Zayre Corp.

National Labor Relations Board - Board DecisionsSep 21, 1965

154 N.L.R.B. 1372 (N.L.R.B. 1965)

1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Employer at its Baltimore , Maryland, location, excluding all office clerical employees , engineers, salesmen, janitors , professional employ- ees, guards, and supervisors 3 as defined in the Act. [Text of Direction of Election omitted from publication.] 3 The Employer , relying upon its contention that Senseney is a supervisor , seeks his exclusion from the unit . Although we have found that Senseney did not possess super- visory authority during the period in which the showing of interest was obtained, we are unable to determine from the record whether he presently possesses supervisory authority For this reason , we shall not make a final determination of his eligibility status, but instead will permit him to vote subject to challenge Zayre Corporation and Local 1459 , Retail Clerks International Association , AFL-CIO. Case No. 1-CA-4809. September W. 1965 DECISION AND ORDER On July 9, 1965, Trial Examiner David S. Davidson issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and rec- ommending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. There- after, the respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel refiled his brief to the Trial Examiner. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' 1 The Respondent , which presented no witnesses , contends that the Trial Examiner improperly credited the testimony of all the witnesses who testified for the General Coun- sel in support of the complaint , and discredited the Respondent 's general manager who was called as an adverse witness by the General Counsel It is the Board 's established policy not to overrule a Trial Examiner's resolutions as to credibility unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Such a conclusion is not warranted here . Standard Dry Wall Products , Inc, 91 NLRB 544, entd. 188 F 2d 362 (C.A. 3). 154 NLRB No. 114. ZAYRE CORPORATION 1373 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Zayre Corporation, Springfield, Massachusetts, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed November 25, 1964, by Local 1459, Retail Clerks International Association, AFL-CIO, referred to herein as the Union, the General Counsel issued a complaint against Respondent, Zayre Corporation. The complaint, as amended prior to and at the hearing, alleges that Respondent violated Section 8(a)(1) of the Act. Respondent's answer denies the commission of any unfair labor practices.' This proceeding, with all parties represented, was heard before Trial Examiner David S. Davidson in Springfield, Massachusetts, on May 3 and 4, 1965. At the close of the hearing oral argument was waived and the parties were given leave to file briefs. Briefs were received from the General Counsel and Respondent. Upon the entire record in this case, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation, maintains and operates 50 self-service depart- ment stores in at least 10 States. Its principal office and place of business is located in Natick, Massachusetts. At its Springfield, Massachusetts, store, the only store involved herein, Respondent sells at retail and distributes clothing, hardware, cos- metics, dry goods, and related products, the gross value of which exceeds $500,000 annually. Respondent causes large quantities of such products sold by it in its retail business to be purchased and transported in interstate commerce from and through various States Respondent admits, and I find, that Respondent is engaged in commerce within the meaning of the Act and that assertion of jurisdiction is warranted. If. THE LABOR ORGANIZATION INVOLVED Local 1459, Retail Clerks International Association, AFL-CIO, is a labor orga- nization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Since at least 1963 through the date of the hearing, the Union has been engaged in a campaign to organize the employees of Respondent's Springfield store. The complaint alleges that at various times during this period through its agents and supervisors, Respondent has interrogated employees concerning their union member- ship, activities, and desires, threatened employees with reprisals if they joined or assisted the Union, conveyed to employees the impression that their union activities were under surveillance, promulgated an illegal no-solicitation rule, attempted to solicit employees to keep union activities under surveillance, and piomised and granted pay increases and other benefits to employees if they refrained from joining or assisting in union activities. At the Springfield store Respondent operates a number of departments directly with its own employees and managers. It also leases departments to independent operators who supply their own managers and employees. Both the employees and supervisors of Zayre and of two of the leased departments are involved herein. 'Following the close of the hearing , Respondent filed a supplemental answer denying allegations added to the complaint by amendment at the hearing The supplemental answer has been received in evidence as Trial Examiner 's Exhibit No. 1. 1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It was stipulated at the hearing that the following persons, who are employed by Zayre in the capacities set forth after their names, possessed some or all of the attributes of supervisors and were supervisors within the meaning of the Act at all times material: Albert Foster, store manager; Jim McClure, assistant store manager; Cleone Durkin , manager, children 's department ; Bonnie Baerman , manager, small wear department; Fred Cluley, manager, photo department; Buz Hasenjager, manager, sports and toy department; Emily Lichwala, head cashier; Joseph Ramos, head receiver; Jacqueline Grummel, manager of ladies sportswear department and later of the children's department; and Phillip Archambault, manager, small appliance department. In addition, it was stipulated that Anne Misitano, manager of the yarn department, and Jennie Santucci, manager of the fabrics department, who are both employed in leased departments , were also supervisors at all times material.2 The findings which follow as to the alleged unfair labor practices are based on the testimony of the witnesses who testified for the General Counsel in support of the complaint. Among these were four of the persons stipulated by the parties to be supervisors Most of the testimony in support of the complaint was uncontra- dicted. Of the various persons alleged in the complaint to have committed the viola- tions charged, only Albert Foster, the store manager, testified, and he was called as an obvious adverse witness by the General Counsel. No witnesses were called by Respondent. I have credited the testimony of all witnesses, save Foster, in finding the facts set forth below. Foster's testimony as to the unfair labor practices and his role in relation to the organizational campaign impressed me as lacking in candor and at times patently incredible. For example, Foster denied on examination by the General Counsel that Kenzer, corporate personnel director, had given him any instructions or had ever talked to him about the union campaign. Later however, in response to questions of Respondent's counsel as to the source of his instructions with respect to the union campaign, Foster replied that Kenzer had given him such instructions With respect to his role Foster testified that both employees and supervisors came to him to talk to him about the Union and to volunteer information to him, but that he uniformly turned away those in both classes, telling them that he could not talk to them about it. Only after being pressed did he concede that when employees came to him and expressed curiosity as to how the Union obtained their addresses, he might have gone further and told them that Respondent had not supplied them. Despite his claimed personal refusal to discuss the Union, however, Foster testified that he never gave any instructions to the supervisors concerning their conduct with respect to the employees' union activities. Foster's claimed head-in-the-sand attitude toward the Union's organizing campaign is implausible , unrealistic , and at sharp variance with the testimony of other witnesses. Little purpose would be served by singling out other aspects of his testimony for discussion. It was as a whole unimpres- sive. On the basis of his testimony as a whole, including my observation of Foster as he testified, I have generally discredited Foster except as to his uncontradicted testimony as to normal operations of the store. B. The alleged interrogation 1. Cleone Durkin On or about September 28, 1964,3 employee Doris Dubosh telephoned children's department manager, Cleone Durkin, at her home about a matter unrelated to the Union. Durkin told Dubosh that union activity at the store was pretty hot and heavy and according to Dubosh "more or less said that [employee Dorothy] Turoczy had implicated me as being active with the union." Some discussion followed as to how Dubosh had been implicated by Turoczy. Dubosh denied that it was true. Two days later at the store during Dubosh's lunch period, Durkin complained to Dubosh that she had not been friendly to Durkin in the past few days. Durkin then stated that if Dubosh had decided to go union, that was her privilege and asked "why." Dubosh asked Durkin what she meant by "why." Durkin asserted that Dubosh had been well treated by Respondent and that Dubosh had been friendly with employee Renee Poehler during the past few days. When Dubosh asked what this had to do with it, Durkin replied, "Renee Poehler is union and you have been friendly with her." Durkin told Dubosh that if she stuck with Respondent she could go places, suggesting possible promotion to a supervisory job. 2 Both leased departments involved are now operated by a single lessee, Beaconway. Prior to February 1, the yarn department was operated by Bedford Yarn, and it is not clear who operated the fabrics department. s All dates referred to below fall in 1964 unless otherwise indicated. ZAYRE CORPORATION 1375 In late September , at the store , Durkin asked Dubosh whether another employee, Josephine Bonafilia, was for the Union or not. After a noncommittal reply by Dubosh, Durkin stated that Bonafilra wanted to transfer to daywork and that Durkin would talk to Store Manager Foster about it .4 On or about September 30, Durkin approached Bonafilia in the sportswear depart- ment. Durkin stated that she was surprised at Bonafilia . Bonafiha asked Durkin what she meant . Durkin replied that she had heard that Bonafilra was for the Union. Bonafilia asked Durkin how she knew, Durkin stated , "Well, we have ways of finding things out. We have local people working for us in the store ." Bonafilra then admitted signing a union card, and Durkin asked her why she had done so . Bonafilra said that she had been promised a full-time job when her children went back to school but that she had been kept on part-time night work although another girl was hired for daywork. Durkin said nothing further and went to the office . Soon after she returned to tell Bonafilia she would start to work full time in 2 weeks which she did. During October , Durkin telephoned employee Dubosh at her home. Durkin told Dubosh that she was very upset, that she had trusted Dubosh and placed confidence in her, and that she had found out that Dubosh had signed a union card. Durkin asked Dubosh why she had signed, telling her that Respondent had spies and could find out. Dubosh became upset and gave the telephone to her husband who talked to Durkin and terminated the conversation. 2. Albert Foster In August 1964, employee James E. Haslam while at work was asked by Store Manager Foster if he had received any union cards. Haslam replied that he had. Foster told him to destroy them.5 In October, Foster asked employee Haslam while at work on the selling floor if he had signed a union card. Haslam replied that he had not. In mid-October, Foster called employee Peter Doughty into his office. Doughty was an airman stationed at Westover Air Force Base who worked part time in the store. Foster asked Doughty if he knew the problem they were having at the store. Doughty asked Foster if he meant the Union. Foster said yes, and asked Doughty his views on it. Doughty replied that he was not interested in it, and that he did not see where it could help out any. At the conclusion of the conversation, Foster told Doughty that if he decided to get out of the Air Force, they would like to have him stay on with Zayre, and he could probably find a permanent position in the store . In the next 2 weeks, Foster asked Doughty on two occasions whether he had been approached "by the people here " yet. Doughty said no. During October, Foster by office telephone called employee Doris Dubosh at the service desk where she worked. Foster asked Dubosh to do him a favor, and Dubosh indicated she would try . Foster then told her that Joyce Santos was reapplying for a job and asked if Dubosh could tell him whether or not Santos was for the Union. Dubosh replied that she did not know. Foster commented that Santos wanted to come back and that he did not know whether to take her back. Also in October, Foster approached Dubosh at the service desk and told her that he understood she had signed a union card and said, "Not you, Doris , I am deeply hurt." Dubosh denied signing a cards ' Dubosh's testimony was that this conversation occurred in October . However, Bona- filia testified that she was transferred to daywork after a conversation with Durkin described below , which occurred on or about September 30. The discrepancy in dates is slight. I have accepted Bonafilia 's testimony as to the date of the transfer , and conclude that Dubosh was mistaken as to the date of this undenied incident. e Haslam stated on cross-examination that he told Foster he had already destroyed the cards after testifying on direct that the conversation ended with Foster 's instruction to him to destroy the cards . Haslam also displayed obvious confusion , which he himself recognized , as to the date of a subsequent incident . While it is apparent that Haslam's memory had faded to some extent with the passage of time, I am satisfied that he is to be believed as to the substance of his testimony. e An affidavit given the General Counsel by Dubosh prior to the hearing contains the sentence : "I told him I did sign a card " with reference to this conversation Dubosh testified even before she was shown the affidavit that her affidavit was in error and that she had called the error to the attention of counsel for the General Counsel before testify- ing She also testified that the statement was not in her handwriting but in that of the Board agent, and that in reading it over before signing it she had not noticed that it indicated " did" rather than "didn ' t." I have credited Dubosh 's testimony as to this incident. 1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On or about November 5, 1964, Foster approached employees Doris Spear and Linda Pierce at the service desk and asked if they knew that Ramos was a union representative. Spear smiled but said nothing. Foster asked if it was in his union capacity that Ramos had questioned her as to where she lived a few days before. Spear explained that it was not. 3. Bonnie Baerman On or about September 29, employee Doris Spear was asked by Bonnie Baerman, manager of the small wear department and Spear's immediate supervisor, if she had signed any card. When Spear asked what card, Baerman replied a union card, and Spear said no. A few days later, Baerman again raised the subject with Spear. Baerman told Spear that there was a lot of heartache at another store in the area over signing union cards and asked if Spear had spoken to anyone about the Union. Spear said no. Baerman said it would be a bad thing if the Union got in. In early October, Baerman asked Dorothy Turoczy, an employee of a lessee, when she became involved in the Union. Turoczy answered that she was not involved in it. She told Baerman that she was for unions but did not want to be involved in the Union until she was pressured into it. She also told Baerman that she was told she was not to talk union. Baerman asked Tuioczy what she had against Respondent. Turoczy replied that she had nothing against Respondent but that she had something against Foster, apparently because she attributed to him her instruction not to talk union. 4. Fred Cluley In January 1965, Photographic Department Manager Fred Cluley asked part-time employee Howard Covey if he was going to join the Union. Covey said he did not know. He stated that he was in the service and did not think it would do him much good. Cluley also asked Covey if any of the other employees had talked to him about the Union Covey said that they had. Cluley did not ask their identities, and Covey did not volunteer them. 5. Anne Misitano In September 1964, Anne Misitano, manager of the leased yarn department, asked Dorothy Turoczy, also employed by the lessee, what Turoczy's feelings about a union were. Turoczy responded that she was in favor of a union but saw nothing that it could do for her. Misitano replied that she was also in favor of trade unions but saw nothing that could be done at Respondent's store either. Misitano then told Turoczy that she was not to leave the department at any time and that when she went on her break she was not to talk union. 6. Jennie Santucci During October, Jennie Santucci, manager of the leased fabrics department, told Caroline Teece, an employee in her department, that she had heard that Teece had signed a union card. Santucci asked if it was true. Teece replied that it was. Santucci told Teece she was very disappointed in her. 7. Respondent's attitude toward the Union Notwithstanding the substantial evidence of Respondent's hostility toward the Union which appears from the incidents described above, counsel for the General Counsel introduced further evidence to show hostility on which, however, he does not ask that specific findings of violation be based. 7 I find that additional evidence is also substantial although cumulative in effect. On three separate occasions, in September and October, in discussing additional employment needs with supervisors Ramos and Grummel and employee Dubosh, Foster asked them if they knew of any likely prospects who were "loyal" or who would not sign union cards.8 In Sep- tember, Ramos asked Foster and Corporate Personnel Director Kenzer if there was anything he could do to stop the organizational activity of an employee whom Ramos had earlier recommended for hire. Kenzer told Ramos he could not tell Ramos what to do officially, but that if there was anything Ramos could do on the 7 Some of these incidents were alleged as violations in the complaint. In his brief, however, counsel for the General Counsel, while referring to them, relies upon them only as background. 8 See Winn-Dixie Stores, Inc., etc., 128 NLRB 574, 575. Here, as there, the term " loyal" was used to symbolize opposition to the Union. ZAYRE CORPORATION 1377 side, to go ahead and do it. In October, Foster twice asked Ramos and once asked Supervisor Lichwala to ask specific employees to remain "loyal" and not join the Union. Also in October, Foster told Phillip Archambault, manager of the small appliance department, that he had received a list containing the names of union members. He told Archambault their names and then instructed him to stay away from these people and not to worry "because they would get theirs in the long run." Around the same time, Foster asked Archambault if his help was for the Union and told him that he was to tell Foster if he found out that they were. 8. Concluding findings as to interrogation Whether or not interrogation of employees as to their exercise of Section 7 rights constitutes interference, coercion, or restraint of employees in the exercise of their rights, depends upon the circumstances which surround the interrogation. There is no single set of factors which are determinative, although various attempts have been made to formulate tests to measure the legality of interrogation. Although con- sidering them tentative and disclaiming their general applicability, in the recent Cannon Electric Company decision, 151 NLRB 1465, the Board applied the factors set forth in Bonnie Bourne, an individual d/b/a Bourne Co. v N L R B., 332 F. 2d 47, 48 (C.A. 2) These are: "(1) the background, particularly as it relates to the employee's hostility, if any; (2) the nature of the information sought, especially where it appears designed to permit ascertainment of the identity of employees and their support of the union, (3) the identity of the questioner; (4) the place and method of interrogation, and (5) the truthfulness of the reply." While Cannon applied the Bourne factors to systematic polling, and it does not necessarily follow that they would be applied as such to other kinds of interrogation, consideration of the Bourne factors in conjunction with the facts in this case makes it clear that the above-described interrogation violated Section 8(a) (1). The record leaves no doubt as to Respondent's hostility to the Union,a and the background evidence discloses no extenuating circumstances to explain or justify the interrogation, most of which was undenied. Through interrogation, Respondent sought to learn the identity of those who were active in support of the Union and the reasons for their union activity. In one instance after learning the nature of the dissatisfaction which one employee, Bonafilia, stated turned her to the Union, Respondent took prompt action to eliminate its cause. Respondent's highest repre- sentative in the store was one of the principal interrogators. The places and methods of interrogation varied, but nothing in the circumstances of any of the interrogations was designed to assure employees that the interrogations were for a legitimate purpose. To the contrary, the methods and surrounding cir- cumstances in most instances conveyed just the opposite. In several instances, ques- tioning was accompanied by conduct found below independently to violate Section 8(a) (1). Other interrogations were accompanied by various expressions of hostil- ity. While the record does not indicate to any significant extent whether employees answered truthfully when interrogated, the absence of that evidence is immaterial, for the unlawful nature of the interrogation is otherwise abundantly clear. Respondent contends in defense that the incidents on which the General Counsel relies to establish these and the other violations charged in the complaint were the product of a willful and deliberate campaign by the Union and its supporters to entice or have Respondent commit acts to support an 8 (a ) (1) or 8 (a) (5) complaint.'0 Although Respondent claims that employees and supervisors who favored the Union instigated the incidents on which General Counsel relies, the record contains no support for the claim, and I reject this defense. Respondent also contends that none of the alleged violations should be found because the record shows a background of extreme freedom granted employees and union organizers to engage in union activity in the store. It is true that insofar as the record shows, Respondent did not impose the full measure of restraint which would have been lawful upon the union activities of its employees. But this fact cannot overcome the affirmative evidence of violation of Section 8(a)(1), a sub- stantial portion of which was undenied. 9In addition to the evidence of hostility which appears above, further evidence appears from the facts set forth in connection with the other alleged violations of Section 8(a) (1) below. 10 The original charge and the original complaint charged an 8(a)(5) violation which was deleted by amendment prior to the hearing 206-446-66-vol. 154-88 1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In consideration of the above, I conclude that acts of interrogation set forth in section III, B, 1 through 6 above, had coercive impact and were unlawful. C. The alleged threats of reprisal 1. Albert Foster Toward the end of October, the Union sent a telegram to Respondent Company setting forth the names of those who were on the union organizing committee. Thereafter, Foster told Dubosh that Head Receiver Ramos had announced himself as a union representative. Foster commented that it was too bad that Ramos had done so, as Ramos could have gone places with Respondent and needed his job to put his daughter through college. Foster then asked Dubosh to speak to another employee, Concelda Tavares, to impress upon her that it was unfortunate that Ramos had become a union representative because he was jeopardizing his job. Foster indi- cated that he expected Tavares to repeat what Dubosh told her to Head Cashier Emily Lichwala. As set forth above, on another occasion in October, Foster questioned Dubosh as to the union sympathies of former employee Joyce Santos. After Dubosh replied that she did not know whether Santos was for the Union, Foster stated that Santos wanted to come back and that he did not know whether to take her back. In early November, one morning when Foster was passing through the depart- ment where she worked, employee Renee Poehler asked Foster whether it was true that Ramos had turned from the Company to the Union. Foster replied that it was, and added that Ramos would be in for a lot of surprises. Poehler said she under- stood that a lot of employees were in foi some surprises and that her name was supposedly on a list of 12 that would go out the door if the Union did not make it. Foster told her that her name was not on the list He said that he did not hold signing a union card against her or her friend, Yallie Rondeau, and that just the instigators would go. 2. Cleone Durkin In October, during a telephone conversation between Jacqueline Grummel, man- ager of the ladies sportswear department, and Cleone Durkin, Durkin told Grummel that Durkin and Foster knew almost everyone who had signed union cards. Grum- met asked how Durkin knew, and Durkin replied that she questioned people and found out that way. Durkin added, "Don't worry, Mr. Foster will get back by laying off, or cutting hours when it's all over with." 3. Concluding findings as to threats A threat to an employee of loss of employment or other economic reprisal for union activity is clearly coercive Although an employer may not violate the Act by threatening a supervisor with reprisal for his own union activities, I am persuaded that the threat of reprisal against a supervisor for his union activities addressed to employees constituted a threat of reprisal against employees for their union activities in the circumstances here present. Foster's statement to Dubosh about Ramos clearly threatened reprisal against Ramos for his union activity. Foster coupled the threat with the request that she speak to another employee and impress upon her that Ramos' job was jeopardized by his union activities so that it would get back to still another supervisor. If Foster was interested only in informing supervisors that their union activities placed their jobs in jeopardy, he could have done so directly without involv- ing any employee. His choice of employee couriers to deliver the message to a supervisor demonstrates beyond doubt the intent that the message have a coercive effect upon the employees as well. Accordingly, it is found that the threats of reprisal against Ramos communicated by Foster to Dubosh violated Section 8(a) (1) of the Act. The later statement by Foster to Dubosh that he did not know whether to take Santos back, following immediately Dubosh's noninformative reply to his question as to Santos' union sympathies, related employment to union sympathy. In the context of the other events in this case, this statement conveyed the message that Foster was disinclined to rehire Santos if he knew she favored the Union This statement also violated Section 8(a) (1). The conversation between Foster and Poehler also threatened reprisal for union activity. It is immaterial whether Foster had a preconceived intention to threaten Poehler or merely acted out of caprice on the spur of the moment when her question gave him a ready opening. His response to Poehler's questions confirmed that employees would be fired if the Union did not gain representation rights and that ZAYRE CORPORATION 1379 the instigators were those who would be selected for discharge. I find that Foster's response to Poehler threatened discharge for instigation of union activity in violation of Section 8 (a) (1). Although the conversation set forth above between Durkin and Grummel, both supervisors, contained an unmistakable threat of reprisal against employees, there is no showing that the threat was communicated to or reached employees. Accord- ingly, I do not find that this threat violated Section 8(a)(1), but I have considered this incident as part of the background in assessing the interrogation above." D. Creation of the impression of surveillance As set forth in section III, B, 1, above, in the conversation between employee Josephine Bonafilia and Supervisor Durkin on September 30, Bonafilia asked Durkin how she knew Bonafilia was for the Union. Durkin replied, "Well, we have ways of finding things out. We have local people working for us in the store." Also as set forth above, in October when Durkin told Dubosh that she had found out that Dubosh had signed a union card and asked why, Durkin stated that Respond- ent had spies and could find out. Whether or not an employer spies on the union activities of his employees, "the creation of the impression in their minds that he is keeping their union activities under surveillance is as intimidating and coercive as surveillance itself." Moore's Seafood Products, Inc., 152 NLRB 683. Durkin's statements to Bonafilia and Dubosh were calculated to create such an impression and violated Section 8(a)(1).12 E. The promulgation of the no-solicitation rule In September, as set forth above, Yarn Department Manager Misitano instructed Dorothy Turoczy not to talk about the Union when she went on her break. The General Counsel contends that this instruction constituted promulgation of an unlawful no-solicitation rule. The record indicates that Turoczy usually took her break in the employees lounge which is a nonselling area of the store. The restric- tion imposed by Misitano therefore exceeded the scope of restrictions upon union activity permitted in retail department stores.13 With the possible exception of a single vague incident volunteered by Department Manager Archambault on cross-examination, not alleged as a violation by the Gen- eral Counsel, the record fails to show that any other employee was similarly instructed, or even that there was otherwise a privileged no-solicitation rule in effect in the store to restrict other employees from union solicitation in the selling areas of the store. There is also undisputed testimony that union representatives, who were not employees, regularly visited the store premises, although their activities while there are not clear. Nonetheless, the restriction upon Turoczy's union activity on her own time in a nonselling area of the store is interference with protected rights and could be excused, if at all, only on a showing that the employees' protected rights conflicted with interests of Respondent which outweighed the protected rights on balance. Here there is no evidence that the restriction placed on Turoczy was designed to serve any business need. To the contrary, Respondent's interests were apparently not felt to require even lawful restriction, and coming on the heels of Turoczy's inter- rogation by Misitano, I find that the restriction on Turoczy's union activities was imposed for the purpose of interfering with her union activities and violated Section 8(a)(1). F. Solicitation of surveillance of union activity In the spring of 1964, Assistant Store Manager McClure came to Ladies Sports- wear Department Manager Grummel as three employees were going to the employees lounge. McClure asked Grummel to go into the lounge and to listen in order to determine if the three employees had anything to say about the Union. Grummel "A similar statement by Foster to Small Appliance Manager Archambault, I e, not to worry about those whose names were on the list sent Foster by the Union because they would get theirs in the long run, was not relied upon by the General Counsel In his brief as establishing a violation. In any event, for the reasons set forth in connection with the Durkin-Grummel conversation, I would reject it as such. 12 The General Counsel also contends that Durkin in her October telephone conversation with Grummei, described in section III, C, 2, above, additionally created the impression of surveillance As Grummel was conceded to be a supervisor, I reject that contention " Marshall Field & Company, 98 NLRB 88; Montgomery Ward & Co., Inc., 145 NLRB 846. 1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD indicated that she would do so, but was diverted by a call to the service desk. By the time she arrived at the lounge the employees had left and she so reported to McClure. As Grummel was a supervisor and the instructions were not carried out, I find that the General Counsel failed to establish that McClure's instructions to Grummel violated Section 8(a) (1) of the Act. General Engineering, Inc. & Harvey Aluminum, 131 NLRB 648, 649, enfd. as modified 311 F. 2d 570 (C.A. 9). Cf. Cannon Electric Company, 151 NLRB 1465, footnote 7.14 G. The promise and grant of increased benefits by Foster In late September, all employees and department heads employed by Zayre and its various lessees were called into Foster's office individually where they were each told that they were about to receive increased benefits. The employees were told by Foster that Respondent's business was expanding and that the Springfield store was doing well. He told them that Respondent wanted to give increases to the employ- ees. Each of the employees was told that he would receive a 10-cent hourly increase, increased insurance benefits, and increased funeral leave benefits. The pay and benefit increases became effective with the first pay period in October. In addition, Foster reviewed with employees other aspects of the overall employee benefit pro- gram which remained unchanged and told employees that Respondent was working on a profit-sharing plan for the employees in the future.15 The Union was not mentioned in any of the interviews. In September 1963, the employees had been given a general wage increase to bring them up to the level required by the Fair Labor Standard Act. The announce- ment of that increase was handled in a different fashion from the October 1964 increase. A notice was posted on the bulletin board, and Foster also announced it to the employees orally. He spoke to some in groups, on the selling floor and some individually, the latter both on the selling floor and in his office. Foster also testified that in September 1964 there were additional increases granted to bring some employees up to the minimum wage of $1.25 an hour. At least half the employees in the store received this increase. There is no evidence of other general increases having been given the employees over the previous 5 years.16 However, Respondent has a system of 6 month merit reviews. At intervals of 6 months based on the employee's hire date , each employee is called into Foster 's office, and his perform- ance is reviewed on the basis of production and merit . Merit increases are considered and granted to some employees. At the time of the merit reviews, the entire employee benefit program is discussed with each employee. "There is also substantial doubt whether a finding of a violation of the Act could be based on this incident in any event , as Grummel placed its date first in late spring, some- time in May 1964, and later stated that it occurred in early or late spring. The charge was filed on November 25. It was mailed to Respondent the same day and received on November 27. If the General Counsel's burden of proof includes establishing that an alleged violation occurred within the period prescribed by Section 10(b) of the Act, it has not been sustained with respect to this allegation . However, this incident may properly be considered as background evidence. 15 Foster admitted announcing the changed benefits to employees on an individual basis in his office but denied any mention of a profit-sharing plan He also placed the date of the employee meetings as early October Although Foster testified that McCluie, the assistant store manager, was present at 95 percent of the employee meetings, McClure did not testify. As already indicated, I have not credited Poster where his testimony is in conflict with that of other witnesses 16 Both Foster and Grummel so testified . Grummel 's testimony in this regard is not wholly clear. She first stated, "Zayre's never gave a general wage increase except for the minimum wage increase which everyone got," in answer to the question whether she recalled any general increases prior to October 1964 . She was then asked whether she recalled any general increases to all employees apart from the minimum wage increase during the 5 years prior to September 1964. She answered , in seeming contradiction to her first answer, "They gave one in March of 1964 and I think they gave one in August 1964 and then in October, and they just got another one in March." In the light of Poster's testimony that there were no other general increases , consistent with Grum- mel's initial response , the assured nature of her initial response, and the absence of any other evidence to show that there were two general increases prior to the Octo- ber 1964 increase , I have concluded that Grummel in her second response was confused. ZAYRE CORPORATION 1381 The grant of wage increases or other economic benefits, if reasonably calculated to interfere with employee rights guaranteed by Section 7, violates Section 8(a) (1) of the Act. N.L.R B. v. Exchange Parts Company, 375 U.S. 405.17 Here there is no direct evidence that the increases and the preceding announcement were so calculated, and the increases must be weighed in the light of the surrounding circumstances. It is true that the Union was not mentioned to any employees in connection with the increase, and the timing of the increases insofar as the record shows was not related to any particular event in the Union's organizational efforts or the pendency of an election. Despite these facts, other circumstances persuade me that the Octo- ber increases in benefits and the announcement thereof were tainted with illegality. The increases were granted contemporaneously with many of the other violations and indications of Respondent's hostility to the Union found herein. There was no precedent in the store for a general increase, except when required by minimum wage law. Indeed only a month before half the employees in the store were brought up to the minimum wage, and these employees received the October increase along with all others. No explanation was offered to show why precedent was broken at this time. The manner chosen to announce the increase further supports the infer- ence of illegality. While individual interviews were employed when individual merit increases, and therefore the individual merits of each employee, were under con- sideration, the individual announcement of the increases to each employee in the context of the Union's continuing campaign necessarily underscored that Respondent was unilaterally taking care of its employees. Foster's remarks to employee Turoczy, in telling her of the increase, that he was the employees' big brother, that he was going to take care of all of the employees, that it was one big happy family, and that Zayre had "fabulous" things to offer certainly implied that outside help was not needed by the employees. The mention of a possible future profit-sharing plan in these interviews permits no explanation other than as an offer of benefit in the attempt to induce employees to abandon the Union 18 Under all the circumstances, I conclude that the promises and increases in benefits to employees in late September and early October were reasonably calculated to interfere with the Union's organi- zational campaign and violated Section 8(a)(1) of the Act. H. The promises of benefit by Durkin On September 30, 1964, as set forth in Section III, B, 1, above, Josephine Bonafilia told Durkin, in response to Durkin's question, that she signed a union card because of Respondent's failure to give her full-time employment as promised to her. Durkin left and shortly thereafter returned to tell Bonafilia she would start as a full-time employee in 2 weeks Also as set forth in section III, B, 1, above, about the same time Durkin told Doris Dubosh that if she stuck with Respondent she would go places, indicating that promotions would be in store for her if she sided with management against the Union The grant of full-time employment to Bonafilia in these circumstances was clearly calculated to induce her to abandon union activities by satisfying the complaint against Respondent which she stated was a cause of her activity. The grant and the preceding promise which it fulfilled violated Section 8(a)(1). The promise to Dubosh that she would go places if she stuck with Respondent conditioned its ful- fillment upon opposition to the Union and likewise violated Section 8(a)(l) The General Counsel also contends that the statement to Dubosh by Durkin, following her interrogation as to Bonafilia's union activity, contained an unlawful promise. After Dubosh's noncommittal reply to Durkin's question, Durkin stated, "Well, Josephine wants to go on days and I will talk to Mr. Foster about her going on days, nine to six." This statement made it clear that considerations of union activity entered into the determination as to Bonafilia's employment status. I find that the statement therefore also violated Section 8(a) (1). 17 While the increases in Exchange Parts were granted during the pending of a repre- sentation election, its rationale applies to increases calculated to interfere with the span of rights protected by Section 7 and not merely the right to a free choice in a pending representation election. American Freightways Co , Inc., 124 NLRB 146 ; Standard Rate & Data Service, Inc., 133 NLRB 337. "Poster did not attempt to explain mention of profit sharing, but denied that it occurred. I have not credited his denial. His further testimony that as of the time of the hearing he had never heard of a profit-sharing plan in connection with his store only makes more patent the purpose for which profit sharing was mentioned in the interviews. 1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Respondent's responsibility for conduct of supervisors of its lessee In three instances, the unfair labor practices for which the General Counsel seeks to hold Respondent responsible, were committed by supervisors of Respondent's lessees. While two of the incidents involved interrogation and were cumulative, the third is the instruction to Turoczy not to talk about the Union while on her break. It is necessary therefore to consider Respondent's responsibility for these violations. The record shows that employees of the leased departments are hired and super- vised directly by the heads of those departments.19 There is no evidence of transfer or interchange of employees between the leased departments and Respondent's departments. However, during evening hours when the department managers of the leased departments are not at the store, the employees of those departments look to the Respondent's store manager and assistant store manager for direction. Respondent, through its manager, makes certain that there are a sufficient number of employees to man the store, including the leased departments. Respondent's manager is also responsible for the receiving and display of merchandise, the display of proper signs, and advertising for all departments, including the leased departments While it appears that the lessees are responsible for paying the employees in their departments, the wages and benefits are uniform throughout the store for Respond- ent's employees and the employees of the lessees. In the fall of 1964, when Respond- ent increased wages and other benefits for its employees, as described above, identical improvements were given to the lessees' employees. They, like Respond- ent's employees, were called individually into the office of Respondent's manager to be informed by him of the changes, and on at least one occasion, a department manager employed by a lessee was present while an employee of a lessee was in the office to be told of the benefit changes. While the full nature of the relationship between Respondent and the lessee was not developed on the record, I am satisfied that Respondent's control over the lessees' employees described above is sufficiently substantial to warrant holding Respondent responsible for the unfair labor practices committed by lessees' supervisors. See Gaylord Discount Stores of Delaware, Inc, Gay Apparel Corporation, 137 NLRB 557. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY In view of my findings that the Respondent has interfered with, restrained, and coerced employees in the exercise of their rights under the Act, I shall recommend that it be required to cease and desist therefrom and to post an appropriate notice.20 Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby recommend that Zayre Corporation, Springfield, Massachusetts, its officers, agents, successors and assigns, shall: 15 Upon being hired by the lessee, a new employee is required to go to Respondent's office to complete an employment application. The nature of the application does not appear. "01 have considered and rejected Respondent's contention that the violations charged and found are isolated and do not warrant issuance of a remedial order. See Sunnyland Packing Company, 151 NLRB 322 ZAYRE CORPORATION 1383 1. Cease and desist from: (a) Interrogating employee concerning union affiliation, activities or sympathies in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. (b) Threatening employees with discharge, loss of benefits, or other reprisals as a consequence of union activities or support. (c) Conveying to employees the impression that their union activities are under surveillance. (d) Prohibiting employees from talking about unions and union matters during nonworking time in nonselling areas of Respondent's store. (e) Promising or granting pay increases, improved insurance benefits, improved funeral leave, profit sharing, full-time employment, promotions, or any other benefit to induce employees to refrain from union activity or support. (f) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form labor organiza- tions, to join or assist Local 1459, Retail Clerks International Association, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its Boston Road place of business in Springfield, Massachusetts, copies of the attached notice marked "Appendix." 21 Copies of said notice, to be furnished by the Regional Director for Region 1, shall, after being duly signed by the Respond- ent's representative, be posted by it immediately upon receipt thereof, and be main- tained by it for at least 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees customarily are posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.22 m In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order". w In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing , within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommended order of a trial examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate employees concerning union affiliation, activities, or sympathies in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. WE WILL NOT threaten employees with discharge, loss of benefits, or other reprisals as a consequence of union activities or support. WE WILL NOT convey to employees the impression that their union activities are under surveillance. WE WILL NOT prohibit employees from talking about unions and union mat- ters during nonworking time in nonselling areas of the store. WE WILL NOT promise or grant pay increases, improved insurance benefits, improved funeral leave, profit sharing, full-time employment, promotions, or any other benefits to induce employees to refrain from union activity or support. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights to self-organization, to form labor 1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organizations, to join or assist Local 1459, Retail Clevklts International Asso- ciation, AFL-CIO, or any other labor organizati o to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3 ) of the Act. ZAYRE CORPORATION, Employer. Dated------------------- By---------------------------------Title) ----- (Representative) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Boston Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Tele- phone No. 523-8100. Northern California District Council of Hodcarriers and Com- mon Laborers of America , AFL-CIO; Construction and Gen- eral Laborers Union Local No. 185, AFL-CIO and Joseph Mohamed , Sr., an Individual , d/b/a Joseph 's Landscaping Service. Cases Nos. 20-CC-35.1F and 20-CC-363. September 21, 1965 DECISION AND ORDER On July 31, 1964, Trial Examiner David Karasick issued his Deci- sion in the above-entitled proceeding, finding that Respondents had engaged in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Re- spondents filed exceptions to the Trial Examiner's Decision and a sup- porting brief. The General Counsel also filed a brief in support of his own cross-exceptions, but otherwise in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Zagoria]. The Board has considered the Trial Examiner's Decision, the excep- tions and briefs, and the entire record in the case,l and hereby adopts i We affirm the Trial Examiner's finding that Respondent violated the Act by their pre- settlement and postsettlement conduct. In this connection, we have reexamined the rule of Larrance Tank Corporation, 94 NLRB 352, upon which the Respondents rely and which indicates that activity prior to a settlement agreement may not be considered in assessing Respondents' postsettlement conduct. To the extent that the above rule bars the use of presettlement conduct as background evidence establishing the motive or object of a Respondent in its postsettlement activities, we have concluded that it is incorrect. Accordingly, Larrance Tank is, to that extent, hereby overruled. 154 NLRB No. 116.