Buckeye Mart

BUCKEYE MART; MANLEY INC. Cussins & Fearn Co., Inc., d/b/a Buckeye Mart ; Manley Inc.; Fir Shoe Corporation and Retail Clerks International Association, Retail Clerks Union Local 1059, AFL-CIO. Case 8-CA-4321. 87 3. Delete from the first indented paragraph of the notice the sentence "WE WILL NOT grant them wage increases or other benefits to discourage their support of a labor organization." May 31,1967 DECISION AND ORDER BY 1/1EMBERS FANNING, JENKINS, AND ZAGORIA On February 17, 1967, Trial Examiner Melvin Pollack issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices alleged in the complaint and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor practices, as to which he recommended that the complaint be dismissed. Thereafter, Respondents Buckeye Mart and Fir Shoe Corporation filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that Respondents, Cussins & Fearn Co., Inc., d/b/a Buckeye Mart; Manley, Inc.; Fir Shoe Corporation, Mt. Vernon, Ohio, their officers, agents, successors, and assigns, shall take the action set set forth in the Trial Examiner's Recommended Order, as modified below: 1. Delete from the Trial Examiner's Conclusion of Law 5, the words, "and by granting wage increases to, discourage support for the Union." 2. Delete from paragraph A, 1, (a), of the Trial Examiner's Recommended Order the words "granting employees wage increases or other economic benefits in order to discourage their support of a labor organization;". We agree with the finding of the Trial Examiner that, by its unilateral grant of wage increases in October 1966, Respondent Buckeye violated Section 8(a)(5) of the Act In the circumstances of this case, however, we find it unnecessary to, and do not, pass upon his further finding that, because of the retroactive effect of those wage increases, Respondent Buckeye thereby committed an independent violation of Section 8(a)(1) ' The findings and conclusions of the Trial Examiner are based in part upon his credibility determinations, to which the Respondent has excepted After a careful review of the record herein, we conclude that the Trial Examiner's credibility resolutions are not contrary to the clear preponderance of the relevant evidence and, accordingly, find no basis for disturbing them Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A. 3) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MELVIN POLLACK, Trial Examiner: This case was heard at Mt. Vernon, Ohio, on November 9, 10, and 11, 1966, pursuant to an amended complaint issued by the General Counsel of the National Labor Relations Board on October 24, 1966, upon an amended charge filed by the Charging Party, herein called the Union. The amended complaint, as further amended at the hearing, alleges that the Respondent refused to bargain collectively with the Union in violation of Section 8(a)(5) of the National Labor Relations Act, as amended, herein called the Act, and engaged in threats and interrogation, improved conditions of employment, maintained an invalid no-solicitation rule, and granted wage increases in violation of Section 8(a)(1) of the Act. The amended complaint further alleges that Respondent Cussins & Fearn Co., Inc., d/b/a Buckeye Mart, hereinafter referred to as Buckeye, discriminatorily eliminated a customary day off for employee Parke McAdams and discharged him in violation of Section 8(a)(3) of the Act. After the close of the hearing, the General Counsel and the Respondents filed briefs which have been fully considered. Upon the entire record,' including my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Respondent Buckeye, an Ohio corporation, maintains its principal office in Columbus, Ohio, and operates discount department stores in Ohio, including a store in Mt. Vernon. Buckeye's annual sales at the Mt. Vernon store exceed $500,000, and the store annually receives goods from out-of-State sources valued in excess of $50,000. Respondent Fir Shoe Corporation is an Ohio corporation engaged in the retail sale of shoes in leased departments in self-service stores. Respondent Manley, Inc., operates snackbars in retail stores in various States. ' An affidavit of Maxine White, dated December 15, 1966, is received in evidence as Manley's Exhibit 4 The General Counsel's motion to correct the record is granted 165 NLRB No. 9 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At all relevant times, Fir Shoe operated a shoe department and Manley operated a snackbar at the Mt. Vernon store. I find, as Respondents admit, that they are engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE RELATIONSHIP BETWEEN BUCKEYE, MANLEY, AND FIR SHOE Pursuant to a 15-year agreement executed on November 8, 1963, Fir Shoe operates a shoe department at Buckeye Mart. The agreement, inter alga, gives Buckeye control over pricing, special sales and advertising, and customer relations; requires Fir Shoe and its employees to conduct themselves "in strict accordance with the rules and regulations" of Buckeye; requires the shoe department to be operated "so far as its customers are concerned ... as part of [Buckeye's] business; requires Fir Shoe to discharge any "employee or manager" objectionable to Buckeye; authorizes Buckeye "to settle and determine" in behalf of Fir Shoe "any labor disputes of any kind which may interfere with or affect the operations of the department or the business of others in the store"; and permits Buckeye to terminate the agreement should Fir Shoe fail "to settle such dispute in accordance with [Buckeye's] determination." As it is clear from the terms of the agreement that Buckeye "is in a position to influence the labor policies" of Fir Shoe, I find that Buckeye and Fir Shoe are the joint employer of the shoe department employees. Spartan Department Stores, 140 NLRB 608; Thriftown, Inc., d/b/a Value Village, 161 NLRB 603. Pursuant to a 5-year Manley Standard Agreement executed on January 1, 1966, Manley operates a snackbar and a popcorn and nut stand at Buckeye Mart. The agreement, inter alia, provides that: Manley "shall treat its customers in accordance with [Buckeye's] standard policy"; "Manley employees shall transact all business in accordance with general store rules"; Manley "shall dismiss forthwith" any employee "deemed objectionable by" Buckeye; Manley shall employ sufficient and "competent" help; Manley shall pay rates of pay "competitive" with those in the restaurant trade in the general area of the store; and Manley shall provide its employees the same "fringe benefits ... available to all Manley employees of like type." The agreement also provides that: Manley may increase "maximum prices after consultation with store management"; "colors and materials used" at the snackbar are subject to Buckeye's approval before installation"; Manley's "advertising and promotion program will be in good taste and acceptable to store management"; and "no sales or specials will be run without store manager's specific permission." Either party may terminate the agreement on 60 days' notice "with or without cause." Under its Standard Agreement, Manley retains the initiative over snackbar decor and appointments, prices, and sales promotion and advertising. It also retains the initiative over its employees' working conditions, paying them wage rates "competitive" with those in the "restaurant trade" and giving them fringe benefits available to other Manley employees "of like type." Although Buckeye may compel the discharge of any Manley employee and may terminate the contract on 60 days' notice, these provisions, and the provision requiring Manley employees to transact business in accordance with general store rules, viewed in the context of the entire agreement, are safeguards against objectionable conduct by Manley or its employees but do not put Buckeye in a position to dominate Manley's operations. Manley's lease, unlike the Fir Shoe lease, does not require it to operate the snackbar as an integrated part of the store's operations and the lease does not give Buckeye the right to settle and determine labor disputes for Manley. The record shows that the snackbar is clearly identified as a separate enterprise and that Buckeye has not interfered with its operations. I find that Buckeye is not in a position to "influence" Manley's labor policies and that it is not a joint employer with Manley of the snackbar employees. Cf. Bab-Ran Company, 147 NLRB 247,249-250. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Sequence of Events The Buckeye Mart adjoins premises occupied by a food supermarket, T & A Saveway Markets, Inc. The Saveway employees are represented by the Union. On July 11, 1966,2 pursuant to instructions from the Union's president, Saveway employee Evelyn Chesser, the Union's steward, initiated a campaign to organize the Buckeye Mart employees. At noon on July 19, after union cards had been distributed to and signed by several employees, Chesser and Business Representative Dorothy Crum met with employees Marie Coss, Maxine Schaub, Lucille Farmer, Phyllis Kinnard, and Parke McAdams at the Charger Lanes Bowling Alley. On Wednesday night, July 20, Secretary-Treasurer Richard McAllister and Business Representative Crum met with 22 Buckeye employees at Memorial Hall in Mt. Vernon. On Thursday morning, July 21, McAllister told Store Manager Roy DeRosear over the telephone that the Union represented a majority of the employees at the store,3 offered to show him the cards signed by the employees, and said the Union wanted to bargain for the employees. DeRosear said he would advise Buckeye's Columbus office of the Union's request and that he or someone from the office would get in touch with McAllister. That same morning, DeRosear asked stockroom employee Robert Grosjean if he had enjoyed himself at the union meeting the night before and what was discussed. Grosjean said he had been told not to talk about the meeting. Phyllis Kinnard similarly refused to talk about the meeting when questioned about it by DeRosear. Saleslady Ruth Barnes, however, told DeRosear she had attended the meeting and when DeRosear remarked, "I'll bet Lucy [Lucille Farmer] wasn't there," Barnes replied, "Yes, she was." DeRosear asked if Kathleen Loriaux was at the meeting and Barnes said she was not. 1 Unless otherwise stated all dates are in 1966 3 Of approximately 35 Buckeye employees, 27 signed cards designating the Union as their bargaining representative on or before July 20 BUCKEYE MART; MANLEY INC. DeRosear, in the presence of Soft Lines Manager James Bilen, also asked Parke McAdams if he had attended the union meeting "last night," how many employees were present, and who they were. McAdams said he had attended the meeting but refused to name the other employees present. DeRosear asked him, "What do you expect to get out of this?" McAdams replied "collective- bargaining" and DeRosear inquired if he expected the Union "to protect [him] from being replaced." McAdams said he knew the Union "has many benefits." He mentioned "retirement" as such a benefit and DeRosear said he "wouldn't receive any retirement." DeRosear commented that McAdams was the first employee he had talked to about the union activity and added, "You do look stupid enough to join, but you'll be sorry, though." McAdams asked if DeRosear was "implying" that he was going to fire him, and DeRosear said, "You haven't proved yourself to me." McAdams replied, "Sir, I didn't realize I was supposed to prove myself to you." DeRosear said, "You understand, I'm against this." McAdams remarked that "even the farmers were organizing" and DeRosear retorted, "The stupid farmers sit in town all day on their asses and complain about their crops and expect to be paid for it." Soft Lines Manager Bilen also questioned employees about their attendance at the union meetings of July 19 and 20. About 10 a.m., on July 20, Bilen asked employee Kathleen Loriaux if she had attended the meeting at Charger Lanes. Loriaux said "no" and that she was home with a headache. On Thursday morning, July 21, Bilen asked cashier Evelyn Schaub, "Was you at Charger Lanes last night?" Schaub inquired "last night?" and when Bilen said "Yes," replied, "No-why?" Bilen said, "That's all right, never mind," and walked away. That same morning, Bilen asked Marie Coss if she was "his friend" and had she bowled last night. Coss said she had not bowled. On July 22, DeRosear refused delivery of a certified letter in which the Union confirmed its requests for recognition and bargaining. Secretary-Treasurer McAllister came to the store that day and spoke to DeRosear about the Union's requests. DeRosear said he had turned the whole thing over to the Columbus office. At a weekly sales meeting on Friday morning, July 22, DeRosear told the employees present that a new work schedule had been posted and that employees who had complaints about the changes in their hours should see him. McAdams, who had had Wednesday and every other Sunday off, checked the schedule on Saturday morning and found out that his Wednesday day off had been eliminated. About 1 or 2 p.m., during his coffeebreak, McAdams went to the Saveway store and spoke to Union Steward Chesser. DeRosear came by and saw McAdams talking to Chesser. About 4 p.m. DeRosear told McAdams that he wanted to see him in his office at 6 p.m. before McAdams went home. McAdams reported as instructed to DeRosear's office, where DeRosear told him, "Parke, I have a replacement for you." McAdams asked if he was ' Employee Frederick Forster testified that he had a conversation with DeRosear before or after McAdams was discharged, that DeRosear said he had seen McAdams with a union steward when he was supposed to be on his job, and that McAdams "was to be discharged because he was not doing his job and he was not on his job " 5 A similar notice was posted in the credit office DeRosear called the attention of the employees to the no-solicitation notice at a regular Friday morning meeting 89 fired and DeRosear said, "yes." McAdams got up to leave and DeRosear said, "Aren't you going to ask me why?" McAdams said, "No, sir" but DeRosear continued, "I'm going to tell you why. . . . There's the price changes for one; there's dust in your department for another; and I can give you several other reasons." McAdams said, "I don't want your reasons, I'm not looking for an argument with you, and left.4 McAdams returned to the store on Monday morning, July 25, and spoke to Hard Lines Manager John House and to several employees. About 12:10 p.m., District Manager Mills asked McAdams to accompany him to DeRosear's office. Mills shut the door as they entered the office. DeRosear and Attorney Thomas Shroyer were present. DeRosear asked McAdams what he was saying to the employees and if he had "read the sign up front." McAdams said he had not seen a sign and asked DeRosear what it said. DeRosear replied that he was not supposed to be soliciting and that is what the sign said. McAdams said he was not soliciting but DeRosear declared that McAdams was not fooling him. Attorney Shroyer said in effect that he would call the police if McAdams continued to solicit at the store. McAdams answered, "I'm not soliciting and I have every legal right to be in the store ... and walk around and shop, even though I buy nothing." As McAdams left the store, he walked by the "courtesy desk" near the entrance and saw a sign posted at the desk, reading: "No Soliciting of Employees for any Purpose on These Premises."5 By letter dated July 25, DeRosear advised the Union that he considered cards "unreliable" but that Respondent Buckeye would "recognize and bargain with you" if the Union won a Board-conducted election. By telegram dated August 1, the Union renewed its demand for recognition, named the employees who had signed authorization cards, and declared that it would take "all necessary legal action" against Buckeye's "attempts to dissipate our majority status by the commission of unfair labor practices." DeRosear refused delivery of the telegram. About 5:30 p.m. on August 1, Vice President Richard Anderson noticed employee Pat Burke crying in front of the store. He asked her why she was crying and she replied that she was quitting Buckeye Mart. Anderson asked her if she had signed a union card. Burke replied that she had done so "for my own protection," and Anderson said, "I knew you would be honest with me. `6 Sometime before August 15, Maxine White, the snackbar manager, asked Mary Jo Kempton, who was working at the popcorn stand, whether she had signed a union card. Kempton told her "no." White remarked, "Well, don't sign any card; I'll have to let you go or fire you," and added that she had had to let "Paulette [Adams]" go because she had signed a card. About August 15, White asked Kempton if her mother, Katy Ballam , had asked her to sign a card. On November 4, 6 The findings in this paragraph are based on a synthesis of the testimony of Burke and Anderson As Buckeye's records show that Burke worked until August 11, 1 do not credit Anderson's testimony that Burke told him that "this was her last day " 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD White told Kempton that a lot of girls were sorry they had signed union cards. Toward the end of October, Manager DeRosear notified about 12 employees that they were going to get wage increases. These employees received the wage increase on their next paycheck, retroactively effective to the beginning of the 2-week period covered by the check Buckeye had not previously given its employees wage increases effective on a date prior to notification. B. Analysis and Conclusions 1. Interference, restraint, and coercion a. Buckeye It is uncontroverted that Store Manager DeRosear and Soft Lines Manager Bilen questioned employees about their attendance at the union meetings of July 19 or 20, and that DeRosear also inquired into the attendance of other employees at the July 20 meeting, and wanted to know what was discussed at this meeting. In questioning employee McAdams, DeRosear remarked, inter alia, that McAdams looked "stupid enough" to join the Union but would be "sorry" if he did so and, when McAdams asked if he was going to be fired, said, "You haven't proved yourself to me." As DeRosear had not previously criticized McAdams' work, his charge in the course of antiunion remarks that McAdams had not proved himself on the job implied that McAdams might be discharged for his union activity and hence was violative of Section 8(a)(1) of the Act.7 In the setting of this threat, and Buckeye's other unlawful conduct set forth below, DeRosear's and Bilen's questioning of employees on union activity must also be deemed coercive." Buckeye's notice prohibiting soliciting of employees "for any purpose on these premises" was prepared on the same day, July 21, that Store Manager DeRosear received the Union's demand for recognition and was posted no later than July 25. Although DeRosear testified that the notice was posted to prevent other employers from stealing his help, he offered no such explanation to the employees when he called their attention to the notice at a regular Friday morning meeting. At the meeting in DeRosear's office on July 25, DeRosear asked McAdams if he had read the posted notice and Buckeye's attorney warned McAdams that he would call the police if McAdams continued to solicit at the store. I find from these circumstances that the employees would interpret the notice as forbidding them to engage in union solicitation even during their nonworking time, whether on or off the selling floor, and in or out of work areas." As such a broad rule unduly restricts union solicitation by department store employees, I find, as alleged in the complaint, that Buckeye violated Section 8(a)(1) of the Act ' I find no threat, however, in DeRosear's subsequent statement to employee Forster that he had seen McAdams with a union organizer Forster did not impress me as a reliable witness and I have disregarded his rather confused testimony on what DeRosear said on this occasion about the discharge of McAdams " I do not find, however, that Vice President Anderson's interrogation of employee Pat Burke on August 1 was violative of the Act Anderson inquired into Burke's signing of a union card only after Burke told him that she was quitting work, and he said nothing against the Union when Burke replied that she had signed a card "for my own protection " In these circumstances no by maintaining an invalid no-solicitation rule. Marshall Field & Company, 98 NLRB 88. The record establishes that it had been DeRosear's practice to notify employees of wage increases prior to their effective date. In October 1966, however, about one- third of Buckeye's employees received unexpected wage increases effective on a date prior to notification. In view of the Company's unlawful efforts to discourage support of the Union, the employees would reasonably regard the unexpected, retroactive wage increases as part of Buckeye's campaign to discourage support of the Union. As DeRosear offered no explanation to the employees, I find that the wage increases were given to discourage support of the Union and hence were violative of Section 8(a)(1) of the Act.10 N.L.R.B. v. Exchange Parts Company, 375 U.S. 405. b. Manley I find that Respondent Manley violated Section 8(a)(1) of the Act by Manager White's interrogation of Kempton concerning the signing of a union card and her comment that she would have to discharge Kempton if she signed a card. Manley argues that Kempton's testimony about her conversations with White should not be credited because of her "simply not believable" testimony that she did not tell her mother-an active union supporter-of White's alleged threat to discharge her if she joined the Union. Kempton's testimony in this respect was corroborated by her mother. In any event, I consider more significant Kempton's specific testimony that White ascribed the discharge of Paulette Adams to union activity and Manley's failure to introduce payroll records to support White's testimony that Adams was still employed at the time she had her first conversation with Kempton about the Union. 2. The discharge of McAdams Parke McAdams attended the union meetings of July 19 and 20 Store Manager DeRosear questioned him on July 21 about his union activity and sentiments and in the course of antiunion remarks charged him with not having proved himself on the job. On the morning of July 23, McAdams noted that a posted work schedule eliminated his Wednesday day off. That afternoon, about 1 or 2 p.m., DeRosear saw McAdams talking to Union Steward Chesser in the Saveway store. At 4 p.m. DeRosear instructed McAdams to report to his office at 6 p.m. When McAdams reported to the office as instructed, DeRosear told McAdams that he was fired for "price changes," for "dust in your department," and for "several other reasons." Buckeye contends that a final decision to discharge McAdams was made on July 15 before it had any inference is warranted that Anderson's inquiry would have a restraining influence upon Burke's union activity 9 N L R B v. Elias Bros Big Boy, Inc, 325 F 2d 360 (C A 6), cited by Respondent Buckeye in its brief, involved a no- solicitation notice promulgated prior to union organization and is otherwise distinguishable on its facts 10 DeRosear testified that the wage increases were given to employees who had not received wage increase for 6 to 9 months This testimony may explain the selection of employees for the October increases but it does not explain why they were given retroactive wage increases BUCKEYE MART; MANLEY INC. knowledge of union activity among its employees. Sales Manager Richard Elsea testified that McAdams had a poor sales record and that he noticed on several visits to the Mt. Vernon store that McAdams did not maintain a proper stock and that his department "was in a rundown condition from [the] standpoint of cleanliness"; that he offered McAdams' job to part-time employee Larry McCutcheon on July 15, and suggested to DeRosear that July 23 should be McAdams' last day; and that McCutcheon attended a meeting of department 14 employees (plumbing and heating) on June 20, as the representative of the Mt. Vernon store department 14. Store Manager DeRosear testified that he decided some time in July that McAdams "was not the man for that department" because his sales "were not up to standard" and because "the department was continually dirty"; that he delayed discharging McAdams because he "was looking for a replacement"; and that he spoke to Elsea "at length" on July 15, and made a "final decision" to release McAdams on July 23. Soft Lines Manager Bilen testified that he and DeRosear discussed McAdams' failure to keep his department "clean and neatly arranged," to price his merchandise correctly, to keep his sales "up to par," and to be properly groomed; and that Elsea told him on July 15 that McCutcheon was going to take over from McAdams because McAdams was not "doing the job that needs to be done." Buckeye introduced no records of department 14 sales at its Mt. Vernon and other stores in support of the claims of Elsea and DeRosear that McAdams' sales record was such as to merit discharge. As McAdams' testimony that his work was not criticized is uncontradicted, I consider highly exaggerated the testimony of Elsea, DeRosear, and Bilen that McAdams did not run his department properly, that the department was dirty, and that McAdams was not sufficiently neat and clean in his personal appearance. McAdams' shortcomings as an employee were presumably best known to his supervisor, Hard Lines Manager John House, the man in authority at the Mt. Vernon store immediately after DeRosear. Yet nothing in Elsea's or DeRosear's testimony indicates that they ever talked to House about McAdams' work or even that they notified House of the alleged July 15 decision to let McAdams go on July 23, the middle of a 2-week pay period. Buckeye did not call House as a witness, nor did it call McCutcheon as a witness to corroborate Elsea's testimony that McCutcheon agreed on July 15 to replace McAdams and attended the July 20 meeting of department 14 because he was going to replace McAdams." If DeRosear had made a i i Elsea's testimony does not show that all employees in charge of department 14 at its stores attended the July 20 meeting, nor does it show that McCutcheon was the only employee present not in charge of a department ii DeRosear testified that he spends "some time" on the schedules but he did not "recollect" changing McAdams' hours before his termination 19I further find from Buckeye's failure to explain the elimination of McAdams' Wednesday day off that it took this action to discourage McAdams from further union activity, thereby further violating Section 8(a)(3) and (1) of the Act. 14 The parties agreed on the inclusion of 32 persons employed by Buckeye on July 21 in a unit of selling and nonselling employees at the store The General Counsel would also include in the unit three credit office employees, two snackbar employees, and two shoe department employees I exclude the snackbar employees in view of my finding that Buckeye is not a 91 "final decision" on July 15 to discharge McAdams on July 23, he would have had no reason to make a change in McAdams' hours effective after July 23. McAdams credibly testified, however, that a schedule of hours posted on Friday, July 22, eliminated his Wednesday day off.' 2 In view of Buckeye's failure to document its claim that McAdams' sales record was unsatisfactory, McAdams' completion of almost 4 months' work without criticism from DeRosear or House, the absence of corroborating testimony by House and McCutcheon, and the change in McAdams' hours posted just prior to his discharge, I reject the testimony of Elsea, DeRosear, and Bilen that a final decision was made on July 15 to discharge McAdams, effective July 23, for unsatisfactory work. I find from Buckeye's hostility to unionization, its knowledge of McAdams' union activity, its timing of the discharge, its unconvincing explanation for the discharge, and its other unlawful conduct, that Buckeye summarily discharged McAdams in the middle of a pay period to discourage its employees from supporting the Union. I therefore conclude that Buckeye discharged McAdams in violation of Section 8(a)(3) and (1) of the Act. 13 3. The refusal to bargain Upon receiving a telephone call requesting recognition and bargaining for the Mt. Vernon store employees from Secretary-Treasurer McAllister of the Union, Buckeye engaged in antiunion conduct calculated to dissipate support for the Union, including coercive interrogation and threats, promulgation of an invalid no-solicitation rule, discrimination against McAdams, and the granting of retroactive wage increases. Buckeye is therefore precluded from asserting that its refusal to recognize and bargain with the Union on and after July 25 was motivated by a good-faith doubt that the Union represented a majority of its employees in an appropriate bargaining unit. Joy Silk Mills, Inc., 85 NLRB 1263, enfd. 185 F.2d 732 (C.A.D.C.), cert. denied 341 U.S. 914. The Union in fact had been designated as their bargaining agent by 27 of the 37 employees who, I find, comprised the bargaining unit when recognition was first requested on July 21.14 I therefore find that the Union represented a majority of the store employees on and after July 21, 1966, and that Respondents Buckeye and Fir Shoe15 have refused to bargain in good faith with the Union since July 25, 1966, in violation of Section 8(a)(5) and (1) of the Act. 16 joint employer with Manley of these employees As the credit office employees and the jointly employed shoe department employees have substantially the same wages, hours, and conditions of employment as the other store employees, I find that they are properly included in the bargaining unit of selling and nonselling employees Spartan Department Stores, 140 NLRB 608. 15 Although I find, by virtue of their joint employer relationship, that Buckeye's refusal to bargain in good faith with the Union is attributable to Fir Shoe, I do not find Fir Shoe liable for Buckeye's other unlawful conduct. Gaylord Discount Store of Delaware, Inc., 137 NLRB 557, 567. ie I also find that, in derogation of the Union's bargaining rights, Buckeye further violated, these sections of the Act by unilaterally changing the wages of employees in the bargaining unit in October 1966. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondents Buckeye, Fir Shoe, and Manley are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All regular full-time and regular part-time selling and nonselling employees employed by Respondents Buckeye and Fir Shoe at the Buckeye Mart store in Mt. Vernon, Ohio, but excluding the store manager, department managers, assistant department managers, or department heads, and all professional employees, guards, and supervisors as defined in the Act, and employees of Manley, Inc., and employees of T & A Saveway Markets, Inc. 4. At all times since July 21, 1966, the Union has been the exclusive representative of the employees in the aforesaid unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By coercively interrogating employees as to union activity and sentiments, by threatening McAdams with discharge for his union activity, by posting and maintaining an invalid no-solicitation notice, and by granting wage increases to discourage support for the Union, Respondent Buckeye violated Section 8(a)(1) of the Act. 6. By canceling McAdams' Wednesday day off and by discharging McAdams for his union activity, Respondent Buckeye violated Section 8(a)(3) and (1) of the Act. 7. By refusing to bargain with the Union as the statutory representative of their selling and nonselling employees at the Mt. Vernon store, Respondents Buckeye and Fir Shoe violated Section 8(a)(5) and (1) of the Act. Respondent Buckeye further violated these sections of the Act by unilaterally changing wage rates of employees in the bargaining unit. 8. By coercively interrogating an employee about her union activity and warning her that signing a union card would lead to her discharge, Respondent Manley violated Section 8(a)(1) of the Act. 9. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents have engaged in unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action necessary to effectuate the purposes of the Act. Having discriminatorily discharged Parke McAdams, Respondent Buckeye will be ordered to reinstate McAdams to his former or substantially equivalent position of employment, without prejudice to his seniority and other rights and privileges, including days off, and to make him whole for any loss of earnings suffered as a result of Respondent Buckeye's unlawful action. Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 76. The violations of the Act committed by Respondent Buckeye are such that future violations may be fairly anticipated unless broadly restrained. I shall therefore recommend that Respondent Buckeye cease and desist from any invasion of employee rights under the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that: A. Respondent Buckeye, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning union activities and sentiments; threatening employees with discharge because of their organizational activities; maintaining an invalid no-solicitation rule; granting employees wage increases or other economic benefits in order to discourage their support of a labor organization; refusing to bargain collectively with the Union as the exclusive bargaining representative of the employees at its Mt. Vernon store, including employees in the leased shoe department; or in any other manner, interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. (b) Discouraging membership in the Union, or in any other labor organization, by discharging employees or in any other manner discriminating against them in regard to hire or tenure of employment or any term or condition of employment. 2. Take the following affirmative action: (a) Offer to Parke McAdams immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, including days off, and make him whole for any loss of pay he may have suffered in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify Parke McAdams if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under this Recommended Order. (d) Bargain collectively, upon request, with the Union concerning rates of pay, wages, hours of employment, or other conditions of employment of the employees at the Mt. Vernon store in the appropriate unit of selling and nonselling employees herein found. (e) Post at its premises in Mt. Vernon, Ohio, copies of the attached notice marked "Appendix A."" Copies of said notice, to be furnished by the Regional Director for 11 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." BUCKEYE MART; MANLEY INC. 93 Region 8, after being duly signed by Respondent Buckeye's authorized representative, shall be posted by Respondent Buckeye immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Buckeye to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith.18 B. Respondent Manley, its officers, agents, successors, and assigns, shall: 1. Cease and desist from coercively interrogating its employees as to their membership in a labor organization, from threatening them with discharge for such activity, and from in any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights under the Act. 2. Take the following affirmative action: (a) Post at the Buckeye Mart store in Mt. Vernon, Ohio, copies of the attached notice marked "Appendix B."19 Copies of said notice, to be furnished by the Regional Director for Region 8, after being duly signed by Respondent Manley's authorized representative, shall be posted by Respondent Manley immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Manley to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken in compliance herewith.20 C. Respondent Fir Shoe, its officers, agents, successors, and assigns, shall: 1. Cease and desist from refusing to bargain collectively with the Union as the exclusive bargaining representative of its employees at the Buckeye Mart store in Mt. Vernon, Ohio. 2. Take the following affirmative action: (a) Upon request, together with Respondent Buckeye, bargain collectively with the Union as the exclusive bargaining representative of the shoe department employees, included in the bargaining unit herein found appropriate, at the Buckeye Mart store in Mt. Vernon, Ohio. (b) Post at the Buckeye Mart store in Mt. Vernon, Ohio, copies of the attached notice marked "Appendix C."21 Copies of said notice, to be furnished by the Regional Director for Region 8, after being duly signed by Respondent Fir Shoe's authorized representative, shall be posted by Respondent Fir Shoe immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Fir Shoe to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken in compliance 22 is In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." is See footnote 17, supra. 40 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read - "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent Manley has taken to comply herewith " 21 See footnote 17,supra 22 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent Fir Shoe has taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: All our employees have the right to join or support a labor union. WE WILL NOT in any manner interfere with their exercise of this right. Specifically, WE WILL NOT coercively interrogate them concerning their union activities or sentiments. WE WILL NOT threaten employees with discharge because of their organizational activities. WE WILL NOT prohibit them from soliciting in behalf of a union on their own time in areas of the store not available to the public. WE WILL NOT grant them wage increases or other benefits to discourage their support of a labor organization. WE WILL NOT discourage membership in Retail Clerks International Association, Retail Clerks Union Local 1059, AFL-CIO, or any other labor organization, by discharging or otherwise discriminating against any of our employees. WE WILL offer Parke McAdams his former or substantially equivalent job (without prejudice to his seniority or other rights and privileges), and WE WILL pay him for any loss because of our discrimination against him. WE WILL bargain collectively, upon request, with Retail Clerks International Association, Retail Clerks Union Local 1059, AFL-CIO, as the exclusive representative of our employees in the following appropriate unit, concerning rates of pay, wages, hours of employment, and other conditions of employment: All regular full-time and regular part-time selling and nonselling employees, including the shoe department employees but excluding the snackbar employees and all professional employees, guards, and supervisory employees as defined in the Act. All our employees are free to become, remain , or refrain from becoming or remaining members of the above-named Union, or any labor organization. CUSSINS& FEARN CO., INC., D/B/A BUCKEYE MART (Employer) Dated By (Representative) (Title) Note: We will notify Parke McAdams if presently serving in the Armed Forces of the United States of his 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone 621-4465, Extension 42. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT coercively interrogate employees about their union activities and sympathies. WE WILL NOT threaten employees with discharge because of their union activities. WE WILL NOT in any like or related manner interfere with , restrain , or coerce our employees in the exercise of their right to self-organization , to form labor organizations , to join or assist Retail Clerks International Association, Retail Clerks Union Local1059, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing , to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities. MANLEY, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone 621-4465, Extension 42. APPENDIX C NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL bargain collectively, upon request, with Retail Clerks International Association, Retail Clerks Union Local 1059, AFL-CIO, as the exclusive bargaining representatives of our employees in the shoe department, who are included in the storewide bargaining unit of regular full-time and regular part- time selling and nonselling employees. FIR SHOE CORP. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone 621-4465, Extension 42.