Charles Kushins Co.

CHARLES KUSHINS CO. Charles Kushins Co. - Oakland and Office & Technical Employes' Union , Local 29, AFL-CIO. Case 20-CA-4283 November 20, 1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On July 12, 1967, Trial Examiner Howard Myers issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices, and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He also found that the Respondent had not en- gaged in certain other unfair labor practices alleged in the complaint and recommended that those al- legations be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's Deci- sion. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its 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 briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner, as herein modified.2 I ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- I Respondent excepts to the Trial Examiner's credibility findings. It is the Board's established policy, however, not to overrule a Trial Ex- aminer's resolutions with respect to credibility unless , as is not the case here, the preponderance of all the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3). 2 While adopting the Trial Examiner's finding that Cheryl Morns credibly testified regarding an interrogation by the secretary of the Respondent, Arthur A Berea, we note that her testimony was not without contradiction as stated by the Trial Examiner. Moms' testimony was, in fact, contradicted by that of Beren In addition, although the Trial Ex- aminer found that discharged employee Janet Hickerson was first given an assistant for a period of a month in or about April 1966, it would appear that the first full-time assistant was in fact assigned to her for a period of I month sometime in February 1966 when Hickerson's predecessor on the job, Judy Singer, left the Respondent's employ Neither such modifi- cation, however, inhibits our affirmance of the Trial Examiner's findings, conclusions, and recommendations 168 NLRB No. 51 336-845 0 - 70 - 23 339 mended Order of the Trial Examiner and hereby or- ders that the Respondent, Charles Kushins Co. - Oakland, Oakland, California, its officers, agents, successors, and assigns, shall take the ac- tion set forth in the Trial Examiner's Recom- mended Order, as herein modified: 1. Substitute the words "on forms provided" for the words "to be furnished" in paragraph 2(f) of the Trial Examiner's Recommended Order. 2. Substitute the word "nonselling" for the word "nonsell" in the appropriate unit of the notice. 3. The telephone number for Region 20 appear- ing at the bottom of the notice is amended to read Telephone 556-3197. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HOWARD MYERS , Trial Examiner : Upon a charge and an amended charge duly filed on October 21 and December 6, 1966 , respectively, by Office & Technical Employes' Union , Local 29, AFL-CIO, herein called the Union , the General Counsel of the National Labor Rela- tions Board, herein respectively called the General Counsel' and the Board , through the Regional Director for Region 20 (San Francisco , California), issued a com- plaint, dated January 10, 1967, against Charles Kushins Co. - Oakland, herein called Respondent , alleging that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended from time to time, 61 Stat. 136, herein called the Act. Copies of the charges, the complaint , and notice of hearing were duly served upon Respondent and copies of the complaint and notice of hearing were duly served upon the Union. Specifically , the complaint, as amended at the hearing, alleged that Respondent ( 1) on or about certain stated dates in September and October 1966, through certain named officials , interfered with , restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by (a) unlawfully interrogating em- ployees about their union activities , (b) offering em- ployees wage increases to induce them to abandon their union activities , and (c) granting certain employees wages in order to induce them to abandon their union activities; (2) on or about September 10, discharged Janet Hicker- son because of her membership and activities in behalf of the Union ; and (3 ) since on or about September 3, has refused to bargain collectively with the Union as the duly selected and designated representative of the employees in a certain described appropriate unit although the Union , since September 1, has been such representative. On January 23, 1967, Respondent duly filed an answer denying the commission of the unfair labor practices al- leged. Pursuant to due notice , a hearing was held at San Fran- cisco, California, on April 18 and 19 , 1967, before the Trial Examiner. The General Counsel and Respondent were represented by counsel and participated in the hear- ' This term specifically includes counsel for the General Counsel ap- pearing at the hearing 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing. Full and complete opportunity was granted to all parties to be heard, to examine and cross-examine wit- nesses, to present evidence pertinent to the issues, to argue orally on the record at the conclusion of the taking of the evidence, and to file briefs on or before May 12, 1967.2 Briefs have been received by the General Counsel and from Respondent counsel which have been carefully read and considered. Upon the entire record in the case and from his obser- vation of the witnesses, the Trial Examiner makes the fol- lowing: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS OPERATIONS Respondent, a wholly owned subsidiary of United States Shoe Corporation, is a California corporation hav- ing its principal offices and place of business in Oakland, California, where it is engaged in and during all times material was engaged in the sale, at retail, of men's, women's, and children's shoes and related items. During the year immediately preceding the issuance of the complaint herein, Respondent's gross sales of shoes and kindred articles exceeded $500,000. During the same period, Respondent's out-of-State purchases of men, women, and children shoes and kindred articles exceeded $50,000. Respondent also owns and operates three other retail shoe stores. Each of these stores does business under a separate corporate name and is located in Walnut Creek, El Cerrito, and Hayward, California. Upon the basis of the foregoing undisputed facts, the Trial, Examiner finds, in line with established Board authority, that Respondent is engaged in and during all times material has been engaged in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act and that its operations meet the standards fixed by the Board for the assertion of jurisdiction. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization admitting to mem- bership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion 1. Prefatory statement Respondent's Oakland store, the employeees of which are the only ones involved in these proceedings, is located at 1915 Broadway and also houses Respondent's prin- cipal offices. These offices also serve three other corpora- 2 At the request of Respondent's counsel, the time to file briefs was ex- tended to May 26, 1967 3 Weston and Beren both share the duties of general manager. 4 In the light of the Trial Examiner's observation of the conduct and de- portment at the hearing of all the persons who testified herein, and after a very careful scrutiny of the entire record, all of which has been carefully read and parts of which have been reread and rechecked several times, and being mindful of the contentions of the parties with respect to the credibility problems here involved, of the fact that in many instances testimony was given regarding events which took place many months prior to the opening of the hearing, and of the fact that very strong feelings tions doing business under the Kushins trade name with retail shoe stores located in El Cerrito, Walnut Creek, and Hayward, California. These three corporations are wholly owned subsidiaries of Respondent. As noted above, Respondent is a wholly owned subsidiary of United States Shoe Corporation. Respondent's Oakland facility consists of a retail shoe store with the women's and children's departments on the main floor, both executive and clerical offices on the mez- zanine, the men's selling department is in the basement. The stockroom is also located in the basement. The executive offices, occupied by Vice President Arthur D. Weston, and Secretary Arthur A. Beren3 and their private secretary, as well as a public restroom, are at the rear of the store on the mezzanine. The clerical of- fice, including the desk of Office Manager Lester Sim- mons, is at the front of the store also on the mezzanine. The store is an "open store," the executive and clerical offices being separated by 70 feet of open space, without partitions, so that the executive and clerical offices are each clearly visible from the other. There is no direct means of proceeding from one mezzanine to the other. It is necessary to go down one flight of stairs, cross the depth of the first floor selling floor and up one flight of stairs to the other mezzanine. Respondent has, and during all times material had, only one collective-bargaining agreement and it is with the Retail Clerks Union, covering the selling employees, cashiers, and receiving and stockroom employees. Weston has actively participated for many years in labor-management matters and has for many years served as a trustee of the Retail Clerks Union Trusts. Prior to September 1966, the nonselling employees, the janitor, and the window trimmer were not represented by any labor organization. The office clerical job of NCR-2000 machine operator, otherwise known as sales audit desk or accounts receiva- ble operator, consists of adding and auditing the sales tags for all four stores on a tape, "inputting" these figures into the NCR-2000 machine, which produces another tape. The figures for each store on this latter tape are called the "scores." These figures or "scores" are used to prepare the folllowing: daily sales reports and summaries for each store; the "green book" containing "pairage" or sales of pairs of shoes for each department for each store; the "black book" containing net sales per day and pairage by volume on a yearly basis, cash receipts summary of cash flow; daily charge sales information for accounts receiva- ble department; daily net sales information for each salesman for the payroll department; and sales tax break- down. 2. The pertinent facts4 In the latter part of June 1966 ,5 Janet Hickerson,6 while in the lunchroom located in the Oakland store with have been generated by the circumstances of this case, coupled with the fact that it would unnecessarily protract this Decision to summarize all the testimony or to spell out fully the confusion and inconsistencies therein, the following is a composite picture of all the factual issues involved and the conclusions based thereon The parties may be assured that in reaching all resolutions, findings, and conclusions herein, the record as a whole has been carefully considered, relevant cases have been studied, and each contention advanced has been weighed , even though not specifi- cally discussed Unless otherwise noted, all dates hereinafter mentioned refer to 1966 c Hickerson's discharge is discussed in detail infra CHARLES KUSHINS CO. 341 two coworkers, Patricia Comber and Mary Melanson, complained to Comber and Melanson about the store's hours and the wages paid. Nickerson then suggested that the employees "get a union started." Nothing, however, was done about getting "a union started" until August 29, when Hickerson, Comber, Melanson, and Sharon Adams each signed cards express- ly authorizing the Union to represent them for collective bargaining. Identical authorization cards were signed by employee Betty Carlsen on August 20 and by employees Carol Pritchett and Glen Nash on August 31. Under the date of September 1, the Union wrote Arthur Weston, Respondent's vice president, requesting that Respondent afford the Union "recognition as the col- lective bargaining agent for all employees at your Oakland location, excluding those represented by other unions, confidential employees, guards and supervisors, as defined in the Act." The letter concluded with a request that Respondent advise the Union "when and where you wish to meet to negotiate the collective bar- gaining agreement." The letter referred to immediately above was received on September 2, while Weston was vacationing on the east coast, and was placed, after being opened and the date stamped September 2, in a folder together with other Weston letters and papers to await his return.7 On Tuesday, September 6, the Union, not having received a reply to its September 1 letter requesting recognition, filed a petition with the Board seeking to be certified as the bargaining representative for the em- ployees in the unit described in the Union's aforemen- tioned letter.8 The same day that the above-referred-to petition was filed, or on the day following, a Board agent, Dawn Girard, telephoned Respondent and asked Arthur A. Beren, Respondent's secretary, whether Respondent had received a letter from the Union. Beren replied, "No, it was addressed to Mr. Weston." Beren, after he made the above-quoted reply, removed the letter from the Weston mail folder and then continued his conversation with said Board agent who had called to advise Respondent of the filing of the petition and to obtain certain information per- tinent thereto. ° On Wednesday afternoon, September 7, after one of his talks with Girard,1° Beren requested Lester B. Sim- mons, Respondent's office manager, to send a list of the employees' names to Girard. According to the credible and undenied testimony of Betty Carlsen and Janet Hickerson, Simmons called them by telephone while he was at Weston's desk on the rear mezzanine office to their work area on the front mezzan- ine." Carlsen answered the phone. Simmons asked, "What is this about a union?" Carlsen replied, "I don't know." When Simmons asked, "What do you mean, you don't know," Carlsen said, "Mr. Simmons you had better talk to Janet [Hickerson]; she knows more about it than I do." Thereupon, Carlsen handed the telephone to Hickerson saying, "Janet, it is Mr. Simmons. He would like to know about the union." When Hickerson got on the phone, Simmons asked her "something like," "What is this about you girls wanting to join a union?" When Hickerson replied, "What do you mean?" Simmons re- peated his question; Hickerson said, "Well, because all of us in the office want better wages and better hours." Sim- mons then replied, "Well, why didn't you come to me about it?" When Nickerson did not reply, Simmons con- cluded the conversation by remarking, "Well thanks a lot for doing it behind my back." Cheryl Morris credibly testified, and without con- tradiction, that she was at one time confidential or private secretary of Weston and Beren; that in the forepart of September, Beren came into the office and asked her if she "knew who had started the Union, did [she] know anything about the Union," and that the following then ensued: He bought up names ... did I know if they knew anything about the Union; had I signed up for the Union; did I know that I was temporary help, that I would be there for three months and in a month longer I would have nothing to do with it, the Union wouldn't cover me, and he asked whether these girls were going into the Union ... were they dissatisfied with their positions, with their pay, what was the main reason why they were doing this rather than coming to him. Morris then credibly testified, and without contradiction, as follows: Q. [By Mr. Teagle] 12 Did Mr. Beren mention any specific names that you can remember? A. I think he asked me if Pat [Comber] had anything to do with it. Q. [By Mr. Teagle] Can you remember any of the other girls that were mentioned at that time? A. Whom he asked if they had anything to do with it? Q. Yes. A. I think he asked me something about Janet. Q. Janet who? A. Janet Hickerson. Q. Anybody else? A. No, I think that he just more or less asked - brought up these names ... I guess just names he thought of offhand and the others were just- About 2 weeks after Hickerson's September 10 discharge , Beren asked Carlsen, to quote from her credi- ble and undenied testimony, "If we girls were still in- terested in the union upstairs?" When Carlsen replied in the affirmative, Beren asked her why the girls were still interested in the Union. Thereupon Carlsen replied, "We wanted better benefits and higher wages." ' Weston left on his vacation on or about August 19 and returned on September 13. 6 A copy of said petition, together with a covering letter from the Board, was received by Respondent on or about September 7. 9 Case 20-RC-7164 10 Apparently, Beren had three telephone conversations with Girard between September 6 or 7 and September 9 The first was about the Union's September I letter and the filing of the representation petition, the second was when Girard requested a list of names of the employees, and the third, on Friday, September 9, when Girard advised Beren that she had not received the names of the employees 11 Carlsen and Hickerson both place this incident as having taken place during the first week of September It is apparent, and the Trial Examiner finds, that it took place during business hours on or a day or two after Sep- tember 6 and before September 9 On the latter date, Simmons collapsed while at work, left the store, and did not return to work for about a week. Hickerson was discharged on September 10 12 Counsel for the General Counsel 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Refusal To Bargain Collectively The complaint, as amended at the hearing, alleged, Respondent conceded at the hearing, and the Trial Ex- aminer finds, that all nonselling personnel employed at Respondent's Oakland, California, store, excluding all other employees covered by existing collective-bargain- ing agreements, confidential employees, guards, and su- pervisors as defined in the Act, at all times material con- stituted, and now constitute, a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act, with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of employment. The Trial Examiner further finds that said unit insures to Respondent's Oakland store employees the full benefit of their right to self-organization and collective bargaining, and otherwise effectuates the policies of the Act. 1. The Union's majority status in the appropriate unit Respondent's counsel contended at the hearing and in his brief argued that the union authorization cards received in evidence of Virginia Hooper, Kathleen Lane, Carol Pritchett, and Glen A. Nash are invalid to support and 8(a)(5) violation for various and sundry reasons and hence the Union did not represent an uncoerced majority of the employees in the appropriate unit on September 1, the date of its letter to Respondent requesting recognition as the collective-bargaining representative. The cards of these four persons are discussed seriatim' 13 Hooper testified, and the Trial Examiner finds, that she was first employed by Respondent on September 15, 1966, and that she signed a union authorization card on the following October 4. Obviously, Hooper's card can- not be considered in support of the Union's majority as of September 1 and the Trial Examiner so finds. Lane testified, and the Trial Examiner finds, that she was first employed by Respondent on September 10, 1966, and that 3 days later she executed a union authorization card. As in the case of Hooper, Lane's card is not considered in support of the Union's majority status as of September 1. Pritchett was first employed by Respondent on April 20, 1966, as an addressograph clerk and later was trans- ferred to the mail desk. Pritchett left Respondent's em- ploy on January 20, 1967. Pritchett, after first reading the authorization card, completely filled it out, and then signed it on August 31, 1966. In his brief (p. 23-24), Respondent's counsel points to the following testimony of Pritchett elicited by him on cross-examination in support of Respondent's contention that said card is invalid because "The employee was mislead [sic] by the representative [Comber] as to use of the card ." and hence the card should not be counted toward the Union's majority: 13 Respondent does not contest the authenticity or validity of the union authorization cards signed by Janet Hickerson, Sharon A Adams, Betty Carlsen, Mary E. Melanson , and Patricia Comber 14 Amalgamated Clothing Workers of America [Hamburg Shirt Corp.] v N L R B , 371 F 2d 740 (C A D.C ), N L R B v Gotham Shoe Manu- facturing Co, Inc , 359 F 2d 684 (C A 2), N L.R B v. Security Plating Co, 356 F 2d 725 (C A 9), Bernard S Happach v. N L.R B 353 F 2d 629 (C.A 7), N.L R B v. Cumberland Shoe Corporation, 351 F 2d 917 Q. [By Mr. Hoyt] This card that you signed, Mrs. Pritchett, who gave it to you? A. Pat Comber. Q. And where were you at the time you signed it? A. I was in our lunch room or at the restaurant across the street ; I don't remember which. Q. Was any explanation given you prior to the time that you signed this card as to the use this card would be put to? A. Yes. That the Union would help me get better benefits and an increase in salary. Q. That is the only explanation that was given with respect to the benefit or use of this card? A. Yes. It is well settled that where, as here, an employer seeks to avoid his bargaining obligation by claiming that his em- ployees were actually misled into executing their union designations, it is incumbent upon the employer to show, by clear and convincing proof, that such misconduct ac- tually took place.14 Clearly, Comber's references to cer- tain benefits Pritchett might receive through the Union if she signed the card cannot , by any stretch of the imagina- tion, be classified as misleading nor can Comber's re- marks "negative the overt action of [Pritchett] having signed a card designating the union as bargaining agent." 15 Accordingly , the Trial Examiner finds Re- spondent's contention lacks merit. Nash was first hired by Respondent about mid -August 1966 as a window trimmer16 and was still in Respondent's employ at the time of the hearing. Nash signed and completely filled out a union-proffered authorization card at Comber's behest. [Respecting] Respondent's contention that Nash's card is invalid and therefore should not be counted in sup- port of the Union's claimed majority status, Respondent's counsel relies heavily on the following portions of Nash's testimony elicited by him on cross-examination and set forth pp. 24 and 25 of his brief: Q. [By Mr. Hoyt] Did she [Pat Comber] give you an explanation as to the use of this card? A. She said it was an opportunity for the em- ployees of the store to go to meetings which we would be mailed also, letting us know when these meetings occur, and that is all. Q. And that is the only explanation she gave you- A. Well, that- Q. - as to the use of the card? A. Well, that the union would let us know what benefits we could get by joining and that all the girls in the office wanted to join and would I please sign a card. Q. Was there any explanation given to you to the effect that this card would permit the girls to go to a meeting? (C A. 6), Jas H Matthews & Co v N L.R B , 354 F 2d432 (C A 8). 15 Joy Silk Mills, Inc v N.L R.B., 185 F.2d 732, 734 (C.A D C.). Ac- cord N L R B v. Gene Hyde, dlbla Hyde's Supermarket, 339 F.2d 568 (C A 9) is Nash referred to himself as a "display manager " Despite this self- styled designation the record is clear, and the Trial Examiner finds, that Nash does not possess any supervisory or managerial authority In short, Nash, at all times material was, and still is, a nonsupervisory employee CHARLES KUSHINS CO. 343 A. Yes. Nothing on the card saying that , that is what she told me. A. She [Pat Comber] told me this would help them get better pay, more benefits, and she just said it was important to them, they had to have so many cards or they couldn't attend the meetings and she didn't tell me that it meant that we were going to have a vote or anything else, just that they could go to meetings and that was all. Nash, who attended 4 years of college and who im- pressed the Trial Examiner as being a very intelligent per- son, credibly testified that he read and completely filled out the authorization card before he signed it; and that he voluntarily signed the card on the date it bears. Nash's card, as well as all the authorization cards here under consideration, clearly and unambiguously express- ly stated that it was for the sole purpose of designating the Union as the collective-bargaining representative of the signer thereof. Respondent does not dispute that fact. Under the circumstances, the Board, with court approval, has repeatedly and consistently held that an employee's execution of such an authorization card constitutes an ef- fective designation of a union as his bargaining representative. 17 The Trial Examiner is convinced, and finds, contrary to Respondent's contention, that Nash's card is not invalid based upon Comber's statements to him at the time of the presentation and execution of said card. Respondent also contended that Nash's card should not be counted since Nash does not, to quote from Respondent's brief (p. 20), "have a real community of in- terest with the office and clerical employees which is the basic composition of the unit as proposed by the Union." In support of said contention, Respondent argues in its brief (p. 20) that Nash "does not have the same super- visor as the office employees, his work is performed at all four stores and has no relationship to the office and clen- cal employees. The work is more closely related to adver- tising than to office work." At the hearing, in response to questions propounded by Respondent's counsel, ap- parently for the purpose of supporting Respondent's con- tention that Nash should be excluded from the ap- propriate unit, Weston testified that Nash's work is con- fined to window displays at all four Respondent's stores; that there is no interchange of work between Nash and the office employees; and that Beren is Nash's super- visor. On redirect examination by the General Counsel, Weston testified that the number of days a week Nash works at the Oakland store varies. Nash, a General Counsel witness, testified, both on direct- and cross-examination, that normally he works several days a week at the Oakland store; that when not working at the Oakland store he works at one of the other three Respondent stores; and that on occasion he spends an entire week at the Oakland store. The basic theme of Respondent's argument that Nash should be excluded from the appropriate unit runs along these lines: Even though Respondent, "for the purpose of the Consent Election agreed to the inclusion of" Nash in the appropriate unit it now "on further examination, [Respondent] believes [Nash] should now be excluded from the unit" and hence, for the reasons advanced the appropriate unit "should be limited to `office and clerical employees, excluding those represented by other unions, janitors, displaymen, confidential employees, supervisors and guards as defined by the Act.' " (Resp. brief p. 20.) Respondent's arguments run afoul of the facts in the case and the law applicable thereto. First, the day, Sep- tember 6, the Union filed the petition seeking to be cer- tified by the Board as the collective-bargaining represent- ative of "All [Respondent] employees at the above loca- tion (Oakland) excluding those represented by other unions, confidential employees, guards and supervisors as defined in the Act," the Regional Director, with whom said petition was filed,. wrote Respondent requesting "a list of names of all employees within the described unit,", with their respective job classifications, prepared from the Company's most recent payroll." Second, on at least two, and probably three, separate days between Sep- tember 6 or 7 and September 9, Board Agent Girard requested such a list from Beren. Third, under date of September 28, Weston forwarded to Board Agent Girard a "list of the names and addresses of the employees on the payroll as of September 15, 1966."19 Included on this list was Nash's name. Weston's said letter contained the name of no employee covered by any then existing bar- gaining contract to which Respondent was a party.20 Fourth, Weston, who admittedly "has actively par- ticipated in labor-management matters and has for many years served as a Trustee" (Resp. brief p. 5) of the (Retail Clerks - Employers) Northern California Employers Fund, and a past president thereof as well as being a past president of the Eastbay Health and Welfare Fund (Retail Clerks Union - Employers) prepared and forwarded to the Board under date of September 28, the above- referred-to September 15 eligibility list upon the advice and approval of the United Employers , Inc., an em- ployers' association labor relations-consulting-and research firm, of which Respondent has been a member for approximately 20 or 30 years .21 Fifth, Nash appeared at the Board's conducted October 17 election, voted therein, and his right to do so was not challenged nor questioned. Under the circumstances, and upon the entire record in the case, the Trial Examiner finds that Respondent's be- lated contention that Nash should not be included in the appropriate unit is without merit or substance. Respondent also challenged the right of Hideo (Murphy) Nazakawa, Respondent's janitor or porter, to 17 This rule is an application of the familiar principle that "in the absence of fraud or wilful deceit , one who signs a contract which he has had an opportunity to read and understand , is bound by its provisions " Allied Steel and Conveyors, Inc v Ford Motor Company, 277 F.2d 907, 913. All the employees who had signed union authorization cards relied upon in support of the Union's majority status, were called as witnesses and each testified that he or she read the card prior to signing it. None testified that he or she did not understand the meaning or purport of the card 11 That is, the unit set forth in said petition , a copy of which was en- closed in said Regional Director 's September 6 letter. '° The eligibility date agreed to in the Consent Election Agreement 10 A "note," in the nature of a postscript, typed at the foot of this letter reads. , By submission of these names , the company does not relinquish its right to challenge the vote of any individual 21 At p 29 of the stenographic report of the hearing, the following question asked of Weston (I 15) should read, "Did you prepare this [eligibility list] with its [United Employers] consent9" instead of, as it now erroneously reads , " Did you prepare this consent" 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be included in the appropriate unit for the reasons very similar to those advanced by it for excluding Nash. Despite the fact that there is no evidence in the record that Nazakawa's, whose name, incidentally, appears on the aforementioned September 15 eligibility list, inclusion or exclusion from the unit would not affect the Union's majority status as of September 1, the date when the Union requested recognition as the collective-bargaining representative of the employees here involved, the Trial Examiner, nevertheless, finds that Nazakawa who voted, without challenge or question in the aforementioned Board-conducted election, should be included in the ap- propriate unit. At the hearing there was introduced in evidence by the General Counsel a list prepared by Respondent, as well as Weston's September 28 letter to Board Agent Girard, containing the names of all the employees in the unit hereinabove found appropriate. The list shows that on September 1, the date of the Union's letter requesting recognition, Respondent had in its employ 13 persons22 in said unit. On behalf of the General Counsel, there was offered and received in evidence seven cards23 expressly authorizing the Union to represent the signers thereof for the purpose of collective bargaining. The genuineness of the signatures appearing on the cards was not challenged. The Trial Examiner has compared the names appearing on the aforesaid seven authorization cards with the afore- mentioned list submitted by Respondent, as well as Weston's letter of September 28 to Board Agent Girard, both of which documents were received in evidence as General Counsel's exhibits, and finds that as of Sep- tember 1, seven employees in the appropriate unit had signed cards designating the Union as their collective- bargaining representative. The Trial Examiner therefore finds that on September 1, the Union was, and at all times thereafter has been, the duly selected and designated representative of Respondent's employees in the unit hereinabove found appropriate. Accordingly, pursuant to Section 9(a) of the Act, the Union at all times material was, and now is, the exclusive representative of all the employees in said unit for the purpose of collective bar- gaining with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of employment. On September 6, the Union filed with the Board's Re- gion 20 a petition seeking to be certified as the statutory collective-bargaining representative of the employees in the unit hereinabove found appropriate. Under date of September 13, the Union signed a con- sent-election agreement. Under date of September 20, Respondent signed said agreement, which the Director of Region 20 approved on September' 22. On October 17, an election was conducted under the direction and supervision of the aforementioned Regional Director among Respondent's Oakland store employees in the agreed-to unit. Of the 14 eligible voters, 6 cast bal- 22 Namely, Sharon Adams, Betty Carlsen, Patricia Comber, Janet Hickerson, Linda Kelsoe, Bess Lally, Mary Melanson, Hideo Nazakawa, Glen Nash, Carol Pritchett, Frances Reel, Laura Ross, and Winifred Sim- mons (wife of Lester Simmons, Respondent's office manager). za Signed by Comber, (8/29/66); Melanson (8/29/66); Carlsen (8/30/66), Pritchett (8/31/66), Adams (8/29/66), Nash (8/31/66), Hicker- son (8/29/66). 14 In addition to the seven valid union authorization cards signed within a few days immediately prior to September 1, Kathie Lane signed a valid lots for the Union, 7 cast ballots against it, and the ballot of Winifred Simmons, the wife of Office Manager Lester Simmons, was challenged by the Union. On October 21, the Union filed timely objections to the conduct affecting the results of the election , a copy of which was duly served upon Respondent. Of the four union objections submitted , the Regional Director on January 4, 1967, issued his report on objec- tions, in which he overruled the first two, sustained one, and made no ruling upon the fourth , which related to Janet Hickerson's discharge , upon the ground , the Re- gional Director ruled , that said discharge was the subject matter of an amended charge filed by the Union on December 6, 1966, in Case 20-CA-4283. The said Re- gional Director, upon the basis of the investigation of the objections filed , set aside the aforesaid October 17, 1966, election. 2. Refusal to bargain Credited evidence establishes that on September 1, the day Ann Willis, the Union's business representative, wrote Respondent The Office Technical Employes' Union, Local 29, AFL-CIO, hereby requests recognition as the col- lective bargaining agent for all employees at your Oakland location , excluding those represented by other unions , confidential employees, guards and su- pervisors , as defined in the Act. Please let me know at your earliest convenience when and where you wish to meet to negotiate the collective bargaining agreement. the Union, in fact, had been selected and designated by a majority of the employees in the appropriate unit as their collective-bargaining representative. Under the circum- stances, Respondent was under a statutory duty to recog- nize and bargain with the Union as such representative.24 Instead of fulfilling its statutory duty, Respondent en- gaged in serious unfair labor practices specifically designed to undermine the Union's majority status. Thus, within a week of the receipt of the aforementioned union letter, Simmons queried Carlsen and Hickerson about the employees' union symphaties and activities and about a week or two after Simmons' aforementioned unlawful in- terrogation, Beren queried Morris about her participation in the union movement, why the employees desired union representation, and whether certain named employees were responsible for bringing the Union into the store. It is well settled that such conduct, which interferes with, restrains, and coerces employees in the exercise of their guaranteed Section 7 rights, violates Section 8(a)(1) of the Act.25 In addition to the above-described unlawful conduct of union authorization card on September 13 and Virginia Hooper signed a valid union authorization card on October 4. 25 Interrogation of employees concerning union activities and the identity of leaders: Bon Hennings Logging Co v. N.L.R.B., 308 F 2d 548 (C.A 9), N.L R .B v. Lozano Enterprises , 318 F.2d 41 (C.A. 9), N.L.R.B. v Ace Comb Co, 342 F 2d 841 (C.A 8); N.L.R.B. v. Wings & Wheels, Inc., 324 F.2d 495 (C A. 3); N.L.R B. v. Smith, dlbla Service Parts Co, 209 F.2d 905 (C A 9); N L.R.B. v Victory Plating Works, Inc., 325 F 2d 92 (C.A. 9) CHARLES KUSHINS CO. 345 Simmons and Beren , and without notice to or consulta- tion with the Union, Respondent granted wage increases to Comber and Carlsen in October. Comber had asked Simmons for a raise on three dif- ferent occasions in July and August. Carlsen had asked Simmons for a raise in July. On each occasion Simmons informed the two employees that salaries were made under review by Weston and Simmons would let them know when the review was completed. While Weston was away on vacation (from about August 19 to September 13), Simmons advised Comber and Carlsen when they asked for a raise that no increase would be given during Weston's absence. Late in September, Comber was told by Weston that she would receive a $40 raise. On October 1, Comber's salary was increased from $360 to $400 per month.26 On September 12, Beren told Carlsen that in October, she would receive a $30 raise. On October 15, Weston, upon learning that Carlsen was upset because she had not received the promised wage increase and that she had threatened to quit, told Carlsen that she would get the promised raise right after the scheduled Board-conducted October 17 election. Carlsen's next paychecks reflected a raise from $260 to $290 per month, retroactive to Oc- tober 1. In an attempt to absolve itself from any liability under the Act with respect to the Comber-Carlsen wage in- creases, Respondent points to Weston's testimony wherein he testified that upon his return from his vacation Simmons reminded him of the salary review which had been under consideration prior to his leaving and to the receipt by Weston, prior to going on his vacation, of a booklet called "Salary Survey Summary" published by Federated Employers of the Bay Area and distributed by United Employers, Inc; that he had advised United Em- ployers, Inc., of receipt of a copy of the Union's represen- tation petition and of his intention of granting salary in- creases to certain employees; that United Employers had advised him not to give salary increases to any employee pending the Board-conducted election except to those employees who had requested salary increases and who were otherwise entitled to such increases; that pursuant to this advice, he granted wage increases to Comber and Carlsen based solely on this work performance and the positions held then by them; that Comber started with Respondent on August 5, 1961; that she had several in- terim increases prior to 1966 and was granted a salary in- crease effective October 1, 1966; that at the time of the increase Comber was payroll clerk and as such, under the "East Bay Area Office Salary Survey," which showed a low of $416, a high of $524, a median of $483, and an average of $478, the increase to $400 for Comber was "a modest increase"; that Carlsen started with Respondent on February 7, 1966, in sales audit. She was granted a sa- lary increase effective October 1, 1966, of $30 per month from $260, her starting salary, to $290 per month; that at the time of the increase as of October 1, Carlsen had been recently advanced to the senior position in sales audit; that sales audit was comparable to a junior clerk on the "East Bay Office Salary Survey," which disclosed that junior clerks were paid a low of $313, a high of $389, a median of $353, and an average of $359; that he believed the $30 a month increase to Carlsen to be "a modest in- crease." The granting of the wage increase to Comber and Carl- sen, in the opinion of the Trial Examiner, was adroitly and strategically timed to impress upon the employees that continued union adherence was a fruitless gesture, would bring them naught, and they could rely upon their employer's unilateral generosity to attain their needs. Recognizing the impact of this technique upon em- ployees, the Board and the courts have long held that the granting or announcement of economic benefits during a union organizational campaign, or during the crucial period preceding a representation election, constitutes unlawful interference with the employees' rights, in viola- tion of Section 8(a)(1) of the Act, where, as here, such ac- tion is taken for the purpose of inducing the employees to reject the union. As the Supreme Court emphasized in N.L.R.B. v. Exchange Parts Company, 375 U.S. 405 at 409-410: The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged. The danger may be diminished if, as in this case, the benefits are con- ferred permanently and unconditionally. But the absence of conditions or threats pertaining to the par- ticular benefits conferred would be of controlling sig- nificance only if it could be presumed that no question of additional benefits or renegotiation of ex- isting benefits would arise in the future; and, of course, no such presumption is tenable.27 The fact that Respondent had salary increases under review prior to the Union's organizing drive and the Union's request for recognition, does not privilege Respondent conduct. Comber's and Carlsen's wage in- creases were announced and given after the advent of the Union, and that is when Respondent's conduct had its in- tended effect upon the employees. To permit Respondent to reap the fruits of such conduct solely because it con- ceived its scheme of anticipation of the Union's cam- paign, rather than as a counteraction to the campaign after it had started, would subvert the purposes of the Act. Not only did Respondent violate Section 8(a)(1) of the Act, by announcing and granting the aforementioned wage increases, but Respondent also violated Section 8(a)(5) of the Act by ignoring the Union's bargaining request of September 1 and giving said wage increases without first notifying or consulting with the Union. It is undisputed that Respondent never replied to the Union's September 1 request for recognition and for a bargaining conference. Respondent defends its admitted silence on: (1) No valid demand for recognition and bargaining was made, (2) it entertained a good-faith doubt of the Union's majority status, and (3) the Union did not represent a majority of the unit employees on September I or at any time thereafter. As to (1), the courts have repeatedly and uniformly held that no special formula or form of words is necessary 26 Comber, in Respondent's employ since 1961, received a $15 raise in N L R B v Trimfit of California, 211 F.2d 206 (C A. 9), N L R B v April 1963, a $15 raise in August 1964, and a $20 raise in August 1965. Parma Water Lifter Co, 211 F.2d 258 (C.A. 9); N L.R B v. See also May Department Stores Co v N.L.R.B., 326 U.S. 376 , D'Armigene, lnc , 353 F 2d 406 (C A 2), and cases cited therein 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to arouse the statutory obligation to bargain, so long as the request is reasonsbly implicit in the language used.28 Respondent may not now properly claim that the Union did not request recognition and bargain for in paragraph IV of its answer to the complaint herein it admitted "that commencing on or about September 1, 1966, the Union had requested, and is requesting, Respondent to bargain collectively with respect to rates of pay, wages, hours of employment or other terms and conditions of employ- ment as the collective bargaining representative of the unit described in paragraph VIII of the Complaint. . .." This paragraph was never withdrawn nor amended. It may be, as it now claims, that Respondent may not have read the Union's "request for recognition" as being a "demand for recognition;" the phrase in context being somewhat ambiguous. But Respondent's response was unambiguous. Respondent completely ignored the Union's letter and engaged in a course of conduct which was calculated to dissipate he Union's majority status. Respondent lays great stress on the fact that the Union's September 1 letter makes "no mention or in- ference of' its "majority status."29 This omission does not affect the validity of the request for recognition and bargaining. This precise question was before the Board in a strikingly similar case of Lincoln Manufacturing Co., Inc., 160 NLRB 1866. There, as here, the union's letter did not mention the majority status of the union. The Board affirmed and adopted the Trial Examiner's Deci- sion which specifically held that the request of the union there involved was not defective, stating in pertinent part: The intent of the Union's letter is clear; it was requesting recognition and bargaining on behalf of the Respondent's employees. The mere fact that the letter did not state explicitly that the Union represented a majority of the employees does not, in my judgment, vitiate the request. It is well settled that a request for recognition "need not follow a prescribed form so long as it is clear from the entire situation that the essential elements of a valid de- mand are present." Barney's Supercenter, Inc., 128 NLRB 1325, 1327, enfd. 296 F.2d 91 (C.A. 3). No "special formula or form of words" is required by the Act. Joy Silk Mills, Inc. v. N.L.R.B., 185 F.2d 732, 741 (C.A.D.C.), enfg. 85 NLRB 1263. Inherent in a clear and unequivocal request for exclusive recogni- tion and bargaining, which identifies the union by name and address and clearly describes the unit, is a claim that the union represents a majority of the em- ployees in the unit sought. [160 NLRB at 1877.] As to (2) Respondent's officials, Weston and Beren, each testified that he entertained a good-faith doubt of the Union's majority status. Upon the basis of the entire record, the Trial Examiner is convinced that Respondent ignored the Union's September 1 request for recognition and bargaining not, as now contended by Respondent, because it in good faith doubted the Union's majority status, but solely for the purpose of gaining time to un- dermine such status. Accordingly, the Trial Examiner finds that the reasons advanced by Respondent for ignor- ing the Union's recognition and bargaining request of September 1 to be without substance or merit. Moreover, it stands to reason that when an employer ignores a union's request for recognition and then engages in, as here, flagrant unfair labor practices in order to destroy said Union's majority he cannot successfully defend his intentional disregard of the recognition request by simply saying he had a good-faith doubt of the union's majority status. As to (3) the credible evidence discloses that on Sep- tember 1, and at all times thereafter, the Union represented a majority of the unit hereinabove found ap- propriate. Despite this clear and convincing evidence, Respondent contends that the filing of the representation petition and its subsequent execution of the consent-elec- tion agreement, clearly indicate that the Union did not represent the majority of the unit employees at the time it wrote Respondent on September 1. This contention is without merit. The mere fact that the Union filed a petition for elec- tion or the fact that Respondent signed a consent-election agreement did not and does not relieve the Respondent from its statutory duty to recognize the Union and bar- gain in good faith.30 In Lincoln Manufacturing Co., Inc., supra, the Union filed a representation petition on the same day the Respondent received the union demand letter. The employer in that case signed a consent-elec- tion agreement 3 days later. The Board affirmed and adopted the Trial Examiner's Decision which held in per- tinent part, at 1877: The mere act of filing of a petition at the time of a de- mand, or shortly thereafter, by a majority union does not indicate that the union has abandoned its claim in this regard. Indeed, the Board has held that in filing a representation petition "[a] union has not altered its position that it represents the employees and is entitled to recognition." Bernel Foam Products Co., Inc., 146 NLRB 1277, 1280. At the time that the Respondent received the bar- gaining request in this case, the Union commanded majority status. Thus, Respondent was under a duty to bargain in the absence of a good-faith doubt. Happach v. N.L.R.B., 353 F.2d 629 (C.A. 7); Mid- West Towel and Linen Service, Inc., 339 F.2d 958 (C.A. 7), enfg. 143 NLRB 744. The fact that the Union also filed a representation petition and the Respondent consented to an election does not relieve the Respondent of this duty. Master Transmission Rebuilding Corporation, 155 NLRB 364; Crown Tar and Chemical Works, Inc., 154 NLRB 566; Permacold Industries, Inc., 147 NLRB 885. See also N.L.R.B. v. Frantz and Co., 361 F.2d 180 (C.A. 7), 62 LRRM 2229, decided May 24, 1966; N.L.R.B. v. Eliott-Williams, 345 F.2d 460, 464 (C.A. 7). The [8(a)(1) violations] clearly indicate that Respondent was not acting in good faith and was unwilling to test the Union's majority in a fair election. Such conduct shows that the Respondent was seeking to frustrate the employees' freedom of choice and was motivated by the desire to undermine the Union's majority status in complete rejection of the collective-bargain- ing principle. Joy Silk Mills, Inc., supra. Since the 2e See, for example, Joy Silk Mills, Inc v N L.R B , 185 F 2d 732 (C.A D C) Accord N.L R B v. Southeastern Rubber Mfg Co, 213 F.2d 11 (C A. 5), N L R B v Dallas Concrete Co, 212 F 2d 98 (C.A 5), N L.R.B v L E. Farrell Company, Inc., 360 F.2d 205 (C A 2). 29 The letter, written on the Union's letterhead, clearly identified the Union and its place of business au Bernel Foam Products Co, Inc , 146 NLRB 1277, 1280 Master Transmission Rebuilding Corporation, 155 NLRB 364, enfd 373 F.2d 402 (C A 9). CHARLES KUSHINS CO. Regional Director set aside the election as a nullity based on timely objections filed by the Union, the requirements of Irving Air Chute Company, Inc., 149 NLRB 627, enfd. 350 F.2d 176 (C.A. 2), are satisfied. Therefore, under the Board's decision in Bernet Foam Products Co., Inc., supra, I find that Respondent violated Section 8(a)(5) of the Act and that a bargaining order should issue as a proper remedy. Upon the entire record in the case, which clearly establishes that at no time did Respondent attempt to ful- fill its statutory obligation to bargain collectively with the chosen representative of the majority of the employees in the unit hereinabove found appropriate, the Trial Ex- aminer finds that on September 2, 1966, and at all times thereafter, Respondent failed and refused to bargain col- lectively with the Union as the duly designated and selected representative of the employees in the ap- propriate unit, in violation of Section 8(a)(5) and (1) of the Act, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Sec- tion 7 thereof. The Trial Examiner further finds that the Union's loss of majority, as evidenced by the results of the Board-con- ducted election, was attributable to Respondent's unfair labor practices such as (1) by its granting wage increases to Comber and Carlsen without first notifying the Union'31 (2) by its unlawful interrogation, (3) by unlawful refusal to bargain with the Union, and (4) by discrimina- torily discharging Janet Hickerson, the details of which are discussed below.32 C. The Discharge offanet Hickerson Hickerson was first hired by Respondent in November 1965, as a sales audit operator at the Oakland store. This office clerical job consists of adding and auditing the sales tags for Respondent's four stores on a NCR-2000 tape. The figures for each store on this tape are called the "scores." The "scores" are used to prepare (a) the daily sales reports and summaries for each store, (b) the so- called green book which contains the "pairage" or sales of pairs of shoes for each department for each store, (c) the so-called black book which contains the daily sales and pairage by volume on a yearly basis, (d) cash receipts summary, (e) daily charge sales information for the ac- counts department, (f) daily sales information for the payroll department for each salesman, and (g) sales tax information. Hickerson's starting salary was $275 per month. In April 1966 she was raised to $300 per month. In March 1966, after Hickerson had been in charge of the sales audit desk for about a month,33 both Beren and Simmons complemented her for her good work. In or about April, Hickerson was given an assistant, who remained on the job for about a month and then quit Respondent's employ. Thereafter, and for about a month or two, Hickerson worked without any help or with ir- regular help for about a few hours a day from employees 31 See Medo Photo Supply Corporation v N L R B, 321 U S 678, N L R B v Hyde, dlb/a Hyde's Supermarket, 339 F 2d 568 (C A 9), N L R B v Chain Service Restaurant etc., 302 F 2d 167 (C.A. 2), N L R B v. Parma Water L i f t e r Co , 21 I F 2d 258 (C.A 9) 32 Franks Bros. Company v N.L.R.B., 312 U S 702, Ray Brooks v NLRB,348US 96 347 regularly assigned to other store work, or with the assistance for about a month of a girl named Michele. In or about late June, Carlsen, who had commenced her em- ployment with Respondent in February 1966 as a file clerk, then became an addressograph operator, and then was put on the mail desk, was assigned to assist Hickerson. When Hickerson was discharged on Saturday, September 10, Carlsen, who did not work continuously as Hickerson's assistant but was more frequently assigned to work in the credit department, was given Hickerson's job the follow- ing workday. On September 15, Virginia Hooper was hired as Carlsen's assistant at $290 per month.34 Respondent maintains that it discharged Hickerson on September 10, not for her union membership and activi- ties, but solely because Hickerson's work became in- creasingly worse. With respect to Hickerson's work record, the credited evidence discloses that Hickerson was trained by Judy Singer for about 3 months prior to Singer leaving Re- spondent's employ in February 1966; that when Singer, an admittedly experience NCR-2000 operator, quit her job with Respondent, Hickerson had not completed her training period but had reached, as Singer expressed it at the hearing, "polishing-off" stage; that when Singer left her job she was pleased with Hickerson's progress and felt that Hickerson would become a "better and better" operator as time went on. As noted above, in about March, both Beren and Sim- mons expressed to Hickerson their satisfaction with her job performance and the following month raised Hicker- son's salary $25 a month; that commencing about a month or two after granting_ the $25, Beren became aware that Hickerson was so far behind in her work that it, to use Beren's expression, "aborted" his own work; that Beren, in about May or June, told Simmons about Hickerson's falling behind and also informed Hickerson that he had to have "the work" she was doing; that in June Hickerson was about 15 days behind in her work, at which time Simmons, because Hickerson had no regular assistant and only had infrequent help from persons em- ployed elsewhere in the store, helped Hickerson prepare sales summaries for all four stores, one of which stores was 17 days behind in its summaries; that in July, Hicker- son was behind at least I week in her work of which fact Beren was aware; that in August, Beren knew that Nickerson was behind in her work about 3 or 3-1/2- weeks. Despite this knowledge by both Beren and Sim- mons neither one assigned anyone to give steady, con- tinuous assistance. The record further establishes that at no time before her discharge had Hickerson been told that she might be discharged for being behind in her work or for any other reason; that she offered to continue working upon notifi- cation of her discharge on September 10, until Respond- ent could find someone else, but said offer was refused by Beren; that Hickerson was partially behind in her work on September 10 as follows: the black book was 3 days to one week behind but only with respect to totals, i.e., the daily entries were current; that in the green book, 33 Judy Singer, Hickerson's predecessor on the desk and who had been in charge of the desk for a long time and who had trained Hickerson to be a NCR-2000 operator, quit Respondent's employ in or about February 19, 1966 34 In October Carlsen's salary was raised from $260 to $290 per month In February 1967 both Carlsen and Hooper were given $20 per month in- creases 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD daily entries were complete for August, but totals were not entered for the last 2 weeks in August and there were no entries for the first 10 days in September; that the payroll information for salesmen's payroll was 3 to 4 days behind; that the balancing of day sales was partially in- complete 3 to 5 days for the Oakland store and only 3 days with respect to the other three stores; and that im- mediately prior to Hickerson's discharge, Respondent ex- perienced the usual after Labor Day back-to-school shoe business upsurge. After Beren discharged Hickerson from her $300 posi- tion, she accepted a $325-per-month position on Sep- tember 23, with Pacific Continental Securities in Oakland as a stock and mutual fund trader. At the time of the hearing this employer had increased her salary to $345 per month. When Pacific Continental Securities asked Beren about Janet Hickerson, Beren replied, "She was fine," that she "was honest and came to work on time," that "her habits were fine," that "she was a very fine person," and that "she was a good worker." Respondent's knowledge of Hickerson's union sym- pathies at the time of her discharge cannot be successfully challenged for the uncontroverted, credible testimony of Hickerson and Carlsen establishes that a few days prior to Hickerson's discharge, Simmons phoned from Weston's desk to where Hickerson and Carlsen were working and when the latter answered the phone, Sim- mons questioned her about the Union; that when Carlsen suggested that Simmons speak to Nickerson, because "she knows more about it than I do," and handed the phone to Hickerson, Hickerson answered Simmon's inqueries regarding why the employees desire the Union by telling him, "Because all of us want better wages and hours"; and that when Hickerson failed to answer Sim- mons' question why the employees did not come to him first about their complaints Simmons ended the conversa- tion by saying, "Thanks a lot for doing it behind my back." This case presents the comparatively rare situation where the recitation of the facts leading up to the discharge vividly reveals its discriminatory character.35 The very sequence of events surrounding the discharge renders immediate suspect to Respondent's proffered ex- planation in justification of its conduct. Thus, in the face of Respondent's unconcealed animosity to the em- ployees' union activities, Respondent urges that the true reason for the discharge of Hickerson was her poor, inef- ficient work. The Trial Examiner is convinced, and finds, that Hickerson's purported shortcomings only became in- surmountable in her Employer's eyes when Hickerson joined the other employees in Respondent's store in sup- porting the Union's organizational campaign'36 and that Respondent's advanced reason for the discharge was merely a pretext. This finding is supported to some extent by the fact that it seems unreasonable to the Trial Ex- aminer that Beren, a man of great business acumen, should summarily discharge the only person then in his employ who could produce the data which he now claims to be so vital to the operation of Respondent's four stores when the store was "short handed," when Weston was away on vacation, and Simmons had collapsed in the store the day before and had to be revived by the local fire department and by an ambulance assistant. Upon the entire record as a whole, which clearly reveals Respondent's union animosity, the Trial Ex- aminer finds that Hickerson was discharged because of her union activities and not for the reasons advanced by Respondent. In N.L.R.B. v. May Department Stores Co., 154 F.2d 533 (C.A. 8), the court said, at 538, regarding a situation similar to the one presented here, that there is a "broad scope of inference open ... on questions of mo- tive and discrimination, where the evidence indicates a desire to thwart or nullify unionizational efforts, either generally or as to a particular employee-organization." And where, as here, the employer has shown strong op- position to its employees' organizational efforts, "a very convincing case of discharge for cause would have to be made to make unreasonable a conclusion that [the] discharge was because of union affiliation."37 D. The February 1967 Wage Increases Under date of January 23, 1967, Respondent's counsel wrote the Union as follows: This office represents Charles Kushins Co. - Oakland, with respect to certain matters presently pending before the National Labor Rela- tions Board arising out of an election held October 27, 1966, in which a majority of the employees voted not to have your Union represent them. As a consequence of the charges filed by your Union, it is not now possible for the Employer to deal with a Union if it does not in fact represent a majority of the employees and it is also illegal for the Employer to deal unilaterally with the employees if they are represented by a Union. For many months, the Employer has attempted to make certain wage adjustments for certain em- ployees, which proposed wage increases your Union has objected to. The Employer has again reviewed the general wage level in comparable positions in the Oakland Area, and the Employer reaches the same conclusion that it reached many months ago. That conclusion is that the following employees should be granted wage increases effective Februal ry 1, 1967, as follows: Carol Jean Candelaria , from $260.00 per month to $290 .00 per month. Betty Carlsen, from $290.00 per month to $310.00 per month. Virginia Hooper, from $290.00 per month to $310.00 per month. Kathleen Lane , from $260.00 per month to $310.00 per month. Jean Simmons, from $360.00 per month to $400.00 per month. In view of the fact that the charges filed by your Union following the election will probably not be 35 Compare the oft-quoted observation of Chief Judge Parker in Hartsell Mills Company v N L R B , III F 2d 291, 293 (C A 4) " direct evidence of a purpose to violate the statute is rarely obtainable Accord N L.R B v. Bird Machine Company, 161 F 2d 589, 592 (C A 1), N L R B v Dan River Mills, Incorporated, 274 F 2d 381 (C A 5), Northern Virginia Steel Corp v. N.L R B., 300 F.2d 168 (C A 4) 36 As found above, it was Nickerson who, in the summer of 1966, sug- gested to some of her coworkers that they unionize in order to better their working conditions 39 Dannen Grain and Milling Company v N L R.B, 130 F.2d 321,328 (C A. 8). CHARLES KUSHINS CO. resolved for many months or possibly years, the Company requests that you consent to the foregoing proposed wage increases so that these employees may enjoy the benefit of increased monthly wages immediately. The Employer will commence payment of the foregoing wage increases on February 1, 1967. Please advise me immediately if you object to the payment of the proposed wage increases so that the employees may be advised in advance as to why they are not receiving the increased salaries. The General Counsel contended at the hearing and ar- gued in his brief that by granting wage increases men- tioned in the above-quoted letter, Respondent violated Section 8(a)(5) and (1) of the Act. The Trial Examiner finds this contention and argument to be without merit or substance. Accordingly, the Trial Examiner recommends that the allegations of the complaint with respect to these wage increases be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and, such of them as have been found to constitute unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1), (3), and (5) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent on September 2, 1966,38 and at all times material thereafter, has refused to bargain collectively with the Union as the duly designated representative of the employees in an appropriate unit, it will be recommended that Respondent, upon request, bargain collectively with the Union as the exclusive representative of said employees, and, if an agreement is reached, embody such understanding in a signed agree- ment. Having found that Respondent has discriminated in re- gard to the hire and tenure of employment and the terms and conditions of employment of Janet Hickerson, it will be recommended that Respondent offer her immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges. It will also recommend that Respondent make Janet Hickerson whole for any loss of pay she may have suffered by reason of Respondent's dis- crimination against her by payment to her of a sum of money equal to the amount she normally would have earned as wages from September 10, 1966, the date of her discharge, to the date of Respondent's offer of rein- statement, together with interest thereon at the rate of 6 percent per annum, less her net earnings during said period. 349 Loss of pay shall be computed and paid in the manner and to the degree set forth in F. W. Woolworth Company, 90 NLRB 289, and in Isis Plumbing & Heating Co., 138 NLRB 716. The unfair labor practices found to have been engaged in by Respondent are of such a character and scope that in order to insure Respondent's employees their full rights guaranteed them by the Act, it will be recom- mended that Respondent cease and desist in any manner from interfering with, restraining, and coercing its em- ployees in their exercise of the rights to self-organization. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce or in a business affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All Respondent's nonselling Oakland, California, store employees, excluding all other employees covered by existing bargaining agreements, confidential em- ployees, guards, and supervisors as defined in the Act, constitute, and at all times material constituted, a unit ap- propriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. On September 1, 1966, and at all times since, the Union has been, and now is, the exclusive representative of Respondent's employees in the aforesaid unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on and after September 2, 1966, to bar- gain collectively with the Union as the exclusive representative of the employees in the aforesaid unit, Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. 6. By granting two employees pay increases in Oc- tober 1966, without notice to or consultation with the Union, Respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. By discriminating in regard to the hire and tenure of employment and the terms and conditions of employment of Janet Hickerson, at the time and in the manner set forth in the foregoing findings of fact, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 8. By the aforesaid discrimination, and by interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed by Section 7 of the Act, as found in the foregoing findings of fact, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 9. By (1) unlawfully questioning its employees about their union activities and sympathies, (2) by unlawfully questioning its employees regarding the union member- ships, activities, and sympathies of their coworkers, and (3) by granting pay increases to Patricia Comber and Betty Carlsen in October 1966, Respondent has engaged 3" The date Respondent received the Union's September I letter requesting recognition and bargaining 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 10. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 11. By granting pay increases to some employees in February 1967, Respondent did not violate the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the record as a whole, the Trial Examiner recommends that Respondent, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Office & Technical Employes' Union, Local 29, AFL-CIO, as the exclusive representative of all the employees in the unit hereinabove found appropriate with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of employment. (b) Discouraging membership in, or activities on be- half of, Office & Technical Employes' Union, Local 29, AFL-CIO, or any other labor organization of its em- ployees by discharging, laying off, or in any other manner discriminating against any of its employees, in regard tc their hire or tenure of employment, or any term or condi- tion of employment. (c) Unlawfully interrogating its employees concerning their activities and sympathies on behalf of any labor or- ganization. (d) Unlawfully interrogating its employees regarding the union memberships, activities, and sympathies of their coworkers. (e) Granting its employees pay increases in order to discourage membership and activities in support of the Union. (f) Granting its employees pay increases without prior notice to or consultation with the Union. (g) In any manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the Office & Technical Employes' Union, Local 29, AFL-CIO, or any other labor organization, to bar- gain collectively through representatives of their own choosing, or to engage in other concerted activities for the purposes of mutual aid or protection, as guaranteed by Section 7 of the National Labor Relations Act, as amended, or to refrain from any and all such activities. 2. Take the following affirmative action which the Trial Examiner finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with the Office & Technical Employes' Union, Local 29, AFL-CIO, as the exclusive representative of the employees in the described appropriate unit, with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of employment, and if an un- derstanding is reached, embody such understanding into a signed agreement. (b) Offer to Janet Hickerson immediate and full rein- statement to her former or a substantially equivalent posi- tion, without prejudice to her seniority or other rights and privileges previously enjoyed. (c) Make Janet Hickerson whole for any loss of earnings she may have suffered as the result of Respond- ent's discrimination against her, in the manner and to the degree set forth in the section of the Decision entitled "The Remedy." (d) 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 the terms of this Recommended Order. (e) Notify Janet Hickerson if presently serving in the Armed Forces of the United States of her right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. (l) Post at its store in Oakland, California, copies of the attached notice marked "Appendix."39 Copies of said notice, to be furnished by the Regional Director for Re- gion 20, after being duly signed by its representative, shall 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 employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.40 IT IS FURTHER RECOMMENDED that unless on or before 20 days from the date of receipt of this Decision the Respondent notify said Regional Director, in writing, that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. IT IS FURTHER RECOMMENDED that the allegations of the complaint that Respondent violated Section 8(a)(5) and (1) of the Act by granting to some of its employees wage increases in February 1967 be dismissed. 39 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 Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 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 has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT discourage membership of any em- ployees in the Office & Technical Employes' Union, Local 29, AFL-CIO, or any other labor organization of our employees, by discharging employees or by discriminating in any manner in regard to hire or CHARLES KUSHINS CO. 351 tenure of employment or terms or conditions thereof. WE WILL NOT unlawfully interrogate employees concerning their union activities and desires and the union membership and desires of other of our em- ployees. WE WILL NOT grant to our employees pay in- creases, in order to induce them to refrain from becoming or remaining members of the Union or giv- ing any assistance or support to the Union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor or- ganizations, to join or assist the above-named or any other labor organization, to bargain collectively with representatives of their own choosing , to engage in concerted activities for the purpose of collective bar- gaining, or other mutual aid or protection, and to refrain from any or all such activities. WE WILL, upon request, bargain collectively with the above-named Union as the exclusive representa- tive of all our employees in the unit found ap- propriate with respect to grievances, labor disputes, rates of pay, hours of employment, and other terms and conditions of employment , and, if an understand- ing is reached, WE WILL embody such understanding in a signed agreement . The bargaining unit is: All our nonsell Oakland, California, store em- ployees, excluding all other employees covered by existing bargaining agreements , professional employees, confidential employees, guards, and supervisors as defined in the National Labor Relations Act, as amended. WE WILL offer to Janet Hickerson immediate and full reinstatement to her former or a substantially equivalent position, without prejudice to her seniori- ty and other rights and privileges, and make her whole for any loss of pay she may have suffered because of the discrimination against her with 6-per- cent interest. If she should currently be serving in the Armed Forces of the United States, we will notify her of her right to full reinstatement upon application after discharge from the Armed Forces in ac- cordance with the Selective Service Act and the Universal Military Training and Service Act, as amended. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named or any other union, except to the extent that this right may be affected by an agreement in conformity with Section 8(a)(3) of the National Labor Relations Act. Dated By CHARLES KUSHINS CO. - OAKLAND (Employer) (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, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-3797.