Serv-U-Stores, Inc.

SERV-U-STORES, INC. 37 Serv-U-Stores, Inc. and Local 1459, Retail Clerks In- ternational Association, AFL-CIO. Cases 1-CA- 9815 and 1-CA-9974 June 24, 1976 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On November 20, 1975, Administrative Law Judge James V. Constantine issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. General Counsel filed exceptions and a brief in support of exceptions and in support of the Administrative Law Judge's Decision. The General Counsel also filed cross-ex- ceptions and a motion to add a document to the re- jected exhibit file. Respondent filed its opposition to the General Counsel's motion.' 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, cross-ex- ceptions, and briefs and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge 2 as modified herein. The Administrative Law Judge properly found that following the commencement of the Union's or- ganizing campaign on April 18, 1974,3 Respondent4 engaged in a number of violations of Section 8(a)(1) of the Acts Vice President Jordan Rosencrantz told employee Dolores Kowalczyk that "if the union gets in, when work is slow, I'll have to lay you off which we haven't done in 10 years." Horowitz or Rosencrantz told the employees in employee Mary Ireland's department that they were not to speak about the Union on store property or during working hours. Respondent made the following changes in work- ing conditions in order to discourage union activity:, For reasons set forth below, we grant the motion 2 Respondent excepts to prejudice shown by the Administrative Law Judge during the hearing and cites as an example thereof his statement regarding a typewritten employee petition dated April 30, 1974, that he could not "imagine employees of [Respondent] have typewriters at home" We have reviewed the record and find that the Administrative Law Judge made no statements which were prejudicial to Respondent 3 All dates below refer to 1974 4 Respondent at this time operated five stores including hardware, paint and wallpaper, panel , and furniture stores A warehouse next to the latter supplied all of Respondent's operations S On the afternoon of April 19 and the following morning, Vice President Ben Horowitz made a speech to about 20 employees stating his opposition to the Union Contrary to longstanding practice, no more than two employees were allowed to take a break at the same time and the 15-minute break period was short- ened by including therein the time necessary to pur- chase food nearby. Employees were no longer allowed to smoke in the cellar or on the selling floor while talking to custom- ers. Rivkin, who was originally employed as a sales- man, was relegated to the cellar where he stocked shelves. Other employees were also required to spend more time in the cellar than on the selling floor. Employee Diane Sticco, who wore a union button, was deprived of her duties at the cash register and was not permitted to continue ordering supplies. On April 19 or 20 and April 22, Respondent or- dered union representatives out of its stores and on the latter occasion accused them of putting a lot of employers out of business.7 At a meeting of employees at one of the stores on April 24,8 Rosencrantz told them that Respondent would close its doors if a union came in. About 2 days later, Horowitz asked employee Moira Neville why she signed a union card and told her that the prounion employees "would all be gotten rid of" as they were not considered valued employ- ees. We further find, contrary to the Administrative Law Judge, that Respondent engaged in the follow- ing conduct in violation of Section 8(a)(1) of the Act: Shortly after the union campaign was initiated, Rosencrantz told Kozikowski that she was to stop talking about the union to anyone at any time. Raymond Maynard, who was in charge of the paint and wallpaper store, told Kowalczyk that "there would be no union talk" at the premises and asked why she "would like a union here." Maynard also told Kowalczyk that Respondent would get her "out some way." 9 Some days after April 24, Ireland inquired of Ro- b Pursuant to Horowitz' request on the morning of April 20, Operations Manager William Damo , who attended a union meeting that evening, pro- vided him with a list of employees who were participat ing in the Union's organizing campaign Upon doing so, Danio was told by Horowitz that the jobs of those employees would be "altered" and that "they would cease making problems or creating waves for the other employees " The record shows that the April 20 union meeting was attended by a number of employees including Debra Kozikowski, James Balboni, Mary Ireland , Robert Rivkin, Helen Meunier , Margaret Wilkinson, and Frank Rueli r However, contrary to the Administrative Law Judge , we do not find unlawful Respondent's disparagement of the employees and the union rep- resentatives as "trash" and its order that the latter leave the premises 8 Although the copy of Rosencrantz' speech at that meeting bears the date of April 25, we find, contrary to the Administrative Law Judge who appears to have relied thereon , that the meeting took place on the afternoon of April 24 Rosencrantz so testified and the speech itself contains a reference to "this morning's newspaper" which the record shows was dated April 24 s Balboni testified that Maynard's statements to Kowalczyk took place shortly after the start of the union campaign 225 NLRB No. 7 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sencrantz if she and Kowalczyk could get their cards back from the Union. Rosencrantz replied that there was nothing that he could do, that "his heart was full of hatred," and that although Respondent had never had a layoff in the past "perhaps there might be one if the union got in." The Administrative Law Judge correctly found that Respondent engaged in further unlawful con- duct in violation of Section 8(a)(3) and (1) of the Act by closing its furniture store on the morning of Fri- day, April 26,10 because of the union activity of the employees therein I I and in order to chill unionism at its other stores. In so holding, the Administrative Law Judge relied, inter aha, on a conversation be- tween Rosencrantz and Horowitz on April 20 or 22 in which the former stated their intention to close their business unit by unit before they would let a union in. As the furniture store was unlawfully closed and Wilkinson and Meunier were transferred to jobs in the hardware store which were not substantially equivalent to those they held in the furniture store,12 we agree with the Adminstrative Law Judge that the furniture store should be reopened and that these two employees should be offered reinstatement therein as well as backpay for any loss they may have suffered by reason of the shutdown. Although Rueli, the third employee of the furniture store, was trans- ferred to a substantially equivalent job in the panel store at the same pay, we find, contrary to the Ad- ministrative Law Judge that he, too, is entitled to rcinstatement in the reopened furniture store, albeit without backpay. We turn now to the termination of Ireland. For reasons which follow, we disagree with the Adminis- trative Law Judge's finding the discharge was not discriminatorily motivated because in his judgment it resulted from her failure to "call in every day" during her child's illness. Ireland, who, as indicated above, was credited by the Administrative Law Judge as to Respondent's 8(a)(1) statements, testified as follows: On April 24, Ireland secured Rosencrantz' permis- sion to leave early because she had a sore throat. The next morning she telephoned the store to inform Ro- sencrantz that her child had chicken pox and was nl The record supports his finding that the closing took place at this time However, at another point in his Decision, the Administrative Law Judge inadvertently stated that it occurred on a Monday 11 As found above, Wilkinson, Meunier, and Rueli were among those who attended the union meeting of April 20 at which Operations Manager Damo was present 12 In this connection, the Administrative Law Judge properly held that, while Meunier was working in the hardware store, Respondent "harassed" her in violation of Sec 8(a)(I) of the Act by telling her not to discuss anything with anybody else and reprimanding her for alleged shortages in her cash drawer and for alleged rudeness to customers instructed by Rosencrantz not to come to work be- cause she "could be contagious." When Ireland men- tioned that her child's illneess could last 10 to 12 days, Rosencrantz replied that he was aware of that and "we can do fine without you." 13 A few days later, Ireland received a call from Kowalczyk who asked if she would like to come to the store to see if they could talk about the "union matter" because they were both upset by it. They then went to the store where, as noted above, they inquired of Rosencrantz if they could get their cards back from the Union.14 As also noted above, Rosen- crantz replied that there was nothing he could do, that his "heart was full of hatred," and that Respon- dent, which never had a layoff in the past, might institute one "if the union got in." 15 When Ireland reported for work on May 6 and found her timecard was not in the rack, she was told by Horowitz that she was terminated because she did not call in every day. In connection with the foregoing, Ireland testified without contradiction that in September or October 1973 she called in only on the first day of her 3- to 4-day absence and was told by Rosencrantz to "just come in when [you are] available for work again." Similarly, Rueli testified without contradiction that he called in only once or twice during a 2-week ab- sence. Danio and Wilkinson, who were found credible by the Administrative Law Judge, testified corrobora- tively that Respondent did not require employees to call in beyond the first day of their absence. Rosencrantz testified that Ireland called in on April 24 to say that she was sick and would not be back "on regular time." However, his testimony con- tains no reference to or denial of the testimony of Ireland, Kowalczyk, and Kozikowski that Rosen- crantz told Ireland to remain at home until her child's illness ran its course. In view of the uncontradicted evidence as to Ro- sencrantz' urging Ireland not to come to work while her child was ill, the testimony of credited witnesses that there was no requirement that employees call in every day,16 Respondent's knowledge that Ireland 13 Kowalczyk, who was found credible by the Administrative Law Judge, testified that she heard Rosencrantz say, "Stay out for 7 days, as long as it takes your child to get better, this store will certainly run without you " Kozikowski, who was also found credible by the Administrative Law Judge , testified that she heard Rosencrantz inform Maynard that Ireland "called me to tell me that her child [was] sick and she couldn 't be in for a week and I told her we could do very well without her" 14 As already indicated, Ireland was among those attending the April 20 union meeting at which Operations Manager Damo was also present It is also noteworthy that Ireland wore a union button while at work 15 As found above, this statement violated Sec 8(a)(I) of the Act 16 Although Horowitz and Rosencrantz testified to the contrary, they were not deemed to be credible witnesses Even if there was such a require- ment, we are not persuaded that Rosencrantz waived it when he in effect SERV-U-STORES, INC 39 signed a union authorization card and attended a union meeting," and Rosencrantz' unlawful threat to Ireland concerning probable layoffs if the Union came in, we find, contrary to the Administrative Law Judge, that Ireland was discharged in violation of Section 8(a)(3) and (1) of the Act." Finally, we agree with the Administrative Law Judge's conclusion that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain collectively with the Union which repre- sented a majority of the employees in the appropriate unit. On April 23, the Union made a demand for recog- nition by a Western Union night letter which bears the notation, "received, April 25, 2:13." In its written reply, dated April 25, Respondent acknowledged the Union's "telegram which we received today" and re- fused to bargain with the Union because of its "good faith doubt" as to the Union's majority.19 The parties stipulated that there were 46 employ- ees in the appropriate unit on both April 23 and 25.20 In addition, the Administrative Law Judge correctly included therein employee Rudolph Cecchetelli who was on sick leave at that time. As Ernest Stelzer worked 6 hours a week for Respondent performing such duties as keeping inventory and ordering and stocking supplies, we shall, contrary to the Adminis- trative Law Judge, also include him as a regular part- time employee.21 Accordingly, we find that there were 48 employees in the unit when Respondent re- fused to recognize and bargain with the Union. The Administrative Law Judge also found that at gave Ireland a leave of absence by telling her to stay home until her child recovered 17 As indicated above , Danio was present at that meeting and gave Re- spondent a list of employees who were active in the Union 18 The Administrative Law Judge rejected as exhibits decisions of the Massachusetts Division of Employment Security concerning Ireland's eligi- bility for unemployment benefits Following the issuance of the Administra- tive Law Judge's Decision , the General Counsel moved the Board to add to the rejected exhibit file a subsequent decision of the aforesaid state agency which, on December 12, 1975, held as follows Ireland informed the Em- ployer on April 24, 1974, that her child was ill with chicken pox, she agreed with the Employer that she should not report to work for 10 to 12 days because of the contagious nature of the child's illness, and there was no company rule requiring her to call in daily during her absence Although we agree with these findings , we do so on the basis of evidence adduced in the instant proceeding Accordingly, we hereby grant the motion to add the decision in question to the rejected exhibit file 19 In the face of this persuasive evidence as to the receipt of the Union's telegram on April 25, the Administrative Law Judge erred in setting that date on April 24 on the basis of the testimony of the local Western Union manager who stated that she did not "know in fact that this telegram was delivered on the 24th" and that "the presumption" is that all night telegrams are delivered on the following day 20 Although the Administrative Law Judge correctly relies on G C Exh 9, which contains the list of employees on these dates , he misstated the figure as 47 21 Although Stelzer, who was also a policeman and college student, did not always put in his 6 hours at the same time each week, we do not agree with the Administrative Law Judge that he did not qualify for inclusion in the unit Nor do we regard his making night deposits at the bank "a couple of times a week" a reason for excluding him as a guard the time of Respondent's receipt of the Union's re- quest for recognition 27 of the employees had signed valid authorization cards. For reasons supplied be- low, we find that there were 25 valid cards. The Administrative Law Judge excluded the card of employee Francis St. Jacques because it was not offered in evidence by the General Counsel.22 As em- ployees Michael Maloney and Donald Safford testi- fied without contradiction that they and St. Jacques went together to the union hall on the evening of April 24 to request the return of their cards, we find, contrary to the Administrative Law Judge, that St. Jacques signed a valid card prior to Respondent's receipt of the Union's request for recognition.23 Respondent contends that the Union fell short of a majority for the following reasons: (1) employees Andrew Duncan, Cheryl Ann Spinks, and Moira Ne- ville were told by the solicitors of their cards that they had to sign them in order to avoid paying the Union's initiation fee; (2) Adeline Spakanik, Neville, Patricia Czupryna, and Spinks indicated in a peti- tion, dated April 20, that they "wished it to be known that [they were] not interested in being represented by a union . . . now or any time"; and (3) Safford, Maloney, St. Jacques, and Gerald Mogilka withdrew their cards at a second union meeting held on April 24. As to (1), the evidence is not entirely clear that there was no waiver of the initiation fee. We shall therefore not count the cards of the three employees in question.24 As to (2), the Administrative Law Judge refused to receive in evidence the petition of April 20 on the ground that a card remains valid until it is specifical- ly revoked. Although we believe that this factor should be considered, we shall receive into evidence and take into account said petition .21 As noted above, Respondent engaged in a number of 8(a)(1) violations upon the commencement of the union campaign. In view of the coercive conduct pre- ceding the petition, we find that said conduct contri- buted to an atmosphere of intimidation which in- duced employees to protect themselves by signing the petition. It is noteworthy that Spakanik did not at any time request the Union to revoke her card. Al- though Czupryna asked for the return of her card about a month after signing it, it is significant that 22 The General Counsel attempted in vain to make contact with St Jac- ques and the subpena sent to his last known address was returned as unde- livered and not forwardable In this connection , employee Safford testified that he had heard that St Jacques had moved to Mississippi 23 See Howard-Cooper Corporation, 117 NLRB 287, 295 (1957) 24 Accordingly, we do not adopt the Administrative Law Judge's finding that no "improper offers" were made by anyone soliciting the cards 25 We also deem admissible a similar petition , dated April 30 We find that it, like the earlier petition , was preceded by Respondent's continuing coercive conduct 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she signed another card on July 31. Accordingly, we find valid the cards of Czupryna and Spakanik.26 As to (3), we find as follows: As already noted, Maloney, Safford, and St. Jacques went to the union hall on the evening of April 24 and asked for and retrieved their cards, and those of Maloney and Saf- ford were placed on Rosencrantz' desk the next day. The record shows that Mogilka also retrieved his card at that time. As indicated above, Respondent, which embarked on a coercive course of conduct after the commence- ment of the union campaign, continued to engage in unlawful conduct. Indeed, as also noted above, Ro- sencrantz, on the afternoon of April 24, made a speech to a number of employees in which he ac- cused the Union of closing the stores of other compa- nies with the clear implication that such a fate would befall Respondent's employees if the Union succeed- ed in its efforts to represent them. We therefore find that the four cards in question should be counted as they were withdrawn following conduct which would instill fear among employees that continued adher- ence to the Union would jeopardize their jobs. As we are not counting 3 of the 28 signed cards, we find that the remaining cards constituted a majority of the 48 employees in the unit on April 25.27 Accord- ingly, we find that Respondent, by refusing to recog- nize the Union on that date, violated Section 8(a)(5) and (1) of the Act and that a bargaining order is warranted because of Respondent's extensive and pervasive unfair labor practices. ORDER 28 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Serve-U-Stores, Inc., Springfield, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain with Local 1459, Retail Clerks International Association, AFL- CIO, as the exclusive bargaining representative of all the employees in the following appropriate unit: All full-time and regular part-time sales employ- ees at our Springfield, Massachusetts, retail and 26 As noted above, we are not counting the cards of Neville and Spinks because of the evidence concerning the offer to waive the initiation fee 27 As we have found that Respondent received the Union's bargaining request on April 25 rather than April 24, we do not adopt the Administra- tive Law Judge's reasoning regarding the withdrawal of the cards which he based on the earlier date 28 In view of the broad order herein , we deem it unnecessary to pass on the Administrative Law Judge's denial of the General Counsel's motion to amend the complaint to allege Respondent 's statements which created the impression of surveillance warehouse locations, including salesclerks, regis- ter clerks, stock clerks, department managers, and office clerical employees; but excluding guards, store managers, and supervisors as de- fined in the Act. (b) Discouraging membership in Local 1459 by discharging or constructively discharging employees or otherwise discriminating against employees in any manner in respect to their tenure of employment or any term or condition of employment. (c) Closing its furniture store for the purpose of discouraging employee interest in having a union to represent them. (d) Engaging in the following conduct which con- travenes Section 8(a)(1) of the Act: interrogating em- ployees about their union activities or membership; threatening employees with discharge because of their union activities or membership; threatening employees with layoffs if the Union becomes their bargaining representative; making changes in work- ing conditions of employees because of their union activities or membership; telling employees to stop talking about the Union while on the premises; and making statements to employees or in their presence that the Union is responsible for putting other com- panies out of business. (e) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, recognize and bargain with Lo- cal 1459 as the exclusive representative of all employ- ees in the above-described appropriate unit and, if an understanding is reached, embody such under- standing in a written signed agreement. (b) Offer to Mary Ireland, if it has not already done so, immediate and full reinstatement to her for- mer job or, if it no longer exists, to a substantially equivalent one, without prejudice to the seniority and other rights and privileges previously enjoyed by her, and make her whole for any loss of pay she may have suffered by reason of Respondent's discrimination against her, with interest thereon at the rate of 6 per- cent per annum. (c) Reopen its furniture store reserving the right to close it for any reason which is not prohibited by the National Labor Relations Act. (d) Offer to Helen Meunier, Margaret Wilkinson, and Frank Rueli immediate and full reinstatement to their former jobs in the reopened furniture store without prejudice to the seniority and other rights and privileges enjoyed by each, and make whole Hel- en Meunier and Margaret Wilkinson for any loss of pay each may have suffered by reason of SERV-U-STORES, INC. 41 Respondent's discrimination, with interest thereon at the rate of 6 percent per annum. (e) Preserve and, upon request, make available to the Board and its agents, for examination and copy- ing, all payroll records, social security payment rec- ords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at its retail stores and warehouse in Springfield, Massachusetts, copies of the attached notice marked "Appendix." 29 Copies of said notice, on forms provided by the Regional Director for Re- gion 1, after being signed by a duly authorized repre- sentative of Respondent, shall be posted by it imme- diately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reason- able 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 1, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 29 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "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 " ployees with discharge because of their union activities or membership; threatening employees with layoffs if the Union becomes their bargain- ing representative; making changes in working conditions of employees because of their union activities or membership; telling employees to stop talking about the Union while on the prem- ises; making statements to employees or in their presence that the Union is responsible for put- ting other companies out of business. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of rights guaranteed to them by Section 7 of said Act. WE WILL, upon request, bargain collectively with Local 1459 as the exclusive bargaining rep- resentative of all the employees in the bargain- ing unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an under- standing is reached, embody such understanding in a written signed agreement. The bargaining unit is: All full-time and regular part-time sales em- ployees at our Springfield, Massachusetts, re- tail and warehouse locations, including sales- clerks, register clerks, stock clerks, department managers, and office clerical employees; but excluding guards, store managers, and super- visors as defined in the Act. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Lo- cal 1459, Retail Clerks International Associa- tion, AFL-CIO, by discharging or constructive- ly discharging any of our employees or in any other manner discriminating against them in re- gard to their tenure of employment or any term or condition of employment. WE WILL NOT refuse to recognize or bargain with said Local 1459 as the exclusive bargaining representative of the employees in the bargain- ing unit described below. WE WILL NOT close our furniture store for the purpose of discouraging employee interest in said Local 1459. WE WILL NOT engage in the following conduct which is forbidden by the National Labor Rela- tions Act: interrogating employees about their union activities or membership; threatening em- WE WILL offer to Mary Ireland, if we have not already done so, immediate and full reinstate- ment to her former job or, if it no longer exists, to a substantially equivalent one, without preju- dice to the seniority and other rights and privi- leges previously enjoyed by her and WE WILL compensate her for any loss of pay she may have suffered by reason of the Company's dis- crimination against her, with interest thereon at the rate of 6 percent per annum. WE WILL reopen our furniture store, reserving the right to close it for any reason which is not prohibited by the National Labor Relations Act. WE WILL offer to Helen Meunier, Margaret Wilkinson, and Frank Rueli immediate and full reinstatement to their former jobs in the re- opened furniture store without prejudice to the seniority and other rights and privileges enjoyed by each, and WE WILL compensate Helen Meuni- er and Margaret Wilkinson for any loss of pay they may have suffered by reason of the Company's discrimination against them, with in- terest thereon at the rate of 6 percent per an- num. 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become or remain, or refuse to become or remain, members of Local 1459, or any other labor organization. SERV-U-STORES, INC. DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Administrative Law Judge- This is a consolidated unfair labor practice case litigated pur- suant to the provisions of Section 10(b) of the National Labor Relations Act, herein called the Act. In Case 1-CA- 9815 a charge was filed on May 13, 1974, by Local 1459, Retail Clerks International Association, AFL-CIO, herein called Local 1459, against Serv-U-Stores, Inc., herein called the Respondent. Said charge was amended on July 5, 1974. On July 3, 1974, a complaint was issued on that charge by the Regional Director for Region 1 of the Na- tional Labor Relations Board. In Case 1-CA-9974, Local 1459 filed another charge against Respondent on July 18, 1974. On May 13, 1975, said Regional Director consolidated for hearing Cases 1-CA-9815 and 1-CA-9974, and also issued an amended complaint covering said two cases on the same day. Said amended complaint alleged violations of Section 8(a)(1) and (3) of the Act, and also prayed for an order requiring the Respondent to recognize and bargain with Local 1459. Said amended complaint was further amended on July 10 and 18, 1975. It was finally amended on July 29, 1975, at the hearing. Respondent has answered the original and amended complaints admitting some alle- gations in said complaints but denying that it committed any unfair labor practices. Pursuant to due notice this consolidated case came on to be heard before me from July 29 to August 1 and August 4 to 8, 1975, at Springfield, Massachusetts. All parties were represented at and participated in the hearing, and had full opportunity to adduce evidence, to examine and cross-ex- amine witnesses, to file briefs, and to present oral argu- ment. Briefs have been received from the General Counsel and the Respondent. Upon the entire record in this consolidated case, and from my observation of the witnesses, I make the follow- ing: FINDINGS OF FACT 1. JURISDICTION Respondent, a Massachusetts corporation, is engaged at Springfield, Massachusetts, in operating four stores in sell- ing and distributing hard goods and related products Its annual revenues exceed $500,000. It continuously receives large quantities of hard goods and related products from States other than the Commonwealth of Massachusetts. I find that Respondent is an employer within the meaning of Section 2(2), and is engaged in commerce within the pur- view of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction over Respondent in this proceeding. II. THE LABOR ORGANIZATION INVOLVED Local 1459 is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES A. General Counsel's Evidence It was stipulated that the 46 individuals whose names appear on General Counsel's Exhibit 9 were employed by Respondent in the bargaining unit on April 23, 1974, "the date of the demand." Jordan Rosencrantz, Respondent's vice president, was called as a witness by the General Counsel. His testimony may be adequately summarized as follows. In April 1974, Respondent operated five stores: a hardware store at 65 St. James Boulevard, a paint and wallpaper store at 977 St. James Avenue, and one at 385 Dickinson Street, a furni- ture store which was opened approximately in April 1972, and another store . This furniture store had a showroom out of which unfinished furniture was sold; it also had a ware- house containing merchandise which was supplied to Respondent's other stores, including said furniture store. Rosencrantz and two other officers on April 25, 1974, decided to close the furniture store the next day. This "was necessitated by a series of events that happened . . . we evaluated the past downhill of this business . . it was unprofitable . . we weren't making any money in there." Between 10 and 11 a.m. on April 26 said store was closed. The officers "were constantly talking about the general un- profitability of this business for quite a few months prior to the closing . . . . As the spiraling costs went up, so did the sales decrease." Another reason for closing this furniture store was that employee Frank Rueli, who worked there as a warehouse- man, was taken out of there leaving only a woman clerk "in there" in the day and a night clerk at night. Rueh's "type of expertise" was such that he could not be replaced. However, truckdriver Mike Maloney did some of Rueli's work prior to and following the latter's leaving the ware- house. About May 6, 1974, Respondent discharged employee Mary Ireland. The decision to do so was made by its trea- surer, Benjamin Horowitz, after consulting with Rosen- crantz. Ireland, who "had an important place in our opera- tion," stayed out at a time when "it was possibly the busiest of times. And the fact that [her] area wasn't covered was kind of a difficult thing." She had been out since about April 24 "with no explanation." He did not know she was "a union supporter." She was discharged for "violating company rules" requiring employees to call in each day when sick. Others were also fired in the past by Respon- dent for failing to call in when sick. Rosencrantz on April 19, 1974, first became aware that a union was seeking to represent Respondent's employees. He acquired such knowledge when he saw union represen- SERV-U-STORES, INC. 43 tatives "walking in the store, putting cards in people's hands." He was "opposed to the unionization of" his em- ployees. So he sought the advice of counsel, and he also read them a speech on April 25. About 25 Local 1459 members sent a telegram to Respondent stating "we are representing a majority" and requesting recognition. (See G C Exh. 6.) By telegram dated April 25 Respondent re- plied "we have a good faith doubt whether your union represents a majority of our employees" and asked that the Union file a petition for a Board election to ascertain whether the employees wanted a union. (See G.C. Exh. 5.) Ben Horowitz, Respondent's treasurer, was also called as a witness by the General Counsel. He testified substantially as follows: The decision to discharge employee Mary Ire- land "was made by all three of us . . before she came back in . . . we were enforcing our rule of the fact that she didn't call in every day." A "few" other employees also have been discharged in the past, for that same reason. He was not "aware" that Ireland was a "union supporter." And he did not know that she attended union meetings. Horowitz was cognizant that union meetings were being held because these were reported to him by "individual employees." Employee Duncan informed him on about April 22, 1974, that employee Danio "was seen at a union meeting." On April 19 and 20, 1974, Horowitz read a speech to individual employees, about 20 employees in all. (See G.C. Exh. 7.) It was decidedly opposed to unionism. At no other time did he speak about the Union to the employees. He first learned that a union was seeking to represent Respondent's employees when he "saw people from the Union on the 19th" of April, 1974. One of them, Joey Dif- lumera, yelled at Horowitz, "I'm from the Union. I repre- sent your employees." Steven Rosencrantz is the son of Jordan Rosencrantz, Leonard Horowitz is the son of Samuel Horowitz, and Ber- nard Horowitz is the father of Benjamin Horowitz. Each of said sons is a son of a director of Respondent. The only stockholders of Respondent are Benjamin Horowitz, Sam- uel Horowitz, and Jordan Rosencrantz. Horowitz participated in the decision to close the furni- ture store. Said decision "was made over a period of about 4 months before April" 1974, "as soon as we realized that the store was not profitable." Another reason contributing to ending the operation of said store was "we had previous holdups in the store," the most recent of which occurred "sometime in the early part of '74 ... Michael Maloney was held up at gun point." Still another reason for closing said store was "we had to move [employee] Mr. Rueli," and also "Ms. Wilkinson expressed a fear of working in the store at night" because she was "fearful of holdups." As a result Ms. Wilkinson was transferred to working in the daytime. The factors which caused Horowitz to conclude said fur- niture store "was not profitable" were, "drop in sales, num- ber one. Increased costs, number two." (See G.C. Exhs. 8(a) to 8(y) for sales records from April 1972 to April 1974.) "Approximately . . . towards the end of '73" the profitability of the furniture store "started decreasing," ac- cording to Horowitz. The inventory is still kept in said store for the other stores of Respondent. When operating, the furniture store had three employ- ees, Margaret Wilkinson, Helen Meunier, and Frank Rueli, on a regular "full-time" basis. Rueli was transferred to take over the duties of Mr. Danio, when the latter was dis- charged, in the panel store "since the paneling was an in- creasing and viable business. This left nobody in the furni- ture department" competent to assume Rueh's duties in the furniture store. Although Mike Maloney might have done so, he was needed to operate "the run to Boston twice a week, to pick up merchandise. So, he was not available to run the warehouse." A replacement for Danio started working on May 5. The testimony of another witness for the General Coun- sel, David T. Barry, may be summarized as follows. He is employed by the Retail Clerks International Union as a coordinator. In this capacity he was "involved in the orga- nizational campaign at Serv-U-Stores." Said campaign "or- iginated around April 18, 1974 " In addition to holding three union meetings for the employees involved he also had union cards distributed to such employees. Employees Margaret Wilkinson, Helen Meunier, and Mary Ireland at- tended all three meetings, and Duncan also attended one of such meetings. (General Counsel contends that Andrew Duncan attended a meeting and reported to Respondent's treasurer, Ben Horowitz, that William Danio attended one of said meetings.) About April 22, 1974, Barry, accompanied by three other union representatives, entered Respondent's hard- ware store. Some employees were in the area at the time. Respondent's treasurer, Horowitz, "yelled and screamed" at the union people, "Get out of the store. We don't need any union here. We'll have the police throw you out." But they did not leave. Then Horowitz "jumped up in the air and threw himself on the floor . yelling about that we punched him and kicked him." Soon the police arrived. On another occasion Barry heard Respondent's vice president, Rosencrantz, "yelling and screaming" about "Get out of the store" to the union. people in it. Further, Rosencrantz yelled, "We don't want a union. Our people here don't need a union. Just get out." But they refused to leave. Then Rosencrantz said, "Get out of the store and take all this trash with you," pointing at employees who "were standing there." Finally, Rosencrantz said that the union people "closed up Kelly-Fredette and they put peo- ple out of business, and the union people are making big money and driving big cars." At another time when Barry was in Respondent's hard- ware store Rosencrantz, holding a leash, yelled, "Get out of the store." Soon he announced over a loud speaker, "If you need a leash for your dog, so you can keep your dogs in tow, we have a special on leashes." Rosencrantz also made some other uncomplimentary remarks. In addition, Rosencrantz sprayed an air refreshener "over our heads." But Barry also testified that on this occasion, "they" spread it "over our heads," without identifying "them." About April 19 or 20, 1974, Barry and another union representative went to Respondent's hardware store where he spoke to Treasurer Ben Horowitz "about the union." Horowitz "ran out of the store and refused to speak to them." On April 23, 1974, Barry sent a telegram to Respon- dent requesting recognition of Local 1459. (See G.C. Exh. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6.) The next day he spoke to Horowitz at Respondent's hardware store about recognition, but the latter refused such recognition. Then Horowitz ordered, "Get out of my store. We don't want you here." Horowitz then accused Barry's companion, "You kicked me; you punched me. Call the police. Call the police " And although Barry did "see Horowitz on the floor" he did not see Horowitz "fall on the floor." William Danio also appeared as a witness for the Gener- al Counsel. An abridgment of his testimony follows. He was operations manager for Respondent until April 25, 1974, when he was terminated. On April 25, 1974, he first became aware that Local 1459 was seeking to represent "certain employees of Serv-U-Stores." When Danio "called in for sick," Ben Horowitz asked him if Danio knew of union organizing activities "that people were un- dertaking." Danio replied in the negative. That evening Neal Bissell asked Danio the "same question." Upon returning to work on April 20 Danio was called into the office of Ben Horowitz. The latter again inquired of Danio whether Danio knew Danio's "position in an or- ganizing campaign, or . . . with the Union, what position I [Danfo] should hold or take stand of, be made aware of." Danio replied that he knew and that "being in a superviso- ry capacity I was totally uninvolved, to be uninvolved with it." Then Horowitz asked Danio if Danio knew of anyone in the organizing drive or campaign, and "who initiated this campaign." Danio answered he did not know. Soon Horowitz requested him to compile some notes or get any information possible "on people that were participating in this organizing campaign." Danio replied in the affirmative and did "compile those notes [and] a list of names." Among the names on the list were those of Robert Rivkin, Frank Rueli, and Francis St. Jacobs. About April 25, 1974, Danio overheard a conversation between Rosencrantz and Horowitz in which they said "Rivkin's position . . . was as a sales clerk . . . . He was not hired as a stockman . . . as a janitor, or whatever the case may have been. He was hired for sales." That day, according to Danio, "they stripped [Rivkin] of his particu- lar functions, and degraded him by giving him jobs that were not in fact his position." So they took Rivkin off the sales floor as a salesclerk and "literally made a stock man or a janitor . . . out of him." Don Safford was a "department manager and a sales clerk." According to Danio "they harassed him [Safford] in this position." Also, "as far as the clerks in the [wallpaper] store, basically the same thing occurred. They were taken off the sales floor . . and they were put down into ajob at a low level." Further, according to Danio, "after I gave him [Benjamin Horowitz] the list of people I had compiled for him, at his request, he made known that these jobs would be altered; and they would cease making problems or creating waves for the other people, for the rest of the people." On about April 20 or 22 Danio overheard Benjamin Ho- rowitz and Jordan Rosencrantz discuss "what they were going to do to fight this union campaign." Rosencrantz said that "he'd close this [warehouse and furniture] busi- ness unit by unit before he would let any union into his store or take his business " Danio further testified that he would be "made aware by Mr. Horowitz that there was a financial strain in any one particular area or unit" if and when such a situation arose. But neither Horowitz nor any of the owners discussed with Danio the closing of the furniture store. On cross Danio admitted that, although he was opera- tions manager for Respondent, he attended a Local 1459 meeting on April 20, 1974. (See G.C. Exh. 10(a).) He did this notwithstanding that he had previously told Respon- dent that he "understood" his position as manager was not to get involved in union affairs. Also, on cross, he stated that he was discharged by Respondent about April 25, and soon thereafter he's "been down there [Local 1459's office] on other occasions." At the union's office he prepared and mailed a letter to Respondent's employees in which he de- scribes Respondent as antiunion and exhorts employees to become interested in unionism. (See Resp. Exh. 1.) Danio is now employed by the Retail Clerks International Associ- ation, having been hired by it a few weeks after Respon- dent discharged him. I have taken this into consideration in determining whether I should credit him. Adeline Spakanik was another witness for the General Counsel. Her testimony may be epitomized as follows. She was employed by Respondent from March to June or July 1974, and on about April 19 signed a card for Local 1459. (See G.C. Exh. 12.) When she signed the card she was told it "would only be used for an election." She later testified she was told at the time of signing, "This [card was for the purpose of getting a majority for an election," and that she read said card before signing it. I find said card is valid and can be counted in ascertaining whether the Union had a majority. Several witnesses for the General Counsel principally testified that, while employees of Respondent, they signed cards for Local 1459. As their cards were received in evi- dence, their testimony will not be set forth. They are Ken- neth Knowlton, who signed on April 18 (G.C. Exh. 13); Ginette Warner, who signed on April 22 (G.C. Exh. 15); Mark Morris, on April 19 (G.C. Exh. 16); Scott Robertson, on April 18 and 19 (G.C. Exhs. 17 and 18); Patricia Czu- pryna, on April 19 and July 31 (G.C. Exhs. 19 and 20); Michael Pandolfi, on April 18 (G.C. Exh 21);i Susan Dra- peau on April 19 (G C. Exh. 22); Michael Maloney, on April 19 (G.C. Exh. 23) but which he 2 or 3 weeks later recovered from Local 1459 at the union hall and "gave it to one of the owners" of Respondent;2 Donald Safford, on April 20, "at the first union meeting" (G.C. Exh. 24), but later retrieved it at the second meeting and then gave it to Respondent. Safford also testified that he attended a meeting held by i Pandolfi also testified that shortly after the Union's campaign started Neal Bissell said that he, Bissell, could personally guarantee that Pandolfi would receive all the Union's benefits "if the union did not get in there " Since Bissell is not a supervisor, Respondent is not chargeable with this Pandolfi also overheard Ben Horowitz during said campaign tell employee Paul Hallet, a salesclerk, "three mistakes [on the fob] and you're out, just like in the union " This does not violate the Act, and I so find 21 find Maloney's card valid as of the date of the Union's request for recognition, as he did not repudiate it until after said request occurred For the same reason I find Safford's card valid as of the date said request was made SERV-U-STORES, INC. 45 Respondent on May 15, 1974, at which the latter's officials spoke against unionism . It need not be repeated here as I find that, notwithstanding unions were criticized, such statements did not exceed the permissible limits of Section 8(c) of the Act. Safford also described changes in working conditions which were adopted by Respondent when Local 1459 appeared on the scene. These were: smoking in front of customers, although engaged in up to then, was prohib- ited; "the families of the owners were working there after this time"; and former employees no longer were allowed to come into the store to talk to employees on the job, although this practice had been in effect prior to the union's advent. On cross Safford stated that his employment by Respon- dent ended around May 15 to 18, 1974. Also on cross, he testified that Vice President Rosencrantz asked him if he had any complaints about his, Safford's "commission pay," and that Safford replied that "it was low compared to what we used to get." Then Rosencrantz explained to Safford "commissions were low because of union activities. That our minds weren't on the job. That too much time was being spent thinking about union affairs rather than spend- ing time on our job . . . all the union officials had been sentenced at one time, or had records of some sort." And Rosencrantz requested Safford to inform employees of the foregoing facts. I find no violation of the Act in this state- ment of Rosencrantz even though I find it manifests union animus. Also on cross Safford testified that, at a meeting of em- ployees called by Respondent, Rosencrantz said that "we start getting down to the bare facts of business of running a store and completely forget the union . . . . These jerks wearing union buttons weren't helping the store." This statement I find is protected by Section 8(c) of the Act. Finally, on cross, Safford declared that he signed an anti- union document or "petition" dated April 30, 1974, which asserted, among other things, "We ... DO NOT WANT TO BE REPRESENTED BY ANY UNION. . . ." "See R. Exh. 3 on May 7, 1974 he withdrew his signature to said petition " (See G C. Exh. 27.) On redirect Safford admitted that, after he asked for his union card (G.C. Exh. 24) to be returned to him, he signed another such card (See G.C Exh. 26). He also gave Local 1459 "my authorization for representation card that I once withdrew, back," and "withdrew his name" from the an- tiunion petition (see Resp. Exh. 3) which he had signed. (See G.C. Exh. 27.) Another witness for the General Counsel, Rudolph Cec- chetelli, testified that while an employee of Respondent he signed a union card for Local 1459 on April 18, 1974. (See G.C. Exh. 28.) James Balboni, another employee, also signed such a card on the same day (See G.C. Exh. 29.) About 2 days later he observed Rosencrantz and Ben Horowitz, officials of Respondent, yelling at Local 1459 representatives in Respondent's store to "get out and take your .. . trash out. Take your trash friends with you." At another time Balboni overheard Ray Maynard say to Dolores Kowal- czyk that he "didn't want to hear nothing in the store about the union, during working hours . . . What benefits are they going to give you? . .. . Somehow they'll [Respon- dent] pressure you or make it rough for you and you'll leave." I find no violation of the Act in this paragraph. Balboni also testified that after the Union entered the scene Respondent made the following changes in working conditions: "we were more in the cellar than on the floor"; "Mr. Horowitz was always right behind us in the cellar"; employee Bob Rivkin, who was originally employed "up- stairs on the floor selling paint," was constantly working "downstairs ... stocking shelves"; smoking, originally permitted, was no longer allowed in the cellar "or on the selling floor while talking to customers"; previously "we took our breaks together," but now only two were permit- ted to have such a break together; and employees who were sons of the owners had better working conditions than the other employees. Finally, Balboni described Ray Maynard as (1) being in charge of the paint and wallpaper store, (2) having authori- ty to fire Balboni, (3) requiring Balboni to call Ray when Balboni intended to be on sick leave, and (4) having au- thority to grant Balboni time off. Another employee who signed a card for Local 1459 is Frank Rueli, who did so on April 19, 1974 (see G.C. Exh. 30), while working at warehousing at Respondent's furni- ture store on St. James Boulevard. On April 26, 1974, he was transferred to the paneling department of the panel store because Respondent closed down its said furniture store. But no indication was given to him why the furniture store was being closed Another employee who signed a card for Local 1459 is John Byrne. (See G C. Exh. 31.) He did so on April 18, 1974, while employed under Manager Ray Maynard at Respondent's paint store. One day Ben Horowitz, Respondent's treasurer, showed Byrne his arm which was black and blue and commented, "this is what the union did to me." At another time Byrne attended a meeting of em- ployees at which Vice President Rosencrantz "spoke to us about the bad points about the union." On another occa- sion Rosencrantz read a letter to employees outlining their "rights ... as far as the union." At still another time, when Byrne complained about the amount of his paycheck, Ro- sencrantz replied, "go talk to your union man ." I find that such language by Respondent's officials is sanctioned by Section 8(c) of the Act. Byrne further claimed that Respondent limited one em- ployee from its paint department to a break at the same time after the Union started its organizing campaign, but no such limit had been imposed before such campaign was initiated. Another change in working conditions attribut- able, according to Byrne, to the Union's organizing cam- paign, was Robert Rivkin's removal from "the selling floor" and assignment to working in the stockroom and also to sweeping the cellar floor. Diane Sticco, who signed a card for Local 1459 on April 18, 1974 (see G.C. Exh. 33), also testified substantially as follows. She worked as a record clerk in Respondent's wall- paper and paint store. But when the union campaign start- ed, and she signed a union card and wore a union button, her duties were changed as follows: Although she worked "on the register on lunch hour," this work was taken from her; also, her duty requiring her "to order the wallpaper . . all of a sudden" was given to someone else. As a result 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she "didn't have anything to do ... I had to be on my own, to kind of find things." Further, her breaktime was shortened after the Union's campaign commenced. Also, officials of Respondent pointed at her and employee Deb- bie, alluding to them as "no good trash " Diane described Ray Maynard's duties as comprehend- ing authority over her on such matters as obtaining permis- sion to leave before quitting time, to take time off, and when to take breaks; also to report or call in to him when sick or late. Diane also saw two union representatives enter the wall- paper department. "And immediately Jordie [Rosencrantz] and Ben [Horowitz] came, really, flying over . . . just really talking loud told them to get out of here, and take all the trash friends with them and pointed around the store .. . [at] dust about everybody that was wearing union buttons You have no right to talk to our employees. They don't need a union." I find no violation of the Act in this paragraph, but I do find such conduct manifests union ani- mus. About the first week of May 1974, Diane overheard Ray Maynard tell some employees that "business seemed to be getting slower and they might have to lay off some help, and the first to go would be Bob Rivkin." I do not find any violation of the Act in such statement by Maynard. Employee Barbara Ochenkowski, who worked in the paint and wallpaper department, signed a union card for Local 1459 on April 19, 1974 (See G C. Exh. 34.) When said Union started its campaign Respondent sometimes did not allow those in her department to take breaks, or permit more than two employees at a time to take a break together "if you wanted to," contrary to past practice. Also, Vice President Rosencrantz "came over and he stood there for two weeks watching us work" during the Union's campign, but "he wasn't in the store ... prior to the union campaign." Since an employer may watch his employees at work I find such action by Rosencrantz does not violate the Act. Barbara also overheard Rosencrantz tell employee John Byrne, when the latter claimed that he had become eligible "to go on commission," that if "you want commission you go to the union and you ask them for commission." This occurred "after the union cards were signed." I find this does not violate the Act. She also overheard Rosencrantz tell employee Debbie Kozikowski to stop "harassing his people" by soliciting employees to favor the Union during working time. Barbara also noticed the change in Diane Sticco's working conditions as described above by Diane. Finally, Barbara testified that she attended two union meetings but never wore a Local 1459 union button. Employee Andrew Duncan signed a union card for Lo- cal 1459 on April 19, 1974. (See G.C. Exh. 35) When he expressed to Respondent's treasurer, Ben Horowitz, that he was "unhappy with the way that the union had obtained the card from me," Horowitz arranged to have Duncan "talk with my [Horowitz's] lawyer," and later Duncan was interviewed by said counsel. At the time he was solicited by David Barry to sign the union card he was told by Barry that he, Duncan, "would avoid a $50 initiation fee ... if I [Duncan did sign the card]." At some later date, probably about 2 weeks after signing, Duncan sought to have Local 1459 return his card to him but without success. Duncan further testified that he attended two or three meetings of Local 1459. Since such attempted withdrawal occurred af- ter the Union's request for recognition I find Duncan's card valid in determining the Union's majority. Another employee who signed a union card for Local 1459 is Cheryl Ann Spinks. It is dated April 19, 1974. (See G.C. Exh. 36.) She "believes" she signed it on April 24. She also spoke to Horowitz, who assured her "not to worry" about a news broadcast's stating that "if [a union] got in you were required to join or else you couldn't keep your fob " I find her card valid as I do not credit her that it was signed on April 24. Rather, I find it was signed on April 19, the date appearing on said card. Ms. Spinks asserted that she requested that her card (G.C. Exh. 36) which she signed be returned to her because "I just decided that if I could get my card back I was going to forget the whole thing . . . I didn't believe what they were saying [at the two union meetings she attended] and I just got fed up. So I decided that this was the best way." But she also admitted that she gave her card to Local 1459 at the first two meetings of Local 1459 which she attended, and "it was a few weeks [thereafter] before I asked for it back." Employee Paul Hallett signed a union card for Local 1459 on April 23, 1974. So did employee Moira Neville on April 20, 1974. (See G.C. Exhs. 38 and 39.) Employee Gerald S. Mogilka, Jr., also signed a union card; but at a union meeting which he went to on April 24, 1974, he requested that it be given back to him and it was. Then he tore it up. He signed Respondent's Exhibit 3, which is a written statement by employees claiming they "do not want to be represented by any union." I am count- ing his card in ascertaining whether the Union had a ma- jority, as he withdrew it after Respondent received the Union's request for recognition At Respondent's Dickinson Street store where Moira Neville worked Rosencrantz and Ben Horowitz held a meeting of employees. Rosencrantz addressed the meeting, mentioning that the employees were well off and stated they would not get "as good a deal as they thought they would" if the Union came in, because "what the union wanted was your money." And he gave examples of "vari- ous places that had been unionized . . and how Kelly- Fredette had closed its doors because it didn't want a union and moved out of the state." Then Rosencrantz add- ed that Respondent "would close its doors if it came right down to it." A few days later Ben Horowitz asked Moira "about [the latter's] union card . . . why I had" signed one, and if she "wanted to get the card back." Ben told her that she "was a valued employee . . . [and] they took care of their valued employees." Ben also said that "the people who were .. . fighting for the union were not considered valued employ- ees and that eventually they would all be gotten rid of . . . they [the union people] would not be there any more." Another employee who signed a union card for Local 1459 is Debora Kozikowski. She did so on April 19, 1974. (See G.C. Exh. 41.) Shortly after the Union's campaign was initiated Rosencrantz told her "not to speak about the union to anyone at any time," because, he added, one em- SERV-U-STORES, INC. 47 ployee she had spoken to about the Union became so ner- vous that said employee could not punch her register keys. Debora replied that, as she had not yet punched in on that occasion, "it was none of your business." This incident, according to Debora, took place in the parking lot 15 min- utes before her scheduled starting time. I find no violation of the Act in the above statement. On another occasion Debora heard Rosencrantz instruct Ray Maynard that the Union should not be "spoken of on his store hours." Maynard told him not to worry about it And shortly after the union campaign started Debora heard owners Rosencrantz and Ben Horowitz tell two union representatives in the store that the latter "were big zeros, big nothings, and that all of the employees who sup- ported them were the same . . and [also] were trash." I also find no violation of the Act in this paragraph. Debora also attended a meeting called by Respondent for its employees at the wallpaper store on St. James Boule- vard very shortly after Rosencrantz shouted "we've had a bomb scare, we've had a threatening phone call." At an- other time he said that Kelly-Fredette "had gone through the same [union] ordeal [as Respondent] and that they had to close up because they couldn't survive." According to Debora, after the union campaign started, (1) "members of the family started walking around the store, (2) the owners started making snide remarks," (3) shortly after employee Mary Ireland was discharged Ben Horowitz told Ray Maynard, "We're getting them one by one," (4) employees no longer were allowed "to speak free- ly with your fellow employees," and (5) breaks were short- ened. Only items (4) and (5) are violations of the Act, as found elsewhere herein; items (1) and (2) are not viola- tions, and (3) is too indefinite to constitute a violation of the Act. On another occasion Ray Maynard told a group of em- ployees, including Debora, the "the union no good for Serv-U and that they didn't want it to interfere with our working habits and that we weren't to talk about the union in the store." Elsewhere I have found this a violation of the Act. At another time, according to Debora, "we were told [by an unnamed official of Respondent] that work was get- ting so slow that they might have to cut people's hours so as not to have to lay off any people, and if it didn't work then they would have to lay people off." But Respondent had not had a layoff in the past. I find no violation in this last statement as the official is not identified. At another time Neal Bissell asked a group of employees what they "felt were important . . . and if there was any- thing else we would like the owners to consider changing and write it" on a "grievance" sheet of paper he gave them. He added he felt sure Respondent "would consider this grievance sheet." Since Bissell has not been shown to be a supervisor, this statement may not be imputed to Respon- dent. Following Mary Ireland's discharge Debora overheard Jordan Rosencrantz tell Ray Maynard, "Mary Ann [Ire- land] called to tell me that her child [was] sick and she couldn't be in for a week and I [Rosencrantz] told her we could do very well without her " This statement does not violate the Act Debora at another time after Mary Ireland's discharge also heard Ben Horowitz tell Ray May- nard "we're getting them one by one." This last utterance does not violate the Act as it is too indefinite to imply that prounion employees were unlawfully discriminated against. About September 1974, Mary Ireland was called back to work. But Debora was instructed by Rosencrantz "not to bother her [Mary] while she was working." This occasion which caused Rosencrantz' order was that Debora had asked Mary if Mary wanted coffee. I find no violation of the Act in this statement. Debora also heard over the paint store's loudspeaker a statement by Rosencrantz that "they were advertising to buy pest control to get [rid?] of unwant- ed pests." (The General Counsel contends this consitututes "disparaging union officials in the presence of employees" within paragraph 8(d) of the complaint.) I find no violation of the Act in this comment. But Debora claimed "an- nouncements" were "not usually made over the loudspeak- er." However, there were no union representatives in the paint store when said "sale was announced over the loud- speaker, but there were such representatives "in the other stores." Employee Robert N. Rivkin signed a union card for Lo- cal 1459 on April 18, 1974 (See G.C. Exh. 43.) He worked under Ray Maynard in the paint and wallpaper store. Maynard supervised him, so that he had to report to May- nard to obtain leave or time off, and also took orders from Maynard. Rivkin once heard Ben Horowitz and Rosencrantz "yell- ing at [Local 1459] representatives [in the store] and telling them to get out of the store or they'd call the police and have them thrown out . . . . There was some more com- motion . . . yelling and screaming-all of a sudden I [Rivkin] saw Horowitzjump back and fall down . . . [Ho- rowitz] was . . . claiming that [the union representative] had punched him and kicked him on the ground." But Rivkin insisted that he "did not see any of the union repre- sentatives push or kick . . . down" Horowitz. I find no violation of the Act in anything depicted in this paragraph. Rivkin also obtained a union card from Robert O'Con- nor on July 17, 1974. (See G.C. Exh 44) This occurred after May 1974, when his employment with Respondent terminated and while he was employed by Local 1459. O'Connor's card is not being counted as it was signed long after the Union's request for recognition on April 24. Mary Ireland testified for the General Counsel. A con- spectus of her testimony follows. She works for Respon- dent and on April 19, 1974, signed a union card for Local 1459. (See G.C. Exh 45.) She also attended three Local 1459 meetings. (See G.C. Exhs. 10(a), (b), and (c).) In addi- tion, she wore a union button. She described changes in working conditions adopted by Respondent after the union campaign was started, but as other witnessess, supra, al- ready testified as to them, such changes are not repeated here During said union campaign Ben Horowitz read to her a prepared statement that "we were getting things from the company that we wouldn't probably get if we had a union; things like commission and paid vacation-things of that line" (See G.C. Exh. 7.) At another time either Horowitz or Rosencrantz told employees that they could not "speak about the union on store property or during working hours " At another time she overheard Rosen- 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crantz tell employee John Byrne, in response to the latter's inquiring about his commission, "Commission? Ask your union representatives about your commission " But I find nothing contravening the Act in such reply by Rosen- crantz. At still another time Ireland heard Rosencrantz call two Local 1459 representatives in the store "bloodsuckers," or- dered them out of the store, and said he was "going to call the police." I find no violation of the Act in this accusa- tion. Sam Horowitz, who was present at the time, accused said union officials of "closing a lot of stores." When Bar- ry, one of the union officials, asked, "what do you mean we've closed a lot of stores?" Sam Horowitz shouted, "well, what about Kelly-Fredette?" On April 24, 1974, Mary Ireland went home early be- cause of a sore throat after obtaining permission therefor from Rosencrantz. Immediately after she punched out Ro- sencrantz pulled out her card from the rack. Upon arriving home she telephoned him that she would return to work the next day if her throat improved. On April 25 she tele- phoned she would stay out as her throat still bothered her. Later that day she again called the paint store and told Rosencrantz that her child had chicken pox. He instructed her not to come to work because she "could be conta- gious." Although she insisted to him that she was available for work, he replied, "We can do fine here without you." Some days later Ms. Ireland went to the store to talk to Ms. Kowalczyk. Rosencrantz happened to see them and, when they inquired of him if they could get their cards back from the Union, he replied there was "nothing [I] could do for you . . . at this time my heart is full of ha- tred." He also mentioned that although Respondent had never had a layoff in the past "perhaps there might be one if the union got in." I find nothing in this paragraph which contravenes the Act, as no threat was made to resort to layoffs if the Union got in. The following Monday, i.e., about May 6, Ms. Ireland reported to work, but her card was not in its place in the rack. When she inquired of Ben Horowitz about this he replied that she "was terminated [because] you didn't call in every day." So she told him that Rosencrantz told her to remain away because she might be contagious. Neverthe- less Ben refused to set aside or revoke said termination. But once before she stayed out for 3 or 4 days, calling in only the first day, without being reprimanded or penalized for failing to call again. In fact she had not prior to said May 6 been instructed to call in every day while absent because of illness. It was stipulated that Ms. Ireland has been reinstated "to a same or comparable position . . . to her former or sub- stantially equivalent position." Margaret Wilkinson gave substantially the following tes- timony for the General Counsel. While employed for Re- spondent at its unfinished furniture store she signed a union card for Local 1459 on April 19, 1974. (See G.C. Exh. 48.) She attended three of its meetings. (See G.C. Exhs. 10(a)- (c).) On April 26 she "opened up [said store] as usual." But about 11 a.m. Rosencrantz and Ben Horowitz "came in and said they were closing the unfinished furni- ture store, that it was temporarily closed, that it was eco- nomically unpleasable [unfeasible?] to keep it opened... . We'd like you to go to the hardware store . . . [to do] the same thing you're doing here." When Margaret asked, "How can I sell furniture in the hardware store?" Horowitz replied, "You can talk to the customers and answer the telephone." But Margaret answered, "I might as well go home," and she did leave. At no time prior to said April 26 had she been informed that Respondent was contemplat- ing closing said store or that it was in bad financial condi- tion. At the time said store was closed, according to Margaret, she "hadn't noticed, its kind of hard to say" how sales went. Sales "were up and down To me, I was doing fairly good . . . that's all I can say " She claims that she "couldn't handle certain things" at the hardware store, such as "plumbing . . . some of the garden things" because she "had a hand condition ... eczematoid dermatitis." Rosencrantz was aware of this condition of her hands. Margaret also stayed out of work sometimes . She called in the first day in such situations and stated how many days she would be out. Then on the last day out she called to inform Respondent that she "would be in ... tomor- row." And she knows of no rule requiring employees "to call in on a daily basis if they had previously informed the store that they were to be out for a number of days." The store at which Margaret worked received a shipment of furniture on April 25, 1974. (See G.C Exh. 49(b).) She also testified that General Counsel's Exhibits 49 and 50 are inventory books for the furniture store. After the furniture store was closed Margaret received on September 23, 1974, a written offer to be reinstated "to my former position . . . Reasonably the same or some- thing . . Substantially equivalent." (See Resp. Exh. 14 for its wording.) On September 26 she responded in writing accepting said offer. (See Resp. Exh. 15.) However, on call- ing Ben Horowitz she ascertained the Respondent was of- fering her the same job she had at the hardware store. So she told him, "I don't think I'll be in." The president of Local 1459, Joseph J. Diflumera, testi- fied for the General Counsel. An abridgment of his testi- mony is here set forth. He was in charge of said union's organizational campaign at Respondent's stores. Among other things he spoke to employees and sought to induce them to sign "an authorization card for representation" of them by said Union. He told them such a card "can be used for three things . it can be used for an election, it can be used for a cross check with the employer, and .. . if we have a majority, those cards would be used to prove a majority status based on the overall unit." He also told them "there is no initiation fee." The Union's practice dur- ing such campaigns is to charge no initiation fees or dues "until we have a contract," and after a contract is executed "they will pay monthly dues" and only those hired after the contract is signed will also pay an initiation fee. It was stipulated that the following were the only persons employed by Respondent: 47 employees whose names ap- pear on General Counsel's Exhibit 9 were in Respondent's employ on April 25, 1974. In addition, the following indi- viduals were so employed on said date: Raymond May- nard, Charles Lemarche, and Michael Prendergast, who were store managers, Leonard Horowitz (a son), Steven Rosencrantz (a son), Bernard Horowitz (father), Ernie Stel- SERV-U-STORES, INC 49 zer, and Rudi Cecchetelli. No other individuals were em- ployed by Respondent between April 23 through April 25, 1974, other than "the three owners and their wives." It was also stipulated that James Bonatakis was not employed by Respondent prior to April 26, 1974. Delores Kowalczyk, another witness called by the Gen- eral Counsel, testified substantially as follows. As an em- ployee of Respondent she signed a union card for Local 1459 on April 19, 1974. (See G.C Exh. 55, where the date thereon is erroneously given as 1973.) She worked under Ray Maynard and she attended two Local 1459 meetings. (See G.C. Exhs. 10(b) and (c).) In late April or early May 1974, Maynard told her "there would be no union talk." Then he asked her, "Why would you like a union here?" I find this question is not coercive and, consequently, does not violate the Act. She replied, "for better benefits and for more security and vacations." So he replied, "You people that want unions, the price of oil has gone up . . . . If [the union] doesn't get in here, they'll get you out one way or the other . . . they'll lay you off . . they'll get you out some way." After the Union appeared on the scene there were changes in the working conditions of Delores, i.e., she had to vacuum, wash windows, dust, and repair wallpaper books, although she did not previously perform such serv- ices for Respondent. Also her lunch hour was changed. She was given such changes by Maynard and also by Rosen- crantz. Helen Meunier gave testimony for the General Counsel substantially as follows. As a furniture store employee of Respondent she signed a union card for Local 1459 on April 19, 1974. (See G.C. Exh. 56.) She attended three meetings of said Union. (See G.C. Exhs. 10(a), (b), and (c) ) The day before the furniture store closed Ben Horowitz told her they were going to a union meeting Sunday night and the employees are "under the impression that it's going to be a union meeting Sunday night and the employees are under the impression that its going to be a vote for a union, but . . . it is not . . . there has to be a Government election." I find no violation of the Act in said statement. On April 26, when Helen reported to work she saw a sign on the furniture store stating it was closed and "Inquire at 65 St. James Avenue." Consequently she proceeded to Respondent's hardware store where she spoke to Ben Ho- rowitz. He informed her "they had to close because it was economically unfeasible " When she asked why he did not mention this the night before, he replied, "We didn't decide until this morning it was going to close . . . You'll go to work for Mr. Cardin." Helen then told him she was so upset that she wanted to take off until Monday, but he said he could hold her job for her only until Saturday. Nothing in this paragraph contravenes the Act, and I so find. However, Helen became ill on Friday, so that her broth- er called Respondent to state that her illness would keep her away from work on Saturday. Consequently she showed up for work on Monday, and Eileen Sears showed her how to do her new job. Helen did such work, i.e., to stock shelves, on Monday. On Tuesday Helen complained to Horowitz that she could not do such work because "it was too much like a factory and I can't stand it." But he told her she "had to learn the floor before she went doing office work." So she "returned my smock and walked out." At no time did Respondent tell her that the furniture store would be closed or that it contemplated closing said store, or that such store was in any sort of financial diffi- culty. Actually, "business on [her] shift never seemed to drop. It never seemed to fluctuate at all. It always seemed pretty level." In October 1974, Respondent wrote her offer- ing her reinstatement to her "former or substantially equiv- alentjob." She accepted and was assigned to a cash register in the hardware store until April 1975. In early April 1975, Respondent "started training a new girl" to be the "main" on the register, so that Helen be- came "the spare register." As a result Helen was "marking the merchandise most of the time." Around April 14 Oper- ations Manager Wallett told her to do some work for Chris Bonatakis by stocking shelves with housewares. After 2 hours of this Helen went home when Rosencrantz told her he had received a phone call that her daughter had taken ill. The following Monday she came back to the job of stocking shelves. Wallett told her he did not know if Helen would remain permanently on this job as it depended on whether the "main" register girl could qualify as such "main." So Helen replied she thought she "could not stay because [her new job] is not the type of work I applied for .. I'm not going to work. I don't like this work .. . this was not my work . . . for all the harassment and minor things that I've been brought into the office about, it was too much. I couldn't take it. He said he `understood' and `knew it was hard work under those conditions."' So she gave him her smocks which she used on the job and then left Helen described some of the instances which she charac- tized as "harassment" in the previous paragraph above. Once Wallett, in the presence of Rosencrantz, called her into the office and made it clear to her that she "had no business discussing pay rates or anything else with any- body, and [she] should keep [her] opinion to [herself]." Also she was "called into the office [by both Horowitz and Rosencrantz] on several occasions for my [cash] drawer supposedly being short." But her drawer, according to her testimony, was never short to her knowledge Another time Wallett accused her of criticizing the quality of Respondent's bags to a customer and also being rude to said customer. But such customer was never identified to her. Moreover she never criticized the quality of Respondent's products and no customer ever complained that she was rude. On another occasion Wallett criticized her for talking "not right" over the intercom and warned her "don't talk" over the intercom "like that." Also Wallett once called her a "klutz," i.e., "it means clumsy," accord- ing to Helen. Further, Wallett refused her request to work Saturday mornings instead of Saturday afternoons, but one other employee was given more hours to work on Tuesday at such employee's request. Continuing, Ms. Meunier testified that "there were so many . . . other remarks made to her . during the peri- od in which [she was] working in the hardware store" that she "can't recall a lot of instances." Once Rosencrantz said to her, "get going fanny." But she "didn't pay much atten- tion to him because ... I've gotten these remarks so much 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that I was just used to them." Other times he told her she had "no business to express [her] opinions ... it was none of [her] business" about how "things" were done in the store." When Ms. Meunier left Respondent she asked the State for unemployment compensation. Respondent opposed her claim on the ground she "did not want to work anymore Left work voluntarily without good cause attributable to the employing unit or its agent. It takes less effort to collect unemployment than to work." (See G.C. Exh 57.) On cross Ms Meunier admitted that Respondent on September 23, 1974, wrote her, and she received on Sep- tember 25 a letter offering her "immediate and uncondi- tional reinstatement to your former or substantially equiva- lent position as an employee of this Company." (See Resp. Exh. 17.) In her letter to Respondent dated September 26, 1974, she accepted said offer. (See Resp. Exh. 18.) She re- turned to work about October 3 or 4, and she was given a job in the hardware store as a cashier. Such work included punching the cash register, bagging, pricing items, and changing prices. About 7 months later she was assigned to a different job. She worked at it for about 2 hours on a Monday her first day on it, and then went home. When she returned on Friday she observed someone else performing her former functions as a cashier. She told Wallett that she "did not want" her newjob if it was to be permanent. Then she quit, telling Wallett, "I'm not going to stock shelves. This is what happened before and I'm not going to do it now." At this hearing it was stipulated that General Counsel's Exhibits 54(a) and 54(b) contain "a list of employees in the unit and their hourly wage rate." Charles Lamarche, manager of Respondent's Dickinson (misspelled as Dickerson in the transcript) Street store, was called as a witness by the General Counsel. An adequate summary of his testimony follows. Although he is on a weekly salary basis, he punches a timecard because he is paid for any time put in which exceeds 42 hours a week. He is in charge of the employees in the store, "see that their jobs are done and . that the store runs smoothly " Em- ployees come to him "if they want to swap days with some- body, [take] time off . . and I take care of that in my own way" But he can grant only a "short time off" . a few hours . if it involves more time like 2 or 3 days or some- thing like that then definitely I would get in touch with the office . . . to get the authority to grant this time off . . I wouldn't take it upon myself to grant 2 or 3 days off." Employees who are out sick call him, and he "in turn will call the office." But the office would decide whether La- marche should be given "a replacement for that day" on which an employee remains out because of illness. He also castigates employees who don't obey him and initials timecards of employees "when they forget to punch in." He can recommend a raise for an employee in his store. He cannot discipline employees, but he has "the au- thority to make a few criticisms if I'm not happy with an employee." And he would "report" to the "office" any em- ployee whose "performance" was not satisfactory. He once recommended an employee to be promoted. There are four full-time employees and one full-time employee besides himself who work in his store. Finally, he said discharges of employees are "discussed" with him by the office. On cross Lamarch testified he did not actually recom- mend an employee to be promoted. Rather, he was told by Ben Horowitz that Ben "was entertaining the thought of making Cheryl [Spinks] the assistant manager in the store, and what did [Lamarche] think of the suggestion. And I [Lamarche] told him . . . she was deserving of it." But Lamarche insisted that Spinks did not come to him and ask him to endorse her for such position. Further, on cross, Lamarche admitted he was not familiar with what wages employees in the store receive, and did not mention to his superiors any specific amount of increase when he recom- mended any employee for a raise in pay Robert Rivkin, who had previously testified as a witness for the General Counsel, was recalled by the latter to testi- fy further, as follows. Prior to the advent of the Union he "was hired strictly as sales on the floor." His "main func- tion was dealing with the public [in] selling . .." but "when the union did start ... [he] found [himself] working in the basement of the store . . actually sweeping the floors, rearranging everything down there; cleaning up the trash." In addition, when he "was downstairs" he "was continually being observed by either Horowitz or Rosen- crantz to make sure that my work was being done . . . [and he made less pay in the basement because he received no sales commissions.] Also prior to the union campaign we were able to smoke downstairs while we were down there for something. But after the union campaign started we were told . . . that we can no longer smoke downstairs." There was also a change in their breaktime after the Union came on the scene. Another change suffered by Rivkin was that he could no longer enter the cashier's "cage." But Ray Maynard gave as the reason for this that "a shortage had been discovered and they wanted one person, evidently, in charge" of han- dling money. Rivkin wore union buttons in Respondent's store where he performed services. Ben Horowitz asked him why he, Rivkin, was wearing such buttons So did Ray Maynard, who also commented that, since Rivkin was not yet a union member why did the latter wear such buttons. Then Maynard added, "I hope this doesn't interfere with our relationship . Serv-U doesn't really need a union. . . there would be too much static between the people that did want it and the people that didn't want it." I find no unfair labor practices were committed by the utterances set forth in this paragraph. On one occasion the "owners" of Respondent yelled at two union representatives who had entered the store, "Get out of the store. We'll call the police We'll have you thrown out . . [You] are a bunch of garbage And take this trash [pointing at Rivkin and two other employees] with you." At another time the "owners pushed out the customers" in Rivkin's store with the comment, "there was a bomb scare " As soon as the store had been cleared of customers the "owners" held a meeting of employees. Then Rosencrantz said an employee "now on commission . . wants more money." No violation is disclosed by this last statement of Rosencrantz. Rivkin assumed Rosencrantz was referring to him in this last remark On cross Rivkin admitted that before the Union's cam- SERV-U-STORES, INC. 51 paign started sometimes he went to the basement to fill orders for customers, or to "stock the shelves down there," or to "sweep it," or to "get things for" Ben Horowitz. Moira Neville was also recalled as a witness by the General Counsel. Her further testimony may be adequately con- densed as follows. She worked under Manager Jack La- marche at Respondent's Dickinson Street store. He opened and closed said store. He had authority "over my hours," so that he gave her time off when she requested it; she also called him when she was sick; he set their lunch hours; and he signed her timecard when she forgot to punch in. The "owners" rarely came to her store, and then for "rarely more than five minutes," but about twice a month "it would be around supper time." Lamarche also "took care of the money" at said store and also of "overrings and underrings." Still another witness recalled to the stand by the General Counsel is Delores Kowalczyk. A summary of her addi- tional testimony is here set forth. In late April 1974, she spoke to Rosencrantz in the presence of Mary Ireland. De- lores asked him what he "could do about it" if she and Mary "took the union card and gave it to him." He then called over Don Safford and told him, "Tell the girls how you brought your union card back." Safford answered, "I handed it to you, Mr. Rosencrantz." Rosencrantz said, "No you didn't." Thereupon Safford stated, "Oh, that's right, I put it on your desk." Then Safford left. No viola- tion of the Act, I find, is revealed in this paragraph. Continuing, Rosencrantz told Delores, "I can't promise you anything if you return your cards. If the union does get in here, when work is slow I'll have to lay you off which we haven't done in ten years [and] if the union dues aren't paid within a week I'd automatically have to fire you . . . I have so much hatred in me if you'd like to hand them to me go put them on my desk." This last sentence does not contain any threat and, therefore, is protected by Section 8(c) of the Act. On another occasion at the end of April 1974, Rosen- crantz instructed Delores, "no union talk," while she was speaking to fellow employees. But she was not then talking about the Union. In the past Rosencrantz had seen Delores talking to other employees while on the job but he did not forbid such conversations. In fact she insisted that employ- ees had been allowed to talk while they were working. I have found below that this order by Rosencrantz violates the Act as it forbids union talk while it pernuts other talk among employees during worktime. Delores worked in Respondent's paint store under Ray Maynard, who gave orders. At this point the General Counsel rested. B. Respondent's Defense Although Respondent's vice president, Jordan Rosen- crantz, was called as a witness by the General Counsel, the former also testified as a witness for the Respondent. His testimony as Respondent's witness may be stated as fol- lows. His son Stephen, who is 16 years old, has been em- ployed by Respondent for about 2 years as a sales and stock clerk, working 6 to 8 hours on Saturdays, because he attended school on weekdays. Stephen also worked one night a week for a couple hours during schooldays, and also worked "during the school vacation" 48 hours a week. Shortly after the Union's campaign commenced union representatives, one of whom was David Barry, visited Respondent's paint and wallpaper store. As Rosencrantz approached them Barry commented, "Here comes that hook nose again," Then Rosencrantz ordered the two rep- resentatives out of the store, telling them "you're disrupting my business. You're making a commotion throughout, and you're agitating everybody." Rosencrantz also told "the person who was standing," but whom he did not know, "get your trash out of here. You're driving up a big .. . cadillac . . . and you're telling everybody they're in a pov- erty level. Get out of here and take your trash friends with you." Barry then spoke up with "get your people out of poverty level and then maybe you won't see me." Since the union representatives failed to leave Rosencrantz "at- tempted to call the police." In April 1974, shortly after the Union's campaign start- ed, Rosencrantz put up a sign in the "break room" of all Respondent's stores reading "only two employees at a time during break, fifteen minutes each." This was done be- cause his partner, Ben Horowitz, observed six people in the breakroom at the same time. Rosencrantz on April 24, 1974, was called during lunch- time on the telephone by employee Mary Ireland to inform him she was sick and therefore would be out but would be "back in on the regular time." So he told her, "O.K." But Ireland did not report to work the next day. He did not see Ireland again until May 1, at which time she was accompa- nied by Dolores Kowalczyk. Ireland asked to speak to him "in private ... pertaining to union matters." But he insist- ed "we can talk right here." When Ireland characterized this reply as "highly unusual," he replied, "In no way am I going to threaten you, coerce you, and I'm not going to promise you anything; and with you knowing that what do you have to discuss?" Ireland then stated, "I'd like to know that if I withdraw my support of the union and get cards back would you .. . try to give up . . . revengeful reprisals for it?" Rosencrantz replied, "I'm not going to anyway coerce you or threaten you or promise you anything . . . . You do what you think is right." Rosencrantz conveyed the subject of said conver- sation with Ireland to his partner, Ben Horowitz. Rosen- crantz insists he did not discharge Ireland. In April 1974, shortly after the Union's advent, Rosen- crantz had a conversation with John Byrne. The latter wanted to know when his commission would be included in his paycheck. Rosencrantz replied, "go ask your union representative." However, at this time Rosencrantz did not know whether Byrne "was on commission." About May 6 or 7, 1974, Rosencrantz spoke to a group of employees, one of whom was Donald Safford. He told them that, "there seems to be sort of a cloud of gloom hanging over everybody [which] ... I'd like to be able to dispel." He added he believed they would be able "to do their job a lot easier and a lot better because we have now a new operations manager [who] . . is Mr. Wallett." But he did not then or at any other time "have a private meet- ing" with Safford Nevertheless Rosencrantz did speak to Safford shortly 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after the Union's campaign was initiated. Safford informed him that Safford was "going to be getting my union card back. I've had a change of heart." Rosencrantz assured him "whatever you do is your business. You do what you think is right." A day or two later Rosencrantz saw Safford's union card "setting" on top of a desk in the of- fice, and observed "another union card . . . with it." Said other card was Mike Maloney's. So Rosencrantz picked up those two union cards and left them "in our back room where we eat." About April 25, 1974, Rosencrantz read a prepared speech to Respondent's employees in three of its stores. It is antiunion in effect. It also points out benefits over and above regular wages which employees received in working for Respondent. (See Resp. Exhs. 20 and 21.) In April 1974, Rosencrantz spoke to Debbie Kozikowski about a complaint which employee Pat Sabrina, "in a very highly agitated way," made to him against Debbie. Pat had requested Rosencrantz to "get that Debbie away from me andjust keep her from talking to me " So he told Debbie to stop "agitating" Pat and to "confine yourself to doing ex- actly what you were hired for . . . you . . . agitated my girl [Pat] to such a point where I literally had to take her off the register... ." But he did not ask Debbie to give her ver- sion of this incident. Another witness for Respondent, Harvey Wallett, its op- erations manager since May 6, 1974, testified substantially as follows. As such official he made some changes in work- ing conditions. (I) He objected "very strongly" to smoking by employees "on the floor ... waiting on a customer." So he prohibited such smoking Also, he forbade smoking "in any cellar" of a store because "there's inflammable materi- als in the cellars." (2) In addition, he stopped talking by employees to nonemployee friends during working hours and thus ignoring "customers [who] came first and fore- most." Alluding to cashier Helen Meunier, he described her as "a little bit on the slow side " As such cashier her duties required her also to do marking, ticketing, or "any other odd and sorted jobs" when not busy on the register. "It came to a point where she was so slow on the register I [Wallett] had to use her as a bagger rather than a register girl." Also, Helen had shortages and "overages" in her cash register. But other cashiers also had such experiences. And once a customer complained to Wallett that Helen was "a very impertinent girl. She argued with me." So he told her, "You have to be nice to our customers." He claimed she was "kind of skimpy to customers." However, he has also talked to other employees against whom customers lodged complaints. About April 17 or 18, 1975, Wallett spoke to Ms. Meuni- er. She had been working on stock the previous few days and ask him how long she would perform this function. He replied that when she's not busy on cash registers she will do stock work because "we can't have two girls at the regis- ter doing nothing." Thereupon she handed him her smock and said, "I can't work on those conditions any more." And she then quit her job and left. On cross Wallett admitted that only one customer com- plained that Helen did not treat her well. And on cross he admitted he did not ask Helen to give her version of this incident, but he later changed his testimony to say he did so ask her. Further, on cross, he admitted that Ms. Meunier's failure to provide such customer with a bag (which caused the complaint) "wasn't so much the individ- ual cashier as the policy of the store." Further, on cross, he stated "her work was actually satisfactory after the first few weeks that she went back to work." Another witness for Respondent, employee Mary Cas- seles, gave substantially the following testimony for it. She drafted a paper stating that the employees who signed it "are not interested in being represented by a union at Serv- U Stores." No one asked her to prepare this instrument or tell her what words to insert in it. Still another witness for Respondent is Christine Bona- takis, one of its employees. She testified substantially as follows. She prepared Respondent's Exhibit 3, a rejected petition dated April 30, 1974, stating in part, "We ... DO NOT WANT TO BE REPRESENTED BY ANY UNION," and signed by many employees. Those who signed were solicited by her to do so. But she kept it in her office desk drawer, showing it to no one until the week before she testified on August 7, 1975. Then she handed it to Ben Horowitz who, she testified, did not "know about it before." Nor had she talked to any of the owners about said petition prior to giving it to Ben. Margaret English, another employee, gave substantially the following testimony for Respondent. During the Union's campaign she overheard a conversation between Robert Rivkin and a customer. When the customer com- plained about the price, $3.69, of an article he wanted, Rivkin replied, "Yah, I know. It should be $2.69." Also, Ms. English claimed that Rivkin would answer questions of customers as to where articles could be found but would make "no effort to go help [the customer] look for it or anything." On cross Ms. English admitted she assisted Ms. Bona- takis in preparing and circulating the antiunion petition. She also signed another antiunion petition but never signed a union card for Local 1459. Paul Winnick, a witness for Respondent, gave the fol- lowing testimony In April 1974, he was "employed as a subrep for Paris Associates who are a group of manufac- turers' representatives representing different manufacturers throughout six New England states." In that capacity he sold Respondent a line of unfinished furniture. On April 3, 1974, he called on Respondent's employee Margaret Wil- kinson to make a sale to it and did consummate such sale. Although on April 8 Ben Horowitz telephoned him cancel- ing said order, Winnick's employer denied such attempt to cancel said order even though Winnick recommended res- cinding it About a week after April 8 Winnick had occasion to speak to Ben Horowitz in the latter's office. Ben explained that the foregoing order was sought to be abrogated be- cause the cost of unfinished furniture had "climbed so greatly . . . that he felt it would not be a worthy item any longer to make money with or to make a profit as such." Further, Ben informed him that Respondent was "going to close [its] furniture outlet" because there was not a profit margin suitable for him." Winnick did not thereafter re- ceive any order from Respondent for unfinished furniture. SERV-U-STORES, INC. 53 Winnick finally stated that the price of such furniture was raised three times, for a total of about 25 percent, from late 1973 to early 1974. Respondent's vice president, Benjamin Horowitz, testi- fied for it. His testimony may be abridged as follows. Respondent's Exhibits 2(a) through 22(b) indicate the sales, expenses, and bank deposits of Respondent's furni- ture, paint, and hardware departments. Respondent's Ex- hibit 23 (rejected) indicates furniture sales as well as sales for all departments in a "summary and a comparison" tak- en from Respondent's Exhibit 22. Ben Horowitz asserted that Ernie Stelzer, who did not punch a timeclock, was employed by Respondent on a part-time basis, for 6 hours each week, as "he was studying for an exam in another job." Stelzer was a full-time po- liceman for the city. Ben's nephew, Leonard Horowitz, was employed "usually .. . on Saturdays, and sometimes after school, and sometimes on vacations." And Ben's father was employed by Respondent 20 hours a week at $50 a week. On April 22, 1974, union representatives, one of whom was Barry, entered Respondent's hardware store. As Ben soon heard loud noises near them he came to such repre- sentatives who at the time were part of "a little group formed over in the electrical department." So Ben "kept saying" to this group, "break it up." At this point Union Representative Abdow pushed Ben causing Ben to fall backwards. Soon Ben observed police "right behind him" and he "guessed they walked out of the store with the po- lice." About April 15, 1974, Ben "had occasion" to change the working conditions of some employees. First, in the "break room", he limited "two people in [said] room at a time, and 15 minutes each." This was adopted because he noticed "a few customers in the store and . . . looked around and . . . only saw Mr. Maynard." When he asked Maynard where everybody was, Maynard replied, "on break." So Ben went immediately to the breakroom where he observed six em- ployees. The same day Ben also put employee John Byrne on a commission basis. But Ben told Byrne that Byrne would "be getting it the second week." And Ben denies that he ever spoke to employee Moira Neville in regard to the Union. Continuing, Ben characterized employee Robert Rivkin's work as excellent prior to the appearance of Local 1459 on the scene. But after said Union began organizing Respondent's employees Ben "felt that [Rivkin] was out to ruin my business." This conclusion was reached because Ben received complaints from customers "of [Rivkin's] atti- tude; the remarks that [Rivkin] made to them." Ben also heard Rivkin tell a customer that an article cost "$3.69, but it should be $2.69." Ben also claimed that Rivkin admitted to him that Rivkin placed "black marking" on a can of paint reading, "Bob's special paint." On another occasion Ben saw Rivkin "just throwing cases .. . all over" the basement of the store. Further testifying, Ben Horowitz insisted that shortly af- ter the Union's campaign was initiated he heard Bob Rivkin shout to a group of Respondent's customers, "You should do your shopping in J. M. Fields." On another oc- casion a customer protested to Ben that Rivkin paid no attention to the former but instead chatted with "the regis- ter girl . . . Neither one of them said boo to me," accord- ing to the customer who brought this to Ben's attention. But in both of the above instances Ben did not castigate or even talk to Rivkin for such conduct. On cross Ben asserted that he had "approximately half a dozen" additional "complaints from customers" regarding Rivkin, but Ben did not speak to Rivkin concerning such incidents. Nevertheless, although Ben "thought" that Rivkin was "trying to ruin" Respondent's business "with repeated incidents" Ben did not discharge him because "there was a lot of union situation. I [Ben] didn't need any changes" against Respondent by the union, Local 1459. Yet Ben fired employee Mary Ireland for violating "my [i.e., Ben's] rules and regulations." Further, on cross, Horowitz testified that, as a result of the employees going to the breakroom Maynard was the only one on the sales floor; nevertheless, he, Horowitz, said nothing to Maynard as to why Maynard allowed all the employees to take a break at the same time and thus to fail to take care of customers at the store. Also, on cross, Horowitz insisted that, although the fig- ures as to sales appearing in Respondent's Exhibits 21(a) through 21(bb) do not disclose "the profitability" of each store, and no figures are "ever broken down by stores," he "can tell by sales how one store is doing with regards to profitability in comparison to another store. Based on sales ... . And that's how [he] made the decision to close the furniture store . . . . Without question, absolutely." How- ever, he does not "have the year end profit for each store" in said figures, but does "have the year end profit for the total operation." Then, "as long as you know the profit for the total operation that's all you have to know is the sales of each area and then you can tell if each area is profitable. If your whole picture was a loss then you would know you're losing and which area." This is because the profit of each store has "basically the same margin. Gross profit margin is basically very close " See General Counsel's Ex- hibits 61(a)-(c) for the years 1972, 1973, and 1974, on prof- its, according to Horowitz. These figures disclose that the "furniture store was decreasing because of decreasing sales. The sales were going down. That was the indication for me that it was time to close it .. .. Volume was the key," even though the furniture store was "making a profit." Further, on cross, Horowitz declared that, since "there were no separate figures on costs in the furniture store .. . [its profit] was strictly on estimates . . . . The stores gener- ally [have] the same profit margin." He also stated that "gross profit runs ... thirty-five [per cent] average ... for each of the stores . . . thirty-five per cent of the sales .. . in each of the stores." At this point Respondent rested. C. General Counsel's Rebuttal Ernest Stelzer, a detective in the Springfield, Massachu- setts, police department, gave substantially the following testimony for the General Counsel. He has been employed by said police department since 1964. In April 1974, he was also employed by Respondent at "whatever hours I was 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD available because I was attending college and I also had court responsibilities because of my police job. So, whenev- er I had time they [Respondent] allowed me to come in and perform my duties . . . . Any time during the day or in the evening ...." He worked 6 hours a day for Respondent. Rudolf Cecchetelh testified for the General Counsel on rebuttal. An abstract of his testimony is set forth here. He was injured while at work for Respondent. As a result he received workmen's compensation from about April 22 un- til June 1974. David Barry , a union official , testified as to what hap- pened in April 1974, at one of Respondent's stores. While "walking around the store" with three other union repre- sentatives Ben Horowitz approached them. Then Ben "started yelling about us getting out of the store." Soon Barry became involved in an argument with employee Bis- sell "over Bisell's wanting us to leave the store ." At this point Ben, according to Barry, "threw himself on the floor." Continuing, Barry stated that he told Respondent's em- ployees during the Union's campaign that "there were no initiation fees for anybody that worked at Serv-U . . . ex- cept to those people who were hired after a contract." See also General Counsel 's Exhibit 63, union literature to the same effect. Another rebuttal witness for the General Counsel was Dorothy LaPalm , manager of Western Union Telegraph Company's office in Springfield, Massachusetts . She de- scribed Western's procedure in accepting messages to be transmitted and then transmitting them. According to her, telegrams "sent in the Springfield area" are usually re- ceived by the addressee "anywhere between one to four hours" after they are given to the Springfield office. Gener- al Counsel's Exhibit 6 is a "night letter" dated April 23, 1974, received at 6.32 p.m. that day by Western Union, and sent by Local 1459 to Respondent, claiming "we repre- sent a majority . . . at all your stores . . we request you recognize us as the bargaining agent of your employees. We are prepared to prove our majority." It was delivered not later than 2 p.m. the following day , April 24. Night letters are delivered the day after they are received in the Western Union office. The General Counsel's final witness on rebuttal was Hel- en Meunier . Around October 3 or 4, 1974 , she returned to work for Respondent. Approximately 5 weeks later she was "taken off the cash register on Saturdays . .. supposedly because my drawer was short ." But at no time before this had Respondent informed her that her drawer was short. However, "after that when [she was] first told [she] had a shortage [she was] . . . told again [she was] having short- ages . . . several times." One such shortage was $20 and another was $100, and the others were "always even num- bers." But she was never told she had overages or that she was slow. In fact supervisor Wallett told her "how great I did." In March 1975 , she was put back on the register on Sat- urdays. But on April 14, 1975, she was put on the floor "to stock items." Also, Wallett once told her she was rude to a customer but did not mention how she was rude. About February or March 1975, at a time when oil was on sale, a customer who bought oil from a spare employee near Ms. Meunier wanted a bag. Prior to this employees have been instructed "not to give bags for sale items." Wallett, who was nearby, informed said customer "we couldn't give bags on sales items " D. Concluding Findings and Discussion 1. Alleged violations of Section 8(a)(1) (a) Respondent's officials ordered Local 1459 represen- tatives out of its stores, disparaged such representatives in the presence of employees, referred to Respondent's em- ployees as trash, and accused unions of putting two other employees out of business . On another occasion , Respon- dent refused to speak to union representatives who started to talk to them about Local 1459. The foregoing conduct demonstrates that Respondent has union animus, and I further find that it contravenes the Act. (b) Respondent requested Danio, whom I find to be a supervisor under Section 2(11) of the Act, to obtain infor- mation for it regarding persons participating in the cam- paign of Local 1459, and he did so. The jobs of such people "would be altered ," Horowitz told Danio . Danio also over- heard Rosencrantz and Horowitz make statements that employee Rivkin would be demoted . Such statements do violate the Act insofar as they show that, and I find, this constituted a change of the working conditions of em- ployees because of their union activities and the appear- ance of Local 1459 on the scene. Crediting Danio, and not crediting Respondent's con- trary evidence , I find that Rosencrantz and Horowitz about April 20 or 22, in a conversation which Danio over- heard, said they would close Respondent's warehouse be- fore they would let any union in their stores. Since such warehouse was admittedly later closed, I find that such closing was done to discourage union activity. And I fur- ther find that closing it for such purpose violates Section 8(a)(1) of the Act. (c) Safford, whom I credit, described changes in work- ing conditions shortly after Local 1459 initiated its organiz- ing campaign, as more fully recounted in his testimony set out above , which I credit, I find such changes were inaugu- rated to discourage union activity and, consequently, tran- scend Section 8(a)(1) of the Act. (d) Balboni repeated some of Safford's above-men- tioned changes. But Balboni also testified , and I find, that only two employees were allowed to take a break together. Respondent's testimony indicates this became necessary to have employees on the floor to serve customers . But I find Respondent's explanation is a pretext to disguise the true reason for this, said true reason being to discourage union activity by employees . This is because I find that failure to institute the two-employee rule over a long period before the advent of the Union , plus its sudden adoption when the Union started its organizing campaign , point to the conclu- sion that said rule was inspired by antiunion consider- ations. Hence I further find such change in working condi- tions violates Section 8 (a)(1) of the Act. (e) Some other changes in working conditions are also described by Diane Sticco and Barbara Ochenkowski, whom I credit. I find these also were motivated by anti- SERV-U-STORES, INC union considerations and therefore violate Section 8(a)(1) of the Act. (f) Ms. Ochenkowski heard Rosencrantz tell employee Kozikowski to stop talking for the Union during working hours. But employees were permitted before this to talk to each other while on duty. Hence Respondent's action in limiting talk during working hours to nonunion matters discriminates unlawfully against union activity and thus violates the Act. (g) Ms. Neville testified, and I credit her, that Rosen- crantz told a meeting of employees that Respondent would close its doors if a union came in. I do not credit Respondent's evidence inconsistent with this. Hence, I find this is a threat to discourage unionism by shutting down one or more stores, and that such threat contravenes Sec- tion 8(a)(1) of the Act. Neville also testified credibly that Horowitz asked her why she signed a union card and if she desired to get it back. This type of interrogation is forbidden by Section 8(a)(1) of the Act. He also told Neville that the prounion employees "would all be gotten rid of" as "they were not considered valued employees." This threat also is pro- scribed by said section. (h) Mary Ireland, whom I credit, testified that Respon- dent forbade employees from speaking about the Union on store property or during working hours. This is too broad as it proscribes such talk at any time; i.e., including non- working time. Hence I find it violates Section 8(a)(1) of the Act. She also heard Horowitz accuse union officials, in front of employees, of closing a "lot of stores [including] .. Kelly-Fredette." I find this type of disparagement of union officials in the presence of employees is not protect- ed by Section 8(c) of the Act. Accordingly, I find it trans- gresses Section 8(a)(1) thereof. (i) Supervisor Maynard told employee Ms. Kowalczyk "there would be no union talk." I infer that this means on Respondent's premises. Since this is so broad that it ex- tends to nonworking time I find that it violates Section 8(a)(1) of the Act. He also told her that Respondent would get her "out some way." As this occurred during a conver- sation in which she stated that a union would bring "better benefits," I find it is a threat to discharge those who fa- vored the Union and, consequently, contravenes said Sec- tion 8(a)(1). After the Union appeared on the scene changes were made by Respondent in her working conditions. They are described in her testimony, and need not be repeated here. I find these were made to discourage adherence to the Union and, therefore, are proscribed by said Section 8(a)(1). (l) Helen Meunier also suffered some harassment from Respondent, as set forth in her testimony recited elsewhere herein. I credit her that such conduct occurred, and do not credit Respondent's evidence inconsistent therewith. I find that this "harassment" was engaged in to discourage her interest in the Union and, consequently, is proscribed by Section 8(a)(1) of the Act. Ms. Meunier also was assigned to a different and more difficultjob than that of a cashier, her regular job, in early 1975. 1 find this occurred as a reprisal for her interest in the Union. Accordingly, I find such change violates said Section 8(a)(1). 55 (k) Robert Rivkin, on recall, also described some changes in working conditions which were inaugurated shortly after the advent of the Union. They need not be repeated at this point. Crediting him I find that such changes were instituted to weaken the Union's attempt to organize Respondent and, therefore, violate Section 8(a)(1) of the Act. Rivkin also testified, and I credit him, that Respondent's owners disparaged union officials in the store in the presence of employees. This also transgresses said Section 8(a)(1), and I so find. (1) Delores Kowalczyk, on recall, testified, and I credit her, that Rosencrantz told her that "if the union gets in here, when work is slow I'll have to lay you off which we haven't done in 10 years [and] if union dues aren't paid in a week I'd automatically have to fire you." I find the first part of the foregoing sentence is a threat to change working conditions contrary to the provisions of Section 8(a)(1) of the Act. The last part of said sentence, although it does not 100 percent accurately state the law, is not a violation of the Act, as an employer is required to discharge employees delinquent in paying union dues when requested by the union to do so pursuant to a valid union-security clause in a collective-bargaining contract. 2. As to whether Respondent's store managers are statutory supervisors It is my opinion, and I find, crediting the testimony of the General Counsel's witnesses on this issue, that the man- ager of Respondent's stores is a supervisor within the meaning of Section 2(11) of the Act. This follows from the additional findings, which I hereby make, that such a store manager is invested with authority to responsibly direct employees in his store, that such authority requires the use of independent judgment, and that it is not of a merely routine or clerical nature. As such managers are supervisors within the design of said Section 2(11) they may not be included in the collec- tive-bargaining unit in determining whether the Union rep- resented a majority in such unit; and whatever conduct they engaged in which transcends the permissible limits of the Act may be attributed to Respondents. 3. As to the discharge of Mary Ireland Upon an assessment of that part of the record pertaining to this issue I am of the opinion, and find, that Mary Ireland's discharge was not motivated by antiunion consid- erations. It is true, as contended by the General Counsel, that she was abruptly discharged on May 6, 1974, but I find this occurred only because this was the first day when she returned to work after April 24, 1974. I recognize the abruptness in terminating an employment is some evidence of a discriminatory discharge, but I find that no discrimi- natory motives inspired her being fired. It is my opinion, and I find, that the reason assigned to her for her discharge, i.e., failure "to call in every day," was not a pretext. It may be that such a ground seems harsh or even ridiculous. But an employer may terminate an em- ployee for any reason, whether good or bad, so long as it is not impelled by illegal motives. And I find that no unlaw- ful motive contributed to the decision to discharge her. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. As to the transfer of Frank Rueli Rueli, whose "type of expertise was such that he could not be replaced," according to Rosencrantz , was transfer- red from the furniture store. But such transfer became nec- essary, Rosencrantz claimed , because Rueli was designated to take over the duties of Danio in Respondent's panel store when Danio was discharged . But there is no evidence of discrimination directed towards Rueh involved in this transfer. It is true that elsewhere herein I have found that the closing of said furniture store was discriminatory, and I have recommended an order that it be reopened. But it does not follow that Rueli is entitled to be reassigned to his former fob in the furniture store, since it is Respondent's prerogative as an employer to assign him to any job for nondiscriminatory reasons. Consequently, Respondent may, if it so desires , retain Rueli in its panel store. Dodson's Market, Inc. d/b/a Dodson IGA Foodliner, 194 NLRB 192 (1972), and Olson Bodies, Inc., a subsidiary of Grumman Allied Industries, Inc, 181 NLRB 1063, 1076, (1970), relied on by the General Counsel, do not require a different re- sult, as those cases found actual discriminatory intent di- rected specifically towards the employee in question. 5. As to the closing of the furniture store The circumstances attending the closing of the furniture store, as well as the pertinent testimony of Danio, convince me, and I find, that said store was closed to chill unionism among Respondent's employees. Pertinent circumstances are: (a) The union appeared on the scene. (b) The employees were not given a warning that the store might be closed because, in Respondent's opinion, it was not as profitable as it should be. I am aware of the rule of law that an employer may conduct his business without discussing with his employees problems arising in its opera- tion . Nevertheless I believe it is reasonable to infer, and I do so, that when employees are suddenly notified at the time of the store's opening on Monday, the first day of the week, that the store was closed just a moment before then, a discriminatory motive prompted such precipitate closing. (c) The store was closed abruptly. It is elementary that an employer may close down its store as abruptly as he desires; but such overhastiness may be assessed, along with other factors , in arriving at the actual reason for such pre- cipitate closing. I find that the Union's campaign proxi- mately caused such closing. (d) Respondent insists that such closing was prompted by the fact that the furniture store was not making enough profit. Voluminous evidence, i.e., a few hundred pages, has been offered by the General Counsel, attempting to contest said contention. It may be that some of Respondent's other stores were most profitable. But it is difficult to perceive why a store which, according to Respondent, was making less profit than such other stores over a period of 2 years was so suddenly closed at 9 a in. on a Monday morning Such abruptness warrants the inference, which I draw, that antiunionism at least in part prompted such hasty closing. The foregoing facts are supported by Textile Workers Union of America v. Darlington Manufacturing Co., et al., 380 U.S. 263, 275-276 ( 1965). But I also find, crediting Danio, that there is affirmative evidence that an antiunion motive caused such closing. Thus I find that Rosencrantz told Danio that the former would close down a business unit, i e., the furniture store , before he would let the union into his store. 6. As to the constructive discharges of Helen Meunier When Respondent closed its furniture store Ms. Meunier was transferred to its hardware store . At the latter store her task was to stock shelves. Patently this was a demotion from her status at the furniture store. Such demotion caused her to quit the shelf loading job. I find that such quit was justified because it was to protest a job which patently degraded her. When she protested the shelf job Horowitz told her she "had to learn the floor before she went doing office work." And I further find that, since Respondent caused her to quit, Respondent constructively discharged her. Mrs. Meunier was reinstated in October 1974 to a cashier's job. I have taken this into consideration in find- ing, as I also have the findings in the preceding paragraph, in concluding that she was constructively discharged If she "had to learn the floor" before doing work, as Respondent contended, it is difficult to understand why she was rein- stated to office work in October 1974, without "learning the floor." Although she was assigned to a cash register in the hard- ware store when she was reinstated on October 3 or 4, 1974, she was demoted or downgraded again to stock shelves in April 1975. So she protested this action to Re- spondent, but without success. Consequently , she quit again. I find that such second quitting was because of her demotion by Respondent, so that I further find it was a constructive discharge. As to both discharges I find that they resulted because Respondent was seeking to chill or discourage interest in the Union . It follows, and I find, that such conduct by Respondent contravenes Section 8(a)(3) and (1) of the Act. 7. As to the constructive discharge of Margaret Wilkinson When Respondent closed its furniture store, where Ms. Wilkinson was employed , she was transferred to its hard- ware store to do "the same thing you 're doing" at the furni- ture store , i.e., to act as a saleswoman . But she stated to Respondent "how I can I sell furniture in the hardware store?" The General Counsel submits that such transfer would hurt Ms. Wilkinson 's hands because they were sub- ject to skin disease which prevented her from handling some of the articles in the hardware store. I credit Ms. Wilkinson's testimony that Rosencrantz was aware of this condition affecting her hands . Since I have found else- where herein that said furniture store was closed for dis- criminatory reasons forbidden by the Act, I now find that Ms. Wilkinson was entitled to a transfer to another store of Respondent to a job identical with or at least substantially equivalent to her position at the furniture store . It is my SERV-U-STORES, INC. 57 opinion, and I find, that her job at the hardware store was not substantially equivalent to that at the furniture store because the former adversely affected her hands. Also, I find that, following her foregoing constructive discharge, Respondent was under an obligation to reinstate her to the same job at the hardware store as the one she previously had at the furniture store. Respondent on Sep- tember 23, 1974, was offered reinstatement to "a substan- tially equivalent" job in the hardware store. (See Resp. Exh. 14.) But I find that this was not an equivalent job to that which she had in the furniture store as it was precisely the same job from which she was constructively discharged from the hardware store. Hence I find that said offer was not valid as it did not relate to a job substantially equiva- lent to that which she enjoyed at the furniture store. 10. As to the Union's demand for recognition On April 23, 1974, the Union made a demand on Re- spondent by a night letter given to Western Union. (See G.C. Exh. 6.) I find that said demand is a lawful one and appropriately worded. And I further find that it was re- ceived by Respondent on April 24 not later than 2 p.m. on said date. This finding is based on the testimony of West- ern Union's manager, Dorothy LaPalm, whom I credit, that night letters are delivered not later than 2 p.m. of the day following their receipt by the telegraph company's of- fice. Not only did Respondent fail to put in oral evidence to contradict this, but its written reply to said demand, dated April 25, indicates that such demand was received not later than April 25 (See G.C. Exh. 5.) 8. As to the appropriate unit The following is an appropriate unit for collective bar- gaining, and I so find: All full-time and regular part-time sales employees at Respondent's Springfield, Massachusetts, retail and warehouse locations, including sales clerks, register clerks, stock clerks, department managers. and office clerical employees, but excluding guards, store manag- ers, and supervisors as defined in the Act. Not included in said unit are all store managers, includ- ing Danio, Maynard, Lamarche, and Prendergast. Also ex- cluded is Ernie Stelzer, as he was a regular on the Spring- field police force, also attended college, had no regular hours as a part-time employee for Respondent, and some- times performed guard duties for Respondent. Finally, B. Horowitz, the father of Treasurer Ben Horowitz; Leonard Horowitz, a son of Samuel Horowitz, the latter being one of the three owners of Respondent; and Steve Rosen- crantz, a son of Vice President Jordan Rosencrantz, are not included in said unit. They are excluded because they are so closely related to high officials or owners of Respondent that they are allied with management. Thus I find that the unit consists of 54 employees. (See G.C. Exhs. 54(a) and 54(b), where both those in the unit and those excluded are listed.) Notwithstanding that the Regional Director in the repre- sentation proceeding included store managers in the unit, the Board, in an interlocutory appeal in the present unfair labor practice case, ruled that such decision was not res judicata. Accordingly, I have excluded such managers be- cause elsewhere in this Decision I have found that they are supervisors within the contemplation of Section 2(11) of the Act. To this extent I have not followed the Regional Director's ruling that such managers are not supervisors 9. As to the size of the unit General Counsel's Exhibits 54(a) and (b) has 54 names on it. I have found that six of such persons should be ex- cluded from the unit and included Cecchetelli in it. It fol- lows that said unit has 48 employees in it; i.e., 54 less 6. 11. As to the Union's majority On the date when Respondent received the Union's re- quest for recognition the Union had 27 valid signed cards from employees in the unit, and I so find. It follows that said cards amount to a majority. Included in said 27 cards is that of Rudolph Cecchetelli, who, I find, was on sick leave as he was claiming workmen's compensation for an injury which he claimed was received out of, and during the course of, his employment. On the other hand, the card of Francis St. Jacques has been excluded from the above 27 as it was not offered in evidence by the General Coun- sel. Even if I find that St. Jacques signed a card, I also find that his card is not in evidence. Hence, I find that the Union cannot rely on the card of St. Jacques in proving its majority. The cards of the following 27 employees constitute the majority which I have found above: Spakanik Knowlton Robertson Czupryna Maloney Safford Rueli Byrne Duncan Spinks Mogilka, Jr. Kozikowski Wilkinson Kowalczyk Warner Morris Pandolfi Drapeau Cecchetelh Balboni Sticco Ochenkowski Hallet Neville Rivkin Ireland Meunier Although some of the foregoing withdrew their cards after April 24, 1974, I find that such withdrawals, assuming them to be valid, do not destroy the Union's majority on the day Respondent received the Union's request for rec- ognition and, therefore, Respondent was under an obliga- tion to bargain with the Union even though the Union lost its majority after April 25. I further find that no improper statements or offers or misrepresentations were made by the Union or anyone soliciting cards for it which would render any of the 27 cards invalid. And I also find the cards are unambiguous on their face in designating the Union "to represent me for the purpose of collective-bar- 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining ...... See N L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 606-607 (1969). However, Respondent urges that it is under no obliga- tion to recognize and bargain with the Union until it estab- lished its majority in an election conducted by the Board pursuant to Section 9 of the Act In fact Respondent de- manded such an election in its reply (see G.C. Exh. 5) to the Union's request (see G.C. Exh. 6) for recognition. Ordinarily an employer who has committed no unfair labor practices related to a union's organizing campaign is entitled to insist on a Board election (absent knowledge independently of the cards that the union has a majority) rather than accept a union's proof of majority based on cards signed by employees, to ascertain whether such union enjoys a majority which requires such employer to recognize and deal with such union But a bargaining order is proper without an election "where an employer has com- mitted independent unfair labor practices which have made the holding of a fair election unlikely ... ." Gissel, supra at 610, 614. On the basis of the entire record in this case I find that Respondent's unfair labor practices are extensive and per- vasive, and that the possibility of erasing these practices and of assuring a fair election is slight. And I further find that the employee sentiment originally expressed in the 27 cards will, on balance, be better protected by a bargaining order. See Gissel, supra at 614-615. As a result of the finding above that the unfair labor practices are coercive and pervasive I find that they not only undermined the Union's majority but also preclude a fair election from being held. Hence I further find that "the desires of the employees once expressed through cards, would, on balance, be better protected by the issuance of a bargaining order." Ann Lee Sportswear, Inc., 220 NLRB 982 (1975). Such order will require the Respondent to rec- ognize and bargain with the Union, upon request, as of April 24, 1974, for the employees in the unit found appro- priate. See Trading Port, Inc., 219 NLRB 298 (1975). Finally, I have been guided by, and have followed, cer- tain rules of law in arriving at the foregoing findings. They are set forth in this paragraph. (a) The burden of proof rests on the General Counsel to establish the allegations of the complaint, and this burden never shifts to the Respon- dent. A corollary to this rule is that no burden is imposed on Respondent to disprove any of said allegations. (b) The failure of Respondent to prove any one or more of its de- fenses does not become affirmative evidence which will aid the General Counsel in sustaining his burden of proof. (c) It is not imperative that the discharges be motivated solely by discriminatory considerations to render them unlawful. It is sufficient to find that such discharges unlawfully oc- curred if a substantial ground leading to said dismissals was the union activity of the employees notwithstanding that valid reasons may also have existed simultaneously for such constructive terminations. (d) Neither engaging in union activity by employees, nor Respondent's harboring union animus, without more, is sufficient to ascribe illegal motives to Respondent in effectuating the constructive dis- charges involved in this case. (e) It is well established that direct evidence of discriminatory motivation is not neces- sary to support a finding of discrimination. Such intent may be inferred from the record as a whole. Heath Interna- tional, Inc., 196 NLRB 318, 319 (1972). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of Respondent set forth in section III, above, found to constitute unfair labor practices, occurring in connection with its 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 As Respondent has been found to have engaged in un- fair labor practices, I shall recommend that it take specific action, as set forth below, designed to effectuate the poli- cies of the Act. In view of the fact that Respondent unlawfully construc- tively terminated some employees, it will be recommended that it be ordered to offer each immediate and full rein- statement to her former position, or, if such is not avail- able, one which is substantially equivalent thereto, without prejudice to the seniority and other rights and privileges of each. It will further be recommended that each be made whole for any loss of earnings suffered by reason of her termination. Since the discriminatory discharges go "to the very heart of the Act" (N.L.R B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941) ), I shall recommend that the Order to be issued safeguard employees against infringe- ment in any manner of the rights vouchsafed to them by Section 7 of the Act. R & R Screen Engraving, Inc., 151 NLRB 1579, 1587 (1965). All backpay is to be computed on a quarterly basis in the manner set forth in F. W. Wool- worth Company, 90 NLRB 289 (1950), with interest at the rate of 6 percent per annum to be calculated in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It will further be recommended that Respondent pre- serve and make available to the Board and its agents, upon request, all pertinent records and data necessary to aid in analyzing and ascertaining whatever backpay may be due. It will also be recommended that Respondent post appro- priate notices. Elsewhere in this Decision I have found that Respondent engaged in unfair labor practices forbidden by Section 8(a)(1) and (3) of the Act. It is my opinion, and I find, that said activities by Respondent are pervasive and interfered with the exercise of a free and untrammeled choice if an election were held and also tended to foreclose the possibil- ity of holding a fair election. Accordingly, I find that Re- spondent has committed a violation of Section 8(a)(5) of the Act by refusing to recognize the Union in an appropri- ate unit under the circumstances set out above, that a bar- gaining order is proper, that an election is not required, and that employee sentiment once expressed through cards will, on balance, be better protected by a bargaining order without an election. N L.R B. v. Gissel Packing Company, Inc 395 U.S. 575, 614-615 (1969). SERV-U-STORES, INC Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Local 1459 is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent is an employer within the meaning of Section 2(2), and is engaged in commerce as defined in Section 2(6) and (7), of the Act. 3. By engaging in the conduct set forth above in section D, 1, Respondent committed unfair labor practices con- trary to the provisions of Section 8(a)(1) of the Act. 4. By constructively discharging, and thereby discrimi- nating in regard to the tenure of employment of, Helen Meunier and Margaret Wilkinson, thereby discouraging membership in Local 1459, a labor organization, Respon- dent has committed unfair labor practices transgressing Section 8(a)(3) and (1) of the Act. 5. By closing its furniture store in order to chill union- ism at its other stores, and also for the reason that some of Respondent's employees in said furniture store joined or assisted Local 1459, Respondent committed an unfair la- bor practice within the meaning of Section 8(a)(3) and (1) of the Act. 59 6. Since April 24, 1974, Local 1459 has represented a majority in the unit mentioned below and has been the exclusive bargaining representative of all the employees in the unit described in the next paragraph hereof, and Re- spondent is now, and has been since said April 24, legally obligated to recognize and bargain collectively with Local 1459 as such representative. 7. An appropriate unit for the purposes of collective- bargaining within the meaning of Section 9(a) of the Act comprises all full-time and regular part-time sales employ- ees at Respondent's Springfield, Massachusetts, retail and warehouse locations, including salesclerks, register clerks, stock clerks, department managers, and office clerical em- ployees, but excluding guards, store managers, and super- visors as defined in Section 2(11) of the Act. 8. By refusing to recognize and bargain collectively with Local 1459 in regard to the employees in said appropriate unit on and since April 24, 1974, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. 9. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 10. Respondent has not committed any other unfair la- bor practices as alleged in the complaint. [Recommended Order omitted from publication.]