Doces Sixth Ave., Inc.

806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Doces Sixth Ave., Inc. and Retail Store Employees Union Local No. 1001 , Retail Clerks International Association, AFL-CIO. Case 19-CA-8082 August 2, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On May 4, 1976, Administrative Law Judge Earl- dean V. S. Robbins issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Doces Sixth Ave., Inc., Seattle, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 1 We agree with the Administrative Law Judge, for the reasons assigned by her, that Respondent violated Sec 8(a)(5) of the Act by its refusal to recognize and bargain with the Union as majority represen tative of its em- ployees while engaging in unlawful conduct undermining the Union's ma- jority status and preventing the holding of a fair election In characterizing the seriousness and pervasiveness of the unfair labor practices upon which we base such a determination , we wish to make explicit our reliance on the anaylsis of analogous conduct , contained in our decision in Teledyne Dental Products Corp, 210 NLRB 435 (1974), which leads into the excerpt from that decision quoted by the Administrative Law Judge herein In essence, we are presented with a situation wherein the Respondent has deliberately embarked upon a course of action designed to con- vince the employees that their demands will be met through direct dealing with Respondent and that union representation could in no way be advantageous to them Obviously such conduct must , of neces- sity, have a strong coercive effect on the employees ' freedom of choice, serving as it does to eliminate, by unlawful means and tactics , the very reason for a union's existence February 18 and 19, 1976. The charge was filed by Retail Store Employees Union Local No. 1001 , Retail Clerks In- ternational Association AFL-CIO, herein called the Union, and served on Respondent on October 15, 1975. The complaint, which issued on November 28, 1975, alleg- es that Respondent violated Section 8(a)(1), (2), and (5) of the National Labor Relations Act, as amended. In its answer Respondent admitted certain allegations of the complaint violative of Section 8(a)(1) of the Act, and during the course of the hearing General Counsel amended the complaint to delete the allegation of paragraph 12 thereof. The basic issues remaining are: 1. Whether individual pay increases given employees following the Union's demand for recognition were grant- ed in order to chill the Union's organizing activities. 2. Whether, following the Union's demand for recogni- tion and during the pendency of an election campaign, Re- spondent provided encouragement, support, and assistance to the organization and establishment of an ad hoc employ- ee committee in violation of Section 8(a)(1) and (2) of the Act, and met and negotiated with said committee in viola- tion of Section 8(a)(1), (2), and (5) of the Act. 3. Whether Respondent's conduct was of such serious and substantial character and effect as to render the con- duct of a representation election doubtful or impossible, requiring the issuance of a bargaining order. Upon the entire record,' including my observation of the demeanor of the witnesses , and after due consideration of the oral argument made by counsel for Charging Party and the posthearing briefs filed by the General Counsel and the Respondent , I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a Washington corporation with an office and place of business in Seattle , Washington, is engaged in the retail sale of furniture. During the year preceding the issuance of the complaint herein , Respondent, in the course and conduct of its business operations , has had gross sales valued at in excess of $500 ,000 and during that same period of time has purchased and caused to be shipped to its facilities in Seattle, goods and materials val- ued in excess of $50,000 directly from suppliers located outside the State of Washington. The complaint alleges, the answer admits, and I find that Respondent is, and at all times material herein has been, an employer engaged in commerce and in operations af- fecting commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION DECISION STATEMENT OF THE CASE EARLDEAN V. S. ROBBINS, Administrative Law Judge: This case was heard before me in Seattle, Washington, on The complaint alleges, Respondent admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. 1 Upon the motion of General Counsel, the official transcript is hereby corrected 225 NLRB No. 114 DOCES SIXTH AVE., INC. 807 III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts For some period of time, unclear from the record, prior to 1974, Respondent's office employees were represented by the Teamsters Union. During 1974 they withdrew from such representation with the result that the office employ- ees, advertisement employees, and housekeeping employ- ees became the only groups of unrepresented employees employed by Respondent. Thereafter, the office employ- ees became involved in direct negotiations with Respon- dent which led to the formulation of a set of policies and a wage scale sometimes referred to as the "Marsha Cannon Plan " 3 The plan was reduced to writing and Raymond C. DeMarr, Respondent's vice president of finance and comptroller, admitted that this plan was used as a guideline in handling day-to-day personnel problems and that the wage scale therein is the wage scale in effect since October 16, 1974. In early March 1975,4 Respondent opened a new store in the Southcenter area of Seattle and moved its administra- tive offices to this new location. About this time, according to payroll clerk Dana Ford,5 Comptroller Paul Stewart 6 told him that all raises thereafter must be approved by Respondent's president, G. John Doces. At some point thereafter Ford, without instructions and without Re- spondent's knowledge,7 ceased sending to supervisors the written reminders that an individual pay increase was due which initiated the procedure for putting a wage in- crease into effect. Consequently, a number of periodic wage increases were not granted. This and other grievances caused the employees to seek representation by the Union in early September 1975. On the evening of September 10, 1975, certain of Respondent's unrepresented employees met with the Union. During the course of this meeting, they all signed cards authorizing the Union to represent them for purposes of collective bargaining. By the next day several other em- ployees had signed such cards. One other signed authoriza- tion card was secured by the Union on September 16. On September 11, during a coffeebreak, employee Shir- ley Jellison told several other employees that DeMarr was upset about their union activity and wanted them to ex- plain it to him. They agreed that they would talk to him. Shortly thereafter, DeMarr came into the coffeeroom and asked the employees there if they would speak to him. It was agreed that after coffee one employee from each de- partment would meet with DeMarr in his office. Jellison started the meeting by explaining the reasons they wanted union representation. She said some of the supervisors showed partiality, that some employees could leave the 2 Sales employees are represented by the Union 3 Apparently, Marsha Cannon was an office employee who was instru- mental in the formulation of the plan 4 All dates hereinafter will be 1975 unless otherwise indicated, and refer- ences to employees mean office, advertising, and housekeeping employees 5 Ford is in one of the units found appropriate herein 6 DeMarr's predecessor 7 1 credit the testimony of DeMarr and Bennett that they did not know that Ford had ceased sending supervisors these reminders store to go to the restaurant next door and some could not; there was no uniform sick leave or sick pay policy; the machines in the coffeeroom did not work; there was no sofa in the coffeeroom; there was no means of heating food in the coffeeroom; new employees were being hired in at higher wages than those received by more senior employ- ees; and pay raises were not given as promised. After about 10 minutes, Ronald Bennett, Respondent's operations manager and an admitted supervisor, came to the door, backed out, and returned a few minutes later. Jellison told him he should hear what was being said and repeated the list of employee grievances for his benefit. At some point after Bennett joined the meeting, Doces came to the door but immediately left. Bennett left the room and a few minutes later returned with Doces. De- Marr told Doces that he thought Doces should hear what had been said. Jellison again repeated the list of employees grievances. Doces said, "Shirley, why didn't you come to me." Jellison said, "If I had come into your office, you would have fired me." Doces asked, "Do you all believe this." One of the other employees replied yes.8 At some point, Doces' secretary came in and informed Doces that some union representatives were in his office. Someone told her to stall them. A few minutes later she returned and said she could not stop them. Then Union Representatives Stanley Lebow and Steve Gouras came into the room. Lebow said holding the meeting was an unfair labor practice. One of the employees said it wasn't because the employees were there voluntarily. Lebow placed the authorization cards on the desk. Bennett picked them up and looked at them. Gouras suggested that they go to Doces' office. Lebow picked up the cards and Doces, Bennett, Gouras, and Lebow proceeded to Doces' office? After they left, DeMarr told the employees that he had been unaware of all of the problems and that, if he had known, he would have corrected them. He said he was so busy with his other functions as comptroller that he did not realize that these problems with the employees existed. He further said that any promises that had been made would be kept, he would make sure there were no second class citizens and that he thought it was ridiculous for a furni- ture store not to have a sofa in the coffeeroom. DeMarr told Ford that from then on he (DeMarr) was to approve pay raises and if anyone was due a raise, he was to receive the paperwork. DeMarr also said he would check into the restriction against leaving the premises for coffee.10 In the meantime, Gouras, Bennett, Lebow, and Doces were meeting in Doces' office. Lebow handed Bennett the authorization cards. Bennett looked through the cards and said "it's clear you represent a majority." He separated the cards into piles and made various statements such as "oh this person signed" and "oh, I'm surprised about this per- son." Either Doces or Bennett said he would contact Respondent's attorney and would go to an election. At some point Gouras handed Doces a previously prepared 8 This is from the testimony of Norma Benjamin, whom I credit in this regard This is from a composite of the testimony of LeBow and Benjamin, whom I credit in this regard 10 This is from a composite of the undenied testimony of Benjamin and Ford, whom I credit in this regard 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD letter advising him that the Union represented a majority of the employees in a unit of all office, advertising, and housekeeping employees. The letter requested that he sign the attached recognition agreement and suggested a date to commence negotiations. Lebow took the authorization cards from Bennett, cautioned them against committing any unfair labor practices and Lebow and Gouras left." A sofa and chair were placed in the coffeeroom that afternoon. About a week later, a microwave oven was placed in the coffeeroom. The vending machines were re- placed and the restriction against leaving the premises for coffee was lifted. Thereafter employee Shirley Jellison became disenchant- ed with the Union, the manifestations of which occurred after she was promised a raise.12 On October 8,13 following a union meeting and during the preceding week, Jellison expressed her disenchantment to several employees, in- cluding Norma Benjamin. Benjamin continued the discus- sion with Jellison during a telephone conversation later the evening of October 8, Jellison taking the position that a union was not necessary and Benjamin taking the position that it was. At Jellison's suggestion, they agreed that they would talk to Doces the next day and try to come up with an alternative to union representation. On October 9, Jellison asked Doces if she could see him in his office. He agreed and Benjamin and Jellison went to his office. Jellison introduced Benjamin and then said to Doces, "I know you can't talk to us but we can talk to you." Doces said he could listen. Jellison explained that Benjamin felt that Doces might lie to employees, that they could not trust him, but she (Jellison) felt that they could; Jellison said she felt that if he could look directly at her, he was not lying. She asked if, after they had taken care of some things, he would be willing to sit down and talk to them over coffee. Benjamin said they wanted to draft a policy and procedures booklet and asked if Doces would listen to it when it was finished. He agreed. Jellison asked if Marie Damschen, supervisor of stock control, could help them with the booklet. Doces said he would ask her.14 Later that day, according to Benjamin's undenied testi- mony, Damschen told Benjamin that she was going to work with them. Damschen said they had better get busy because they only had a very short time in which to work. Later that day, driving home together from work, Jellison asked Damschen if she had any notes left from their work on the "Marsha Cannon Plan." 15 Damschen said no and inquired why Jellison wanted them. Jellison told her they had met with Doces and hoped she would work with them because she was familiar with the "Marsha Cannon Plan." Damschen said it was all right with her. 11 This is from the undenied testimony of Lebow, whom I credit 12 The paperwork on Jellison's raise was dated October I and Jellison told an employee at the September 28 union meeting that she had received a raise 13 The witnesses are generally vague as to the dates of the various meet- ings The dates referred to herein are derived from Jellison's testimony relat- ing the times of events to the union meeting held at her home, of which date she was sure, and also from the date of the employee petition to withdraw their designation of the Union as their collective-bargaining representative 14 This is from a composite of the undenied testimony of Jellison and Ben5amm which I find more accurately reflects this conversation 1 Benjamin and Jellison had decided that the best approach would be to work from the "Marsha Cannon Plan " Also, on October 9 a Stipulation for Certification Upon Consent Election entered into by Respondent and the Union was approved by the Regional Director. On October 10, payroll clerk Dana Ford agreed to work with Jellison and Benjamin, and the three of them decided it would be best to work in the auditorium because there would be less chance of interruptions there. En route to the auditorium Jellison met Mel Mateson, advertising manag- er. She told him what they were doing that morning and asked if he would meet with them to give some grammati- cal assistance. He agreed to do so. Jellison asked if he had copies of the old "do's and don'ts" and Mateson said he would look. According to Jellison, she xeroxed all of the material she had and distributed them to the work group in the auditon- um. She explained to Damschen and Mateson what their plans were and the background. She asked Mateson if he would help her organize everything into a rough draft which she could type that evening. Jellison then asked Damschen if she would point out anything she thought was out of reach because they did not want to waste time work- ing on such things. Damschen said she could not speak for management, that she absolutely could not say anything and could not make any guarantees. Damschen said she would help them with the "Marsha Cannon Plan" portion of their work but could not help with anything else. They then began going through the "Marsha Cannon Plan" section by section and revising it. When they came to Sunday pay, Damschen was asked if she thought Doces would permit a different Sunday pay rate. Damschen re- plied that she knew from past experience that Doces would not agree, also it was different from the union contract already in effect in a different unit and she thought it would be silly to ask for something more than was in the contract because they were not going to be able to get it, whereupon they pursued a different approach as to Sunday pay. Mateson never mentioned whether he had authority to negotiate for the Company or bind the Company. Around lunchtime DeMarr came in and said Benjamin's supervisor was looking for her, so she left. After lunch Jelli- son did not immediately return. The others were there working on a pay scale which reflected a 50-cent wage in- crease. They called Jellison several times and finally Ford told her that, unless she returned, they would have to stop. Jellison returned. About a half-hour later, DeMarr came in again and said he needed help in the cashier's area, so they broke for the day, after agreeing to meet the next day, Saturday. 16 On Saturday, October 11, Jellison, Damschen, Ford, and Benjamin finished the pay scale. According to Benjamin, they had intended to give Doces a copy of the plan they had prepared but because it was so long and such a rough draft, they decided to read it to Doces. Benjamin and Jelli- son, separately, asked Doces to meet with them. Jellison testified that she told Doces they wanted to talk to him. Doces said fine but he could not talk to them. Jellison said she did not want him to talk, just to listen. He asked, "Are 16 The account of this meeting is essentially from Jellison's undenied testi- mony Some minor portions are from the undenied testimony of Benjamin and Ford DOCES SIXTH AVE., INC. 809 you sure I can do this? I don't want to do anything wrong." Jellision replied, "We can talk to you any time we want to, you just can't talk to us." 17 Doces went into the conference room. According to Jel- lison, she told Doces that they had put together a policy and procedures booklet, to which they wanted him to lis- ten. She asked if he would like to see a copy when it was finished. Doces threw up his hands and said, "No, I don't want to see anything. I don't want to even touch it, I don't think I should be here." Jellison said, "They told us you could listen to us, we are not asking you to comment or give us any guarantees or any nods or say anything. We don't expect you to say yes or no but will you at least listen to us." Doces asked why. Jellison said, "Because we want you to listen, we would just like to see your reaction." Doc- es said, "I can't do this." Jellison said he could. So Jellison and Mateson started taking turns reading the draft they had prepared. At some point, according to Benjamin, Jellison said, "I know you cannot comment but to show you are sincere, will you give us some indication." Doces looked at Jellison quizzingly and Jellison said that Benjamin was there to watch the expression on Doces' face, to see if he was sin- cere. Doces asked Benjamin if that was true , Benjamin said yes. Jellison said, "If you are sincere, would you blink your eyes," and he did. Jellison and Mateson, and perhaps Damschen, took turns reading the draft they had prepared and explained it.18 Shortly after they began reading, according to Jellison, Bennett came into the conference room. He said, "What are you doing here, Mr. Doces, we cannot do this." Jellison said, "Listen, I wouldn't get you in trouble, Gouras said we could talk to you, won't you just sit down and listen." Ben- nett sat down and they continued to read. Then DeMarr came in and asked what they were doing. Jellison said they were just outlining some ideas they had concerning a poli- cy and procedures booklet. She asked if DeMarr wanted to see it. He said no. Jellison said, "Listen Ray, I have already told them and I am going to tell you one more time, you can listen to us, you just can't talk to us or offer us any- thing, I am not asking you to do either, just to listen." DeMarr sat down. The reading of the proposal continued and, according to Ford, Bennett and Mateson commented a few times that a specific section sounded fine. The sec- tions read included sick leave and vacation and pension, but when they came to the parts that "dealt with mon- ey," 19 Jellison suggested that they break for lunch, which they did. When they returned after lunch, either Doces or Ben- nett 20 said they had consulted Respondent's attorney who advised them that they should not continue the meeting. According to Jellison, she said that was stupid, that Gouras said the employees could talk to management and she could not understand why they would not continue to lis- n Though not as detailed, Ford testified in general corroboration of this testimony 18 Benjamin, Jellison, and Ford all testified that Mateson and Jellison read portions of the plan Benjamin testified that Damschen did also 19 Apparently, Jellison is referring to the pay scale, for Benjamin testified that for more than an hour they read the entire plan except the pay scale 20 Jellison testified it was Bennett Ford testified it was Doces ten unless they dust did not want to do so. Jellison further said, "All we want to do is to bat these ideas off your head." Bennett said, "No, we're not going to listen any more, we're not going to do nothing any more." DeMarr agreed and they left. Ford, Jellison, Mateson, Damschen, and Benjamin went into the coffeeroom and did some edit- ing of the draft. Benjamin testified that, at some point during the Satur- day meeting with Doces, Bennett, and DeMarr, one of the employees present said they would like to propose the plan to the employees involved on Monday morning. Benjamin does not recall any response from Doces, Bennett, or De- Marr. On Monday morning, Jellison went to each department, including housekeeping and advertising, and announced that there would be a meeting in the conference room. Ac- cording to her, she did not seek permission to have the meeting. All of the office, housekeeping, and advertising employees attended the meeting. Jellison explained what they had done. She said she did not feel that they could ask the employees to withdraw from the Union on nothing. She held up a copy of the plan that had been prepared, said she had not had time to xerox it, but the one copy was there for anyone to see. She gave a synopsis of the proposed plan. Someone asked why Jellison thought Doces could be trusted. She replied that there was no guarantee but there was also no guarantee from the Union. They discussed certain aspects of the proposed plan. They also took a verbal vote as to who wanted to continue with the Union. After further dis- cussion, a vote was suggested as to whether they wished to withdraw from the Union and submit the plan to Doces. There were arguments pro and con. Then Jellision said that if they withdrew from the Union, in 6 months they could contact another union and go to an election, but if they went to an election now and the Union lost, they would have to wait for a full year before they could contact an- other union. Someone suggested that, before they reached a decision, they should invite Doces to come into the meet- ing and see if he would agree to meet with them after they withdrew from the Union. Jellison then went out and asked Doces to come into the meeting because all the employees were there. Doces said, "I cannot talk to them." Jellison said, "They are not asking you to talk, they dust want you to come in." Doces did go to the meeting. Jellison said, "I know you cannot talk to us now, we have something to take care of, but when that is done, will you meet with us." He said he would. Someone asked when. Doces said he had a 3 p.m. meeting but could meet with them after that. Later that day, October 13, Jellison unsuccessfully sought assistance from both management and the Union in drafting a withdrawal letter. She then drafted the letter with the assistance of another employee. She personally took the letter to each employee, asked them to read it and sign only if they wanted to do so. Twenty-three employees signed. Benjamin and another employee then hand-deliv- ered the letter to the Union.21 According to Jellison, they 2i Although they left an hour early, Benjamin testified they did not get permission to do so 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were in a hurry because a union meeting was scheduled for the next night. IV. CONCLUSIONS A. The Soliciting and Remedying of Grievances The record establishes that, immediately upon learning that its employees were seeking union representation, Re- spondent embarked upon a campaign to undermine their support of the Union . Thus, on the evening of September 10, the Union held its first organizational meeting of Respondent's unrepresented employees . On the morning of September 11, during a coffeebreak , Jellison told several fellow employees that Vice President DeMarr was upset about their union activity and wanted them to explain it to him. Within a few minutes, DeMarr came into the coffeeroom and asked them if they would speak to him. They agreed and after the coffeebreak several employees met with De- Marr, Bennett, and Doces. Jellison listed the reasons they had sought union representation as: (1) certain employees were permitted to go to the restaurant next door whereas others were restricted , (2) the lack of a uniform sick leave or sick pay policy as between salaried employees and hour- ly employees, (3) the vending machines in the coffeeroom were inoperable, (4) the lack of a sofa in the coffeeroom, (5) the lack of means to heat food in the coffeeroom, (6) new employees were being hired at a higher wage than those received by more senior employees , and (7) pay rais- es were not given as promised . DeMarr specifically prom- ised to correct some things and to check into others. That afternoon , notwithstanding the Union's intervening demand for recognition and proof of majority , a sofa and chair were placed in the coffeeroom. About a week later a microwave oven was placed in the coffeeroom . New em- ployees thereafter were hired at the wage rates of the "Mar- sha Cannon Plan." The vending machines were replaced, the restriction against going to the restaurant was lifted, and Respondent began granting wage increases .22 In the circumstances, I conclude that such conduct was calculat- ed to and had the reasonable tendency to induce employ- ees to forsake the Union . The complaint alleges, Respon- dent admits, and I find that by soliciting and promptly remedying certain employee grievances , Respondent has violated Section 8(a)(1) of the Act B. The Wage Increases The complaint alleges that on and after September 11 Respondent, in adjustment of the grievances it solicited, granted pay increases to unit employees because of, and in order to chill, the organizing activities and the demand for recognition by the Union. Respondent argues simply that its policy was to follow the wage scale of the "Marsha Cannon Plan" and that this policy was sabotaged through payroll clerk Dana Ford's failure, without Respondent's knowledge, to send department heads the reminders that 22 The wage increases will be discussed more fully below an employee was due for a raise. Since this notice initiates the wage increase process, Respondent argues it should not be held responsible for the breakdown in its wage increase program. Of course, if this were true, Respondent is cor- rect. However, the facts are not that clear that Respondent followed a strict plan of granting increases at a 6-month interval. From the record it appears that Respondent fol- lowed the "Marsha Cannon Plan" in a somewhat haphaz- ard fashion. The exceptions seem to dwarf the rule. Of the 38 unrepresented employees, 4 were part-time,23 6 were already receiving maximum pay, 4 had received raises less than 6 months previously, 4 had been hired less than 6 months previously, 1 quit on September 15, and 2 layout artists, the 1 layout assistant and the 2 housekeepers are not covered by the "Marsha Cannon Plan," and there is no record evidence to establish Respondent's practice as to granting them raises. With 2 exceptions, none of these 23 employees received raises. The exceptions are a part-time employee and Shirley Jellison, who will be discussed be- low. Consequently, any deviation from past practice must be gleaned from a consideration of these 2 exceptions and the remaining 15 employees. Ten employees received raises 24 in the critical period between the September 11 meeting and the October 13 pe- tition to withdraw support from the Union; two received raises on October 16, the paperwork for which was initiat- ed on October 15; the paperwork for one employee was initiated on October 15, effective October 1. One employee received a raise on November 15; and one received a raise on November 1 which was due November 15. Of the 10 raises granted between September 1l and October 13, in- clusive, only 1 was at a 6-month interval. Three were at intervals of in excess of 1 year; two were between 6 and 7 months; three were between 5 and 6 months; and one was initiated on September 11, 2 days after her previous raise was initiated 25 Shirley Jellison, the leader of the antiunion movement, received a wage increase on October 1, only 3-1/2 months after her last raise.26 Cathy Pressel's beginning rate did not conform to schedule. Her September raise was the first in a year. Her increment was double that provided in the wage schedule, presumably to compensate for the missed incre- ment. However, it had been almost a year since Shirley Aspnes' increase and she only received the regular incre- ment. The above clearly indicates that even after learning of Ford's failure to initiate the paperwork leading to the granting of raises, Respondent did not strictly adhere to 23 Although one part-time employee received a raise, there is no evidence to refute DeMarr's testimony that part-time employees were not entitled to 6-month increments 24 The raises were all initiated within this period and most became effec- tive during this period 251 am not impressed by DeMarr's explanation that Phyllis Hirsch re- ceived a raise only days after her previous one because the first raise was to bring her to journeyman status based on merit and the September 9 raise, effective October 16, was a 6-month increment from date of hire This is Just not consistent with the alleged pay schedule Even if this conformed with someone's interpretation of the pay schedule, why initiate the increase on September I I when the end of her first 6 months was not until October 17. 6 Jellison testified that she, Benjamin, and Maggie Clark requested raises during this period All three received them even though their 6-month inter- val was not up DOCES SIXTH AVE., INC. the "Marsha Cannon Plan." Nor did it do so as to the raises due between October 13 and December 31.27 Of the two raises due during this period, only Dana Ford received his 28 This tends to negate Respondent's portrayal of itself as the innocent betrayed by Ford. Furthermore, Ford credi- bly testified that he stopped sending out memos because they were not being returned to him after his March in- structions that all raises were to be approved by Doces. The evidence as to raises granted corroborates his testimo- ny that very few of the notices he sent out were approved and returned to him. Thus, the one raise due in March was not granted. Five more became due in April. Of the six due, only two were granted. One more became due in May. Of the five due, only two were granted. Accordingly, I find that Respondent's granting of wage increases in September was not in accordance with an es- tablished regular program of granting wage increases being one of the main grievances solicited by Respondent, the timing of the increase, and in view of Respondent's con- temporaneous conduct, I find that the wage increases granted in September subsequent to the September 11 meeting and in October were calculated to and had the reasonable tendency to coerce employees to abandon their support of the Union. Accordingly, I find that by granting these wage increases, Respondent violated Section 8(a)(1) of the Act. C. The Ad Hoc Employee Committee The complaint alleges that Respondent provided encour- agement, support, and assistance to the organization and establishment of an ad hoc employee committee and met and negotiated with said ad hoc committee with respect to the wages, hours, and working conditions of the unit em- ployees. Respondent's defense is that it met with the com- mittee and merely listened but did not negotiate. I find Respondent's distinctions illusory. It is clear that the committee sought and received Respondent's support and approval at every step. Thus, on October 9 Jellison and Benjamin informed Doces that they were going to draft a policy and procedures booklet. Doces agreed to listen to it when it was finished. They also made it clear that though Jellison felt Doces could be trusted, Benjamin and perhaps others were not so sure. They asked if Supervisor Marie Damschen could help them with the booklet. Doces said he would ask her. Damschen evidently was instructed, or agreed, to give the requested assistance and she did. Supervisor Mel Mate- son also assisted them. Most of the work was done on com- pany time for almost the entire workday on Friday, Octo- ber 10. I find it difficult to believe that Doces was unaware of this activity. Certainly DeMarr knew, for when immedi- ate supervisors began chafing at the absence of committee members, DeMarr came to their work location to inform them that one or more were needed elsewhere. Notwith- standing Damschen's protestations that she could not 27 There is no evidence in the record beyond December 31 28 if on a 6-month increment basis, the two housekeepers should have received raises in December but did not 811 speak for management or make any guarantees, she did, on occasion, point out what she felt would be management's position on certain items. Witnesses specifically recalled her doing this as to Sunday pay. On Saturday, October 11, Doces readily agreed to meet with the committee and listen to the draft they had pre- pared, though protesting all the way that he could not do this. Upon Jellison's request that he blink his eyes to show his sincerity, Doces blinked his eyes. Then Bennett and DeMarr came in and all three listened to the proposal. Bennett and Mateson even commented a few times that certain sections seemed fine. They tacitly agreed that Jelli- son would hold a meeting of unrepresented employees on Monday, October 13, on company time to propose the plan to them. During a lunchbreak, Respondent's attorney was con- tacted and he advised Respondent to cease meeting with the committee, which it did that day. However, the advice of counsel did not hamper Respondent for long. On Mon- day morning, Respondent permitted the meeting to be held. When some of the employees expressed misgivings over withdrawing their support for the Union on the as- sumption that Doces would agree to meet with them, Jelli- son invited Doces into the meeting. Again, Doces and Jelli- son went through this coy routine; "We know you can't talk to us, we just want you to listen." When Doces came to the meeting, Jellison said, "I know you cannot talk to us now, we have something to take care of but when that is done, will you meet with us." Doces said he would. Some- one asked when. Doces said he could meet with them after he finished a 3 p.m. meeting. Later that day, 23 employees signed a petition seeking to withdraw their designation of the Union as their collective- bargaining representative. From the above, it is apparent that Respondent missed no opportunity to meet with employees and impress upon them, mutely if possible but vocally when necessary, its desire to deal with them rather than the Union and to as- sure them that they did not need a union to effect changes in their working conditions. Certainly, employees would have no difficulty receiving this message, particularly in light of Respondent's September 25 letter to employees stating that Respondent realized that changes needed to be made, but that Respondent would strongly resist making changes through a union and intended to convince em- ployees that they and Respondent would be better off ad- dressing themselves to needed change without the involve- ment of the Union Furthermore, with Jellison around, Respondent did not need to be more explicit. By this, I mean in no way to denigrate Jellison's sincerity or to imply that her own goals and desires did not coincide with Respondent's. The fact is, however, that with Jellison to wave the banner Respondent could afford to play coy games of standing mute, and blinking eyes, and Doces' appearance, at propitious mo- ments to quell, by his presence, any doubts as to Respondent's sincere desire and intent to meet and confer with its employees as to terms and conditions of employ- ment if only the Union were out of the way, provided whatever added impetus was required. Respondent also argues that there can be no violation 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because the committee is not a labor organization and there were no negotiations . I am not persuaded by either of these arguments . The committee was clearly involved in drafting and submitting to Respondent recommendations respecting wages and terms and conditions of employment. The evolvement of the "Marsha Cannon Plan" and Re- spondent's conduct in encouraging the work of the com- mittee indicates that the recommendation of the committee would be a major factor in Respondent 's decisions . There- fore, even though the committee was not negotiating in the traditional sense, it did deal with management concerning mandatory subjects of bargaining.29 Sea Life, Incorporated, 175 NLRB 982 (1969). Reed Rolled Thread Die Co., subsid- iary of UTD Corporation, 179 NLRB 56 (1969). Accordingly, I find that the ad hoc committee is a labor organization within the meaning of Section 2(5) of the Act. I further find that by encouraging the formation of, partici- pating in, and dealing with the committee concerning the wages, hours, and terms and conditions of employment of certain of its employees, after it had refused the Union's demand for recognition and at a time when the Union was seeking Board certification as the collective -bargaining representative of these employees, Respondent has violated Section 8(a)(1) and (2) of the Act.30 Sherman Division, St. Regis Paper Company, 191 NLRB 818 (1971); Harpeth Steel, Inc., 208 NLRB 545 (1974). Cf. James K Sterritt, Inc. and Concrete Haulers, Inc., 215 NLRB 769 (1974); House of Mosaics, Inc., Subsidiary of Thomas Industries, Inc., 215 NLRB 704 (1974). D. The Refusal To Bargain and the Propriety of a Bargaining Order The complaint alleges and Respondent denies that a unit of office, advertising, and housekeeping employees is ap- propriate. However, General Counsel adduced no evidence in support thereof. This unit may indeed be appropriate but it is not presumptively so. Accordingly, since the rec- ord evidence is insufficient to establish its propriety, I can- not find such a unit appropriate. Alternatively, the complaint alleges as appropriate a sep- arate unit of office employees , and housekeeping employ- ees. Respondent admits and I find that each of these two units is appropriate . In its posthearing brief Respondent amended its answer to admit the majority status of each of the units. Accordingly, I find that, on September 10, a ma- jority of Respondent's employees in each of the two appro- priate collective-bargaining units designated the Union as their collective-bargaining representative. 29 Sec 2(5) of the Act defines a labor organization as "any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose , in whole or in part, of dealing with employers concerning grievances, labor disputes, wag- es, rates of pay, hours of employment, or conditions of work " 30 1 have given full consideration to, and reject, Respondent's contention that the Union had given its consent to such meetings The evidence does not support this Whatever employees may have told Respondent in this regard, Respondent had the services of able labor counsel and the union representatives had made clear during Respondent's September II meeting with employees that the Union considered such meetings to be unfair labor practices The complaint alleges that by its conduct set forth above Respondent has violated Section 8(a)(1) and (5) of the Act. I agree. It is apparent from the above that Respondent's conduct was calculated to, and did, undermine the Union's majority. The record establishes that Respondent, after re- fusing to recognize and bargain with the Union, deliber- ately embarked upon a course of action designed to identi- fy the grievances underlying its employees' desire for union representation and to convince them that their demands could best be met through direct dealing with Respondent and that union representation would afford them no ad- vantages. Thus, Respondent, on September 11, refused the Union's demand for recognition. Instead it responded by soliciting and promptly remedying the grievances underly- ing the employees' resort to the Union, including wage in- creases. Thereafter Respondent encouraged the formation of an ad hoc committee to draft proposals to Respondent regarding wages, hours, and terms and conditions of em- ployment. Two of its supervisors assisted in formulating these proposals . Respondent's president and other top management officials listened to the completed draft. Fur- ther, Respondent's president and other top management officials, by their very presence and other indications of assent, effectively conveyed to the employees Respondent's readiness to meet and confer with them as to terms and conditions of employment if the Union were eliminated.3i The employees certainly got the message , for immediately after Respondent's president assured them he would meet with them, they signed a petition seeking to withdraw their designation of the Union as their collective-bargaining rep- resentative. I conclude that this conduct has had effects which can- not be expunged through traditional Board remedies. I therefore conclude that the Respondent' s conduct has un- dermined the Union's majority and rendered doubtful or impossible the holding of a free and fair election. As the Board has said in a less pervasive situation, "We can con- ceive of no more pernicious conduct than that which is calculated to undermine the Union and dissipate its major- ity while refusing to bargain. Neither is there any conduct which could constitute a greater impairment of employees' basic Section 7 rights under the Act, especially since such conduct by its very nature has a long-lasting, if not perma- nent, effect on the employees' freedom of choice in select- ing or rejecting a bargaining representative ." Teledyne Den- tal Products Corp, 210 NLRB 435 (1974). Accordingly, I find that Respondent violated Section 8(a)(5) of the Act by refusing to recognize and bargain with the Union as the majority representative of its employees while cotermi- nously engaging in conduct which undermined the Union's majority status and prevented the holding of a fair election. Trading Port, Inc. 219 NLRB 298 (1975). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 31 Although this latter phrase was not actually used , as indicated above, I find that in the circumstances everyone was aware that this is what was meant DOCES SIXTH AVE., INC. 813 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The ad hoc committee is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 4. By soliciting from employees the grievances underly- ing their desire for union representation and by promptly remedying same, including the granting of wage increases, in order to induce employees to reject the Union as their collective-bargaining representative; and by conveying to employees that their demands could best be met through direct dealing with Respondent and that union representa- tion would be of no advantage, Respondent has interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act. 5. By encouraging the formation of, and rendering aid and assistance to the ad hoc committee; and by dealing with said committee after it had refused the Union's de- mand for recognition and at a time when the Union was seeking certification by the Board, Respondent has violat- ed Section 8(a)(2) and (1) of the Act. 6. The following units each constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. All office employees working in Respondent's Stores, excluding advertising employees, housekeeping em- ployees, supervisors and guards as defined by the Act and all other employees. All housekeeping employees working in Respondent's Southcenter Store and offices, excluding office em- ployees, advertising employees, supervisors and guards as defined by the Act and all other employees. 7. On September 10, 1975, a majority of the employees of Respondent in each of the units described above desig nated the Union as their representative for the purpose of collective bargaining with Respondent and at all times since said date the Union, by virtue of Section 9(a) of the Act, has been, and is now, the exclusive representative of all the employees in said units for the purpose of collective bargaining. 8. On September 11, 1975, the Union requested Respon- dent to recognize and bargain with it as the exclusive bar- gaining representative of Respondent's employees in the units described above with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment of such employees.32 9. On September 11, 1975, Respondent refused, and since said date has continued to refuse, to recognize and bargain collectively with the Union as the exclusive collec- tive-bargaining representative of Respondent's employees in the appropriate units described above and, instead, has engaged in the unlawful conduct found above to be viola- tive of Section 8(a)(1) and (2) of the Act in order to under- mine the Union and to destroy its majority status among the employees in the appropriate units described above. 32 The Union demanded recognition in a unit of office, advertising, and housekeeping employees I do not consider this to be a fatal flaw 10. By refusing to recognize and bargain with the Union as the majority representative of its employees while coter- minously engaging in conduct which undermined the Union's majority status and prevented the holding of a fair election, Respondent has violated Section 8(a)(5) and (1) of the Act. 11. The unfair labor practices found herein are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, conclu- sions of law and the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommend- ed. ORDER 33 Respondent, Doces Sixth Ave ., Inc., Seattle , Washing- ton, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Soliciting from its employees grievances underlying their desire for union representation and remedying such grievances in order to discourage their interest in and sup- port of Retail Store Employees Union Local No. 1001, Re- tail Clerks International Association , AFL-CIO. (b) Conveying to employees that their demands could best be met through direct dealing with Respondent and that union representation would be of no advantage. (c) Encouraging the formation of, and rendering aid and assistance to, the group referred to herein as the ad hoc committee, or any like committee, or dealing with said committee or any like committee concerning grievances, wages, hours of employment, or other terms and conditions of employment. (d) Refusing to recognize and bargain with Retail Store Employees Union Local No. 1001, Retail Clerks Interna- tional Association , AFL-CIO, as the exclusive collective- bargaining representative of its employees in the units de- scribed above. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Upon request, recognize and bargain with the above- named Union as the exclusive representative of all the em- ployees in the following appropriate bargaining units and, if an understanding is reached, upon request, embody such understanding in a signed agreement. 33 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All office employees working in Respondent's Stores, excluding advertising employees, housekeeping em- ployees, supervisors and guards as defined by the Act and all other employees. All housekeeping employees working in Respondent's Southcenter Store and offices, excluding office em- ployees, advertising employees, supervisors and guards as defined by the Act and all other employees. (b) Post at its place of business in Seattle, Washington, copies of the attached notice marked "Appendix." 34 Cop- ies of said notice, on forms provided by the Regional Di- rector for Region 19, after being duly signed by the Respondent's representative, shall be posted by Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 34 In the event that the Board's 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. The Acts gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representatives of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all these things. WE WILL NOT do anything that interferes with, re- strains, or coerces employees with respect to these rights. More specifically: WE WILL NOT solicit from our employees their griev- ances underlying their desire for union representation or remedy such grievances by the granting of benefits, in order to discourage their interest in, and support of, Retail Store Employees Union Local No. 1001, Retail Clerks International Association, AFL-CIO. WE WILL NOT induce our employees to withdraw sup- port for a union by conveying to them that their de- mands can best be met through direct dealing with us and that union representation would be of no advan- tage. WE WILL NOT encourage the formation of, or render aid and assistance to, the committee composed of Shirley Jellison, Norman Benjamin , Dana Ford, and certain management representatives, or any like com- mittee, or deal with said committee, or any like com- mittee, concerning grievances, wages, hours of em- ployment, or other terms and conditions of employment. WE WILL NOT refuse to recognize and bargain with Retail Store Employees Union Local No. 1001, Retail Clerks International Association, AFL-CIO, as the exclusive collective-bargaining representative of the employees in the appropriate units described below. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in the Act. WE WILL, upon request, recognize and bargain with Retail Store Employees Union Local No. 1001, Retail Clerks International Association, AFL-CIO, as the exclusive collective-bargaining representative of the employees in the following appropriate units: All office employees working in Respondent's Stores, excluding advertising employees, housekeeping em- ployees, supervisors and guards as defined by the Act and all other employees. All housekeeping employees working in Respondent's Southcenter Store and offices, excluding office em- ployees, advertising employees, supervisors and guards as defined by the Act and all other employees. And, if an agreement and understanding is reached, WE WILL embody such agreement and understanding in a signed contract. DocEs SIXTH AVE., INC.