Kaufman's of Kentucky

KAUFMAN'S OF KENTUCKY 151 Kaufman-Straus Company doing business as Kaufman's of Ken- tucky and Retail Clerks Union Local No. 445, of Retail Clerks International Association, AFL-CIO. Cases Nos. 9-CA-03 31 and 9-CA-2363. May 16, 1962 DECISION AND ORDER On February 13,1962, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceedings, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended dismissal of the complaint as to them. Thereafter, the General Counsel and the Charging Party filed exceptions to the Inter- mediate Report and supporting briefs.' The Respondent filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Chairman McCulloch and Members Rodgers and Fanning]. 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 Inter- mediate Report and the entire record in these cases, including the ex- ceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER The Board adopts the Trial Examiner's Recommended Order as amended herein 2 The Charging Party's request for oral argument is denied as, in our opinion, the record , exceptions , and briefs adequately set forth the issues and positions of the parties 'Although the Trial Examiner found that Respondent violated Section 8(a) (1) of the Act by circulating a petition among its employees which was calculated to and did interfere with, restrain , and coerce the employees in the exercise of rights guaranteed by Section 7 of the Act, he failed affirmatively to recommend that Respondent be ordered to cease and desist therefrom We shall correct this inadvertency by amending paragraph 1(a) of his Recommended Order to add the following at the end thereof. or circulating a petition among its employees which is calculated to or does inter- fere with, restrain , and coerce employees in the exercise of rights guaranteed by Section 7 of the Act We shall also amend the notice by inserting therein the following Wx WILL NOT circulate petitions among our employees calculated to interfere with, restrain, and coerce our employees in the exercise of rights guaranteed by Section 7 of the Act 137 NLRB No. 18 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This is a proceeding under Section 10(b) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act. Retail Clerks Union Local No. 445, of Retail Clerks International Association, AFL-CIO, by its Inter- national representative, Charles Day, filed a charge herein on June 2 , 1961, an amended charge on June 4, 1961 , and a second amended charge on July 3, 1961 (Case No. 9-CA-2331). On July 19, 1961, the same labor organization by the same representative filed a charge (Case No. 9-CA-2363 ). The charges alleged violations of Section 8(a) (1) and (3) of the Act by Kaufman-Straus Company doing business as Kaufman's of Kentucky.' The General Counsel of the National Labor Relations Board, on behalf of the Board, by the Regional Director for the Ninth Region, on July 21, 1961 , issued a complaint against the Employer , together with notice of hearing, the complaint alleging that the Union had engaged in and is engaging in unfair labor practices affecting commerce in contravention of Section 8(a)(1) and (3) of the Act (Case No . 9-CA-2331 ). On August 25, 1961 , another complaint was issued against the Respondent alleging further violations of Section 8(a) (1) and (3) of the Act. The Respondent filed a timely answer to the complaint in Case No. 9-CA-2331 on July 27, 1961 , and an answer to the complaint in Case No. 9-CA-2363 on September 1, 1961 . On August 25, 1961 , the Regional Director entered an order herein consolidating the two cases, pursuant to Section 108.33 of the Board's Rules and Regulations, Series 8, as amended. On the issues framed by the complaints and the answers thereto, this case came on to be heard before Arthur E. Reyman, the duly designated Trial Examiner, at Louisville, Kentucky, on October 9, 1961 , and sessions were held that day and on October 10 and 11 . Further sessions were held beginning on October 24 and the hearing was closed on November 2, 1961 . At the hearing, each party was afforded full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence pertinent to the issues, and each was afforded opportunity to argue orally upon the record, to file proposed findings of fact and conclusions or both, and to file briefs. Briefs have been submitted by counsel on behalf of each party. Upon the entire record, and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF KAUFMAN-STRAUS COMPANY The Respondent, a Kentucky corporation, is a retail department store operating at two locations, one in Louisville, Kentucky, the only store involved in these proceed- ings, and the other at Pleasure Ridge Park, Kentucky. During the year immediately preceding the issuance of each complaint , which is a representative period, the Respondent's gross volume of sales exceeded $500,000 and it had a direct outflow of its products in interstate commerce of a value in excess of $50 ,000 which it sold and shipped directly to points outside the State of Kentucky. During the same period, it had a direct inflow in interstate commerce of goods, materials , and supplies of a value in excess of $50,000 which was shipped directly to it from points outside the State of Kentucky. Now, and at all times material to the issues herein , the Respondent is and has been an employer as defined in Section 2 (2) of the Act, and is and has been engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Retail Clerks Union Local No. 445, of Retail Clerks International Association, AFL-CIO, is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES AND THOSE PROVED The complaint asserts violations of the Act by the Respondent in that on May 31, 1961 ,2 the Respondent terminated the employment of Jo Ann Ison and has failed to 'Retail Clerks Union Local No 445 , of Retail Clerks International Association, AFL- CIO, may sometimes be called Local No. 445 or the Union, Kaufman-Straus Company, doing business as Kaufman's of Kentucky , may sometimes be called Kaufman-Straus, the Company, or the Respondent 2 Unless hereinafter noted, all dates mentioned will be for the year 1961. KAUFMAN'S OF KENTUCKY 153 reinstate her because of her sympathy for, membership in, and activities on behalf of the Union; that on or about June 28 Respondent terminated the employment of Lucille Huffman for the same reasons; and that on or about May 22 the Respondent laid off and subsequently terminated the employment of Lawrence Donhoff for the same reasons. The complaint sets out a number of what are alleged to be unfair labor practices committed by supervisors of the Respondent, including the estab- lishment of a new rule, on or about May 23, 1961, threatening discharge for solici- tation of any kind within the Respondent's store and the posting throughout its store of notices to that effect for the purpose of thwarting is employees in their organiza- tional efforts; following Donhoff throughout the store; the announcing in a speech to employees by Roy J. Gardner, vice president and a supervisor, that he did not like the Union and the Union was not coming into Respondent's store and that if it did, he would not work there, interrogating certain employees; retroactively raising the wages of an employee; and a number of incidents said to be aimed toward de- feating the organization of the Respondent's employees in its Louisville store (Case No. 9-CA-2331). In Case No. 9-CA-2363, the complaint alleges the unlawful discharge of Morgan P. Sheehan, Jr., and a failure to reinstate him because of his sympathy for, membership in, and activities on behalf of the Union; the refusal of the Respondent to promote an employee because of that employee's activities on behalf of the Union; and various statements made to several employees at different times in opposition to the Union and with the intent to discourage union activities on the part of the employees. The answers filed to each complaint constitute blanket denials of any of the unfair labor practices set forth in the complaints. A. Supervisory status of buyers and assistant buyers A store census, based upon the 40-hour week for each employee, showed 367/ employees for the week ending April 29 and 340 employees for the week ending July 29, 1961, engaged in the sales, office, warehousing and delivery, marking and re- ceiving, personnel, publicity, and other departments of the store, plus 24 assistant buyers on April 29 and 22 on July 29. For the week of July 29, there were 19 buyers. The store executives whose supervisory status is not in doubt are stipulated by the parties to be the following executives, buyers, and department heads: Milius, Gardner, Moran, Davies, Elliott, Ferrell, Gallagher, Gup, MacNeil, Jacobs, McDonnell, Mur- phy, Sidner, Sturm, Zink, Boblitt, Nichols and Zwally. Roth, Rosenbaum, and Rothschild were described as merchandise managers over the buyers, so I assume that these three men are also executives and therefore supervisors. It is claimed by the General Counsel, and denied by the Respondent, that Bill T. Nichols, Edna Shields, one Balough, and one Hettinger, assistant buyers at the critical times herein, were or are supervisors within the definition in Section 2(11) of the Act. The uncontradicted testimony of Vice President Gardner is clear enough on the duties and responsibilities of assistant buyers, and his description of the duties of buyers, as well as assistant buyers, include those activities which the General Counel and the Charging Party would have interpreted to mean that assistant buyers have that kind of authority set forth in Section 2(11) of the Act which would determine them to occupy supervisory status. The testimony of Gardner is in support of, and in elaboration of, the duties of buyers and assistant buyers as described by certain other individuals who testified herein. First, to understand the duties of the assistant buyers, it is necessary to touch briefly upon the duties of the buyers themselves. According to Gardner: Buyers do not sell. They primarily buy merchandise, planning, developing business, advertising, they more or less do work on the executive level, planning the operation of the department as distinguished from what an assistant does. Planning help, planning advertising, planning inventories, purchasing merchan- dise, determining when it shall be sold, what it shall be sold for, those are all duties that are completely foreign to an assistant. An assistant never performs those major duties. . . Buyers go on buying trips, some semi-annually, some quarterly, some monthly and while that buyer is away the assistant is given certain additional duties in the absence of that buyer. Usually when the buyer is preparing to go into the market or be away they make all of their plans in preparation for all of the things that have to be done during their absence. Generally the assistant is given those things to execute in their absence. . These assistants are not qualified to do what the buyer does. In other words, if a buyer plans a particular ad let us say on a Friday while he is gone, he may say, "now, look I have made this plan. I want this ad to run. See that the advertising department gets this copy. Take this merchandise up to them on this particular day." The assistants are not competent to make those plans. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Those plans are all made by the buyer. If he is going away he may tell him to take care of that in his absence. Normally we look for the buyer to have a department open and close every night. If the buyer is out of the store the assistant has to make sure that the department is ready to go, open and close. . The buyer and the personnel office do all the scheduling. In other words, if they are going away for a week they will make their schedule out, before they go away, with the personnel director. In other words, when a buyer leaves for- a market they have to check with my office before they leave, before they can get their traveling expenses and their railroad fare. They must satisfy me that all of the preparations have been made to take care of all the things which have to be done in his or her absence. If they don't, they can't leave. As described by Gardner, duties of an assistant buyer are generally those duties engaged in by sales persons, additional duties such as clerical and recordkeeping and report making. Primarily assistant buyers are sellers with some additional clerical duties. Clerical duties include counting stock, calculating stock accounts, making out sales reports, and reviewing inventory. An assistant buyer may approve checks and returns. During the absence of the buyer the assistant buyers perform no duty requiring the use of independent judgment or initiative, have no authority to hire or fire or suspend or recommend effective personnel action concerning any employee, to reward or discipline employees; nor do they have the power to adjust grievances. At times, assistant buyers may wear a badge identifying him or her as a supervisor.. The wearing of the badge does not enlarge the authority of jurisdiction or change the duties of the assistant buyer. The badge is worn for the benefit of a customer to advise that customer, by implication, that he or she may discuss the return of merchandise or make an exchange of goods or perhaps to obtain the "okay" of a check tendered on the purchase of merchandise with the badge owner .3 The importance attached to the requirement that every customer be given a_ receipt and that all cash from all sales be registered and put in the cash drawer was explained by Gardner: If cash sales are not recorded in the cash register it is the contributing factor toward the loss that the Company sustains. (2) If the transaction is not recorded in the cash register it puts the purchaser in a very embarrassing position in that she walks out of the store without any tangible evidence of purchase which could be very embarrassing for that customer. Further, when a transaction is not recorded in the cash register the Kaufman-Straus Company is not the only one involved in a transaction in cosmetics and jewelry and luggage etc., the Federal Government is involved. There are certain excise taxes charged to a customer which is not the property of the Kaufman-Straus Company. When a transaction is not recorded there are certain sales taxes that are charged to the customer for which cash is received which money does not belong to Kaufman-Straus. I think the regulations under which we operate the store require that these to be properly recorded and unless they are properly recorded Kaufman-Straus is in a very embarrassing position of not paying its tax liability. Gardner substantiated the testimony of More regarding the irregularity report on Ison and explained in detail the procedure of examination and checking of the accuracy of the irregularity report. He also went over the irregularity report made on Huffman and corroborated the testimony of More and his shoppers regarding the accuracy of the report. B. Union organization activities On March 29, Local 445 began a formal organizing campaign directed toward its becoming the bargaining representative of the employees of the Respondent. On that day Nancy von Bokern and Donald E. Carter, both International representatives of the Retail Clerks International Association, Art Potter, assistant regional director, 8 A memorandum dated November 4, 1960, by Personnel Director Rooney to all depart- ment managers on the subject of termination of employment formalized certain procedures theretofore in effect This memorandum instructed department managers that all termi- nations, whether by reason of resignation, layoff, or discharge, are to be handled only by the personnel department, and pointed out specifically that department managers may recommend transfer, layoff, or discharge but in no cases do they have the obligation or the authority to take action regarding employment, transfer, layoff, or termination of an associate. KAUFMAN'S OF KENTUCKY 155 AFL-CIO, and Richard L. Miller, secretary-treasurer of the Greater Louisville Central Labor Council, passed out handbills in front of Kaufman's of Kentucky to all who came out of the store and who were passing by on the street. The handbills were passed at the two front entrances of the store and at its back entrance. This leaflet had attached to it a self-addressed printed envelope directed to the headquarters of Local No. 445 and contained on the inside back portion of the envelope a printed "authorization for representation" for signature of an employee with his home ad- dress, which if signed would authorize the Retail Clerks International Association to act as the employee's bargaining agent. At the time the handbills were passed out on this day two supervisory employees of the Respondent asked for and were given three copies of the leaflet with attached envelope. Some four or five other supervisors were handed the leaflet, and other members of management were handed copies of the leaflet after the first day on which they were distributed. Von Bokern testified that Roy J. Gardner, at that time the chief executive of the store, observed the passing of the handbills on March 29, from a station inside the store near the doors. Other handbills were passed out from time to time until September 23. Among the em- ployees who took a more active interest in the organizational campaign were Jo Ann Ison, Lucille Huffman, Morgan P. Sheehan, Jr., and Larry Donhoff.4 Before the program of handbilling began on March 29, Ison furnished to Local No. 445 the names and addresses of between 75 and 100 of the Respondent's em- ployees 5 Ison signed an authorization card prior to the date of the first handbilling as did Huffman. Thereafter they worked actively with representatives of Local No. 445 and supplied names and addresses, called upon employees at their homes, and talked to others at different places. Ison, Huffman, Donhoff, and Sheehan each was a chairman of an organizing committee consisting of 12 people. After March 29, weekly meetings were held at the headquarters of Local No. 445 immediately after working hours and there were meetings from 8 until 9 a.m. before employees were due to report in to work. Von Bokern is a member of Local No. 445 and had held the offices of trustee, recording secretary, advocate reporter, steward, and secretary- treasurer of Local No. 445. She resigned as secretary-treasurer on May 25, at which time she became an International representative of the International Association Prior to her resignation as secretary-treasurer, she was employed by Forsythe's Shoe Store, located directly across the street from Kaufman-Straus. During the organizing campaign, Ison, Huffman, and Donhoff occasionally came to her place of employment to see her on her lunch hour and sometimes brought employees with them, these em- ployees having evidenced an interest in the Union. Von Bokern testified that prior to the time she resigned from Forsythe's Shoe Store she visited the Respondent's store at least two or three times a day and thereafter visited the store daily; that she on each occasion spoke to the four chairmen of the organizing committee; that at one time when she was talking to Ison, Edna Shields, said by the General Counsel to be a supervisor, observed her talking to Ison, and that thereafter, whenever she stopped at Ison's cosmetic counter, Shields was at her sta- tion and would watch her and Ison as they talked She said that Shields would be- come excited when she entered the store, would look up and down the counter, would pick up a telephone, and the bell system used to call certain personnel would ring either the number of Michael Moran, building superintendent, Roy J. Gardner, vice president and chief executive of the store, or his successor, Robert L. Milius. She testified to surveillance by other supervisors, the assistant buyer of the men's depart- ment, Bruce Hickey, and Philip Ferrell and Michael Moran. Von Bokern men- tioned at least two incidents where she was observed talking to Ison, Huffman, and Donhoff at times when she was in the store in the guise of a purchaser. On April 19 the Union passed out a mimeographed sheet over the name of Von Bokern as secretary-treasurer of Local No. 445 urging employees to sign an attached authoriza- tion card and to vote for the Union, there being attached to it a reprint of an article from the International Association's magazine, Retail Clerks Advocate.6 * These are the persons alleged to have been discriminatorily discharged Each case is discussed below "Kaufman-Straus employs regular, part-time, and contingent einplovees in the several departments of the store The number of persons employed varies with peak employment during the Faster and Christmas seasons O Von Bokern is president of the Kentucky Alumni Labor School of Kentucky, AFL- CIO ; secretary of the Education Committee, the Greater Louisville Central Labor Council ; chairman of the Library Committee of the Kentucky State AFT-CIO; and has participated in the organization of the Bon Ton Department Store in Louisville and, according to her, her name and picture appeared in newspapers at the time of the picket- ing of Bon Ton. 156 DECISIONS OF NATIONAL LA13OR RELATIONS BOARD C. Company reaction to union activities Roy J. Gardner, vice president and treasurer of Kaufman-Straus,1 testified that on or about April 4 the Company received a letter from Local No. 445 advising the Respondent that the Union intended to engage in an attempt to organize the store, and that after Vice President Milius received the contents the two of them discussed it and established certain policies to be followed in connection with union activities. A five-point program to be observed was described by Mr. Gardner: Number one, of which was that we did not feel that a union was advisable for Kaufman-Straus and, therefore, we were against it; number two and more im- portant we felt that in a matter such as this the employees should have their right to make up their own minds as to whether we shall or shall not have a union in the store; number three, there shall be no discrimination against anyone for union activity and neither would there be any rewards for anyone engaged in antiunion activities and number four, we would do everything possible and lean over backwards to keep from doing anything that would cause an unfair labor charge; and number five, any contracts by union officials to Mr. Milius or to me would be referred directly to counsel. A memorandum in the form of an intercompany communication was prepared from Mr. Milius to all buyers and executives, dated May 3, and distributed to the mer- chandise managers, buyers, store superintendent, personnel director, and such other employees as were engaged at the supervisory level. It was not distributed to assistant buyers nor to any other employee of the Company. This memorandum read: 8 The following rules outline the acts which the management of an employer subject to a labor organizing campaign may engage in without being guilty of an unfair labor practice: 1. The employer may attempt to persuade his employees not to vote for, or join the Union. The employer, however, may not promise employees a reward to keep the Union out-or threaten to impose a punishment if the Union is brought in. For example, an employer cannot promise to increase wages if Union is defeated or threaten to reduce wages, discharge employees, or contract out trucking if the Union wins. 2. Interviews with employees regarding unionization should not be "coercive." This means that the interviews should not be under circumstances that would imply that high pressure methods of persuasion has been used. For example, it is better to discuss the matter of unionization with employees at their regular work stations, rather than in the employer's private office. 3. It is an unfair labor practice to discriminate in any way against an employee for his Union activity. This means that a Union man cannot be discharged or demoted by reason of his Union activity alone. However, if an employee is guilty of misconduct or is unable to do a job, there is no reason why he should not be discharged. Work can only be contracted out, if it can be shown that such contracting out was for a legitimate business purpose and not for the pur- pose of discriminating against Union members. 4. It is permissible to discuss with employees the disadvantages of Union Membership. Some of the disadvantages are: a. Union requirement that all employees join Union; b. Union requirement that Union dues and initiation fees be paid and deducted from salaries; c. No material improvement in wages or working conditions through unionization; d. Unions are corrupt; e. All Union organizers are interested in is receipt of employee's dues; f. Unions cause strikes; g. Union will interfere in management of company affairs; h. Union will interfere in intimate relationship between management and em- ployees, meaning that an employee can no longer come direct to management with a complaint, or request special consideration. You will receive from us; shortly a more specific detailed list of the arguments which may be used to defeat unionization. 7 Gardner testified in this proceeding on October 30. He said that he had been tem- porarily assigned to the New York office beginning 6 or 7 weeks prior to October 310. As nearly as can be determined from the record, he left for New York on August 17. 8 It will be remembered that Local No. 445 began its formal organizing campaign and passed out handbills on March 29. KAUFMAN'S OF KENTUCKY 157 D. The discharge of Jo Ann Ison Jo Ann Ison first was employed by the Respondent late in the year 1956 as a part- time cosmetic saleslady. She started working full time in May 1958. She continued full time at the cosmetic counter until the date of her discharge , May 31, 1961. About March 15, Ison communicated with Art Potter, assistant regional director, AFL-CIO, and subsequently sent him a list of names of employees of the Respondent. On March 28, Donald E . Carter, an International representative for the Retail Clerks International Association , called on her at her home, informed her that Local No. 445 was going to try to organize Kaufman's, and asked her assistance ; she told him she would engage in assisting organization and signed a union authorization card at that time. Subsequently she solicited signatures and received signed authorization cards which she had given out in blank on her lunch hour or in the morning after talking to people before the store opened. She testified that on her lunch hour she would take signed cards across the street to Forsythe's Shoe Store and give them to von Bokern. She testified that she personally solicited around 200 employees in the tearoom of the store before the morning opening , on her lunch hour in the store, and on her break and restroom periods. She testified further that management was aware of her activities since she was observed on numerous occasions talking to von Bokern by Store Superintendent Moran and Supervisor Shields, by Personnel Director Rooney, and Philip Ferrell. She thought she was being watched constantly by different supervisors, including Rothschild, Sturm, and Vice President Gardner, during the course of the distribution of handbills and before she was discharged or laid off. Ison testified concerning a meeting which took place in the cosmetic department about a week or two after the first handbills were distributed . Ferrell, the cosmetics' buyer for the store and in charge of that department , spoke to the salesladies in that department, some five of them, when, according to her, Ferrell asked first, "What can the Union do for you?" to which she replied, "Job security"; he then said, "No, we can lay off who we please . . . they can't raise your wages, they can't give you better working conditions. You already have good conditions"; and then, according to Ison, Ferrell proceeded to ask, "Did we know the head of the Union and he named him and he said, `You know he is colored' and Elizabeth Montgomery spoke up and said, `Well, I don't see as that has anything to do with it. I don't care if he is green , if he is qualified.' At about that time the bell rung, I walked on up to the front counter and broke up the meeting. The girls all left." Ison testified to a conversation she said occurred on May 27 wherein the Union was mentioned, this conversation being between her and Ferrell, her supervisor. She said that Ferrell told her he wanted to talk to her about the Union and said, "This is the way Communism gets started. They tell you you have nothing to lose"; but she told him that her husband had been a unionman and he was no Communist to which Ferrell replied, "They don't have your interest at heart," and said further that she would have to pay in some $48 to the Union for a certain period of time and went on to say that "It would destroy friendly relations and so forth. I don't remember all he said, but if it was anything you wanted to know you had to go to the Union and ask, you didn't go to your department head and ask," whereupon Ferrell said, "Well, now, think it over and let me know." She said that on the following Monday, May 29, Ferrell again approached her and in effect repeated what he had told her on the preceding Saturday. She testified that Ferrell again approached her on Wednesday, May 31, about 10:30 or 11 a.m., asked her if she had thought it over to which she replied she had; that he asked her what she had decided, to which she replied, "I think my thoughts are my own ," whereupon Ferrell threw up his hands and said, "Jo Ann, I am trying to help you but you won't let me ," and walked away, ending the conversation. Ferrell, the buyer in charge of three departments including the cosmetic depart- ment of the store , testified that customarily week after week he held meetings with employees in the departments which he supervised . He said that at these meetings many matters were discussed , including sales programs and matters in connection with the operation of each department and also that he undertook to answer any questions which might be presented to him by sales people under his supervision . He said that after the Union became active , he was met by quite a few questions from various individuals concerning their right to participate in union organization , the benefits which might result from union organization in the store, and other matters in connection with the Union . He said that in practically every instance where the Union was discussed , the discussion arose through a question initiated by an employee , sometimes Ison . His presence on the floor of the store was almost constant , except for the times when he was at his desk in what the buyers and assistant buyers of the store called the "bull-pen," an office area 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD containing some 10 desks used by the buyers, their assistants, and certain clerical and stenographic help. He said it was not at all unusual for girls to call at the office and talk to him at his desk concerning many matters affecting their work. In regard to the accusation that he engaged in surveillance of employees, including Ison and Donhoff, he said that, of course, he observed their activities by the very nature of his duties and implied that there was no conscious undertaking on his part to spy upon or follow any employee. Like Building Superintendent Moran, his duties included the observation of activities on the floor of the store, the manner in which sales persons conducted themselves, and any unusual occurrence which might arise other than normal store activity. ison was discharged about 5:20 p.m. on May 31. She said that at that time, Personnel Director Rooney came to her counter and at Rooney's request they went to the latter's office on the sixth floor; that Rooney took three pay envelopes out of the drawer of her desk and told Ison that "We have rules and regulations"; that Ison asked "What rules and regulations?" and said that she knew why she was being laid off and would not talk to Rooney without union representation; she refused the pay envelopes, started to walk out of the office, and was followed by Rooney to the elevator, Rooney telling her to take her pay, that she was laid off, to which Ison replied ". . . take it on back to the office, that I wouldn't talk to her about it then without Union representation because she refused to tell me why l was laid off." Ison said she then went down to the first floor to get some personal belongings, saw Ferrell and told him that she was laid off, that Ferrell asked her to go back and talk to Rooney, and they did go back; that Rooney dialed Vice President Gardner but that she, Ison, was so upset that she told Carter, the union representative she had asked to accompany her upstairs with Ferrell to Rooney's office, that she would come back on the following day; and that Rooney said she did not know why Ison had been laid off and Carter had better talk to Gardner. On the following day she together with Day, an organizer for the Union, spoke to Gardner. Gardner was asked by Day why Ison had been laid off; she said Gardner did not answer the question but told Day to see Greenebaum, attorney for the Company. Mark Price, called by the Respondent, testified that he is employed by the Revlon Corporation whose offices are in New York; that he maintains his office in Cin- cinnati, Ohio; that he was the representative for Revlon in an area including Louisville; and that his duties involved the supervision and sales promotion of Revlon Products at Kaufman-Straus. He testified that Jo Ann Ison was the sales- lady primarily assigned to and responsible for the sale of Revlon items, and that her specific duties in connection with the Revlon line were to sell, count stock, prepare any necessary reports that Revlon requested or that the store requested, attend whatever schools were necessary or that were available to her, and to keep a Revlon stock control book. The stock control book is a book which lists each one of the 2,000 specific Revlon items by shade and category, and is intended to show how much merchandise of each item is on hand at the end of each 30-day period, how much is on order, how much such merchandise has been received from Revlon factories by a particular store, and a consequent result showing how much mer- chandise has been sold during the 30-day period. In other words its keeping is based on the premise that in order to maintain a balanced inventory in a department store, an accurate inventory must be taken every 30 days. As a part of Ison's duties, she was required to bring her stockbook up to date every month through accurate inventory. According to Price, subsequent to an inventory taken in November 1960. there was a major adjustment of Revlon stock made at Kaufman-Straus in February 1961, caused by the fact that it appeared that there was a considerable amount of merchandise in inventory and the rate of sale of the products did not warrant maintaining the amount of merchandise on hand at that time . A portion of the stock was returned to the Revlon factory in January and a major portion was like- wise returned in February 1961. Price testified further that in early June, subse- quent to the termination of Ison's employment, because there had been no inventory of stock for about 2 months, he went in and spot checked different items and found more merchandise on hand in regard to specific items in certain categories than should have been in stock. Price testified: In other words, the merchandise was not ordered we had no knowledge of receipt of this merchandise between the point of February when we cleaned the stock out and the point of June when we took this spot inventory. Also- well, it amounted to approximately $1100 worth of merchandise that was in the store that was unsaleable. Now, this is not the type of merchandise spe- cificallv that we discussed in a return that was made in February of this year. This was merchandise which would fall in the category more or less of dam- KAUFMAN'S OF KENTUCKY 159 aged, customer returns, testers and extremely old season merchandise. It amounted to, as I say, $1100. Some of this merchandise was found in the bottom drawers behind the Revlon cosmetics' counter and elsewhere. The $1,100 worth of merchandise, an unusually large amount of unsalable goods for a store the size of Kaufman-Straus, was not reflected in the Revlon inventory book previously kept by Ison. When she left, Ison took the stock control book with her. Price said he called Ison when he found out that she had the book and asked her to give it back to him, "that actually it was of no real value in determining the actual sales of Revlon or whatever purpose that she wanted it for," that she said that she would let him know the next day and did on the following day tell him he could come out and pick up the book. "And she gave it back to me." Thereafter, Price said he spot checked the book for one or two or three items and that he assumed that it was subsequently checked against the actual inventory. Ison's supervisor, Philip Ferrell, testified to the facts related by Price regarding the stockbook, which at least shows laxness or carelessness by Ison in the performance of her duties. In reply to a question as to whether he had any conversations with store execu- tives concerning what is known as PM money, his answer is revealing in the light of the allegations of the complaint in Case No. 9-CA-2331 to the effect that a supervisor or supervisors of the store, in an effort to thwart union organizational activities, indicated to her or promised that wage increases might be given. Price said: Well, Revlon has a policy with all department stores, pays-for the sake of terminology here-PM; actually, it's a demonstration allowance. Now, this is money over and above the normal discount that we allow a store to sell our merchandise. The amount is unimportant at the moment, but this money is intended for use, specifically being paid to the girls who work in the cosmetics department, specifically on the Revlon line. In other words, this is used to subsidize the cosmetics department in the way of salaries. Now, although a store through their purchases may earn a considerable amount of money, to use an example, let's say they would earn $5,000 over the course of the year. If they don't commit themselves to use this money in the way of paying it to these cosmetics girls we will not pay them the entire $5,000. If Kaufman's spe- cifically agree to pay a maximum of $3,000 to say one girl, all we will pay of those earned PM's is $3,000 and as a result Kaufman's will subsequently lose $2,000 of earned PM money which is push money, or money paid to a girl in a way of salaries or commissions in the way of selling a product. Now, this was the case at Kaufman's. They were not using all the money that they were entitled to so we had many discussions of this with Mr. Ferrell and when he first came to Kaufman's and then attempting to try to get Mrs. Ison more money because there is no question, I believe in getting these girls every dime they can possibly get. He said he would check on this through personnel and see what was possible in the way of using up this money. I eventually-T imagine this was possible to give Mrs. Ison some form of a raise. We adjusted her salary on the adjusted-her salary commitment to Revlon on the normal form that we use and I imagine she was given a raise that were normally made available to the store to do this. In answer to a question as to whether PM money in the amount of $5 per week had been available at the time of Ison's employment, he replied, "Yes, very much so. There was more than $5 a week available." Price testified further that Ison was an excellent salesgirl compared to any other girl in the locale; that she was very capable in handling a customer, knew how to build a sale, and was courteous and pleasant to the customer "as far as I know." Again in regard to the allegations of the complaint to the effect that Ison was promised and given wage increases in an effort to thwart the union organizational effort, the testimony of Vice President Gardner should be noted. He testified: During the latter part of March when I was in the cosmetic department Mrs. Ison asked me to come over and talk with her at which time she outlined a lot of complaints that she had on her mind concerning the operation of the department. It had to do with purchase orders and the layout, the fact that at one time she received some commission on mail order sales which she did not now get. She had a number of things that she complained about to me in addition to the salary. She at that time told me that she had been promised an increase in wages and it was never given to her and she felt that she was entitled to more money. . I told Mrs. Ison that I would look into these complaints and let her hear from me. I looked into them and talked with some 160 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD of the people about her complaints. I talked to personnel and found that she had been promised an increase in wages and that it had not been given to her because of a particular study that we were engaged in. . A study of the compensation arrangements in the cosmetic department and other departments throughout the store . I was also participating in that study, but it had not been concluded I called for Mrs. Ison to come to my office, I think it was the following week, sometime during the week of April 3 or April 4 at which time I think we covered the other problems and I told her that I did find where she had been promised an increase in salary -and that I would give her an increase in salary . . . I explained to her that the study, there was a study being made, not only concerning the compensation arrangement of that department and others, but also a study of the assignment of the particular cosmetic line. . I was not in a position at this particular time to tell her the amount of the in- crease, but that whatever was done would be done effective from the week of April 3. She thanked me and that was the end of the conversation. Now, sometime later, someone in the personnel office came to me and I'm not clear who it was, it could have been Miss Rooney, it could have been Miss Bales, reported that Mrs. Ison went to the personnel department, complained and said she had talked to Gardner and he had promised her a raise and he had not given it to her. . . . I then sent for Mrs. Ison and asked her to come up to my office. I don't recall the exact date now, but I think the earning records would bear this out. I restated what I thought our agreement was and at that time told her that in view of the fact that you have made this complaint I'm going to give you this increase immediately of $5 per week retroactive to the date of our first discussion which was April 3. Gardner said that there was no discussion concerning the Union at the time he granted her the raise. E. The discharge of Lawrence Donhoff Lawrence Donhoff first was employed by the Respondent on October 20, 1960, as a pickup boy classed as a part-time employee but actually working full time. He was discharged from the employment of the Company on May 22, 1961. Donhoff's duties required him to use a four-wheel truck in the picking up of all bundles in the store and the delivery by him to the delivery department in the basement. His duties required him to go through all of the departments of the store (except the personnel department). Donhoff testified that he became aware of the attempt of Local No. 445 to organize the employees of Respondent in April 1961; that subsequently he solicited employees, some 100 of them, to sign authorization cards; that he himself signed an authorization card sometime in April; that he obtained approximately 50 to 60 signed cards from employees; and he denied requesting any employee to sign an authorization card during the course of his workday and he denied seeing or hearing of any rule or policy of the store prohibiting solicitations of any kind within the store. Donhoff testified that he was observed, watched, and followed by supervisors for at least a month and a half before his discharge and after he had become active in the Union. He named particularly General Superintendent Moran, Vice Presi- dent Gardner, and Robert Milius, who succeeded Gardner as chief executive of the store. It is the testimony of Donhoff that Moran followed him on various floors almost every day; that he was observed by Milius and Gardner at various times; that Alfred Rothschild, a supervisor, had followed him and had observed him talk- ing to Jo Ann Ison from a balcony overlooking the cosmetic department. After his discharge, Donhoff was hired by Local No. 445 to assist in the organizing campaign at the Respondent's store. He ran a mimeograph machine at the office of the local, made home calls on employees at night, and frequently went into the store in the daytime to talk to employees. He said he was observed speaking to employees by several store supervisors, and mentioned a conversation with Mary Cowles, a sales- lady, in the jewelry department on the first floor at a time when Sturm, a super- visor (who he said "followed me all the time"), walked up behind him as he was asking Miss Cowles to attend a union meeting; that Shields, an assistant buyer, observed him frequently and whenever she saw him she would telephone and im- mediately the store bell would ring for Moran, Gardner, Sturm, or Milius. He testified to an incident involving himself and Lucille Huffman about the time of her discharge. He said that at that particular time he came into the store and Sturm "started on my trail as usual and followed me"; that Sturm and Hickey, "a buyer," followed him to the second floor and when they reached that floor, Sturm told him that he hoped he did not stay too long, that he had work to do, and that Donhoff said, "I don't keep you from doing your work." He then saw KAUFMAN'S OF KENTUCKY 161 Huffman in her department. Huffman asked if he was going to buy something and he said that he might buy something-that he was there for one reason and that was to pick up a piece of paper that had the names "or something on it, I don't recall what it was on it"; that Sturm and Hickey were "right behind me and there was a Union newspaper lying on the counter and Sturm picked it up and turned around and walked over and sat on the table and read it." He testified that Sturm told him that if he had anything to say to go ahead and say it and that he would turn his head; that Sturm said, "If I buy you a cup of coffee will you leave?" and that he replied, "If you buy it I will drink it." Donhoff testified somewhat vaguely as to Sturm tell- ing him that he was assigned to watch him and could not leave until his bodyguard arrived-". . . in fact, he stood there with me the first day that they had the policewoman in there to follow me." Bruce Hickey, an assistant buyer in the men's department from 1959 to October 5, 1961, testified with regard to the conversation between Sturm and Donhoff and heard Sturm suggest that he buy Donhoff a cup of coffee; testified that on one occasion he saw Donhoff interrupt a sale in the swimwear department-that is, he saw Donhoff interrupt a saleslady while she was in the act of displaying merchandise to a customer. He said the customer appeared annoyed and therefore he approached to determine whether or not he could satisfy that customer's wants. (By his own description of his job as assistant buyer, I find that Hickey was not a supervisory employee as contended by the General Counsel. This testimony substantiates in full that of Gardner's description of the work of assistant buyers.) On May 22 Personnel Director Rooney informed him that she was laying him off for lack of work. He left Rooney's office, went to Huffman's department, and then he went to the union office. Before he left the store, he went to the basement to get his jacket and informed Ferguson, the head of the delivery department, that he had been fired or laid off. He said Ferguson asked him what he was supposed to do and said, "I can't run the damn delivery myself." 9 F. The discharge of Morgan P. Sheehan, Jr. Morgan P. Sheehan, Jr., was first employed by the Respondent during August 1959 as a stock boy. On May 23, 1961, he was assigned work as a delivery boy, the same job held by Donhoff who described it as pickup boy, the duties involving the pushing of a truck from department to department to pick up packages and deliver them to the delivery department in the basement of the store. Subsequently, he was sent to the warehouse, a separate building across an alley from the main store, where be worked as an elevator operator. His immediate supervisor was Arthur Rosenbaum, in charge of the warehouse, who was assisted by one Heston. Sheehan testified that he first became aware that Local No. 445 was attempting to organize the employees of the Respondent sometime around April 1; that he as- sisted that organizational effort by handing out authorization cards for signatures by employees; that he talked to other employees concerning the union authorization cards; and that he attended union meetings up until the time of his discharge. Sheehan testified to an incident that occurred during the 2-week period he worked as a delivery boy or pickup boy. He said that he engaged in a conversation with three other employees and asked one of them, Ray Fiddler, "whether he was for the Union"; that Ray replied he was not and wanted nothing to do with it. Then he and three other of the employees took an escalator when Sheehan noticed Gardner 9 The personnel records of the store show that Donhoff was employed on November 15, 1960, and was laid off on February 1, 1961, due to necessary reduction in force The records also show that William E Adams was employed November 30, 1960, and was laid off February 23, 1961 Thomas Heidel, the records show, was employed April 9, 1959, and David P. Short was employed September 15, 1960. Heidel and Short were still em- ployed by the Respondent in October 1961 The records substantiate that Donhoff and Adams were laid off as being the last employed two employees, and that Thomas Heidel and David Short had longer service records than the other two Gardner testified with respect to the laying off of certain people including Donhoff and Adams in the delivery department, he said that the layoffs were occasioned by the fact that there was no need for their services at the time; that the layoffs were made, on advice of counsel , in accordance with the rule of the last hired, the first to be laid oti' when necessary. He testified further to certain adjustments to particular areas of the store where efficiency in work was increased by such adjustments and the necessity for recalling old employees or hiring new ones made unnecessary. He said that in the few instances where additional hours were needed, that some employees occasionally worked and were paid for overtime. 649856-63-vol. 137-12 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "coming toward the card department", he (Sheehan) said that when he reached the floor he went to the watch department to see where Gardner was going, the watch department being located on a mezzanine just above the men's department; that he saw Gardner appioach Fiddler, heard him ask Fiddler what they were discussing; that Fiddler said they were talking about the Union and that Gardner then told Fiddler that if anything like that happened again for him to come to him (Gardner) and he "would take it from there." 10 The incident leading to the discharge of Sheehan occurred on July 14 about 4:45 p in. He described the incident as follows: Well, I went down to close the warehouse on the third floor, close the third floor up, and Mr. Ferrell and about four girls were in the back. I went in and I told Mr. Ferrell and this girl it was time to leave, so the girls started moving to the front and I went back and closed the windows up and there I went over and started to turn the lights out. Mr. Ferrell come to me, come over he said, "leave the light on, I will need about 15 more minutes," and I told Mr. Ferrell that he would have to come back tomorrow to get that 15 minutes to finish because it was time to close up And he said that I couldn't talk to him like that and I told him he couldn't come over here and tell me what to do, that we ran the warehouse, that we told him that we got off at a quarter till so he got on the phone and he called somebody up, so I waited for him and when he got off the phone he went up to the front to the elevator and I turned the lights out and I come to the front and we went down. There wasn't a word said about it. This occurred on the third floor of the warehouse, consisting of one large room used for the storage of stock There is no marking area on that floor. Sheehan had seen a sign posted on other floors of the warehouse and on the elevator door which read: MARKING ROOM CLOSED TO BUYERS UNTIL AFTER INVENTORY PLEASE STAY OUT On the following day, after he had been observed at work by Ferrell, he was called to the office of the personnel director, Chanaberry, about 4:30 p.m. and was dis- charged for insubordination ii Philip Ferrell, in connection with the discharge of Sheehan, testified that he had the full responsibility for the accurate inventory in progress, he had some 16 em- ployees engaged in the taking of inventory on Friday, July 14; he had arranged with his superior, Vice President Gardner, that the inventory be completed on that day even if overtime work became necessary; that when Sheehan turned out the lights about 4:45 p in. it was impossible to continue work in connection with the taking of the inventory because of darkness. He said that after requesting Sheehan to turn on the lights and upon Sheehan's refusal he communicated with Gardner, advised him .of Sheehan's actions, and obtained a clearance from Gardner to continue the taking .of the inventory on the following morning, Saturday. Ferrell said that as a result of Sheehan's action in darkening that portion of the warehouse, the girls were thrown into confusion and necessarily stopped work. He said that they or most of them left the building while he was on the telephone talking to Gardner and that it would have been impossible to continue work on that day because of the chaos created by the action of Sheehan. Evelyn Cyphers testified that she was one of the girls engaged in taking inventory -in the warehouse at the time Sheehan turned out the lights and refused to turn them on again as requested by Ferrell. She testified that she and another girl, Miss Montgomery, were in one of the bins on a ladder counting the top stock on the shelf, when Sheehan: called out to us that it was time to close the warehouse and he turned the lights off and several of us hollered and said, "turn them back on," and Pat [Sheehan] was coming up through the third floor, it's quite a long building, "I assume that the General Counsel would have me find not only that Sheehan was -under surveillance because of his union activities, which at that time had been noticed by the Company, but that Gardner also was following and engaging in survleillance of employees and engaged in unlawful interrogation of one employee "Marking is done on the sixth floor of the store in the receiving and marking room- -no marking is done in the warehouse IiAUFMZAN'S OF KENTUCKY 163 and he came back and he said, "it's time to close the warehouse and the lights are going to be turned off," so he went then and started to pulling down the windows and Mr. Ferrell stepped out and asked him to leave the lights on, he wanted to work a little longer, and Pat said, "No buyer is going to tell me what to do." .. . Mr. Ferrell went to the phone to call someone, I don't know who he was going to call , to ask permission to stay longer , I gathered , and Pat said, "You go ahead and call somebody , that's what I want you to do." . . . Pat left, of course, the rest of us were trying to get off ladders and stumbling over merchandise and it was dark, it was very dark in there. For one reason, now you might recall, this was in July but we were having a stormy season then and it was very dark in there. . . There were no lights on in the building. The only light that was coming in the building was from the Lane Bryant's sign outside and where you were back in those bins it had no effect at all. On the question of whether or not it was dark between 4 and 5 o'clock in the vicinity of the warehouse, the General Counsel called a meteorologist from the U S. Weather Bureau to show that it could have been light enough for the girls to con- tinue work without the benefit of electric lights in the warehouse . The testimony of the meteorologist in this respect is in itself inconclusive . The observations taken at Standiford Field, some 3 or 4 miles away from the location of the warehouse, indi- cated that between the hours of 4 and 5 p in., July 14, "there occurred at Standiford Field 45 minutes of sunshine ," and that "during the following hour there occurred 58 minutes of sunshine." I prefer to think that inside the warehouse , where the shelves were in bins running at right angles from the outside wall, with very few windows, the use of lights was necessary for the accurate listing of items being in- ventoried , and to take as more accurate the testimony of Cyphers and Ferrell that, after the lights were turned out , it was too dark for a possibility of continuing work on the inventory then being made. I am doubtful that I was correct in permitting this type of testimony since, in any event, the question is whether or not Sheehan was discharged for insubordination or because of company knowledge of his union activities and interest in the Union. Miriam Gibson , also engaged in the warehouse in the taking of inventory , substan- tiated the testimony of Evelyn Cyphers as to what transpired when Sheehan turned out the lights and refused to respond to Ferrell 's request to turn the lights back on. She said that Sheehan told Ferrell that "no buyer was going to come into his ware- house and tell him what to do" in a very rude and very loud voice . She added that as she and Cyphers started to leave the warehouse Sheehan, who also acted as elevator operator , made them wait to the point where they finally walked down three flights of stairs where they found Sheehan sitting in front of the elevator reading a newspaper. G. The discharge of Lucille Huffman Lucille Huffman first was employed by the Respondent on October 10, 1959, as a saleslady and was assigned to work in the Boy Scout department under the immediate supervision of Nelson Davies , a buyer, and incidentally under the supervision of Eugene Hettiger . 12 Huffman said that in June 1960 she communicated with Art Potter, assistant regional director of AFL-CIO, in reference to the possibility of organizing the employees of the Respondent ; she said she approached several employ- ees, who first consented and then declined to see Potter, and she so notified him; whereupon he sent Don Carter, an international representative to see her sometime in March 1961. Carter called at her home where she signed an authorization or union membership card . Subsequently the handbills mentioned above were passed out. Huffman undertook an active part in assisting Local No. 445 to organize the employ- ees She solicited for signed authorization cards, asked employees to attend union meetings, and requested their assistance in the organizing effort. She said she passed out between 25 and 75 authorization cards and attended weekly meetings of Local No 445 at its headquarters in the Henry Clay Hotel in Louisville. She met with von Bokern , Charles Day, and Don Carter , representatives of the Union and the International , in the tearoom at the store every morning before she started work; talked to von Bokern at the latter 's place of employment at the Forsythe Shoe Store almost every day she was at work; and was otherwise active in the organization 1' Davies is conceded to be a supervisor : the Respondent gnestions whether Hettiger can be recognized as such. Hettizer's duties, according to Huffman, included seeing that customers were waited on, instructing salesladies to wait on them "if he doesn't get to them first," and spending the major part of his time on the floor engaged in sell- ing. He is in charge of the department in the absence of Davies 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD campaign. She talked to people during the course of the day concerning the Union, including conversations with Hettiger and Davies. She said that Hettiger would chide her by saying, "Now, Huffman, instead of working with the union, will you do your work?" To which she replied that she always did her work and she worked for the Union, too, and that at other times he would say, "Huffy, what have you been doing, out signing cards9" to which she would reply, "If I could have found one I would have signed it." She said that Davies never mentioned the Union but only said, "Huffman, I can't say; I'm in no position to say anything either way," and would walk off. Huffman was discharged at approximately 4:45 p m. on June 28. She described the discharge and the circumstances immediately prior thereto, as follows. Yes, sir, Larry Donhoff, he came up in the department around 10 o'clock. When he came up he said he wanted to purchase a gift. Mr. Sturm, Mr. Hickey was, right behind his heels. He asked me if I would wait on him and I told him I would. I went over in the Scout department. He was looking in the show case. Mr. Sturm, comes around behind me and said, "Mrs. Huffman, I hope you don't mind us being here," and I said, "No, sir, that's what I'm here for, to, sell. I don't care if Mr. Mihus comes down and wants to buy something, I will wait on him. They walked back out and sat on the pants table. During store hours customers were in there. I had my husband's Kentucky Labor News lying by my book. Mr. Sturms said, "May I read that?" I let him read the paper. I told him that he couldn't have it, it belonged to my husband, and Mr. Hickey sat on top of the table and read the paper. Mr. Sturm looked over at Mr. Hickey and said, "This is real interesting." He said, "It's real interesting news. Damn, I thought this was a free country, but it sure doesn't look like it." So he sat there and read and Larry stood there, so directly Mr. Sturm said, "Larry, damn, I got work to do." He said, "When are you going to leave?" Larry said, "I'm not keeping you from your work. Go ahead." Mr. Sturm said, "We cannot leave you." They still stood there. Mr. Sturm said, "Larry, to get you away from here I will buy you a cup of coffee." Larry said, "If you buy it I will drink it " They left. Mr. Hickey returned my paper and asked me how Scout business was and I told him it was fine. He walked in the office and talked to Mr. Hettiger. He walked out and I completed my work. I sold $144 that day; at night a quarter to 5 Mrs. Chanaberry called me up and fired me." Prior to her discharge she said Donhoff came to her department regularly, almost every day, that he was observed by Moran, Sturm, and Hickey, these times being after Donhoff was discharged in May. Huffman testified that she was discharged by Chanaberry, personnel director, who at the time of her discharge offered her 2 weeks' vacation pay and a week's pay after telling her that she was being let go because she had broken store rules. She said that she told Chanaberry she had not broken any store rule and unless she was told why she had been let go she would not accept her pay. After this she said she used the pay telephone to advise her attorney that she had been discharged and then called Local No. 445 headquarters, reported that she was discharged, and would "be by to file an affidavit." 13 H. The activities of Charles C. Day and others Charles C. Day was employed by the Retail Clerks International Union during July 1960, and was assigned to its Cincinnati office, his assignments for work being in Ohio, West Virginia, Indiana, and Kentucky. Prior to then, he had worked as an organizer for the Teamsters Union and also had served as a labor consultant both individually and in the employ of a transportation company in New Mexico. Day testified that he was sent to Louisville in May 1961, particularly to work in connection with the organizing campaign involving the employees of the Respondent. Subse- quently, on September 20, Day was retained as a special labor consultant by the Respondent. "Huffman said she had received an award for keeping her accounts in order and had received a card on her birthday from Mr. Millus She complained that she had not been tendered a birthday dinner on her birthday as was customary in prior years Gardner testified that during the year 1960 the giving of birthday dinners was dis- continued principally because of the closing of the restaurant and consequent disruption of service. He said the restaurant was closed at one period for 30 or 40 days continu- ously and then for weeks and then for another week ; "It was a very unsatisfactory way to run a restaurant and the birthday dinners were terminated somewhere during that period." KAUFMAN'S OF KENTUCKY 165 Day, who had signed the representation petition on behalf of the Union, was dismissed by the Union before or during August. Subsequently, Vice President Milius learned that Day was unemployed, telephoned Don Morrow, an executive of City Stores, the parent of Kaufman-Straus, in New York, and authorized Morrow to hire Day as a labor consultant. By written agreement made September 20 be- tween the Respondent and Day, the latter was employed or retained by the Respond- ent, the agreement providing that Day be compensated at the rate of $500 a month with a minimum fee of $ 1,000, terminable by the Respondent at any time upon 3 days' written notice to Day provided that Day receive at least $1,000. The other pertinent terms in the agreement are set forth as follows: 1. For the consideration hereinafter set forth, Kaufman-Straus Company employs Charles C. Day to render services in connection with its current con- troversy with Retail Clerks Union Local No. 445, of Retail Clerks International Association, AFL-CIO, and otherwise, to-wit: (a) To persuade employees to exercise or not to exercise, or persuade em- ployees as to the manner of exercising, the right to organize and bargain col- lectively through representatives of their own choosing. (b) To supply Kaufman-Straus Company with information for use solely in connection with administrative proceedings, including the current unfair labor practice charges against it and the representation petition filed by said Union. (c) To advise the Employer generally in matters of personnel. But to engage in no activities or acts which violate any provisions of the National Labor Relations Act or the Labor-Management Reporting and Dis- closure Act or any other law or regulation of the United States or of any State or any other Governmental instrumentality. Thus Day was an employee of the Respondent at least as of and after September 20. The check to Day in the amount of $1,000, paid in accordance with the terms of the agreement, was handed to Day by Attorney John Greenebaum in the latter's office. Milius had consulted previously with Greenebaum concerning the advisability of hiring Day as a labor consultant. According to the testimony of Lawrence Donhoff, he knew Charles Day as a representative of the Union prior to his discharge on May 22. He said that Day was"fired" by the Union approximately a week after that date, that during June, July, and August Donhoff said he (Donhoff) was in the employ of Local No. 445 until the latter part of August when he was temporarily laid off as a result of an automobile accident. He lost his driver's license on September 16. Donhoff fur- ther said that around September 28 he met Day, Mrs. Swimme (mentioned infra), and the latter's son on the street at which time Day suggested that Donhoff tele- phone him, "I think I can get you a job," and that about 2 days later Donhoff called Day at Swimme's house, where Day was a boarder; Donhoff was told by Day, he said, to meet Day the following morning; that he did meet Day who told him, after they had entered Day's automobile, that he could get Donhoff a job "but I better not double cross him"; that Day parked in front of the Kentucky Home Life Building, where the offices of Attorney John Greenebaum are located; that Day entered the building and returned in about a half hour and that both of them went to a restau- rant where Day asked him how much money it would take to get him out of trouble-that is to repair his and the other car involved in the accident-and that Donhoff told him it would take close to $400 or maybe $500, whereupon Day said, "Well, if I could get that for you and pay all this off, would you leave town?" that Donhoff told him he could not because be had to be present at the hearing (referring to this instant case) and that on October 16 he was due at his trial arising out of the automobile accident. Day took Donhoff home, entered his apartment, and asked him if he had any literature that would have the names of Kaufman's em- ployees on it and also asked him if he, Donhoff, would be willing to get a black binder from von Bokern's office containing the names and addresses of employees of Kaufman to which Donhoff replied he would not do that About 2:30 pm. Donhoff met Day at the Kentucky Hotel in Louisville when Day asked Donhoff if he would be interested in leaving town until October 15 or 16. When Day offered to give him $300 or $400 cash and take care of the repairs to his automobile and those of the other car involved; Day then left for about 10 or 15 minutes, came back, and asked if Swimme had returned, left again during which time Swimme came in and asked Donhoff whether he had made up his mind as to what he was going to do, whether he was going to be for the Company or the Union. While he was sitting there, he said, he saw a man he recognized by appearance only and not by name as being from Kaufman's and that this man "went in the same direction" 166 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD as Day and after a few minutes Day came back; sometime during the course of the afternoon Swimme came in, questioned Donhoff as to whether he was "for us" or the Union, that Donhoff was handed some 10 copies of a so-called petition and was instructed by Day to take tfiem to the employees of Kaufman's at their homes and get as many signatures as he could from employees. Subsequently Day came to his apartment and told him that he was going to get him out of town That night or on the following morning he saw Day, who gave him $40 and told him to, check in at a motel, that he then packed his clothes, went to a tavern and called a cab, went back to his apartment, brought some wearing apparel, had dinner with his mother, called a friend, packed his clothes, and went to the Colony Motel where he stayed for 4 or 5 nights; and while he was there Day told him to change his registration to someone else's name and that he then changed his registration to his "friend's name," one Margaret Wheeler. Donhoff said that sometime during this period between September 28 and October 3 or 4, Day told him that he, Day, had to get him out of town before the hearing and mentioned a resort "like maybe Florida or some place like that," and that the amount of $900 was mentioned as being the amount needed to get Donhoff out of town. Apparently Day paid Don- hoff, according to the latter's garbled testimony, some $100 in cash in amounts such as $5, $6, and $3. Donhoff said he refused to take a check from Day because he knew that Day had issued checks at the Henry Clay Hotel which were returned for insufficient funds. Counsel for the General Counsel in his brief has described the movements of Donhoff, perhaps with more accuracy than I have been able to attain. The pertinent facts are, I believe, as testified to, are essentially as set forth above. The auditor of the Henry Clay Hotel testified at the hearing herein that some checks were issued to the hotel by Day, that because one certain check proved bad a warrant against Day was sworn out by the hotel, and that after that check was made good by Day the matter was not prosecuted on the advice of hotel counsel which happened to be the same counsel representing the Respondent in this instant case. According to the statement of Samuel Greenebaum, made at the hearing herein, his firm represents "all the hotels in Louisville" and in other places in Ken- tucky. The bad check was paid in cash to the hotel on or about September 24, the check being dated in August. The Charging Party, supported by the General Coun- sel, would have the Trial Examiner infer that the hiring of Day on September 20, the activities of Day as related herein, the picking up of the bad check by Day shortly after receiving $1,000 from the Respondent through its attorney, and the arranging of the distribution of the petition among the employees of Kaufman-Straus by Day, is susceptible of a conclusive inference that John Greenebaum as attorney for the Company worked with Day in an effort to thwart union activities and the organi- zational campaign of Local No. 445 To reach such an ultimate conclusion, it seems to me, would require the drawing of inference upon inference; to infer finally that Attorney Greenebaum initiated an underground action to be completed by Day looking toward the destruction of union membership at Kaufman-Straus.14 William Ellegood was called as a witness by the General Counsel apparently to show through his testimony that Arthur Rosenbaum and Hickey. said by the General Counsel to be a supervisor, knew that three employees were engaged in harassing Donhoff, and that they tacitly approved such behavior, designed to inter- fere with Donhoff's union activities after his discharge 15 Although Ellegood had furnished a pretrial statement on July 1 and reaffirmed it on July 5, 1961, in which he described and reported that matters brought up by counsel for the General Counsel during examination, be suffered a remarkable lapse of memory regarding what be had put in his pretrial statement and confined his answers to questions mostly "I don't remember." By prearrangement Ellegood talked to Day at the corner of 18th Street and Broadway in Louisville about 7.45 am. on October 2, at which time he was told by Day that he (Day) was sorry about what the Union had done to Larry Don- hoff, " . about firing him, and that he would like to know if T would like to take this petition and have some names signed" Day told him that there would he a group meeting and other petitions would be "going around " According to Elle- 14 Day did not testify concerning his activities on behalf of the Respondent On the advice of counsel, he refused to answer the question "After you left the Retail Clerks, what did you do?" A claim of privilege was made under the fifth amendment to the Constitution of the United States, on the facts as related by counsel. that on the basis of an investigation conducted by the Federal Bureau of Investigation, Dav might be charged with violating the Labor-Management Disclosure and Reporting Act, and also, with interference of witnesses in violation of the US Criminal Code '6 Ellegood said Arthur Rosenbaum was the assistant receiving clerk. KAUFMAN'S OF KENTUCKY 167 good some 10 or 11 employees beside himself, including Wayne Wall and Mary Cowles, met at the store about 10 o'clock on the floor adjacent to the china depart- ment, and then proceeded to circulate the petition, Ellegood's copy having been handed to him by Day at their meeting earlier in the morning. The employees circulated the petition and solicited signatures during working hours, quite openly, according to Ellegood. He described the "petition" as: "It just said petition. Then underneath it just added a little note about the Union, that you were tired of the Union, tired of it and you didn't want the Union anymore." Ellegood said he ob- tained about 50 employees' signatures on the so-called petition and turned it over to Minus at the same time other employees turned theirs in, and that Milius said at that time he knew something was going on but he did not know what it was. As is shown by the testimony of witnesses other than Ellegood, this so-called peti- tion was handed to a number of employees in the store conference room by either Ferrell or Strum, or both, on the morning of October 2, and signatures of employees were obtained by Wayne Wall, Mary Cowles, and Ellegood, among others. It is clear that when the solicitation of employees' signatures had been completed, the group met in the office of Milius and delivered the signed petitions to him. On the following day, October 3, 1961, Milius transmitted to Nancy von Bokern, secretary-treasurer of Local No. 445, copies of the petition "that was presented to me yesterday afternoon by a delegation of Kaufman employees." In his letter to von Bokern he advised her that he had also forwarded copies to the Regional Office of the Board in Cincinnati. The petition consisted of several serial sheets containing different names or signa- tures of employees. The petition itself read as follows: PETITION We the undersigned employees of Kaufman's Department Store are tired of the Union, and all their letters, bulletins and what-not. We feel that they are bringing into our life and our work trouble but very little good. The Union has promised to make things easier, instead it has created confusion with its ac- cusations and charges. We do not want the Retail Clerks to represent us, we want the Retail Clerks to return to us any cards we may have signed.. . . 1. Surveillance and interrogation Cecilia Eberenz, a saleslady employed in the cosmetics department, testified re- garding the same meeting of the employees of the cosmetics department testified to by Ison, wherein Ison is said to have remarked that there were two sides to every question. As Eberenz related the incident, I can find nothing invidious in Ferrell's action in calling the girls together to discuss departmental affairs. Eberenz said that about a week prior to the discharge of Ison she engaged in a conversation with Ferrell When she said, in answer to a leading question, that Ferrell remarked that he had decided to talk to employees to see if they were content with their jobs, she told him that she was satisfied except that she would like to have a raise, to which he replied that possibly salaries would be reviewed. After having had her memory refreshed by reading a pretrial statement she said that "Mr. Ferrell was trying to decide what was causing unrest in the department. With me, I was looking forward to a raise. I hadn't received it. That's the only thing, I said I was unhappy about it To me working conditions were normal." Under examination by counsel for the Charging Party, the Union, Eberenz in referring to her pretrial statement or affidavit furnished to a representative of the Regional Director, testified that she gave the affidavit, dated June 28, 1961, re- luctantly, that she "tried to answer him as little as I could" because she did not want to be involved in litigation. Subsequently she said she told Ferrell that she had signed the affidavit and told him that she wished she had not talked to anyone about it; "after I thought it over and didn't want to be involved I wrote a letter to Mr. Greene [attorney in the Regional Office]" asking him not to use her statement. She said she approached Ferrell voluntarily and wrote the letter at her sales counter of her own volition. Again, under a series of leading questions, she said that Ferrell had not suggested that she write the letter, told her to use her iudgment, that there was a possibility she might be "left out"; told her that he would think over the advisability of her mailing the letter and would consult the Company's attorney on the point. After she had written the letter, and had enclosed and addressed an envelope, she said she handed it to Ferrell in the latter's office in the presence of John Greenebaum; that she handed the letter to Ferrell and asked him to mail it; that Greenebaum made no comment in her presence. She had called at Ferrell's office voluntarily. Although 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she first said she handed the letter to Ferrell in his office , she later said that she gave it to him as he happened to walk through the department and later saw him and Attorney Greenebaum in Ferrell's office . However the situation was, I do not think it of much importance . The gist of her testimony seems to be that she approached Ferrell and told him she signed a pretrial statement at the request of Greene, an attorney in the Regional Office , that she was sorry she had signed such a statement and asked Ferrell if she could withdraw it and be released from any involvement in litigation ; that he told her that there was a possibility that if she wrote such a letter that she might be released from participating in any litigation and that she left the letter with Ferrell to be mailed and that Attorney Greenebaum did not participate in any way insofar as giving her advice as to the effect or propriety of mailing such a letter to Greene. In connection with her request for a raise, it was her testimony that Ferrell had told her that her request was being reviewed; she said that before this Personnel Director Rooney also told her that her request for a wage increase was being reviewed . Apparently the meeting to which she referred , the one at which Ferrell called the salesladies in the cosmetics department , was the same one Ison referred to and took place in May prior to the discharge of Ison Eberenz said that both sales of cosmetics and the work of his department was discussed as well as reference being made to the Union and Ferrell's comments in regard to the Union. The complaint in Case No. 9-CA-2331 alleges in part that on or about May 1961, Ferrell told an employee of the Respondent "that he decided to talk to the employee to see if she was content with her job, and upon her reply that she was unhappy about her salary, in telling her there would be a salary adjustment in an effort to thwart the organizational activities of Respondent's employees." The testimony of Eberenz fails utterly to support these allegations of the complaint which, I believe, should be dismissed.16 Loretta Swimme, a saleslady in the shoe department , said that about the time of Donhoff's discharge she saw him being followed by several of the store's super- visors from time to time and particularly she noticed a merchant policeman following him; that this merchant policeman who she called Buddy told her that "He could go down to the first floor and start an argument with Larry Donhoff and arrest him." 17 After the first part of June, she said, she was called into the office of Alfred Roths- child, buyer and department head of the ready-to-wear department of the store, who asked her that if in the absence of William Nichols ( at that time assistant buyer) she could assume responsibility and stand in as buyer and department head until Nichols returned from his vacation During this conversation she said that Roths- child asked her how she felt about the Union and that she told him she did not want to talk about it; that he told her that he knew she had asked some employees in her department to sign a union authorization card . She, reported another conversa- tion which took place shortly after the first one with Rothschild in which she asserts that Rothschild told her that she would not lose her job because she was working with the Union; that he asked her if she thought she was qualified for promotion, and that she told him she thought she was and the only thing that would keep her from being promoted was being fired because of union activity; and upon his asking her if she was active in the Union, she said, "Well, I don't think I have to tell you at this time." Another time she said that Rothschild, at a time when pamphlets were being distributed at the store entrances , "just mentioned that it was costing us our com- mission"; that he said that the boycott was hurting the store and was costing the employees commission earnings. She said that around the middle of May Chana- berry asked her what she thought about the Union and why she would think that strangers could come into the store and "try to do something for me, after all they didn't even know me." She testified vaguely as to numerous conversations she had with William Nichols, assistant buyer, wherein the Union was mentioned and at one time he asked her how she felt about the Union and whether she had asked anyone to sign an authorization card . She testified: Well, Mr. Nichols just told me that Mr. Sturm was going to come up and talk to me and see exactly how I felt about the Union and he wanted to see if I was qualified to be assistant to the buyer in the shoe department and Mr. Sturm came up and he talked to me and he asked me questions as to how-he told me that he was a self-appointed union buster and this was really-he was unauthorized 1B Eberenz denied positively that she had discussed her testimony prior to the time she gave it at the hearing with anyone , either representatives of the Company or the Union or anyone else 17 The merchant policeman is not further identified , although I admitted the evidence on the assumption that he was an employee of the store or at least was under some control of management KAUFMAN'S OF KENTUCKY 169 to go into this but he wanted to know exactly how 1 felt about the Union... . I told him I didn't have to talk to him about the Union . I told him I didn't have to talk about it to him. . . I don 't recall what he replied . I know we talked maybe 20 minutes but I asked him why he was so interested , whether I was going to be assistant buyer in the shoe department since he was handbag buyer and I thought the only thing he wanted to know is exactly how I felt about the Union. Subsequently , she said, she called at the office of Milius: I told him that Bill Nichols had told me that morning that Robert Barnes had been made an assistant to the buyer after I had been promised the job and had worked for it; I told him that I felt that this was all being done to get me to quit the store and leave on account of some other activities and he said , "What do you mean?" And I said, "You know what I mean." . .. I told him if he was-all this had been said and done to get me to quit the store on account of the other activities I wasn't going to quit. I could be fired , but I wasn't going to quit . . . and he assured me that I wouldn't be fired. Mary Cowles , employed for some 3 years first as a saleslady in the jewelry depart- ment and since August in the cosmetics department , testified that Shields, assistant to Sturm , head of the jewelry department , several times told her (after she had told Shields that she thought the Union might be the best thing for the girls) that she did not want Cowles to "get mixed up in it." She testified that she was observed by Shields talking to Larry Donhoff, that Shields observed Ison talking to Donhoff, and that on each occasion Shields would telephone and call Moran, and had informed him on one occasion that "His black-headed friend [Donhoff] was on the first floor." Another time she said Shields asked her what she and Ison were talking about and she informed Shields it was none of her business . She testified that on one occasion she called at the office of Sturm and during the course of the conversation: He wanted to know what I thought was wrong with the Company , what they were doing that was wrong so they could correct it and-or do the best they could with it, and I told him what I thought was wrong. . . . I told him I I didn't think that some of the older people that had been working there had been laid off and some of the girls had been cut down to short hours that had been there for 2 or 3 years that they had new girls working full time. . . . He was surprised .that any of his girls would be interested [in the Union]. On cross-examination by counsel for Local No . 445, she said she attended union meet- ings, saw Charles C. Day at those meetings, and denied that she had reported to Sturm what had transpired at the meetings she attended. On the evening after the petitions had been circulated , Cowles told Sturm that she would like to talk to John Greenebaum . Sturm introduced her to Attorney Greene- baum in a store conference room sometime around 6 o 'clock that afternoon. Sub- sequently, Cowles accompanied Greenebaum and Elizabeth Montgomery , a clerical employee, to a public room in a local hotel where they discussed certain matters having to do, I suppose , with the circulation of the petition and union activity, over some drinks . As a result of this conversation , Cowles gave Greenebaum a statement in writing. This occurred, of course, after the time she had made a pre- trial statement to Greene , one of counsel for the General Counsel . I cannot find, as apparently the General Counsel and the Charging Party would have me to do, that the conversation with Attorney Greenebaum resulted in any change in the facts previously related by Cowles to Greene. Mamie Archer, who had been employed as a saleslady in the neckwear department for approximately 3 years, under the supervision of Sturm , was discharged on the evening of June 5 by Rooney. According to her testimony , Rooney upon inquiry gave her no reason for her discharge ; she said Rooney replied, "It was just a rule, the rules and regulations... .. Upon informing Sturm of her discharge, he expressed surprise. About a week later, she said, she spoke to Chanaberry, who had succeeded Rooney as personnel director . Chanaberry told her that "she didn't know what the trouble was" and "she just left me with the impression that she would, you know, call me back later." About 2 weeks prior to her discharge she said that Sturm had asked her how she felt about the Union and she replied that she knew nothing about it and have never been for it because she did not know enough about it; that she was not interested in it and had not taken any part in it. She said that Sturm asked her if anyone in the store had ever approached her about the Union to which she replied that "one lady in cosmetics ," identified as Ison , had approached her. She said that she was approached by von Bokern at a time when she purchased shoes in 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Forsythe's Shoe Store, when she refused to sign an authorization card. She said that at the time of her discharge she was under the impression that she would be recalled, that she has never been recalled, that she had never taken merchandise from the store, or had she ever made a cash sale and failed to ring the sale up on the register. Helen Joan Voll testified that she was employed in November 1960 in the better sportswear department under the immediate supervision of Margaret McDonnell, a buyer, and McDonnell's assistant, Ruth Gellhaus. About 4:45 p.m. on August 4 she reported to the office of Chanaberry according to instructions and Chanaberry dismissed her for violation of store rules and regulations She reminded Chanaberry that one Martha Hamilton had been discharged for taking merchandise, and Chana- berry assured her that there was no such charge against her. According to her, prior to her discharge she was questioned by McDonnell as to how she felt about the Union and was told that the Union "were strangers" and "were not these to help her but they were interested only in the money they would get from employees in the way of union dues," and at this time McDonnell told her that there was to be an open meeting of all employees of the department and that she would be required to attend. She denied ever stealing any money or merchandise from Kaufman's; she asserted that at times the cash register was broken, when she temporarily withheld ringing up amounts of cash sales until after the register had been repaired. On cross- examination she said she had never attended a union meeting, had not signed a union card, and that she did not know why she had been discharged Lillian Stanley was employed as a cosmetician for some 7 years until June 4, when she was discharged about 5:30 p.m. by Rooney who told her that she (Rooney) had been informed that she had not lived up to the rules and regulations of the store. She testified that about a month before her discharge, Ferrell called her to his office and asked her if there was any question she would like to ask him concerning the Union; that she said no, that she had been working since she was a very young girl and thought that she had gotten along all those years and that at her age she was not interested in the Union She said she was never informed as to the real reason for her discharge; and after Rooney had told her that her employment was being termi- nated she told Rooney that she was going to talk to Gardner and Moran and ask for the reason-"I had I guess sort of a guilty conscience I knew I had broken some of the store rules and regulations and I guess I thought I could alibi out of them." She denied having ever failed to ring up cash sales and keeping money belonging to the store. In connection with her having broken a store rule or regulation, she testified: Well, we had quite a bit of discussion in the department about closing our regis- ters out before time for the store to close and there was some discussion about customers being in the department late and not being-the girls would have the registers closed, some of them, and I had broken that rule a couple of times due to the fact that I was way back in the back and I would get all the late customers when I was open, because naturally they would pass by and I had been guilty of that. Martha Hamilton was employed on May 28, 1958, in the sportswear department and later was transferred to better sportswear where she was employed until May 29 when she was discharged by Rooney for violating the rules and regulations of the store. She said that about 2 weeks after her discharge she received a telephone call from a salesperson, one Sharon Hall, who told her that two red bathing suits valued at $40 were unaccounted for; she said she called the personnel office or McDonnell, her supervisor, and that later she received a call from Hall who told her that the two red bathing suits had been found. Stanley testified that about a month prior to her discharge, McDonnell, her super- visor, in the presence of Voll and Gellhaus, informed them that if she had thought that the Union was coming in there "she wouldn't have wanted to come there to work" and said that if the Union held meetings and "that we didn't attend, that we would be fined" and at the times when McDonnell called the salespeople together she said that she "didn't want any part of the Union." She denied having ever stolen money or merchandise from the store or ever having made a cash sale and failing to ring it up; she denied that she was ever given a reason in writing or otherwise for her discharge. She said she had never signed a union card or had attended a union meeting. Gertrude Jockell was first employed in 1943 and worked off and on until about 4 years ago when she became a regular extra, working at times when other employees were on vacation or sick, during sales, or during Christmas or Easter seasons. She was discharged on July 28. Prior to that day she had arranged for her vacation to start on the following Monday to last for 2 weeks with pay, and for additional time to take up the month of August Prior to the taking of her vacation, she had KAUFMAN'S OF KENTUCKY 171 been filling in for an employee who had been off sick for quite a long period of time. On her return from her vacation she called the personnel office on a Saturday before Labor Day and she was told that that office would be calling her. Having heard nothing in regard to being called to work she, on October 5, called at the office of Chanaberry to request steady work. Chanaberry told her that she had been called but apparently was out but that she (Chanaberry) "Will look in her book and make sure that your name is on the call," and verified the fact that she still was on call. She was never recalled. She said she had never been informed that she had been discharged from her employment with Kaufman; she denied ever having engaged in any irregularities in connection with the diversion of merchandise or money from the store. Carolyn Byerly was first employed by the Respondent in December 1960 as a salesclerk on a contingent or part-time basis. She worked full time during June and July, until August 7. On that day she reported at 9 a in. and found that her schedule for that day had been scratched out. Upon inquiry made to Chanaberry she was told that since she was in that day to go ahead and work. She had no work subsequent to that day About 2 weeks later she called the personnel office and was informed that there was no work at that time for her but that she would be called when work was available. About October 18, she called at the office of Chanaberry, who told her that there was no work available for her then but there would be "around Christmas"; she showed Chanaberry a subpena served upon her the night before and informed her "that I was supposed to be fired for stealing." She said that she told Chanaberry that if she had thought that she (Byerly) was stealing she would have fired her on the spot and Chanaberry agreed. She denied that she had ever stolen any money or merchandise from Kaufman's or had failed to ring a cash sale that she had made. She said that she had never been told that she had been dis- charged from the employment of the Respondent. Michael J. Moran, store superintendent until September 10, testified that he had obtained the services, through an agency, of merchant policemen from an outside organization, for the primary purpose of store protection and the store's assets, to observe merchandise coming in or going out not in ordinary course, and to guard the back platform of the warehouse and generally the first floor of the store to observe what went on, particularly at the front and rear doors. They were given no instructions whatsoever concerning the activities of the Union In connection with his observance of the activities of Donhoff during the period after the termina- tion of employment of the latter, he said that in my position it was more or less to see what was or wasn't going on in the store. He was in the store circulating around and going from floor to floor, from person to person, and I did observe him and followed him from time to time just to more or less see what was or wasn't going on I have heard him say from time to time, several instances, "There will be a meeting tonight," or "do you have any signed cards?" Or "Are you coming to the meeting tonight?" Words to that effect. [Specific instances mentioned were] I believe in the Boy's Department with Miss Huffman, on the first floor, I believe it was in the Sportswear Department and also in the Jewelry Department with Miss Cowles From his observation, he testified that Donhoff's presence in the store created a feeling that employees were watching him "to see where he was going and what he was going to do." It is clear from Moran's testimony, as well as the testimony of other witnesses in this case, that his duties kept him more or less constantly on the several floors in his capacity as store superintendent, and that he could not help but observe Donhoff going from place to place. He freely conceded that on several occasions he had followed the discharged employee. Donhoff, to see what was going on in connection with Donhoff's visits.i$ On May 2, Vice President Gardner made a speech to the assembled employees, extemporaneously, although the speech was tape recorded as it went over the store's public announcement system as Gardner was speaking, the tape recording being later taken by Gardner, dictated to a stenographer, and transcribed by the stenographer The General Counsel in his complaint asserts that the making of the speech constituted interference, restraint, and coercion in violation of Section 7 of the Act and was for the purpose of discouraging membership in the Union because during the course of the speech Gardner announced that he did not like the Union; "that the Union is not coming into the Respondent's store and that if it did, he would not work there." The speech as transcribed from the dictation from the Is The record shows that Donhoff at certain times after his discharge did enter un- authorized areas, including the department where he formerly was employed. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recording does not contain these words or anything like them . The speech, as. recorded, read: Good morning, folks: This meeting was called this morning for the purpose of discussing with you the Sale, which is now in progress . I asked Mr. Milius to let me have this time to talk to you about something that has concerned me very much over the week-end. As you know, a Union in this town has been making an attempt to organize our employees. They have been passing out literature at the front door; cir- culating damn lies over the place; bothering you both here at the store and at home. There isn't much I can do about these telephone calls and visits they are making at your homes, but I can certainly put a stop to their interfering with, and bothering you here at the store. As you know, we have had a rule in this store for many years, that our em- ployees cannot be solicited at any time, by any one, for any purpose, and this rule is still in effect. The only exception to this is the Annual Community Chest Drive and the Red Cross Drive, and each time these two organizations solicit you, we always-at an open meeting-have advised you so. If any employee or anyone else solicits you for this Union during working hours, all you have to do is let me know. I cannot stop them from calling you at home or visiting with you in your home-but I can certainly stop them in the store . You undoubtedly have read these bulletins, as well as I have. Who are these people that all of a sudden are so damned interested in your se- curity and welfare9 Before you start doing business with these people, you take my advice and find out who are these people who want to represent you all of a sudden. They are not Louisville people-they are people from out of town who have come here from Indianapolis and Cincinnati , in a desperate effort to organize this store, and I am sure, if you will investigate their backgrounds thoroughly, you will come to the conclusion , too, that their only interest is a selfish in- terest-and not your welfare. The lies that they had been circulating in order to build up fear in your minds, has disturbed me greatly. They have circulated a rumor that Walter Bollen has been fired. You all know Walter Bollen-the porter who works on the 3rd Floor-and has been here for 47 odd years. Walter has been seriously ill since January. He has some serious blood clots in both legs, and there is a strong possibility that both legs might have to be removed. Walter has been paid his full salary while he has been away and it is true that you have not seen him around here since January, but he has not been fired, and if there is any doubt about this, you need only to ask Walter. With a man in this serious condition, why would you think that anyone-who claims to be interested in his welfare-would call on him at his home, trying to get him to join a Union? Walter has made it quite clear to them that he wants no part of it; that he will join no Union-because, as .he has told me, and will ,tell you when the opportunity presents itself, that this company has been mighty good to him Somebody came to see me last week and said it was a shame that we fired Lancelotti, the young man that works for Mr. Sauber. Lancelotti has not been fired. Lancelotti came here from the New York Office. They are going to have a new addition to the Family; his Wife is home sick, and he wanted to go back home. Lancelotti was put back on the Internal Audit Staff at the City Stores Company in New York, his expenses were paid-both ways-but the boy had not been fired. Now all of you who thought it was a damned shame-should now consider all the facts. This one irritated the hell out of me! They told someone that we sent Mrs. Chanaberry to Siberia. These are some of the damn lies that you've got to put up with. Kate Chanaberry-and she's here this morning-was given a nice promotion, we thought, to the Dixie Branch, and if there is any doubt in your mind, you might ask her. Now, she is Downtown this morning to help us for the next 2 or 3 weeks. Mrs. Bales, Miss Rooney's Assistant, has accepted a very nice position at a College right outside of Chicago. She'll be leaving us shortly. I want to straighten that out before someone says we fired her. Kate is going to help out until we find a replacement for Mrs. Bales Just to keep the record straight, because I am sure this is going to happen. We have about 6 or 8 other older employees who want to go on a Pension. One is Mr. Hettiger-you ask him if he is going to get fired. Swinney , who wishes to KAUFMAN'S OF KENTUCKY 173 _go on a pension June 1st. There are about 6 others-Mrs . Virginia Brown, in the Coat Department, who has been here for a long time, and who is going on a Pension any time at her choice. I was told that we fired another one of the girls (Mrs. Dawson) in the Coat Department. She, too, is on a Pension. It's those damned lies that has got me all upset , and I just don't want them to go on any longer. Now, we do do some things that irritate people. I made 600 people mad all .over the damn place. I stopped the escalators . I come in at 8:30 in the morn- ing, and nobody is using them . I told Mike Moran not to turn them on until 9:00 o'clock. Hell, that made 600 people mad. Mr. Milius found it out and told Mike to turn them on earlier. I don't deliberately try to do these things, but if it's wrong , I assure you it's going to be straightened out. Now, I can also assure you that as long as Robert Milius and I are the heads of this Company, there is not going to be any injustice done to anyone. Some- time injustices can work in odd ways. There were a couple of people that had to be dismissed . It wasn't of our making, and I don't see any good purpose of discussing it, particularly for the best interest of the people who had to leave. I am sure that if I had the opportunity , or it was necessary to go into the details of it, you, too, would agree that it wasn't the wrong thing to do. I assure you that it was not of our making , and no good purpose is served by belaboring the point, or giving a worldwide explanation of it . I am sure the people involved regret it as much as we do. Now, I don't want to continue on much longer, but I just want to come back to one thing I said in the beginning . Know who these people are-they are from out of town-but before you start doing business just make sure you don't get yourself in any messes . Just go back and read the papers the last couple of weeks-the headlines in our local papers-and make sure you don't get involved in anything like this-and make sure you don 't have people rep- resenting you like that. I am sorry I had to talk to you like this on Monday morning . I am sorry I loused up an otherwise good meeting morning for talking about the sale, but I was quite upset all day yesterday concerning one of our employees-who is quite concerned about it, and about the manner in which it was done-and particularly, she does not want to be bothered at home on a Sunday. I can't stop that folks-they have a perfect right to do it. You don't have to see them . I hope you will use your good judgment in matters such as this. They put out a Bulletin here the other day, which I thought was very apropos of what I want to get across. "There is nothing to fear but fear itself." You just think about that, and make sure that no-one uses fear on you to get you to do something that you don 't want to do. And, if they are going to talk about fear, make sure you don't have any fear. As you know , this Company has always had an "open door" policy. Anytime you have anything on your mind, you have a perfect right to discuss it with either Mr. Milius or me. This is a precious right-as are all rights. You should think a long time before you sell one-I'd never sell one. We make mistakes . I make more than anyone, but I want to say to you that, so long as we know there is any injustice being done , and we have some way of finding it out, it won't continue very long. And, if Roy Gardner can't straighten it out, I don't know of a better man to get it straightened out for you than Bob Milius. That's all I have to say this morning. I apologize for using this time to louse up a nice morning , but I felt so damned strong about it, that I thought I should let you know how I feel. On May 23, Gardner had caused a notice prohibiting solicitation within the store to be posted . This notice read: NOTICE TO ALL EMPLOYEES We have had a long time policy prohibiting solicitations of any kind, Union or otherwise , within our store. This policy is still in effect. A violation of this policy by an employee will be the cause for immediate discharge. Please report any violation to your supervisor or the undersigned. Lucille Huffman testified that while the employees were assembled waiting for Gardner to appear, when she and Donhoff were standing near the escalator , Super- intendent Moran placed them in front of the gathering remarking that he wanted them to be sure to hear what Mr. Gardner had to say. She testified further that when 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gardner finally came down he said "good morning" twice, said something about being "so danm mad," and that he further said that the reason for the meeting was concern- ing "this damn Union" coming into this store. She testified that Gardner indicated his belief that the Union "were outsiders and agitators," asked if the employees knew who they were or what they were, and remarked that "that's where Communists get in your door." She said that he "flashed" a picture of one Stoy Decker and asked the employees if they wanted "people like that to represent them and he said he was so mad-I lust don't know what all was said in the meeting." She concluded that Gardner had shown the picture of Decker because he had com- mitted a crime.19 After Gardner's speech on May 2, he said that the solicitation and the activity de- scribed by him continued in the store to the point where it was felt by Mr. Milius that it was necessary to further advise the employees of policy; that Milius spoke to them and at about the same time (May 23) addressed a memorandum to all employees on the subject of store rules in which it was stated "that the acts listed below are viola- tions of company rules." Some 33 acts which would constitute violations were listed including this one. "19. Unauthorized soliciting of any kind on company premises in working areas during working hours " It was explained that the notice previously posted as to the nonsolicitation rule needed clarification because it had been interpreted by some employees to mean that they could not engage in solicitation on their own time either in working or nonworking areas in the store According to Vice President Gardner, the employees were all specifically advised that solicitations at different times were permissible, particularly on behalf of the Red Cross and other charities. The General Counsel attempted to make much of the fact that demon- strators sent in by cosmetic manufacturers, by long-standing agreement with the Respondent, to display their products were acting in violation of the no-solicitation rule, as was a person who sold butter to employees. I think these two matters are trivia compared with the true import or meaning of solicitation in regard to union membership, solicitation of funds for private purposes, and other well-known types of appeals to individual employees J Store protection and inventory controls Kaufman-Straus maintains a perpetual inventory so that it is possible every week to determine how many dollars and cents of merchandise in inventory the store is supposed to have in stock Semiannually, a physical inventory is taken and after the physical inventory, the result is measured against the perpetual inventory figures and if there are shortages, the amount or value of such shortages is then determined. Vice President Gardner said that the last two semiannual inventories showed mer- chandise shortages when the comparison was made He testified that he laid inven- tory shortages principally to theft of merchandise by employees, theft of merchandise by customers, and the failure by salespersons to ring sales of merchandise-that is, to properly account for the full amount of sales made. In March, he said, he had reason to believe that certain employees were stealing merchandise and as a result of that belief he and Store Superintendent Moran employed the Merchants Police Company to put two uniformed men on duty within the premises to watch certain areas where it was suspected merchandise was being stolen. He related the reporting of losses to the Louisville Police Department concerning certain of the store's mer- chandise which seemingly found its way into pawn shops He mentioned a customary arrangement with the Morse Investigating Bureau on a continuous basis as a primary means for testing whether or not cash sales made were properly recorded under the Company's rules and regulations. Jack W. Morse does business in Louisville under the name of Morse Investigating Bureau, a store shopping service For approximately 10 years the Respondent has availed itself of the services of this Bureau, which conducts, among other things, tests for honesty and service of sales employees The Bureau numbers several other stores in Louisville among its clients To accomplish the purposes of the service, to According to the statements of counsel for the Charging Party made during the course of his examination of Huffman, it appeared that Decker was a former business agent of a local of the Teamsters Union in the community and had received considerable publicity because he had been indicted in Federal and State courts "for a conspiracy and perhaps participation with assault and battery with a teai-gas gun against I think a truckdriver from Minnesota " It is impossible to tell from the testimony of the witness whether she was acquainted with the factM In the Decker case-certainly this Trial Examiner is not KAUFMAN'S OF KENTUCKY 175 the Bureau employs shoppers who "shop" certain departments in a store or certain employees employed as salespeople by the store. In the words of Mr Morse: Stores request shopping for the general purpose of having their sales people tested for honesty and frequently for service. . . . We do a great deal of serv- ice shopping. We do not make any purchases at all. We inquire and ask the sales person about certain items of merchandise. We test their reaction to our inquiry, their interest, their sales ability, their effort to sell us a particular item. We will deliberately make objections and be a difficult customer and all of that reaction that we receive we then write in a service report. No purchase has been made at all, yet that is the customary shopping and we do a great deal of it. We also make exchange purchases We make combination purchases, but the purchase most often used and the most effective one from the standpoint of honesty shopping is the double buy purchase, the uneven initial purchase fol- lowed by one with even money. When the first purchase in uneven money is made] usually the sales person will promptly go to the cash register and record the sale, get the change for the customer and almost automatically issue a receipt and that receipt is given to the customer. The shopper will then proceed with an additional purchase. They will then pay even money upon the second purchase. There is no reason or occasion for the sales person to go to the register if they do not choose to do so. There is a second shopper in the area at this time who observes the recording of the second purchase, that is, whether there is a proper or improper recording made. If the second purchase is of a certain amount, the observing shopper will make sure that that particular amount was recorded by the salesperson by ringing up the amount of the sale on the cash register. If the sale is not rung up on the cash register, said Morse, the shoppers compare notes with each other, the purchasing shopper states what she purchased and how much and the second shopper will then say whether the amount was recorded or not If it was, that is the end of the matter. If it was not then they will know that an irregularity has occurred The observing shop- per will make an identification purchase to box in the irregularity as we term it. The first receipt issued will have a certain serial number. The sale in question will follow that and the identification purchase will also have a serial number, boxing in the particular sale that was improperly recorded. The second identification purchase occurs immediately after the sale; after the ob- serving shopper does not see the sale rung up and the second identification purchase is made, the shoppers report to Morse at his office, usually within half an hour, and report verbally to him what occurred on the particular sale. Each shopper then issues a service report and all three transactions are recorded on the report in the handwriting of the shopper. The salesperson is identified by physical description and also whether or not she was assigned to a certain cash register on a certain key. Thereafter, the irregularity having been reported to Morse after making a written report, within a day or so he goes to the store, consults with a store official and together with him verify the register tape as to whether the sale in question had been properly recorded or not. If the sale is verified as having not been properly recorded, a report called "Morse Investigating Bureau Report of Irregularity," a confidential report, is prepared and delivered to the proper official of the store. In addition to the report of irregularity, Morse also furnishes to its client a sales rating report on a particular employee which rates the selling efficiency of that employee according to evaluation on the basis of approach to customer, appearance of salesperson, selling interest, selling ability, suggestive selling, closing of sale, observing of store rules, and appearance of department. The sales rating report also contains a space for comments to be made by the shopper concerning any particular matter deemed worthy of mention, including irregularities. Morse testified that he had been shopping at the Respondent's store for the past 10 years upon an irregular basis as to quantity of shoppings made. He said in certain seasons around the times of Easter and Christmas, "they order a heavy schedule of shopping and there would be hundreds of tests made in the store during the course of the year." He said that it is customary at times, upon request of the store, to shop certain areas and individuals, that it is common to all stores that I shop or any other shopping service which shop The management is always and usually concerned about certain 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD areas, certain individuals, but is common practice and there is nothing at all unusual about it.20 The procedure described above was followed on occasions when Ison and Huffman each was "shopped" by a team of shoppers of Morse. Morse Investigating Bureau is employed by the Respondent on an annual basis and arrangements may be made from time to time for services for a particular time or a certain period. For example, Morrow, executive vice president and treasurer of City Stores, the parent corporation of Kaufman-Straus, called on Morse, in April or the early part of May 1961, and arranged for a shopping program. According to Morse: He asked me if I was presently doing any shopping for Kaufman's and I told him no, not just then. He asked me when was the last time that I had and I told him in December of 1960, and after discussion regarding the quantity and so on we agreed upon a certain amount of shopping for the downtown store and for the Dixie-Manor store [a branch of Kaufman-Straus] to take effect immediately. Morse was given a list of departments for special attention-house dresses, cosmetics, men's furnishings, shoes, neckwear, sportswear, and the boy's department as well as several other departments. As was customary, departments leased to independent operators, such as millinery and books, were excluded. The shopping was to be done at random except that the departments mentioned were to be given special attention.21 Prior to July 1961, Morse operated under a verbal agreement with the Respondent; his compensation then, as under the written agreement now, was dependent upon the quantity of shopping done and not upon the number of reports rendered by him to the Respondent. The written agreement of July formalized customary practice or custom between the parties concerning compensation except that it specified in writing the amount of compensation to be made for continuous random shopping where before the oral agreement, substantially the same as the written agreement, did not contemplate continuous shopping. Morse testified that neither Moran nor any other official of the store advised him that a union organization campaign was in progress at the time he talked to Moran in May and that he learned of the organizational activity of the Union at the store through the newspapers during the month of June or possibly July. Betty Whalen and Joanne Young, shoppers employed by Morse, "shopped" Ison and Huffman. The reports made in two instances, substantiated by their testimony, show the following: On June 9, 1961, at 10:30 a.m., the written sales rating report signed by Betty D. Whalen and Joanne Young set forth the following as comment: This sales person showed me the cub scout shirts. After I purchased a shirt, I then decided to buy two "Pocket Lites." I paid her even money. She did not offer a receipt but enclosed the "Pocket Lites" in the same bag as the shirt. I left the department. BETTY D. WHALEN. I observed the first shopper's second purchase and also observed the payment of the money. I further observed that the sales person failed to record the sale. I cannot be certain of her disposition of the money but she did bend down under the counter and rose empty handed. I then made a small identification purchase on the same sales person. JOANNE YOUNG. The report of irregularity transmitted by Morse to the Respondent showed the sale of two "Pocket Lites" at 98 cents or a total sale in the amount of $2.02 by Lucille Huffman. Under "circumstances of irregularity" the following comment appears on the report: On the above purchase the shopper retained possession of the merchandise, tendered even money in payment and left the department before the sale had been recorded. Another shopper present then observed that the sales person failed entirely to record the sale. She was idle for several minutes and then began waiting on other customers. The disposition of the money was unknown. 9O Morse testified that there are five detective agencies in the Louisville area furnish- ing shopping services to various stores and establishments 21 Reports customarily were made by Morse to Gardner (when he was there), Millus, Chanaberry, and Sauber, store comptroller. Approximately 800 such reports were made in 1961 KAUFMAN'S OF KENTUCKY 177 When the register detail tape was later examined no record could be found of the above sale. A sales rating report for May 11, 1961, for 3:35 p.m., signed by Joanne Young and Betty D. Whalen, showed the following report: A sale of one article, Faberge Cologne in the amount of $2.85 for which a $5 bill was tendered. The second part of purchase was for one eye shadow case at $2.26 and one eye brow brush at 86 cents for a total of $3.12. The written comment is as follows: On the second part of my purchase of $3.12, I tendered the sales person even money. I then left the department before the sale had been recorded. JOANNE YOUNG. I observed the previous shopper's purchase of $3.12, I further observed the sales person carried the money to a nearby register, but she did not ring up any amount. I did not see the disposition of the money. I did notice the sales person open a lower stock drawer. BETTY D. WHALEN. A report of irregularity transmitted by Morse to the Respondent on Jo Ann Ison showed the purchase of the eye shadow and eyebrow brush and related the following circumstances of irregularity: On the above purchase the shopper obtained possession of the merchandise and then paid the sales person even money in payment. The shopper then left the department before the sale had been recorded. A second shopper then observed that the sales person carried the money to a nearby register but failed to ring up any amount. She then left the register when another sales person approached to ring up another sale. The disposition of the money on the above sale was unknown but the sales person had been observed to open a lower stock drawer. When the register detail tape was later examined no record could be found of the above sale. Other employees were shopped and reports of irregularity submitted. Lillian Stanley was shopped on May 13, at 10:50 a.m., and the reports showed that she failed to ring a total sale of $2.26. Martha Hamilton was shopped on May 15 at 12 noon on the purchase of one T-shirt for a total sale of $4.10. It was reported that she failed to ring up any amount on the cash register and the register detail tape, later examined, did not show a record of the sale. Mamie Archer was shopped on May 26 at 2 p m. on a sale of five handker- chiefs at $1 each for a total sale of $5.15. The circumstances of irregularity on the report transmitted by Morse to the Respondent shows that the shopper obtained possession of the merchandise, tendered the salesperson even money in payment, and left the department before the sale had been recorded; and that another shopper present then observed the salesperson to approach the cash register with the money but to ring up only $3 09 on the sale. When the register detail tape was later ex- amined it was found and verified that the salesperson had recorded only $3.09 on the sale Mamie Archer was shopped on May 27 at 10:15 a m. on a sale of four handkerchiefs at $1 for a total price of $4.12. The circumstances of irregularity there show that the shopper obtained possession of the merchandise, tendered the salesperson even money in payment, and left the department before the sale had been recorded; and that another shopper present then observed that the salesperson failed to record any amount of the sale and that when the register detail tape was later examined no record of the sale was shown. Gertrude Jockell was shopped on June 12 at 10:35 a.m on the sale of one base- ball cap for $1.03 and one belt for $1.03 for a total sale of $2 06. The circumstances of irregularity as reported to the Respondent there shows that on the above purchase the shopper obtained possession of the merchandise and tendered the salesperson even money in payment and then left the department; that another shopper present in the area noted that the salesperson made no effort to ring up any amount of the sale; that the observing shopper then made an identification purchase from the salesnerson; that the salesperson's hands were empty at the time of this purchase, and that later examination of the register detail tape did not reflect the $2.06 sale. Carolyn Byerly was shopped on July 24 at 10.35 a m. on a purchase of two ties at $1 for a total sale of $2 06. The circumstances of irregularity as reported to the store by Morse showed that on the purchase the shopper obtained possession of the 649856-63-vol. 137-13 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD merchandise, tendered even money in payment and left the department before the sale had been recorded ; that a second shopper then observed that the salesperson rang up only $1.03 on the sale and that it could not be determined whether or not all of the money had been placed in the cash register . A note of this report of ir- regularity states that "the above irregularity is subject to verification according to the store's records." The testimony of the shoppers , who were cross-examined at length both with re- spect to credibility and accuracy of their reports, I believe to be fully credible and I accept their testimony at face value . I accept the reports submitted by them and the reports submitted by Morse to the Respondent on the basis of the shoppers' re- ports as being substantially accurate and true. Morse testified that in addition to reports filed when irregularities or apparent irregularities were found , there is a greater number of so-called bulk reports where a salesperson has been shopped and a report made on her service ability . I find no reason to question the testimony of Morse in any respect and find him a fully credible witness, notwithstanding the fact that his testimony did show that, especially with respect to inexperienced and not fully trained shoppers, infrequent mistakes were made which were corrected by him in the making of a few reports 2a On March 29, Gardner prepared an intercompany communication on the subject of inventory shortages which he transmitted to Milius, Gorglione , Roth, Rothschild, Sauber, and Moran, reading as follows: This report covers the meeting we held on March 25th and March 29th per- taining to Shrinkage. Mr. Sauber is to write a Procedure for the buyers to follow, whereby a reason- able percentage of test-checking will be done on quantities of "inbound" mer- chandise received , which merchandise will have already been checked by the Receiving and Marking Room, in order to test the kind of "checking -in" job this department does. Mr. Sauber is to also write a Procedure covering non-marking and bulk- marking. Mr. Sauber will also write a Policy on what standard information we will require on our price tags, such as-Departmental Number, Season Letter, In- voice Number and Retail Price. Mr. Sauber is to also write a memorandum covering the calculation of retails on invoices where multiple pricing and packing is involved. Mr. Sauber is to also write a memorandum to cover a Procedure when our own merchandise goes out of the house for cleaning or repairs ; and in such Departments as Luggage and Stationery , where it is sent out to be engraved- or any other instances whereby our own merchandise is sent out of the house. Mr. Sauber is to also write a Procedure covering customer 's merchandise de- livered to us for repairs , which merchandise must subsequently be returned to the customer. With some sort of a new Procedure on the part of Mr. Sauber of satisfactorily extracting the Sales Tax from our saleschecks , and a satisfactory Procedure for recording Employees' discounts, it is now felt that we have covered all avenues of shrinkage surrounding our paper work, and that we would now devote all of our discussions to the problems of the Physical Inventory. It was felt that we need not spend any time on the physical taking of the inventory, inasmuch as the City Stores Company has outlined for us a policy covering this program. It was felt that we should follow this program 100%, unless the Merchandise Managers had strong views against any of the procedures that we now pursue, and, in the event it was felt that certain of these procedures covering the physical taking of the inventory should be changed, Mr. Sauber would thereafter apply for permission from the City Stores Company to make these changes. For example, on cross-examination, Morse testified with respect to one such in- stance: "Her [the shopper] shopping was not incompetent Her purchasing of the merchandise was not incompetent Her report was incompetent, I don't recall what the reason was She might have misspelled some words The general makeup of the report could have been in error. I would then write up a satisfactory report rather than submit one to the store that would embarrass me " A number of reports, other than those I have referred to above, were subpenaed and examined upon by counsel. The ultimate re- sult of his examination or his cross-examination was to emphasize the impartiality and care taken in preparing and submitting reports to the Respondent. KAUFMAN'S OF KENTUCKY 179 A complete new Procedure is now under discussion covering Receiving and Marking, as well as the storage of merchandise in the Reserve Stock Rooms. When this program is finalized, it will be the subject of a special discussion, at a later date. It was felt that we have no program whatsoever of testing salesclerks honesty due, primarily, to the use of a Community Drawer as a procedure in this store. Mr. Sauber is going to discuss this matter with the Wilmark Company, and the Morris Agency, and bring back to this group a recommendation, within the im- mediate future. It was felt at this time that we should employ a Detective. This matter was placed in the hands of Mr. Gardner, who will seek the help and aid of Mr. Mor- row of the City Stores Company. Mr. Moran is to write a procedure, and submit to this Committee in the near futuer, a Program for test-checking merchandise that goes through delivery. At some future date, a meeting will be held concerning the handling of all of our Adjustment complaints and customer calls-covering both transactions in the 5th Floor Office, and in the Delivery Department. Mr. Moran is also to write a Procedure, and submit to this Committee, the methods under which we check out employees' purchases at night, and what his test-checking program is, so that each Member of the Board might be fully informed. The next meeting of the Shortage Committee will not be held until it is possi- ble to have Messrs. Roth, Rothschild and Gorglione together again at the meeting. One of the results of the program was a broad use of the Morse Investigating Bureau. As indicated above, the first reports of violations involving shortages began to come in from Morse in May. After the reports of violations made by Morse were carefully checked by him and Morse, and they were both satisfied that a violation ex- isted, Gardner so advised Morse and from that point on, Gardner said, "any such action that was taken was taken by me with reference to the employee." He said further: once this program is started the effectiveness of it is solely dependent upon the amount of secrecy you can place around such a program. Usually if you show your hand about what's going on, then the whole program becomes very, very ineffective, so you have got to be very, very careful when you are engaged in this sort of work to make sure that it is properly concealed. Certain people were discharged because of these irregularities and they were not advised as to why they were dismissed . . . because usually the person who handled the discharge didn't know why they were being dismissed. I believe I would be the only one that had that information at the time and my instruction usually to the personnel director was to dismiss a particular person because of the serious violation of the Company's rules and policy, not to advise the em- ployees; why to advise the employees, there goes the whole program of what you are engaged in . not only that, talking about these things serves no particular good. It doesn't do the employee any good. We are not happy when it happens. I am not, I am sure the employee isn't happy. There is no good purpose talking about it to anyone. Gardner testified in every instance when a detection occurred the employee was ter- minated; the Company has a very strict policy on these two particular matters- (1) every customer must be given a cash receipt for every sale made at the store; and (2) it must be registered on the cash register-"now, in that, the Company has a very strict policy, hard and fast rule and automatic dismissal." Carol Adams, employed as a signwriter, said that sometime during the spring of the year, after the Union had started handbilling, she was called to the office of one Mr. Balough who, she said, was in charge of the advertising department. At that time Balough asked her how she felt about the Union; that she replied that he knew she had been doing two people's work and was not paid the salary she was supposed to be paid and she asked Balough "if an organization came to you and you thought it was to your advantage, what would you do?"; he in turn said, "Well, he was to find out how I felt about the Union, and I left." Adams testified that she was under immediate supervision of Elizabeth Davis in the advertising department; that the display section of that department to which she was attached wrote signs upon requisitions written by the buyers of the store; that the signs were turned in to the advertising department. She said that Balough was in charge of the display depart- 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment and that at one time she used to ask him for time off but that this practice was discontinued in August. General Counsel contends that Balough is a supervisor within the meaning of the Act. There is little in the record to support this contention other than the conclusion of Davis that at one time he was her supervisor and prior to August she had asked him for time off. The Respondent denies that Balough is a supervisor. I find a failure of proof here to show the duties, responsibilities, and activities of Balough to be such that he could be considered a supervisor within the meaning of the defini- tion of Section 2(11). K. The innuendo against counsel for the Respondent Shortly after the opening of the hearing, counsel for the General Counsel moved to amend the complaint in Case No. 9-CA-2331, as follows: 1. That paragraph 4 be amended so that subparagraph (1) will be added thereto, as follows: 4. (1) Now and at all times material to the issues herein, John S. Greenebaum is and has been the Respondent's attorney and its agent within the purview of Section 2(13) of the Act. 2. That paragraph 5 be amended so that paragraph (m) will be added thereto, as follows: 5. (m) The conduct of the said Greenebaum, commencing on or about October 3, 1961, in the Respondent' s store, in telling its employees that they should avoid service of the Board's subpoenas, requiring their appearance and testimony in this proceeding, by remaining away from their homes and refusing to accept service of same, thereby impeding the Board in the exercise of its power to compel the attendance of witnesses at its proceeding and depriving employees of vindication by the Board of their rights guaranteed by Section 7 of the Act. I disposed finally of this motion to amend near the close of the hearing after all testimony was in. Upon request of counsel for the General Counsel, I stated my reason therefor: Mr. SHEEHAN: May I inquire as to the basis for the rejection? TRIAL EXAMINER: Why of course you may inquire as to the basis of it. If the General Counsel says this Company is not entitled to the advice of counsel with- out counsel being accused of being a participant in some sort of a conspiracy against the Union, then any member, reputable member of the Bar in any labor case would hesitate to advise his client. Now, I just am opposed to the matter on principle. Now, if what has been shown here has been conceded, that the firm of which Mr. Greenebaum is a member, that it has been conceded that that firm has been retained to advise the Company in labor matters as are people all over the country who are licensed to practice law, and simply because certain advice is given which the Government may consider wrong, does not entitle the Government to bring in an attorney as a participant to unfair labor practices. Now, that's the basis for my ruling as long as you ask me. The only direct evidence in the record which would support an assertion Greene- baum exercised improper authority is the assertion made by William Ellegood, an employee witness called by the General Counsel, who first said that neither Greene- baum nor anyone else had told him to try to evade service of a subpena to testify, but later said that Greenebaum had told him, "If you don't want to get the subpena just try to stay away from getting it." Ellegood is not to be credited nor is the greater part of his independent testimony to be believed. To me, he is a discredited witness, and I so said in open hearing. In connection with the employment of Day, I can see nothing wrong on the record growing out of the fact that Greenebaum handed Day a check in the amount of the latter's retainer and drew the retainer agreement. Only under remote inference can it ever be said that Attorney Greenebaum advised Day to violate the provisions of the Act. Further, the fact that Greenebaum in his capacity as attorney for the Respondent interviewed a number of people in the preparation of his case does not lead to a conclusion that he did anything improper or anything other than to prepare the defense of these cases. The General Counsel says that it is perhaps significant that Greenebaum's firm represents the Henry Clay Hotel, that the hotel upon the advice of counsel did not prosecute Day because Day had given it a bad check before he was employed by the Respondent and paid it immediately after being employed by the Respondent. KAUFMAN'S OF KENTUCKY 181 Does the General Counsel contend that Greenebaum's firm should have advised its client to refuse payment and to prosecute? If so, to what end? It is also noted that this firm represents another department store in Louisville which at one time was engaged in a dispute with Local No. 445. To this, I ask, what is the relevancy? I would not have touched upon this matter at all in this Intermediate Report except for the fact that the questions had been raised by each of counsel. I therefore con- sider it my unpleasant duty to comment on the facts as I have. Concluding Findings Considerable latitude was afforded the parties at the hearing to introduce evidence; consequently, the record is perhaps unduly extended and this Intermediate Report made excessively long. However, I shall attempt to briefly summarize the essential findings of fact. The Company was aware, of course, of the organizing campaign of the Union from its inception, beginning with the distribution of handbills at the store doors and continuing on down until at least the filing of the charges and after the issuance of the complaints in these cases. Certainly management representatives were aware of the efforts of union representatives to enroll employees in the Union and of the desire of the Union for recognition as requested in the petition for representation filed by the Union with the Regional Director of the Board. The Company certainly had in mind union activity when it posted its no-solicitation rule, when top management conferred with supervisors regarding how supervisors should conduct themselves during the campaign, and the issuance of written instructions to supervisors and subsequent action looking toward store protection. There can be no doubt but that management representatives observed von Bokern and knew who she was and prob- ably her purpose when she entered the store and talked to various salespersons includ- ing Ison and Huffman. Subsequent to the layoff of Donhoff, it was freely conceded that the occasions when he was in the store did not pass unnoticed, since he was seen talking to salespersons, traveling from department to department, and even intruding into parts of the store not open to the general public. The speech by Gardner to the employees, the content of which as reported by him and as elaborated upon by Huffman and others, I believe permissible under Section 8(c) of the Act; I can find nothing in his report of what he said to be construed as containing any threat of reprisal or force or promise of benefit. If he did say, as reported, that he would leave the store if the Union came in, certainly there is nothing contained in such a statement which possibly could be construed as a threat or as force or promise of benefit to employees. Huffman's further elaboration concerning the comment regarding the Teamster union official who had been indicted, if really made by Gardner, would have constituted nothing more than an expression of one of his reasons why he felt the Union properly could be opposed by him and the Respondent as a matter of policy.23 The allegation of the complaint that Gardner "in announcing, in a speech to employees, that he did not like a union; that the Union is not coming into the Respondent's store and that if it did, he would not work there," is unproven. It is not shown that Gardner asserted he "did not like the Union" and that the Union "is not coming" into the store. As nearly as I can tell from the posi- tive testimony of Gardner and the more equivocal or uncertain testimony of others, the speech was privileged, and accordingly I shall recommend the dismissal of this part of the complaint in case No 9-CA-2331. The complaint in case No. 9-CA-2331 asserts an unfair labor practice growing out of "the establishing of a new rule, on or about May 23, 1961, threatening discharge for solicitation of any kind, including solicitation for the Union, within the Respond- ent's store and the posting throughout its store of notices to that effect, all for the purpose of thwarting its employees in their organizational efforts " That the Com- pany established a new rule on the date stated in question is a conclusion not sup- ported by ,the evidence. On the contrary the uncontradicted testimony of Milius and Gardner is to the effect that the rule had long been in force and that the posting on or about May 23 was simply a restatement of the then existing rule. If any employee should have construed the rule to mean that it forbade any union solicitation on their 23 It generally is agreed that Gardner's speech took from 15 to 20 minutes to deliver, Curiously enough, Huffman, as well as other employees who testified, could not re- call anything other about what Gardner said except that if the Union got in he would not stay with the store and as reported by Huffman, his remarks concerning Decker. It seems strange that only those matters were remembered out of what else Gardner may have said to the employees at the meeting. -182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,own time, that was corrected by the later rule 19 when all of the rules of the store were collated and distributed Since as it has not been shown that any employee was affected either by discharge or discipline or otherwise by the promulgation of the rule, to find that the mere posting was coercive or otherwise unlawful would make the posting itself a violation per se, assuming that this was the first time such a rule was brought to the notice of employees. This, on uncontradicted testimony, except by Donhoff, is not the fact and therefore I find that the mere posting of the rule and its subsequent clarification in writing did not constitute a violation of the Act and therefore I shall recommend the dismissal of this part of the complaint. With regard to the allegations of the complaint to the effect that Gardner told Ison that he understood that she was with the Union but that he would take care of her complaints about not making enough money, telling her that she had not received a promised raise because "the Union thing came up or words to that effect," and also telling her that she was ready for a more responsible job but he could not talk about it then because of the Union, all are denied and satisfactorily explained by Gardner. In regard to the testimony of Ison, I disregard it because the preponderance of the evidence shows, on the testimony of Price and Gardner, both credible witnesses, that Ison understood perfectly well that a survey was in progress and that the result of the survey would determine the amount of her raise. She actually was given the raise, without regard to her interest in the Union, and I disregard completely her testimony to the effect that Gardner made the statements to her which she attributed to him. The "following" and "detention" of Donhoff are clearly incidents inflated beyond their true value. As pointed out above, Superintendent Moran, Ferrell, Sturm, and other buyers by the very nature of their work necessarily were on the floor or floors of the store at practically all times and could hardly have been unaware of the dis- turbance caused by Donhoff, as well as von Bokern, when they interrupted sales- people at their counters not once but at numerous times. Donhoff himself testified that after his layoff he was in the store every day and sometimes several times a day. The so-called detention of Donhoff actually was an occasion when three em- ployees voluntarily, so far as the record here shows, questioned Donhoff about his activities on behalf of the Union and regarding his motives with respect to being in and out and around the store at various times. The testimony is that these three employees continued to question Donhoff even after being ordered by their super- visors to return to work. There is no connection between the activities of the three employees, Doyle, Heidel, and Skelton, except a laborious effort on the part of William Ellegood (mentioned above as a witness whose testimony is not worthy of belief), concerning a telephone call supposedly to Supervisor Rosenbaum in con- nection with the incident The General Counsel argues that it is significant that the tenor of Ellegood's testimony reflects the type and extensiveness of the compre- hensive 8(a) (1) campaign carried on by the Respondent. I can make no such inference from his testimony-on the contrary, it appears to me that the three employees were opposed to Donhoff's effort to obtain union membership and told him so. There is no connection shown between this incident and action of any member of management that is worthy of belief. It appeared to me, as the facts developed at the hearing, that the alleged "follow- ing" of Donhoff was more in the nature of Donhoff's intrusion in places where he could not help but be seen by Milius, Moran, Ferrell, Sturm, and other supervisors. Coming now to the allegations contained in each of the complaints regarding in- terrogation and threats made by supervisory employees, I advert to the discussion above in which I refer to the description of the jobs of buyers and assistant buyers as related by Vice President Gardner and other witnesses and I have said that I do not consider assistant buyers to be supervisors. The store oreanizational plan in itself refutes a claim that an assistant buyer as such is automatically a supervisor. Nineteen buyers, if the assistant buyers as a class are not supervisors, would supervise on an average of six to seven employees each; if the assistant buyers are to be considered supervisors, then each would direct two to three employees each. Jt would seem odd to have the buyer supervising the as- sistant buyer and he and the assistant buyer supervising two or three employees. Obviously, this is not the case: the whole of reliable testimony here shows that the assistant buyers are not supervisors. For the reasons stated, and because it has not been affirmatively shown that their duties and responsibilities were such. during the times mentioned. to qualify them as supervisors, I expressly find that Nichols, Shields, Balough, Hickey, and Hettiger were not supervisors. and that any questions asked or statements made by any of them ss alleged (Balough, Hettiger. Hickey, and Shields in Case No. 9-CA-2331, and Nichols in Case No. 9-CA-2363) were, if made, not to be attributed to the Respondent or its management. Des Moines Foods, Inc., 129 NLRB 890, enfd. KAUFMAN'S OF KENTUCKY 183 296 F. 2d 285 (C.A. 8). Consequently, these parts of the complaints should be dismissed. The complaint alleges and in some respects specifies certain conversations between buyers and other supervisors in which statements are said to have been made by these supervisors and questions asked by them which amount to antiunion state- ments with implication of threats regarding union activity of employees, and inter- rogation to determine which of the many employees were members of, interested in, or active on behalf of the Union. Testimony in support of these allegations concerns conversations between Ferrell and Cecilia Eberenz and Jo Ann 1son, between Sturm and Cowles and Swimme, conversations between Rothschild and Swimme, comments made by Sturm to Donhoff in the presence of Huffman, comments made by Chana- berry, and questions by Moran directed to certain individual employees. Management did, I am sure, in framing its instructions to supervisors regarding how far they should go in talking to employees about the Union or its activities or the activities of employees, attempt to erect guideposts which would leave the Respondent free from any charge of interrogation or a charge of threats or force or coercion against an employee regarding union activity. However, the assignment, of course, was difficult for the buyers to perform literally, especially when in a number of instances they themselves were approached by employees with questions regarding the Union. The testimony of Philip Ferrell, a buyer, regarding how he met the questions or how he dealt with individual situations is illuminating and it seems to me, although perhaps unintentionally, that Ferrell did at times make statements which could be interpreted as violative of the Act-for example, that employees ought not to take part in union activities. Certainly store policy was plain-management did not want to deal with the Union. The conversations in which Sturm and Moran were involved apparently were of somewhat the same nature, although it is clear that some supervisors did ask questions of employees as to what they were doing and, as a result, discussions concerning the Union' occurred. It is argued on behalf of Respondent that the fact that the Company made sug- gestions to its supervisory personnel as to arguments which might be used against the Union is not inconsistent with its announced policy, since the Company legally was entitled to give the employees arguments, and to express its views to its em- ployees, about the advisability of unions, so long as it did so within the limits prescribed by the Act. The real question is whether or not the supervisors did stay within the limits of instructions given to them by management under its announced policy. It clearly appears that, intentionally or not, there were a number of in- stances where the bounds of legal propriety were exceeded by supervisors and state- ments made and questions asked in violation of the Act in that they could be mis- construed and tended toward interference or coercion or intimidation within the meaning of Sections 7 and 8(a) (1). Turning now to the question of whether or not the circulation of the petition by Day with the assistance of certain employees constituted an illegal interference, I think it did. It would seem that there was considerable unrest in the store by reason of the union organization campaign at the time the petition was circulated and that it would be to the obvious benefit of the Company, in pursuance of its opposition to the Union, to have a list of employees who had expressed themselves as being opposed to the Union. Circumstances surrounding the circulation of the petition are suspicious in themselves. The circulation was under the supervision of Day, signatures were solicited openly at the store during store hours, and the results were supplied to Vice President Milius as each employee assigned to the job finished his work in that respect. It is argued on behalf of the Respondent that Day involved himself in the circula- tion of the petition without authority because the agreement between him and the Respondent concerning his employment provided that he would not commit any unfair labor practice. That is not absolute protection to the Company. Whether Day did commit an unfair labor practice binding on the Respondent, concerns only the viola- tion of his agreement with the Respondent and is a matter to be adjusted between the two. If an unfair labor practice ensued, it is the responsibility of management. It is argued that because Milius was not aware of what Day was doing and that because Sturm and Ferrell, if they participated in the circulation of the petition, did so on their own and without actual or constructive authority from the Respondent, because the commission of an unfair labor practice was contrary to store policy and to instruc- tions both written and oral given to the buyers, then the Respondent must be absolved from any result or impact caused by reason of the circulation of the petition when signatures were affixed to it by store employees in the store. It was argued further that the circulation of the petition did not constitute an unfair labor practice since there is no evidence that the employees involved in the circulation of the petition 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were coerced or intimidated in any way, or that any intimidation or coercion, either actual or implied, was used in obtaining the signatures or that the petition was anything except a free expression of employee opinion as guaranteed by Section 7 of the Act. With these arguments, I disagree. To me, the circulation of the petition differs from the circumstances of the posting of the no-solicitation rule. The petition itself was new, was exhibited and circulated at a time when the employees were intensely interested in the progress of union organization, and naturally interested in keeping their jobs. What could be easier than to sign a petition at the request of Day or his representative, knowing that it was promanagement in nature, since an employee would not want to refuse and therefore impliedly be subject to being tagged as a union adherent. To me, the petition itself demonstrates company animus and a prohibited display of antiunion activity which would, in and of itself, tend to influence employees in their free choice as to whether or not they wanted the Union as their representative. The complaint in Case No. 9-CA-2363 alleges the discriminatory discharge of Morgan P. Sheehan, Jr., because of his sympathy for, membership in, and activities on behalf of the Union. I shall recommend the dismissal of this part of the com- plaint in that case. It is true that Sheehan was a member of the Union and was one of its advocates. However, the circumstances of his discharge are such as to show that he engaged in subordination of an aggravated type in a situation where there was no excuse for it and that the circumstances indicate that the discharge was separate and apart from anything having to do with his union activities. The complaint in Case No. 9-CA-2331 alleges the discriminatory discharge of Jo Ann Ison, Lucille Huffman, and Lawrence Donhoff. Each of these three was actively engaged in support of the Union and certainly the officials of the store knew of their interest in organizing activity. On the basis of the facts as reflected by the testimony I think the General Counsel has failed to show sufficient proof in support of the allegation of discriminatory discharge. The inference is there-Donhoff was a known union adherent at the time he was laid off. However, the real interest displayed in Donhoff's activities as a union sympathizer became apparent only after his discharge and when his actions, in going in and out, through the store, and talking to salespersons (with the knowledge of company supervisors, made his presence unwelcome and he himself unpopular with store management. I fail to find that his discharge was occasioned by his union membership or activities on behalf of the Union, but find that he was laid off in normal course during the post-Easter scheduling of work for employees; and that other employees retained held seniority over him and were qualified to do the work. The case of Jo Ann Ison, an alleged discriminatee, is weak because I do not believe she told the whole truth in regard to her claim that Gardner made statements to her in connection with the payroll survey and her salary increase said to have been made to influence her against the Union. I do not accept in full her version of her discus- sions with Ferrell concerning the Union. She was discharged for violation of store rules and regulations, according to the Respondent. According to the General Counsel and the Charging Party, she was discharged solely because of her activities for and membership in the Union. Actually, the real reason for her discharge as for the discharge of Huffman and six others was because of the result of the "shop- ping" and the observation of their activities at particular times by shoppers employed by the Morse Investigating Bureau. Although the employees discharged for this reason were not told directly by the personnel director that their employment was terminated because of irregularities in connection with their handling of store money, nevertheless the testimony of several of the discharged employees (not including Ison) clearly shows that they had a very good idea as to the real cause of their dis- charge. I observed Morse and his two shoppers as witnesses, have analyzed care- fully their testimony and the documentary evidence in support of their reports to the store concerning the defalcations mentioned, and have no reason to doubt their sub- stantial accuracy. Accordingly, I find that Ison was discharged for proper cause. And so was Huffman. I doubt her complete frankness; her credibility has been shadowed by inflations of fact as presented by her in her testimony as compared with the testimony of those I consider to be reputable witnesses. For example, the cut- ting her off of a birthday dinner was presented as evidence of discrimination against her. Actually, had the matter been investigated, she and any other interested person would have known that the dinner had been discontinued for a very good and valid reason. I think her discharge was essentially with proper and iust cause, stemming from her failure to account properly for moneys for sales collected by her, and, accordingly, I shall recommend that the allegations of the complaint as to her dis- criminatory discharge be dismissed. KAUFMAN'S OF KENTUCKY 185 I find that the Respondent has violated Section 8(a)(1) of the Act by, through certain of its supervisors above mentioned, interrogating its employees concerning their union activities and soliciting them to sign an antiunion petition. At the same time, I find that there is an inference that the discharge of Ison and Huffman each was based on the valid reason that, notwithstanding the Respondent's knowledge of their union membership and activity, there was good cause to believe that they were unsatisfactory employees and therefore subject to termination of their employ- ment. The inference herein cannot be drawn so far as to raise an unrebuttable pre- sumption that their union activity was the main and real reason for the respective discharge of each. In this connection, it should be noted that the very life of the department store may depend upon the accurate accounting of the cash collected by its salespersons, and that it is not unreasonable, as here, that an inflexible rule be laid down (as testified to by Vice President Gardner) that a violation of the rule regarding the handling of cash be made a ground for automatic discharge. As the Board said in Frosty Morn Meats, Inc., 127 NLRB 1586, 1588: Consideration should be given to the purpose fo the rule, which is to pre- vent financial loss to Respondent . . . in view thereof, Shaw's infraction was not an inconsequential matter to [the employer] and we cannot say he was dis- charged therefor. Under all the circumstances, we are not satisfied that the complaint's allegations in Shaw's case are supported by a preponderance of the evidence. We shall dismiss the complaint insofar as it alleges that Shaw was discharged in violation of the Act 24 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Company as set forth in section 1, 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it shall be recommended herein that it cease and desist therefrom and take certain affirmative action found necessary to effectuate the purposes of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW .1. Kaufman-Straus Company doing business as Kaufman's of Kentucky is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union Local No. 445, of Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating certain of its employees at times when said employees were at work, in respect to their union affiliation or nonaffiliation, and expressing views to certain of its employees so interrogated in a manner tending to intimidate, interfere with, or coerce employees in regard to their union activity, and by the circulation of a certain petition calculated toward or resulting in the same effect, the Respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, and thereby did engage 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 within the mean- ing of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the entire record in the case, it is recommended that the Respondent, Kauf- man-Straus Company doing business as Kaufman's of Kentucky, its officers, agents, successors, and assigns, shall: 24 On petition for review of the Board's Order In this case the Circuit Court of Appeals for the Fifth Circuit, 49 LRRM 2159, said, in refusing enforcement of the Board's por- tion of the Order for reinstatement, that the evidence supported the inference that the discharge was for union activities, but at the same time the evidence showed there was good cause to fire the employee for being an unsatisfactory worker. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Interrogating any of its employees regarding their union membership in, or any activities on behalf of, any labor organization , or taking any affirmative ac- tion to determine who among its employees are or are not members of any labor organization. (b) Interfering with , restraining, or coercing its employees, or in any other manner, in the exercise of their right to self-organization , to form labor organiza- tions, to loin or assist Retail Clerks Union Local No. 445, of Retail Clerks Inter- national Association , AFL-CIO, or any other labor organization, to bargain collec- tively through representatives of their own free choice , and to engage in other concerted activities for the purpose 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, as amended. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post at its place of business in its office and at its store in Louisville. Kentucky, copies of the notice attached hereto marked "Appendix." 25 Copies of said notice, to be furnished by the Regional Director for the Ninth Region , shall, after being duly signed by an official representative of the Respondent , be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notice is not altered , defaced, or covered by any other material. (b) Notify the Regional Director for the Ninth Region , in writing, within 10 days from the date of this Recommended Order, what steps have been taken to comply herewith.26 25 In the event that this Recommended Order shall be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" In the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." 28 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the Ninth Region, 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 Recommendations of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, we notify our employees that: WE WILL NOT interrogate our employees concerning their union activities on behalf of Retail Clerks Union Local No. 445, of Retail Clerks International Association , AFL-CIO, or any other labor organization of our employees, or threaten them with reprisals or seek to induce their relinquishment of their union membership or activities in a manner violative of Section 8(a)(1). WE WILL NOT in any manner interfere with, restrain , or coerce our em- ployees in the exercise of their rights to self-organization , to form, join, or assist Retail Clerks Union Local No. 445, of Retail Clerks International As- sociation , AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all of 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 National Labor Relations Act. All of our employees are free to become or remain members or to refrain from becoming or remaining members of the above -named Union, or any other labor organization, except to the extent that this right may be affected by an agreement LEE-ROWAN COMPANY 187 in conformity with Section 8(a)(3) of the Act. We will not discriminate against any employee because of membership in or activity on behalf of any such labor organization. KAUFMAN-STRAUS COMPANY DOING BUSINESS AS KAUFMAN'S OF KENTUCKY, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Transit Building, 4th and Vine Streets , Cincinnati 2, Ohio, Telephone Number, Dunbar 1-1420, if they have any question concerning this notice or compliance with its provisions. Lee-Rowan Company and International Brotherhood of Boiler- makers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Lodge 1012, AFL-CIO. Case No. 14-CA-2653. May 16, 1962 DECISION AND ORDER On March 5, 1962, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board i has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER The Board adopts the Recommended Order of the Trial Examiner as its Order. ' Pursuant to the provisions of Section 3(b) of the Act the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. 2 In finding in the representation proceeding that the line leaders were supervisors, the Board did not treat the determination made in Case No. 14-CA-2255. 129 NLRB 980, as to the status of the line leaders as res judecata on that Issue The Board did consider the earlier determination but then stated : ". . the record in the instant case indicates that the line leaders continue to possess supervisory duties and responsibilities previously found by the Board " INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act, as amended (61 Stat. 136; 73 Stat. 519), was heard before George A. Downing, 137 NLRB No. 16.