroom
407
in the context of an organizing campaign amounts to
interference with the exercise of Section 7 rights in
violation of Section 8(a)(1) of the Act.14
Affirmative evidence concerning a number of the
allegations in the complaint rests entirely upon the
testimony of Rosenstein whose reluctance to supply such
information is discussed at footnote 4, supra. Before being
permitted to examine the signed statement he had
previously given to the Board Agent, Rosenstein gave some
testimony concerning various events which he amplified
upon to some degree after examining his statement.
In his memorandum brief, the General Counsel urges
reliance upon Rosenstein's statement, which was offered
into evidence by Respondent without limitation or a
statement of purpose and received without objection, as
evidence of the allegation in the complaint of a threat of
more onerous working conditions if the Union succeeded
in its organizational efforts. Before reading his statement,
Rosenstein testified that in March Graham mentioned to
him and Boyd, whatever he had put in the statement.15 A
comparison of Rosenstein's testimony with his affidavit
would indicate that the following is the portion to which
that testimony had reference:
Sometime in March at the store with Chris Boyd, Kim
Bell, Gary Strat, and I present, Graham told us that if
the Union, [sic] there would be no smoking breaks and
we would have to be working all the time. That was
about all to that conversation.
No further testimony was presented concerning this event.
On more than one occasion while testifying, Rosenstein
attested to the truthfulness of his pretrial statement
generally. Considering his testimony quoted in conjunction
with the relevant portion of the statement, I find that
Rosenstein also specifically adopted as part of his direct
testimony the portion of the statement set forth above.
Respondent's witness, Graham replied "No, I did not" to
the direct question, "Did you ever threaten any employee
with more onerous working conditions if the union
succeeded in its organizational efforts?" Although Respon-
dent had introduced Rosenstein's statement as Respon-
dent's Exhibit 1, Graham was not asked and did not
specifically deny he ever said to employees that if the
conversation with Powers
14 No finding is made with respect to Fatovic's statement that if the
Union came in employees could lose benefits they already had as there is no
allegation in the complaint specifically covering such statements
15 The pertinent part of the record reads as follows
Q Going on to the month of March, 1973, did Mr Graham
mention the Union at any time when you and Chris Boyd were present9
A Yes
Q Was anyone else besides Chris Boyd and Mr Graham
present"
A Not that I can think of, no
Q Where were you in the conversation in March took place9
A In the store
Q What was said by Mr Graham in this conversation9
A That's why I need the paper to see I don't recall I can't recall
word for word what I said What I said in that statement is true I said it
then but I can't recall it word for word There were so many statements
I made, that I don't recall everyone of them
Q Can you recall any part of this March conversation now9
A Not unless I read the paper
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union came in there would be no smoking breaks and
employees would have to work all the time. Accordingly,
on the basis of all the foregoing evidence, I find that
Respondent threatened employees with more onerous
working conditions if employees chose union representa-
tion, and that such threat violated Section 8(a)(1) of the
Act.is
At the hearing, and in his memorandum brief, the
General Counsel urged that "the apparent disenchantment
of witness Rosenstein with the Charging Party at this time
should add a great deal of weight to his testimony." As
indicated in footnote 4, supra, I find that Rosenstein's
demonstrated hostility has relevance in evaluating his
testimony. I would add the observation, however, that
Rosenstein's care in testifying with respect to specific
statements made to him, as distinguished from his
interpretation of statements and events-not only those of
Graham which are alleged to be unlawful but also those of
the union representative and of the Board offi-
cials-revealed a particular concern that his testimony be
truthful. Respondent did not question Rosenstein concern-
ing any inconsistencies in his direct testimony and his
statement. However, on the assumption that this was at
least part of the purpose for Respondent's offering the
statement in evidence, I have made such a comparison. I
do not find in that comparison a variance sufficient to
impeach Rosenstein or even to warrant rejection of any
significant part of his direct testimony. On the other hand,
since Rosenstein did testify from his present recollection
with respect to the particulars of the various allegations
considered infra, either before or after he was shown his
statement, I shall not use the statement to establish any
unlawful conduct not specifically recited in Rosenstein's
oral testimony.
Initially Rosenstein testified that Graham discussed
unions in the stores and "said a lot of things" which he,
Rosenstein, could not recall. On further questioning he did
recall that such conversations included the subject of union
authorization cards, and that Chris Boyd was present when
Graham mentioned he knew about the cards and wanted
to find out who was passing them around. This occurred
around the time when Quarker was passing these out
among employees. Rosenstein also recalled that very soon
thereafter Graham knew, but Rosenstein had no knowl-
edge as to the source of Graham's information. In his
statement Rosenstein indicated that he and Boyd told
Graham it was Quarker. Graham denied that he ever asked
Rosenstein or anyone else who was passing out cards for
the Union. I do not credit this denial. Accordingly, I find
that by this interrogation Respondent violated Section
8(a)(1) of the Act.
Rosenstein testified that later in January Graham stated
that the Union needed a certain number of authorization
cards before it could obtain an election. Graham said he
did not "feel that many people had cards in the store," and
he was trying to find out which employees had filled out
cards. Graham asked him, in the presence of other
16 1 make this finding with considerable reservation, particularly in view
of the fact that the direct testimony , standing alone, is quite unintelligible as
to what specific allegation was involved, and the statement had not yet been
introduced into evidence at the time the General Counsel rested his case
and Respondent, in making its motion for dismissal of the entire complaint,
employees, whether he had signed a card, why he filled out
a card, and why he was joining a union. Rosenstein
responded he felt they needed a union in the store.
Rosenstein's statement does not cover a conversation in
the context mentioned here but does refer to similar
inquiries in March to which he refused to give his personal
reasons. Graham denied that he ever asked Rosenstein
whether or not he had signed a card for the Union, why he
had signed the card, or why he was joining the Union. I
credit Rosenstein's testimony that such interrogation
concerning his union activities, sympathies, and desires
was made in the presence of other employees, and that
such inquiries violated Section 8(a)(l) of the Act.
Rosenstein also recalled that Graham mentioned the
possibility of a strike and what could happen, shortly after
the district manager 's late March meetings with employees
at the store. Rosenstein stated there were other employees
present on this occasion but he was unable to remember
who, or whether they were listening . In this respect,
Rosenstein testified that Graham stated if employees went
on strike the company would bring other employees in to
do the job, and when the strike was over and the striking
employees came back they would not be guaranteed they
would get their same jobs back. In his statement Rosen-
stein indicated Graham said that "after the strike was over
most of us wouldn't get our jobs back because of going on
strike." Graham denied that he ever had a conversation
with Rosenstein "concerning, if the employees went on
strike," or that he ever told Rosenstein that if the
employees went on strike they would be fired. He then
testified that he did tell Rosenstein that, if the employees
went on strike, the Company would continue to run its
business, and could replace them, and when the strike was
over, if the replacements were gone, they could come back;
if the employees went on strike the Company had the right
to hire to stay open and to hire employees-as long as the
employees were doing the job, the company did not have
to let that employee go to rehire the employees on strike.
Although as appears, Graham contradicted himself, and I
find his testimony reliable only to the extent that it is
consistent with that of Rosenstein, I do not find in the
testimony a sufficient indication that Respondent thereby
exceeded the purview of Section 9(c). Although Rosen-
stein 's written statement set forth the threat alleged to be
unlawful in section 9(g) of the complaint, in view of
Rosenstein 's oral testimony, I find that this allegation is
not established by the best evidence.
After his memory was refreshed by reading parts of his
statement , Rosenstein recalled that in January Graham
stated to him, Quarker, Boyd, and Powers, that the store
would be closed down if the Union came in , the part-time
employees would be laid off and they would be out of jobs.
Rosenstein's statement does not contain this latter phrase.
Graham denied he told Rosenstein that if the Union got in
all the part-time employees would be laid off. His
testimony is, he said that if the Union came in "there
would perhaps be a reshuffling of employees . . . there
alluded to the absence of specific testimony relating to more onerous
working conditions However, having denied the motion at that time in all
respects, and having thereafter received the statement in evidence without
limitation being placed on its purpose. I must now evaluate the proof of all
allegations on the basis of the entire record
BUTLER'S SHOE CORP. 409
may be more part-timers used and may be less part-timers
used. There may be more full timers used." Graham
explained this comment was made when they were
discussing the Union and Rosenstein said it seemed to
him the Union was playing the part-timers against the full
timers," and as he understood it, there is usually some
reshuffling when there is a new organization.
Graham's attempt to explain his comments in terms of
his understanding as to what usually happens when there is
a newly selected representative does not remove the
coercive threat contained in his admitted comment
indicating that if the Union got in the employment status
of part-timers vis-a-vis full timers would be changed.
Evaluating credibility, I find that Graham's statements
were as testified to by Rosenstein and that Respondent
thereby made unlawful threats to close the store and layoff
part-time employees if the Union were selected as
bargaining representative, violative of Section 8(a)(1).
Also after reading his statement, Rosenstein testified that
the subject of the cards was brought up by Graham again
in March. Speaking to Rosenstein, Strat, Boyd, and
Quarker, Graham stated he knew that Powers, Quarker,
and Rosenstein had passed out the cards and wanted to
know who had the union cards at that time. This incident is
not specifically covered by Rosenstein's statement. Gra-
ham testified he did not ask who was passing out union
cards. When asked whether he knew who was passing out
cards Graham replied "No," but to the very next question
"How did you find out," he replied "Mr. Willie Jackson
[the representative of the Charging Party herein] came in
with another man one day and said that Young Quarker
was a union organizer ...." I do not find in his testimony a
denial that he stated to employees he knew who was
passing out the union cards or a denial that he inquired of
them who had the cards at that time This incident, I find,
is yet another instance of unlawful interrogation violative
of Section 8(a)(1).
Finally, Rosenstein testified with a "refreshed memory"
that in early April Graham told him that he could not
become a manager if he voted for the Union because
managers are against the Union. Although this conversa-
tion took place in the store, Rosenstein recalled that no
other employee was present during the conversation. His
testimony is consistent with his statement. Graham denied
that he told Rosenstein he could not become a manager if
he voted for the Union, asserting he said "A manager
could not be in a union. Management can not be
unionized." This testimony was offered to establish the
allegation in section 9(h) of the complaint that Graham
threatened employees with loss of opportunity for ad-
vancement if they supported the Charging Party. In view of
Graham's admitted frequent conversations with Rosen-
stein concerning the Union, the fact that as assistant
manager Rosenstein was eligible for training to become a
manager at Graham's election (which is the purport of the
job description), and my consistent impression that
Graham was not a convincingly credible witness, I
conclude that the statements testified to by Rosenstein
11 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
were made and that Respondent thereby violated Section
8(a)(1) of the Act as alleged.
Finally, even if my finding that Rosenstein was not a
supervisor within the meaning of the Act is erroneous,
most of the statements herein were nevertheless unlawful
as they were made in the presence of other employees.
Upon the basis of the entire record, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(2) and (6) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By engaging in the conduct described in section III,
above, Respondent interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed them in
Section 7 of the Act, and thereby engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) 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 REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. And, as the unfair labor
practices committed by the Respondent , occurring in the
context of an organizing campaign which embraced all
stores in the Metropolitan Detroit area are of a character
striking at the very basic employee rights safeguarded by
the Act, I shall recommend that Respondent's remedial
action be coextensive with the employee-union activity
with which it interfered and, additionally, that it cease and
desist from in any other manner infringing upon rights
guaranteed in Section 7 of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 17
The Respondent, Butler's Shoe Corporation, a wholly
owned subsidiary of Zale Corporation, its officers , agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union sympathies, membership, activities , and voting
intention, and the union activities of fellow employees.
(b) Threatening employees with layoff of part-time
employees, with more onerous working conditions, with
closing of the store or the Detroit stores, or other reprisals
if they selected union representation, and threatening an
employee with loss of an opportunity for promotion if he
voted for Retail Store Employees Union, Local 876, Retail
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 i
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clerks International Association, AFL-CIO, or any other
labor organization.
(c) Soliciting employee grievances and promising to try
to meet employee demands to dissuade employees from
assisting, joining or selecting Retail Store Employees
Union, Local 876, Retail Clerks International Association,
AFL-CIO, or any other labor organization.
(d) In any other manner infringing upon rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at its stores in Metropolitan Detroit, Michigan,
copies of the attached notice marked "Appendix." 18
Copies of such notice, on forms provided by the Regional
Director for Region 7, after being signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered, by any other material.
(b) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
18 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-
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law and we have been ordered to post this notice. We
intend to carry out the order of the Board and abide by the
following:
WE WILL NOT coercively interrogate employees
concerning their union sympathies, membership, activi-
ties, and voting intentions or the union activities of
fellow employees.
WE WILL NOT threaten employees with layoff of part-
time employees, with more onerous working condi-
tions, and with the closing of the store or the Detroit
stores, or with other reprisals if they select union
representation, or with loss of an opportunity for
promotion if they voted for Retail Store Employees
Union, Local 876, Retail Clerks International Associa-
tion, AFL-CIO, or any other labor organization.
WE WILL NOT solicit employee grievances and
promise to try to meet employee demands to dissuade
employees from assisting, joining or selecting Retail
Store Employees Union, Local 876, Retail Clerks
International Association, AFL-CIO, or any other
labor organization.
WE WILL NOT in any other manner infringe upon the
rights of employees guaranteed in Section 7 of the
National Labor Relations Act.
All employees are free to engage in concerted activities
for the purpose of collective bargaining or other mutual aid
or protection. Our employees are also free to refrain from
any or all such activities.
BUTLER'S SHOE
CORPORATION A WHOLLY-
OWNED SUBSIDIARY OF
ZALE CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 500 Book Building, 1249
Washington Boulevard, Detroit, Michigan 48226, Tele-
phone 313-226-3244.