Jaison's

JAISON'S J. M. Batter Co., Inc. d/b/a Jaison's and Retail Clerks International Association, Local 1407, AFL-CIO. Case 6-CA-6892 June 26, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On February 22, 1974, Administrative Law Judge John F. Corbley issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as herein modified. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified, and hereby orders that Respondent, J. M. Balter Co., Inc. d/b/a Jaison's, Pleasant Hills, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified below: 1. Substitute the following for paragraph 2(a): "(a) Offer Keith M. Puhl immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privi- leges, and make him whole for any loss of pay he may have suffered as the result of the discriminatory dis- charge, in the manner set forth in The Remedy section of the Administrative Law Judge's Decision." 2. Substitute the attached notice for that of the Administrative Law Judge. ! The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Admmistrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces as that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 1 After a trial at which all sides had the chance to give evidence, it has been decided that we, J. M. Balter Co., Inc. d/b/a Jaison's have violated the National Labor Relations Act, and we have been ordered to post this notice. The National Labor Relations Act gives all em- ployees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a represen- tative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all these things. Accordingly, we give you these assurances: WE WILL NOT interrogate you concerning your union membership, activities, or sympathies or those of your fellow employees. WE WILL NOT try to make you, our employees, believe that we have ways of finding out whether, you participated in union activities. WE WILL NOT hold out to you the possibility that you would receive improved benefits if the Union were not seeking to organize you. WE WILL NOT do anything which interferes with any of your rights above. WE WILL NOT discharge you, close down any part of our business, or take any reprisal action against any of you because you join, support, or engage in organizational activities on behalf of Retail Clerks International Association, Local 1407, AFL-CIO, or any other union. WE WILL offer to reinstate Keith M. Puhl to his former job or, if that job no longer exists, to a substantially equivalent position, with full se- niority and all other rights and privileges, as the Board has found that he was discharged because he supported the organizational campaign of the above-named Union. WE WILL also make up all pay Keith M. Puhl lost because of his discharge, with 6-percent in- terest. J. M. BALTER CO., INC. d/b/a JAISON'S (Employer) 212 NLRB No. 2 2 Dated By DECISIONS OF NATIONAL LABOR RELATIONS BOARD (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 412-644-2977. DECISION STATEMENT OF THE CASE JOHN F. CORBLEY, Administrative Law Judge: A hearing was held in this case on December 12, 13, and 14, 1974, at Pittsburgh, Pennsylvania, pursuant to a charge filed by Re- tail Clerks International Association, Local 1407, AFL- CIO (hereinafter referred to as the Union), and served on Respondent on August 13, 1973, and on an amended charge filed by the Union on October 29, 1973, and a complaint and notice of hearing dated October 31, 1973, issued by the Acting Regional Director for Region 6 of the National La- bor Relations Board, which were likewise duly served on Respondent. The complaint, which was amended at the hearing, alleges that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Keith M. Puhl, because he engaged in union activities, by interrogating employees about their union activities, by creating the impression of surveillance of union activities, and by withholding or threatening to withhold benefits from its employees to in- duce them to forego bargaining representation by the Union. In its answer, which was also amended at the hear- ing, Respondent denied the commission of any unfair labor practices. For reasons which will appear hereinafter, I find and conclude that Respondent has violated, and is violating, Section 8(a)(3) and (1) of the Act by discharging Puhl and that it has also violated Section 8(a)(1) of the Act by creat- ing the impression of surveillance of union activities, by certain acts of interrogation by its supervisors, and by cer- tain statements to its employees that Respondent was with- holding certain benefits because of the Union. I further conclude that Respondent has not violated Section 8(a)(3) and (1) of the Act in respect to certain other allegations of the complaint. At the hearing all parties were represented by counsel (except that counsel for the Charging Party was not present each day). All parties were given full opportunity to exam- ine and cross-examine witnesses, to introduce evidence, and to file briefs. All parties waived oral argument at the conclu- sion of the hearing. Briefs have subsequently been filed by the General Counsel and Respondent and have been con- sidered. Upon the entire record I in this case, including the briefs, and from my observation of the witnesses, I make the fol- lowing: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT The Respondent is a Pennsylvania corporation with its principal office located in Braddock, Allegheny County, Pennsylvania . Respondent is engaged in the retail sale of clothing. During the past 12-month period immediately pre- ceding the issuance of the complaint and notice of hearing, Respondent's gross sales were in excess of $500,000 and, during the same period, it received goods and materials valued in excess of $50 ,000 directly from points outside the Commonwealth of Pennsylvania for use at its stores located within the Commonwealth of Pennsylvania. The complaint alleges, the answer admits, and I find that Respondent is now, and has been at all material times here- in, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits , and I find that the Union is, and was at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. III RESPONDENT'S HIERARCHY William H. Balter is the secretary and treasurer of Re- spondent- (he and his two brothers, Oscar and Henry, are Respondent's owners), Edgar Novick is Respondent's shoe buyer, and George C. Lee is its operations manager. Ms. Louise Sharpe was the manager of Respondent's Southland store in Pleasant Hills, Pennsylvania, here involved, until late September 1973, when she was transferred to another store. The complaint alleges, the answer admits, and I find that William H. Balter, Edgar Novick, and Louise Sharpe are now, and have been, agents of Respondent acting on its behalf, and supervisors within the meaning of Section 2(11) of the Act. Based on his, admitted authority to hire and discharge employees and the stipulation of the parties I further find that George C. Lee is a supervisor within the meaning of Section 2(11) of the Act. IV THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events Respondent was founded under a somewhat different name in 1909. It now has four stores in Allegheny County, Pennsylvania. At the Southland store, here involved, Re- spondent sells, inter alia, coats, dresses, and shoes. Keith M. Puhl, the alleged discriminatee, was hired by Respondent in March 1973 as a part-time shoe sales clerk at the Southland store. About 4 weeks later he became a The errors in the record have been noted and corrected JAISON'S full-time salesman in the shoe department at the same store. Puhl is 20 years old. On or about June 22,1973, Puhl met with Novick and Lee at the Southland store. The purpose of this meeting was to inform Puhl that he had just been promoted to be the head of the shoe department. Novick outlined Puhl's new duties to him at this time and advised him that he would receive a salary increase. Puhl accepted the new position and con- tinued in it until his termination on August 11, 19732 On July 9, 1973, Puhl called Sloan, a union organizer, to inquire how the employees of Respondent's Southland store might organize or join the Union. Sloan suggested that Puhl come to his office. On July 11, 1973, Puhl visited the Union' s office in Pitts- burgh and met with Thomas Best, another union organizer, who also represented the Union at the hearing herein. Best and Puhl discussed the matter and Best gave Puhl a union application which Puhl then signed and returned to Best. Puhl was also given other applications and business cards to take with him. Puhl went directly to the Southland store from Best's office, talked to various employees about the Union, and passed out the union applications and union business cards. Among the employees with whom Puhl spoke on this occa- sion were Antoinette Comis, Monica Kapsha, Ken Clark, Charles Hanchak, Dottie Dojuna, Donna Zawaraski, and Doris Smith 3 Puhl continued his union organizing activities until the time of his discharge, as will appear. Also on or about July 11, 1973, Puhl had a disagreement with Ms. Sharpe, the store manager, about Puhl's authority to schedule an employee to work on a certain Saturday. Puhl had gone ahead and arranged for an employee from another department to work in the shoe department on that day. Sharpe reprimanded him for this action and advised him that this was her function and that it was beyond the scope of his authority. On July 14, 1973, Lee visited the Southland store and had a meeting in the store office with Puhl and Sharpe. Lee also advised Puhl at this time that he, Puhl, did not have authori- ty to transfer an employee into his department because this was Sharpe's responsibility.4 2 Novick and Lee testified-and Puhl denied-that Puhl advised Novick and Lee at this same meeting that he, Puhl, had Job applications pending with two other shoe stores, Kinney and Hanover. According to Novick and Lee, Puhl also said that he was interested in Hanover and would take a job there if one came through. I find it unnecessary to resolve this credibility conflict because it bears no relation to the essential issues of the case. That is, regardless of what was said, if anything, in this regard by Puhl, he became the shoe department manager of Respondent and neither Lee nor Novick claimed that they imposed any sanction upon him at that time because he may have been seeking other employment. Novick testified, in fact , that he told Puhl that "we would go along with him," although Novick further testified that he asked Puhl to let him know if Puhl heard from Hanover. I credit Novick and Lee as to the date of this meeting. Puhl stated he was promoted "approximately on June 11, 1973." 3 Puhl credibly so testified. Comis confirmed that Puh] spoke to her con- cerning the Union and gave her a union card to sign at this time. a Lee further testified-and Puhl denied-that Lee warned Puhl on this occasion that if Puhl's conduct was repeated it would be cause for dismissal. I likewise find it unnecessary to decide this credibility question because it has no bearing on the ultimate issues of the case . There is no indication that this matter ever came up again and it did not relate to the reasons for, or circum- stances surrounding, Puhl's termination. 3 On or about July 16 or 18, 1973, Puhl had a disagreement with Sharpe and gave notice that he was going to quit his employment with Respondent in a week unless he received a raise in salary and a commission or discount.' Puhi admit- ted that he had determined to resign at this time even if he were unable to obtain another job (his applications else- where will be discussed hereinafter). Several days later Novick called Puhl and told Puhl that he had heard that Puhl had given notice. Novick inquired whether Puhl desired to remain with Respondent 6 After Puhl answered in the affirmative, Novick stated he would try to arrange a meeting to straighten the matter out. A meeting was arranged and was held at the Southland store on July 26, 1973. In attendance were Puhl and his superiors, Lee, Novick, and Sharpe. Although Puhl's re- quest to Sharpe for more money had, in part, triggered this meeting, money was not discussed. The meeting instead centered on two matters-the extent of Puhl's authority as shoe department manager and Puhl's notice to the others in attendance that he, Puhl, then had pending applications for employment at Kinney's and Hanover's. In testifying about this meeting Puhl stated that, after thinking over the matter following his demand for greater renumeration, he came to the conclusion that the real issue was his authority. When he spoke to his superiors at this meeting he therefore insisted on having authority to ap- prove credit and due bills and Lee, or Lee and Sharpe, gave him this authority. After the question of his authority was settled Puhl an- nounced to Novick, Lee, and Sharpe that he had applica- tions pending with Kinney's and Hanover's, two shoe stores in the area. Puhl told his superiors that he was particularly interested in working for Hanover's if the latter made him a suitable offer. Puhl then asked his superiors the question whether, if he gave 2 weeks' notice, they would desire him to step down as department head and be a shoe clerk in the interim. This offer was declined. Puhl was rather asked by Novick to remain with Respondent 7 and Puhl did remain.8 The events of the July 26 meeting as thus far described are not in controversy.9 There is a sharp conflict, however, between the testimony of Lee and Novick on the one hand, and Puhl, on the other, in respect to the further reaction, if any, of Lee and Novick at the meeting of July 26, to Puhl's statement that he would resign to work for Hanover's if a suitable offer from that company was forthcoming. Lee and Novick testified-and Puhl denied-that Novick further told Puhl at this meeting 5 Puhl credibly testified that these were the conditions under which he would remain. Novick admitted that Sharpe told him, Novick, several days later; that Puhl had told Sharpe that Puhl would give notice if he did not get a raise. 6 Novick had a high opinion of Puhl's performance, as Novick admitted in his testimony. 7 Novick so admitted in his testimony. 8 Puhl had originally filed an application with Hanover in July 1972 which he renewed, orally, to the manager of its store in Allegheny Center on some date between July 18 and 26, 1973 Puhl had also filed an application with Kinney's at the same time he had filed an application to work for Respondent and he filed another application with Kinney's on or about July 18, 1973. 9 The foregoing findings as to the July 26 meeting are based on the credible testimony of Puhl and these findings are either corroborated or not disputed in the testimony of Sharpe, Lee, and Novick. 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Puhl must let Novick know by August 4, 1973, whether Puhl had decided to take other employment. Novick ex- plained in his testimony that in August Respondent's busi- ness picked up based on "back to school" purchases and that this busy season lasted into the holidays in December. Novick further testified that with this expectation for in- creased sales beginning in August and with the consequent necessity to make certain that the store was adequately covered by sales personnel, he, Novick, had to know in early August whether Puhl was going to stay or leave. In certain other places in his testimony Novick also stated he spoke to Puhl several times between July 26 and August 4, 1973, to inquire whether Puhl had gotten in touch with Hanover's. According to Novick, Puhl responded either that he could not get in touch with the Hanover manager or that the latter was out of town. Novick also testified that in these conversations Puhl never told him, Novick, whether or not he, Puhl, was going to stay with Respondent or go to work with Hanover. Puhl admitted that he spoke to No- vick several times in this period but denied that the subjects of the August 4 deadline and Puhl's possible resignation to work for another employer were discussed. Finally, Lee and Novick testified that they had a conver- sation on August 7, 1973. At that time Novick informed Lee that Puhl had failed to tell Novick of Puhl's future plans by August 4. It was then agreed between Novick and Lee, according to their testimony, that Lee would discharge Puhl on August 11, 1973. Based on my resolutions of credibility I conclude that no mention of any deadline of August 4 was made at the in- stant meeting of Lee, Novick, Sharpe, and Puhl on July 26, 1973, and, further, that the matters of this purported dead- line and of Puhl's future plans were not discussed in conver- sations between Puhl and Lee between July 26 and August 4, 1973.101 do conclude, however, that during the course of 10 I found Puhl to be a well poised, candid, and precise witness He testified in my Judgment in a forthright manner and , on several occasions, he insisted that certain documents (his sales receipts) be carefully examined by him before he would testify in respect to their contents He also refused to be led by questions of the General Counsel and the representative of the Charging Party, where he was uncertain of his answers Finally he corrected certain questions by counsel for Respondent including the reading by the latter of his, Puhl's, affidavit Novick created a less favorable impression At one point in his cross- examination he confused the June 22, 1973, meeting with Puhl with their meeting on July 23, 1973 Then, after testifying that the latter meeting dealt with Puhl's demand for higher wages, he testified that money was not dis- cussed at that gathering Nor did Novick recall that Puhl's authority to approve due bills and credit was discussed at that meeting although the testimony of Lee and Puhl make it clear that this matter was a very important aspect of the instant confrontation On direct examination Novick at first denied speaking to Puhl between July 26 and August 4, then, when pressed by Respondent's counsel , Novick stated that he spoke to Puhl by telephone during this period and still later in his testimony he stated that he spoke to Puhl in person as well as during this same time frame When testifying in respect to these calls Novick, after insisting on the importance of his being able to learn Puhl's plans by August 4, admitted that he did not tell Puhl, when he spoke to Puhl on the latter date , that such date was Puhl's "dead- line" In this same vein, despite his claimed desire to know Puhl 's plans by August 4, Novick did nothing about the matter until , according to Novick, Lee called Novick on August 7 and Lee raised the matter of Puhl's future plans. Novick had no explanation why there was a 4-day delay until August I I before Puhl was discharged I also observed Novick during his cross- examination by the General Counsel, darting glances in the direction of his superior, William Baiter, who was seated at the counsel table a conversation between Lee and Novick during the week preceding August 11, 1973, they decided to discharge Puhl. During the last 2 weeks of Puhl's employment with Re- spondent his activities on behalf of the Union intensified. Thus, during this period he decorated the hard cover of his sales book.' On the front of this hard cover Puhl printed his name and number and flowers were also drawn thereon. On the back of this hard cover, Puhl attached a printed exhortation for employees to sign authorization cards for the Union and he also attached a drawing of a toilet seat on which appeared the name "J. M. Balter Co." and language in a bubble stating "look at me ... I hop out of bed every morning rann' to go" and the printing "We're in the mon- ey." Sharpe, the store manager, wrote up sales in Puhl's book or approved discounts by initialing Puhl's book during this period at least until August 6.12 On August 1, 1973, Puhl made arrangements to have an employee meeting on August 7 at which employees could ask questions and discuss benefits with union representa- tives. This meeting was held on August 7 at a Howard Johnson's on Route 51 in Pleasant Hills. Appearing at the meeting were Thomas Best and other union representatives as well as approximately nine employees of Respondent including I'eith Lew, Antoinette Comis, Doris Smith, Nor- man Norris, Ken Clark, Chuck Hanchak, and a lingerie department store employee whose first name was Rita. Between the day of this union meeting and August 11, Puhl collected some eight union applications from his fellow employees which he handed over to union representatives. Lee also created a less favorable impression than Puhl Lee on direct examination , stated that his conversation with Novick on August 7 was in person On cross-examination Lee stated that the conversation took place in a phone call Lee also testified that he could have been in the Southland store on August 4 and through the week, but later he could not recall if he was in the store that week I also found Lee evasive in one important aspect of his testimony The General Counsel asked him whether he had any conversations with Sharpe in regard to the Union He responded that in a telephone conversation with Sharpe on August 9, 1973, Sharpe told him she had heard of a "meeting" Lee then claimed that Sharpe did not say it was a "union meeting," yet he had no explanation how he related his answer that Sharpe told him there was a "meeting" to General Counsel's question whether he had spoken to Sharpe about the "union " Lee's testimony was also contrary to that of Baiter in respect to a conversa- tion on August 13, 1973, between Lee and Baiter in which, according to Baiter, Lee reported to Baiter that he, Lee, had heard that efforts were being made to organize the Southland store Lee stated that in this conversation he brought Baiter up to date on matters occurring while Baiter had been away on vacation (According to Baiter, Baiter had been away on a buying trip before August 13 and Baiter did not begin his vacation until August 15) Lee said he told Baiter that there had been a "meeting" and that this was all Lee told Baiter about the matter Lee's testimony also disagreed with that of Novick Lee testified that Novick, rather than he, instituted the telephone call of August 7 in which it was decided that Puhl would be discharged Lee stated that it was he, Lee, who, during the course of the meeting of July 26, gave Puhl the deadline of August 4 to advise Respondent of Puhl's future plans Novick testified that he, Novick, set his deadline Unless I state otherwise, where the testimony of Puhl disagrees with that of Lee and Novick, I credit Puhl it This hard cover was maroon in color, appeared to be of heavy card- board, and the sales book was inserted in it so that the sales book, in effect, was like the pages of a book and the cover served the same purpose as a book's hard binding, except that the sales book could be removed from the cover and replaced with another sales book 12 Only three people have authority to approve discounts in the Southland store . Of these only Sharpe has the initials "L S " which appear on sales slip 6492-7 dated August 6, 1973 JAISON'S 5 Also not long before his discharge Puhl tore two full pages out of two of the union pamphlets he had and posted these pages on the back bulletin board of the employees' lounge and above the thermostat in the shoe department at the Southland store.13 On August 8, 1973, Sharpe overheard employees in the lunchroom talking about a meeting and the Union and Sharpe reported what she overheard to Lee on August 9, 1973. Sharpe specifically told Lee that she had heard there was a meeting the night before and, further, the word "union" was mentioned in the conversation about the meet- thg14 On Saturday, August 11, during the afternoon Lee dis- charged Puhl. The discharge took place in the following manner. Lee visited the Southland store and he and Sharpe met with Puhl in the back stockroom hallway. Lee told Puhl that Lee was sorry but because Puhl was looking for jobs with other companies Respondent could not rely on Puhl's staying with Respondent for any length of time. To this Puhl re- sponded that Lee could forget' about the other companies since Puhl was staying with Respondent "definitely." Lee rejoined that this could not be done since "plans are made." Puhl asked why he could not stay but Lee said it "just" could not be done. Lee then told Puhl he wanted Puhl to resign as department head. To this Puhl asked if he could become a shoe salesman but Lee insisted that Puhl resign altogether whereupon Puhl could collect unemployment. Puhl refused. Lee then said Respondent "had no work" for Puhl. Puhl asked if he was being fired and, when Lee an- swered in the affirmative, Puhl offered to stay for the re- mainder of the day. Lee declined this offer and Puhl punched Out. 15 On the morning of August 13, a Monday, William Baiter spoke to employee Antoinette Comis at the Southland store. After a brief exchange of pleasantries, Balter told Comis that he understood there were some "goings on" in the Southland store and that such could not have happened at a better time because it helped him decide what to do, since, he said, his lease would be up in May 1974.16 Balter contin- ued that it made him feel bad that a 20-year-old boy could influence a store full of women.17 Balter then asked Comis whether she realized how many would then become unem- ployed pointing out that he, Balter, felt particularly sorry for Peggy Carmichael, a self-supporting divorcee. Baiter told Comis that he, Balter, had been in business for 45 years, was set financially, and needed no one to come in and tell him what to do. Comis responded that she did not feel that this activity was "anything against" Baiter or Balter's brothers but was due to management. Balter re- 13 The findings as to Puhl's union activities during this period are based on the credible testimony of Puhl and Doris Smith in this regard. 14 Sharpe so admitted in her testimony. Lee, as previously mentioned, denied that Sharpe told him anything about the Union. 15 These findings are based on the credible testimony of Puhl, which was not essentially disputed in this regard in the testimony of Sharpe and Lee 16 The lease on the Southland store will not expire until March 1975 However, Batter may well have been confused on the point. For the 10-year lease on its face had the commencement date of 1964 with the "4" in the year stricken and the figure "5" written over it. 17 Puhl was the only 20-year-old male working in the Southland store at that time. joined that management would be retiring at the end of the year. Comis then asked Balter whether, if the girls had a change of mind, would he continue in business. Balter replied that he would not say because he would have to speak to all the girls. Then, after mentioning something about playing more golf, Baiter left.18 On August 13, 1973, the Union filed a petition in Case 6-RC-6578 for a Board-conducted election among the em- ployees of the Respondent's Southland store. On August 20, 1973, Sharpe spoke to employee Novak about the Union. In this conversation which occurred at the Southland store Novak volunteered to Sharpe that several employees had approached her, Novak, to join the Union. Sharpe then inquired whether Novak had joined the Union to which Novak responded in the negative. Sharpe then asked Novak which employees had approached her. Novak told Sharpe that different ones had done so, but it does not appear that Novak gave their names to Sharpe.19 On October 29, 1973, the Union filed an amended peti- tion with the Board in Case 6-RC-6578 for an election among the employees at Respondent's Southland store, al- though there was apparently a later agreement to expand that unit to all four of Respondent's stores. On or about November 27, 1973, the petition in Case 6-RC-6578 was withdrawn by the Union. On November 30, 1973, the Union again filed a petition with the Board for an election among the employees of the Southland store. This petition was denominated as Case 6-RC-6688. On December 5, 1973, Respondent sent a letter to the employees of all four of its stores including those at the Southland store, which stated, in part, as follows: A few weeks ago either Mr. O. M. or I spoke to you about an election that had been scheduled to take place on January 16, 1974, at which time you would have had the opportunity to vote as to whether you wanted the Retail Clerks Union to represent you or not to repre- sent you. Since that time, many things have happened which are of great importance to you and to Jaison's. The first thing that happened was that the Union withdrew its Petition for the election which had been scheduled for January 16th. The effect of this with- drawal was to cancel out the election which had been scheduled. The second thing which happened was that 11 These findings as to the incident involving Batter and Comis on August 13, 1973, are based on the credible testimony of Comis in this regard. Comis I found to be a calm, well-poised witness who testified in a straightforward manner Baiter, on the other hand, was a very anxious witness who frequently opened and closed his hands and shifted positions while in the witness chair. He also volunteered testimony on several occasions and gave answers before the questions were completed. His testimony on another subject-the matter of whether employees were told about a future fringe benefit program- contains a number of inconsistencies , as will appear. His testimony as to when the benefit program would be ready to go into effect is also somewhat confusing 19 These findings are based on the testimony of Novak and Sharpe to the extent that such testimony does not disagree. In view of Novak's admitted failure of recollection as to the sequence of this conversation and Sharpe's denial that she, Sharpe, initiated it, I do not conclude that Sharpe began the conversation nor that Sharpe's first inquiry was whether Novak knew any- thing about the Union. 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on November 30, 1973, this past Friday, the Union filed a new Petition in which it requested representa- tion of the employees at the Southland store only. As you remember from what I or Mr. 0. M. told you a few weeks ago, the original election was set up to include the employees in the four stores rather than only the employees in the Southland store. I can't tell you how sorry I am that this confusion has been created by the Union, since it will probably hold up the plans which we had been working on to improve your benefits and which we had hoped to be able to put into effect by January 1, 1974. I can tell you that even before the Union filed its first Petition for an election back in August of 1973, we had been discussing various plans to improve your fringe benefits, such as Blue Cross, Blue Shield, paid holidays and sick pay. However, when the Union filed the first election petition in August, we had to discontinue at that time the putting into effect of these plans which we had been discussing for some time. When the Union withdrew its petition sometime in the latter part of November of this year, we again re- vived our investigation of improvements for you with the idea of getting them into effect as of January 1, 1974. Again, the Union has thrown a road block into our ability to complete these plans for improved bene- fits for you by the filing of the second Petition on November 30, 1973. I can tell you that we are sincerely sorry that we cannot, at this time, carry through the plans that we were working on for your benefit. The reason for this is that it would be a violation of the law for Jaison's to put into effect these increased benefits that we were planning because of what the Union had done in filing this second Petition for election. The benefits mentioned in this letter were first discussed among William Baiter and his brothers in March 1973. Ac- cording to William Baiter the benefits program (or at least those benefits which related to insurance) would have been instituted in June 1973 but for "dilatory tactics" on the part of Respondent's insurance brokers. With the filing of the first election petition on August 13, 1973-on advice of counsel-no further steps were taken by Respondent to implement a benefit program at that time. Following the withdrawal of the petition in Case 6- RC-6578 on November 27, 1973, Respondent renewed its interest in a benefit program and in fact discussed it with at least one of its supervisory personnel, Lee. However, with the filing of the petition in Case 6-RC-6688 a few days later, again no benefits program was put into effect. Instead on December 5, 1973, the letter which is quoted, supra, was sent to all of Respondent's employees. As will be discussed more fully hereinafter, this was the first indication by Respondent to its employees that it was even considering such a benefit program. The benefit program referred to in the letter has not been put into effect. Nor has this benefit program as yet been finalized by Respondent.20 20 f so find based on the full testimony of William Batter in this regard B. Concluding Findings The extensive activities of Keith Puhl on behalf of the Union have already been documented in this decision. It was he who originally contacted the Union in July 1973. He thereafter spoke to his fellow employees about the Union, solicited them to sign union authorization cards, and passed out union business cards to them. He also posted union literature at the Southland store. His union activities reached their peak in the last week or so of his employment when he signed up some eight of his fellow employees in the Union, arranged for a union meeting, and decorated his sales book cover with an excerpt from certain union litera- ture in which excerpt employees were exhorted to sign union authorization cards. I am satisfied that Respondent knew of these activities on the part of Puhl before Puhl's discharge. Baiter admitted that he had learned from Lee that the Union was organizing the Southland store and that he, Baiter, had obtained this information before speaking to Comis on Monday morning, August 13, 1973. Baiter's expression of reaction against the "goings on" at the Southland store and against someone telling him, Baiter, what to do and his further comment that he felt badly that a 20-year-old boy could walk in and influence a store of women are obvious references to the union organizational efforts of Puhl, the only 20-year-old male in the store at that time. Also I consider it incredible that Sharpe, who handled Puhl's sales book regularly during this period did not notice the garish decorations and the union message attached to it I conclude rather that she did. Further in concluding that the Respondent knew of Puhl's activities before his discharge, I rely on the circumstances that his union activities were intensified in the last week of his employment and that his discharge followed abruptly and without plausible reason,21 as will be discussed, and the fact that during all his union activities he contacted at least 20 of the some 33 to 35 employees in this single retail store 22 engaging in many such activities at the store itself. Finally, since Lee was the Respondent official who discharged Puhl, I deem significant Lee's evasiveness in answering questions about information given to him about union activities at the store and about information relayed by Lee to Baiter on the same subject. The opposition of Respondent to these union activities is illustrated by Baiter's thinly veiled threat to Comis to close the store for this reason, a threat I will analyze in greater detail infra Hence, I conclude that Puhl initiated and was the princi- pal actor in the Union's campaign at the Southland store and that Respondent knew of these activities and was op- 21 Wall-Afart Stores, Inc, 201 NLRB 250, enfd 488 F 2d 114(C A. 8, 1973). 22 This last holding is essentially an application of what is sometimes called the Board's "small plant rule " See Wiese Plow Welding Co, inc, 123 NLRB 616 That this rule is a realistic appreciation of the probability that an employer will learn of the union activities of its employees in circumstances like the present case is well buttressed by direct evidence herein Thus, Sharpe admitted that on August 8. 1973, she overheard two female employees talking in the lunchroom about the union meeting and she reported this fact to Lee the following morning Sharpe was standing outside the door of the lunch- room when she overheard this conversation The findings as to the employee complement at the Southland store is based on the credible testimony of Sharpe in this regard JAISON'S 7 posed to them. The question then becomes whether Puhl was discharged because of these activities or rather, as Respondent asserts, because he did not inform Novick or Lee by the August 4, 1973, deadline of his, Puhl's, plans to stay with Respondent or take employment elsewhere. Since I have concluded, based on my credibility findings, that Respondent did not give Puhl a deadline of\August 4, 1973, this defense neces- sarily fails. However, even if I were to credit all of the testimony of Lee and Novick-which I have not done-in respect to their claims that Puhl previously warned them he would seek work elsewhere and that they established an August 4 deadline for Puhl to make up his mind-I would still reject this defense. To begin with, as I have already mentioned, Lee and Novick testified that Puhl first told them of his intentions to leave on June 22, 1973, yet they promoted him to shoe department manager on that same date. If, in fact, Puhl did so advise them at that time, their action in promoting him demonstrated either their unconcern or their desire to keep Puhl. Novick, in fact, admitted on the stand that he was "very satisfied with Puhl's work" and that Puhl impressed him "very much." When the matter of Puhl's leaving was mentioned on July 26, 1973, as Puhl freely admitted, Puhl was nonetheless asked to remain, according to Novick. The August 4 dead- line, which Lee and Novick claimed was set at the July 26 meeting, came and went without any action on Respondent's part. Novick even admitted that he spoke to Puhl on August 4 and did not mention the word "deadline" to Puhi. What then caused Respondent's attitude toward Puhl to change during the final week of Puhl's employment? The only possible unusual activity of Puhl during that week consisted of his union organizational efforts. And, as has been found, the Union's campaign definitely came to Respondent's attention during that week-if it had not be- fore-when Sharpe overheard the conversation about the union meeting in the lunchroom on August 8 and tele- phoned Lee about it. Finally, the manner of Lee's discharge of Puhl on August 11, raises a question that Puhl's alleged failure to notify Respondent of his plans was the real reason for his termina- tion. For Lee got Puhl's answer about Puhl's plans in the discharge interview before the discharge took place. That is, before Lee told Puhi that Lee "had no work" for Puhl, Puhl told Lee that Puhl was definitely staying with Respondent. Yet Lee persisted and Puhl was discharged 23 I conclude from all the foregoing that the reason Respon- dent discharged Puhl was Puhl's activities on behalf of the Union. By discharging Puhl for this reason, Respondent violated, and is violating, Section 8(a)(3) and (1) of the Act 24, Based on my credibility findings, I have also concluded 23 Since that time Puhl has not been replaced as shoe department manag- er-however, a sales clerk from another store was transferred to Southland sometime in the same month. za E g., Wal-Mart Stores, Inc., supra Northwest Oil Equipment, Inc, 173 NLRB 534. that William Baiter told employee Comis on August 13, 1973, at the Southland store that he, Baiter, understood there were some "goings on" at that store and he felt bad that a 20-year-old boy could walk in and influence a store of women. Since this remark is an obvious reference to the union activities of Puhl at the store, as has also been found, it clearly created in the mind of Comis that Respondent had engaged in surveillance of Puhl's activities. Balter's addi- tional remarks in respect to the expiration of his lease and how the "goings on" helped him make up his mind were an unmistakable threat to close that store in reprisal to the union campaign. I accordingly conclude that, in both the foregoing respects, Balter's remarks to Comis on this occa- sion violated Section 8(a)(1) of the Act 25 While I have found that Sharpe did not begin the conver- sation between herself and Novak on August 20, 1973, it is clear that during that conversation Sharpe asked Novak if she, Novak, had joined the Union and also inquired of Novak which of Novak's fellow employees had asked her to join. I know of no license in the Act which permits a supervi- sor to interrogate an employee about the employee's inten- tions-or her fellow employees activities-in regard to a union, merely because the employee broached the subject of a union in a conversation.26 I, accordingly, conclude-par- ticularly against the background of Respondent's prior un- lawful discharge of Puhl-that Sharpe's questioning of Novak on this occasion as to these matters was a coercive interrogation in violation of Section 8(a)(1) of the Act. This brings us then to the matter of the letter of December 5, 1973, in which Respondent informed its employees that it could not inaugurate a benefit program on January 1, 1974, in view of the filing of the Union's latest election petition. Central to the analysis of this letter and its impact upon the employees is the fact that this letter constituted the first communication by the Respondent to its employees that a benefit program was even being contemplated.27 This fact coupled with the statement in the letter that the program would not go into effect because the Union had filed a new election petition impel me to the conclusion that the pur- pose of the letter was to blame the Union for the employees' loss of otherwise unexpected benefits and thereby unlawful- ly interfere with the employees' support of the Union. In evaluating the effect of such an announcement upon employees during a union campaign, the Board's opinion in American Paper and Supply Co., 159 NLRB 1243 (where the unexpected benefit withheld was a wage increase), is in- structive. There the Board after noting that the employer 25 Hatteras Yachts, AMFIncorporated, 207 NLRB No. 156; cf. Rust Sales Company, 157 NLRB 681. 26 Cf Hotel Conquistador Inc, d/b/a Hotel Tropicana, 159 NLRB 1220, 1226, enfd. as modified, 398 F.2d 430 (C.A. 9, 1968). 27 William Baiter at first testified that he told certain "key employees" that a benefit program was in the offing after November 27, 1973, when the Union's earlier petition was withdrawn. Later, however, he testified that he spoke to no employees except Geoge Lee, the operations manager and an admitted supervisor within the meaning of the Act, with whom he spoke in the period between the withdrawal of the earlier petition and the filing of the later one on November 30, 1973. Still later he testified he told several supervi- - sors of the possibility of a benefit program and was concerned that they might have informed employees of his discussions with them. Finally, he admitted that he was not aware that any supervisors had so informed any employee and stated he strongly believed they had not. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had announced for the first time that it contemplated grant- ing a wage increase but was prevented from so doing be- cause of the Union's organizational campaign, went on to hold, at p. 1244, as follows: The natural effect of the announcement was to con- vince the employees that they did not need a union in order to obtain wage increases or other improvements in their conditions of employment. Moreover, by shift- ing to the union the onus for its not instituting the purported planned wage increase, the Respondent sought to disparage and undermine the union by car- rying [sic] 28 the impression that the union stood in the way of the employees getting a wage increase. Thus, Respondent held out to the employees a benefit they would be receiving but for the union. By the foregoing conduct, we find that the Respondent interfered with, restrained and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby violated Section 8(a)(1) of the Act. [Footnotes omitted.] Substituting for the "wage increase," referred to by the Board, the Employer's proposed benefit program of paid holidays, sick pay, and Blue Cross and Blue Shield health insurance benefits herein, I reach the same conclusion here as did the Board in American Paper. I therefore find that in sending the letter of December 5, 1973, to its employees at the Southland store Respondent violated Section 8(a)(1) of the Act 29 The General Counsel would also have me find that the failure of the Respondent to institute these benefits on and after August 13, 1973, constitutes an additional violation of Section 8(a)(3) and (1) of the Act. I disagree. To begin with, no program was formulated by August 13, 1973, nor has one been subsequently formulated, as I have already found. Moreover, from the period August 13 to December 5, 1973, I am at a loss to understand how the employees' Section 7 rights could be interfered with, nor their possible union loyalties discouraged, because they were not accorded a benefits program which was nonexis- tent and of whose potential existence they were unaware. The matter was never even brought to their attention until the letter of December 5. Hence the examination of the question whether an addi- tional violation of Section 8(a)(3) and (1) has occurred must begin with that letter. But what does the letter say? Reason- ably construed it says to me that the Respondent was inves- tigating a benefits program with a view towards implementing such a program by January 1, 1974. But- upon the filing of the second petition-the investigation stopped and the plans for the program will not be completed and cannot be completed, implies Respondent, until the election matter is disposed of 0 28 Apparently "conveying" was intended 29 In arguing that this announcement did not violate Section 8(a)(1), Re- spondent relies in its brief upon Wassau Steel Corporation, 160 NLRB 635 Wassau is distinguished by the fact that in Wassau, unlike here, the "would be" benefit was not being mentioned for the first time in the employer's announcement-the employer's comment thereon rather being made in re- sponse to union propaganda wherein the matter had already been raised 30 Batter's statement on the stand that the programs would go into effect immediately but for the petitions-which is relied upon by the General Counsel-must be read in the light of Batter's later testimony-which is Other than Ballet's testimony and the letter there is no evidence dealing with the possibility that Respondent might have deprived employees of certain emoluments in order to discourage their union activities. But that letter and Balter's testimony, in my judgment, fall short of establishing that Respondent has thereby discriminated in "regard to hire or tenure of employment or any term or condition of employ- ment to encourage or discourage membership in any labor organization," as Section 8(a)(3) of the Act proscribes. The terms or conditions of employment which the em- ployees might have been deprived of were simply never ar- rived at because the investigation into proposals for improving employee benefits ceased. That the Respondent's announcement to this effect violates Section 8(a)(1), I have already found. That such announcement and the other evi- dence suggest that the employees were in fact deprived of some benefit program, I conclude, has not been proved by the General Counsel. Accordingly, I shall recommend dis- missal of this last allegation in the complaint.31 IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. V THE REMEDY The recommended Order will contain the conventional provisions for cases involving findings of interference, re- straint, and coercion and unlawful discharge in violation of Section 8(a)(l) and (3) of the Act. This will require Respon- dent to cease and desist from the unfair labor practices found and to post a notice to that effect which will also state the affirmative action Respondent will be required to take to remedy its discharge of Keith M. Puhl. Thus, Respondent will be required to offer Puhl reinstatement to his former position or, if that position no longer exists, to a substantial- ly equivalent position, without prejudice to his seniority or other rights and privileges. He will be made whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he would have earned from the date of the offer of reinstatement, less net earnings, if any, during such period, to be computed in the manner pre- scribed in F W. Woolworth Company, 90 NLRB 289, with 6-percent interest thereon as prescribed by Isis Plumbing & Heating Co., 138 NLRB 716. consistent with the letter-that there is still no plan for that benefit program I conclude in the light of this later testimony, which was adduced by the General Counsel on cross-examination, that what Batter meant by his state- ment that the plan could go into effect immediately upon the withdrawal of the petition, was that such would have been the case if the plan had been finalized by the time of the hearing J1 Respondent's motion to dismiss the complaint, taken under advisement by me at the conclusion of the hearing, is denied in part and granted in part consistent with my Concluding Findings herein JAISON'S 9 It will be recommended in view of the nature of the unfair labor practices in which Respondent has engaged (see N.L. R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536) that Respon- dent be ordered to cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. Finally, it will be recommended that the notice to em- ployees shall be posted at all four stores. This recommenda- tion rests on the fact that, as the Respondent's letter dated December 5, 1973, to its employees indicates, it was agreed between the Respondent and the Union sometime after August 13, 1973, that the four-store unit was appropriate and that the election would be held therein. It follows that, although the petition on which that agreement was based has subsequently been withdrawn, the continuing effects of Respondent's unfair labor practices-at the Southland store-among all the employees of the four-store unit of which the Southland store had been agreed to be a part, remain unremedied. Moreover, as Respondent advised all its employees in its letter of December 5, 1973, it continues to take the position that only the four-store unit is appropri- ate. If Respondent prevails before the Board with this con- tention or the Union again agrees to a four-store unit, this is yet a further reason to insure dissipation of the effects of Respondent's unfair labor practices in that unit in which the Southland store, where the unfair labor practices occurred, would again be a part.32 CONCLUSIONS OF LAW 1. Respondent is engaged in commerce and the Union is a labor organization all within the meaning of the Act. 2. By discharging Keith M. Puhl because of his activities on behalf of the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By threatening to close its Southland store in reprisal against the union activities of its employees, by creating the impression of surveillance of employees' union activities, by coercively interrogating an employee about her own or her fellow employees' union activities, and by holding out the possibility that employees would receive additional benefits but for the Union, Respondent has violated and is violating Section 8(a)(I) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 32 This recommendation is NOT to be construed as a finding as to the appropriate unit-which is a question that is not before me. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c)-of the Act, I hereby issue the following recom- mended: ORDER33 Respondent, J. M. Balter Co., Inc. d/b/a Jaison's, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in, or activities on behalf of, Retail Clerks International Association, Local 1407, AFL-CIO, or any other labor organization, by discriminat- ing in regard to the hire and tenure of employment or in any other manner in regard to any term or condition of employ- ment of any of Respondent's employees in order to discour- age union membership or union or other concerted activities. (b) Coercively interrogating employees concerning their own or their fellow employees' union membership or activi- ties; threatening to close a store if the employees organize a union; creating the impression among employees that it has ways or means of identifying employees who participate in union activities; holding out to employees the possibility that they would obtain additional benefits but for the Union or in any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Keith M. Puhl immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights and privi- leges, and make him whole for any loss of pay he may have suffered as the result of the discriminatory discharge, in the manner set forth in The Remedy section of the Administra- tive Law Judge's Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. 33 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. I0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at all its stores in Allegheny County, Pennsylva- nia, copies of the attached notice marked "Appendix." 31 Copies of this notice, on forms provided by the Regional Director for Region 6, after being duly signed by the Respondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 34 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director for Region 6, in writing, within 20 days from the date of the receipt of this Order, what steps the Respondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor prac- tices not found herein.