Wrangler Wranch

WRANGLER WRANCH Goodfriend Western Corp., d/b/a Wrangler Wranch and Local 1291, Retail Store Employees Union, a/w Retail Clerks International Association, AFL- CIO. Case I-CA-I 1087 September 28, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On June 9, 1977, Administrative Law Judge Robert A. Giannasi issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondent filed an answering brief to the exceptions of the General Counsel and the Union, and cross-exceptions to the Administrative Law Judge's Decision and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. We agree with the findings of the Administrative Law Judge that the extent and character of the Respondent's misconduct makes a bargaining order the appropriate remedy in this case. We also agree with the findings of the Administrative Law Judge that at the time the Union, Local 1291, made its demand for recognition on September 30, 1975, it had obtained valid signed authorization cards from 10 of the 15 employees in the appropriate unit in the Respondent's Washington Street store. However, we are unable to agree with the findings and conclusions of the Administrative Law Judge that the Respondent is excused from its bargaining obligations because, several months subsequent to the demand for bargaining, Local 1291 merged with three other local unions of the International into Local 1445 and does not currently exist as a separate entity. The Administrative Law Judge held that even though the Respondent violated Section 8(a)(5) and (1) of the Act by failing to bargain with the Union on and after October 1, 1975, a bargaining order should not issue in this case since such an order would run in favor of Local 1445, the successor local, after an I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence 232 NLRB No. 89 election in which the signers of the authorization cards had no opportunity to voice their choice. The record shows that Local 1291 began orga- nizing the Respondent's Washington Street store the beginning of September 1975. By the end of September it had obtained 10 signed cards from unit employees. Eight of the 10 signed authorization cards bore a heading which included the title: "Retail Employees Union Local 1291, RCIA, AFL-CIO." The text of the cards provided a broader authoriza- tion for representation and stated that the signer authorized: Retail Clerks International Association, AFL- CIO, or its chartered Local to represent me for purposes of collective bargaining .... Two of the authorization cards did not have the name of a local in its heading, but only the name of the "Retail Clerks International Association," and similarly provided that the International or its chartered local union was authorized to represent the employee who had signed the card for collective- bargaining purposes. The Respondent not only refused to recognize the Union, but, a few days later, as fully discussed in the attached Decision, discriminatorily discharged 11 employees in the appropriate unit in violation of Section 8(aX3) and (1) of the Act. Almost a year after the above demand for recognition, four local unions of the Retail Clerks International Association in the Commonwealth of Massachusetts, including Local 1291, decided to merge. The largest of the four, Local 1445, was to survive. A notice was sent to all members of the Union and the members voted overwhelmingly by secret ballot to merge into a single local, Local 1445. Before the merger, Local 1291 had approximately 1,300 members. The surviving Local 1445 now has about 13,000 members. There is no contention that the merger election was contrary to the Union's constitutional requirements and bylaws, or that proper notice was not given to all members of the locals, or that all eligible members were not given full opportunity to vote. It is also undisputed that the 10 employees who had signed authorization cards were not given notice and in any event would not have been eligible to vote in the merger election since they were not and could not have been members of the Union because of their unlawful discharges by Respondent. Contrary to the Administrative Law Judge we are unable to agree that the merger of Local 1291 into convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), cnfd. 188 F.2d 362 (CA. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 527 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 1445, 1 year after Local 1291's bargaining demand and its apparent loss of identity, voids the authorization cards and undermines the basis for the Union's claim of majority status. While we agree that in the usual merger situation all eligible employees should be notified and have the opportunity to vote,2 here it was the Respondent's unfair labor practices, not the Union's bylaws or procedures, which pre- vented the employees from becoming union members and receiving the same rights and privileges as members of the four locals in question. At the time the Union made its demand, clearly supported by a majority of the employees in the appropriate unit, Local 1291 was the bargaining representative and remained so for over a year. To disregard the intentions of the employees in the circumstances of this case would permit the Respondent to benefit as the result of its unfair labor practices.3 In reaching our conclusion, we are also persuaded by the language of the cards which does not narrowly limit the authorization to bargain to Local 1291. As noted above, the cards designate the "Retail Clerks International Association, AFL-CIO," or "its char- tered Local Union" to represent the employees for purposes of collective bargaining. We interpret such general designation to indicate approval of a valid successor local. Particularly is this so because the record shows that the former president of Local 1291 continues to be in charge of servicing the type of retail store unit involved herein and the day-to-day relationship between the employees in the Washing- ton Street store and the Union will continue in most major respects unchanged by the merger. Additionally, we have considered the problems of requiring unions to give notice and the right to vote to employees who have authorized one local to represent them when that local merges with another local a year after the original bargaining demand and after the majority of the employees who have signed authorization cards have been discriminatorily dis- charged. Under the unusual circumstances of this case, it would not be practical or reasonable to require or allow such employees whose status is in litigation, and indeed whose whereabouts may not be known, to participate in the merger vote. For the above reasons, we do not adopt the Administrative Law Judge's recommendation that the 8(a)(5) and (1) allegations concerning the merger be dismissed, and, as provided below, shall order the Respondent, upon request, to recognize and bargain with Local 1445, the successor to Local 1291, as the 2 Cf. Amoco Production Company, 220 NLRB 861 (1975). 3 Were the propriety of the merger of the locals directly in issue, Member Jenkins, in accordance with his dissent in North Electric Company, 165 NLRB 942 (1967), would not regard it as valid because only union members were allowed to vote on the merger. But in this situation, where the unlawful exclusive representative of the employees of the appropriate unit in the Respondent's Washington Street store. AMENDED CONCLUSIONS OF LAW Substitute the following for the Administrative Law Judge's Conclusions of Law 4 and 5: "4. By failing and refusing to bargain with Local 1291 on September 30, 1975, and until its merger about January 1977 into Local 1445, Respondent engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act." "5. By failing and refusing to bargain collectively with Local 1445, successor to Local 1291, after approximately January 1977, Respondent engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act." THE REMEDY Having found that the Respondent has refused to recognize and bargain with Local 1291 and its successor Local 1445 of the Retail Store Employees Union, a/w Retail Clerks International Association, AFL-CIO, we shall order it, upon request, to recognize and bargain with Local 1445 as the exclusive representative of all employees in the appropriate unit set forth in the Administrative Law Judge's Decision and, if an understanding is reached, embody such understanding in a written signed agreement. Having also found that Respondent discriminatori- ly terminated 11 of its employees in October 1975, we shall order it to offer them immediate, full, and unconditional reinstatement to their former jobs or, if these jobs no longer exist, to substantially equivalent ones without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of earnings suffered by reason of such discrimination, by paying them sums of money equal to the amount they would have earned from the date of the discrimination against them to the date of Respondent's offer to reinstate them as aforesaid, less their net earnings during that period, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon, calculated in the manner set forth in conduct of Respondent precluded voting by the affected employees, it is more important in effectuating the policies of the Act that the Respondent not be allowed to profit by its own breach of the law, and he therefore joins in this decision. 528 WRANGLER WRANCH Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation. 4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, Goodfriend Western Corp., d/b/a Wrangler Wranch, New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the recommended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Offer to Maria Cammarata, John Clinton, Steve Cole, Everett Hoag, Eros Lamb, Emery Nesmith, Robin Smith, Phillip Lanigan, Curtis Boyd, George Terzis, and Michael Thompson, if this has not already lawfully been accomplished, immediate and full reinstatement to his or her former position or, if that job no longer exists, to a substantially equivalent one, without prejudice to the seniority and other rights and privileges previously enjoyed by each of them; and make each whole for any loss of pay, including any raises which may have been given to employees, that he or she may have suffered by reason of their unlawful discharge, with interest thereon." 2. Insert the following as paragraph 2(b) and reletter the subsequent paragraphs accordingly: "(b) Upon request, recognize and bargain with Local 1445, the successor to Local 1291, as the exclusive representative of all part-time and full-time employees at Respondent's Washington Street, Bos- ton, Massachusetts, store, excluding management trainees, guards, and supervisors as defined in the Act, and,5 if an understanding is reached, embody such understanding in a written signed agreement." 3. Substitute the attached notice for that of the Administrative Law Judge. ' In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for periods pnor to August 25. 1977, in which the "adjusted pnme interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. I The General Counsel and the Union contend that the bargaining order should run to the Respondent's three-store Boston operations on the theory that this would have been the normal accretion if the Respondent had not engaged in its illegal practices. The issue was not fully litigated and we find that there is insufficient basis for making such a finding. APPENDIX NOncE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employ- ees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a repre- sentative 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, restrains, or coerces employees with respect to these rights. WE WILL NOT interrogate employees concern- ing their union membership, activities, or sympa- thies or those of other employees. WE WILL NOT threaten employees with dis- charge or other reprisals if they select any labor organization as their collective-bargaining repre- sentative or engage in any other union activities. WE WILL NOT promise benefits to employees for giving up union activities or union support. WE WILL NOT discharge employees because they engage in union activities. WE WILL NOT discourage employees from supporting or joining any labor organization by any discrimination affecting their tenure or conditions of employment. WE WILL NOT refuse or fail to bargain collec- tively in good faith with Local 1445, Retail Store Employees Union, a/w Retail Clerks Internation- al Association, AFL-CIO, successor to Local 1291, as the exclusive representative of all employees in the following appropriate unit: All full-time and part-time employees em- ployed at the Respondent's Washington Street, Boston, Massachusetts, store, exclud- ing management trainees, guards, and super- visors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act. WE WILL, upon request, recognize and bargain with Local 1445, the successor to Local 1291, as the exclusive representative of all employees in the above-described appropriate unit and, if an 529 DECISIONS OF NATIONAL LABOR RELATIONS BOARD understanding is reached, embody it in a signed written agreement. WE WILL offer Maria Cammarata, John Clin- ton, Steve Cole, Everett Hoag, Eros Lamb, Emery Nesmith, Robin Smith, Phillip Lanigan, Curtis Boyd, George Terzis, and Michael Thompson full and immediate reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent ones without prejudice to their seniori- ty or other rights and privileges, and WE WILL make them whole for any earnings they lost because of our discrimination, with interest. GOODFRIEND WESTERN CORP., D/B/A WRANGLER WRANCH DECISION STATEMENT OF THE CASE ROBERT A. GIANNASI, Administrative Law Judge: This case was heard before me in mid-February 1977, in Boston, Massachusetts, upon a complaint which issued originally on December 3, 1975. The complaint alleges that Respon- dent violated Section 8(a)(1) of the National Labor Relations Act, as amended, by various acts of coercion and Section 8(a)(3) and (1) by discriminatorily discharging employees for antiunion reasons and that its refusal to bargain with the Union 1 which was designated as bargain- ing agent by a majority of the employees was, when considered together with its other unfair labor practices, violative of Section 8(a)(5) and (1) of the Act and such conduct requires a remedial bargaining order. The com- plaint was amended in several particulars. 2 Respondent denied the critical allegations of the complaint. Both Respondent and the General Counsel filed proposed findings of fact and conclusions of law and supporting briefs.3 Upon the pleadings, the entire record in this case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. LABOR ORGANIZATION AND BUSINESS OF RESPONDENT The Union is a labor organization within the meaning of Section 2(5) of the Act. 'Local 1291, Retail Store Employees Union, a/w Retail Clerks International Association, AFL-CIO. 2 One of the amendsments involved an additional violation by virtue of the discriminatory discharge of employee John Cyrus. The other two dealt with the proposed bargaining order: one sought the bargaining order either in a three-store .unit of Respondent's employees or the one-store unit mentioned in the original complaint; another sought to have the order run in favor of Local 1445 of the Retail Clerks International Association which had, by the time of the hearing, taken over the Union by merger. 3 After the issuance of the original complaint on December 3, 1975, Respondent sought investigatory material from the General Counsel under Respondent is a New York corporation with its principal office and place of business located at 381 Park Avenue South, New York, New York. Respondent operates three retail stores in Boston, Massachusetts. Respondent annual- ly sells goods valued in excess of $50,000 which it purchases from suppliers outside the Commonwealth of Massachusetts. Accordingly, I find, as Respondent admits, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Facts I. Background Respondent's first retail venture in the greater Boston area was the Wrangler Wranch store which opened at 349 Washington Street, Boston, in August 1974. It was opened and managed by Irving Shapiro who is now Respondent's area manager. Shapiro hired a number of employees at the time. Louis Barbaro, Sterling Dunn, and Malcolm Free- man were hired with the potential, announced to them by Shapiro at the time, of becoming managers at any new stores which might open. Plans for two new stores became definite in June or July 1975. They were located at 651 Boylston Street, Boston (the Copley Square store), and 57 Boylston Street, Cambridge (the Harvard Square store). The construction and renovation necessary to prepare the new stores was contracted out to another firm; Shapiro kept abreast of the progress of the construction and visited the sites periodically. The stores were originally scheduled to open in August 1975, but they were not in fact opened until mid-October. The Harvard Square store opened on October 16, 1975, and the Copley Square store opened on October 23. As area manager, Shapiro now has general authority over all three Boston area stores. Barbaro became the manager of the Washington Street store in mid- September 1975; Freeman of the Cambridge Square store and Dunn of the Copley Square store on or about October 6, 1975. In late August and September 1975, Respondent began hiring employees at the Washington Street store in addition to the existing staff. These employees worked primarily on the second floor where they unpacked, ticketed, and sorted the merchandise which had been sent to the Washington Street store but was to be shipped to the new stores as they opened. Some of these employees also worked on the sales floor of the Washington Street store as clerks and in the basement storage areas; also, at times, the regularly assigned salesclerks worked on the second floor preparing merchandise for the new stores. 4 the Freedom of Information Act. After demnal by General Counsel, Respondent filed a complaint in Federal distnct court seeking an injunction requinng the Board to produce the material and prohibiting further Board proceedings pending production of the material. The district court granted the injunction. Subsequently, the United States Court of Appeals for the First Circuit reversed the district court and Respondent petitioned for certiorari. The petition was denied on October 18, 1976. 4 On or about September 30, 1975, in addition to Shapiro, the following were on the payroll at the Washington Street store: Louis Barbaro, Malcolm Freeman, and Sterling Dunn who the General Counsel alleges were supervisors within the meaning of the Act; Terence Westgate, Gene 530 WRANGLER WRANCH The additional employees, who worked primarily on the second floor, were hired by Sterling Dunn and Malcolm Freeman. Each hired about six or seven employees. They also had the authority to fire these employees.5 I reject Shapiro's conclusionary and self-serving testimo- ny that the employees hired by Dunn and Freeman and carried on Respondent's Washington Street store payroll were, in his words, "temporary" employees. I did not find Shapiro to be a reliable witness on this or any other disputed issue in this case. For example, his testimony on the temporary employee issue was accompanied by gratuitous, self-serving statements. The second floor em- ployees, who were hired by Dunn and Freeman, were not told that they were hired as temporary employees simply to do "stock work" at the Washington Street store as Shapiro implied. Their testimony indicates that they fully expected to be employed indefinitely and to transfer to the new stores when they opened. And neither Dunn nor Freeman was called as a witness to rebut their testimony. Moreover, Shapiro also conceded-albeit grudgingly-that these employees were hired with the possibility that they would be placed in the new stores. His affidavit was less ambiguous. It states: Freeman and Dunn engaged in the hiring of employees during the months prior to the discharges early in October in order to choose their own staff for the new stores which they would be managing. Shapiro recanted a bit on the witness stand by stating that the use of the word "staff" was incorrect. It is clear, however, that Freeman and Dunn had authority to hire and supervise employees even though the two new stores had not yet opened. It is likely that they had this authority in order to choose their own staffs after the new stores opened. Finally, it is implausible that the second floor employees were hired by Respondent solely as temporary help in view of its contemporaneous use of other temporary help not carried on its payroll. Shapiro hired temporary employees on a daily basis from the Handy Andy Olsten Temporary Services. Shapiro estimated that he would utilize about five or six Handy Andy employees daily during September 1975. In short, there was no credible evidence that a definite terminal date was imposed on the employment of the so- called second floor employees. Thus, in accordance with the testimony of employees and contrary to Shapiro's testimony, I find that the employees hired by Dunn and Freeman, who were carried on Respondent's payroll and who worked on the second floor of the Washington Street store preparing merchandise for the new stores, were Morand. and Michael Guiken who the General Counsel asserts were management trainees; Phillip Lanigan. Michael McLeod, Curtis Boyd, and Emery Nesmith who Respondent contends were salesclerks at the Washing- ton Street store; Ida Hone, the cashier who worked 25 hours per week; and Stephen Cassis. a regular part-time employee who worked only on Saturdays. The other employees, who worked primarily on the merchandise on the second floor, but some of whom also worked on the sales floor were George Terzis. John Clinton, Stephen Cole. Robin Smith, Eros Lamb. Michael Thompson. Everett Hoag, and Maria Cammarata. Kevin White- house, another employee, was on sick leave at the time. Another employee. John Cyrus, a salesclerk, was employed from about August 20 until September 19, 1975, when he was discharged. regular, full-time employees, not temporary employees. See M. J. Pirolli & Sons, Inc., 194 NLRB 241, 250 (1972). 2. The Union's organizational campaign Union Organizer Robert Lamothe visited the Washing- ton Street store on September 5, 1975, and spoke to employees M-Leod, Westgate, Morand. and Boyd. La- mothe returned on September 8 and I I with other union organizers. They passed out union literature to the employees and Lamothe and another organizer spoke to Shapiro. Shapiro told them he did not think they should be in the store bothering his employees but suggested that the Union post a notice in the store notifying employees of a scheduled union meeting. Lamothe and another union representative returned the next day with the notice for the meeting, which was to be held on September 18. Shapiro posted it in the store. The union meeting was held on September 18 at the Union's office in Boston. Four employees, Cyrus, West- gate, McLeod, and Nesmith, attended the meeting and signed union authorization cards at this time. As Westgate walked from the store to the meeting place, he was accompanied part of the way by Supervisor Barbaro who was making the night deposit at a bank near the site of the union meeting. They walked within view of the other employees who were attending the meeting. The day after the union meeting, Barbaro asked employee Ida Horne if she had signed a union card and if she knew who had attended the meeting. She replied that she had not signed a card and that she did not know who had attended the meeting. On September 29, Lamothe was standing on the sidewalk outside the Washington Street store. There is conflicting testimony as to whether Lamothe was on the sidewalk some distance away from the store's entrance or actually at the entrance. In any event, Supervisor Malcolm Freeman came outside and asked Lamothe whom he was waiting for. Freeman told Lamothe that he did not want him "hanging around harassing employees' and that "he was going to harass" Lamothe. Freeman then went inside the store and came outside again with Hoag and he asked Hoag what conversations he had had with Lamothe. Hoag replied that he asked Lamothe for union literature to read and distribute to other employees. Lamothe protested Freeman's interrogation of Hoag. Another employee, George Terzis, walked out of the store about this time. Lamothe asked Terzis if they could meet to discuss the Union. Freeman broke in, telling Terzis that he did not want Terzis meeting Lamothe outside the store. He told s The parties stipulated as to the supervisory status of Louis Barbaro. Respondent, however, denied supervisory status as to Freeman and Dunn before they became managers of the Copley Square and Harvard Square stores. Shapiro was very evasive in his testimony about their supervisory status. but he finally admitted that in September they had authority to hire and fire employees. They actually did hire employees in September. Neither Freeman nor Dunn testified, but many employees testified that the) directed employees in what I find to be an independent and responsible manner. Accordingly, I find that Freeman and Dunn were supervisors within the meaning of the Act at all material times in September 1975. and thereafter 531 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them to meet at some other time and some other place. Terzis and Lamothe met later that day at lunch. Shortly after this incident, Barbaro asked Hoag to act as liaison between Lamothe and the store employees in order to avoid a further disturbance. Hoag refused. Later the same afternoon, Freeman talked to Hoag about the Union. He told Hoag that if the Union got in "we would not be allowed breaks that we had had in the store, an extra fifteen minutes at lunch, no kind of coffee breaks, because the breaks would be regulated by the Union." He also stated the Union "would regulate our wages and raises, our pay scale raise, and that there would be no room for advancement and there would be no chance of getting into management if we joined the Union." 3. The Union's demand for recognition and Respondent's termination of II employees On September 30, 1975, Lamothe and Union Organizer Bob Patterson returned to the store with a letter demand- ing recognition which they presented to Shapiro. They offered to submit to a voluntary card check which Shapiro refused. Shapiro read the letter and then told Lamothe and Patterson that the employees then working in the store probably would not be there after Thursday, October 2. The Union's letter asserted a majority and demanded recognition in the following unit: "All full and part-time employees working in the employer's, Wrangler Wranch store located at 349 Washington Street, Boston, Massachu- setts, and excludes Store Manager, Supervisor and guards as defined in the LMRA of 1947 as amended." Shapiro sent the letter to the Respondent's corporate counsel in New York, who responded with a letter dated October 6, 1975, requesting the Union to submit a list of all employees who had signed cards to counsel for verification. The next day, October 1, Barbaro approached employees Westgate and Horne at the sales desk and said to them, "I hope none of you people signed those cards because if you did you're out of here. . . You didn't sign cards, did you?" They denied that they did. Barbaro also told Home that it was a good thing that she did not have any involvement with the Union because "Mr. Shapiro was very ner- vous. . .[about] union activities regarding the employees and the Union. And that everyone was going to be terminated." Later that afternoon, Barbaro remarked to Westgate, "I really hate to let those people go. You know there are some really good people. I hate doing Irving Shapiro's dirty work." On October I and 2, 1975, Shapiro laid off or terminated employees Boyd, Hoag, Nesmith, Lanigan, Clinton, Cole, Smith, Terzis, Cammarata, Lamb, and Thompson. Accord- ing to Shapiro, McLeod, Boyd, Lanigan, and Nesmith were salesclerks assigned to the Washington Street store; the others were hired by Dunn and Freeman to stock merchandise for the new stores. Shapiro also testified that he talked to Respondent President Steven Goodfriend on 8 This is based on the testimony of Lanigan whom I credit over Shapiro who denied he mentioned the Union in his conversation with Lanigan. Shapiro did not impress me as a reliable witness and Lanigan, whose testimony is consistent with Nesmith's uncontradicted and credible testimony with respect to the real reason for the layoffs, had the least to gain this date about being overstocked at the Washington Street store, but did not discuss the layoffs or terminations. Everett Hoag was the first of the employees to be discharged. When he finished work on the evening of October 1, Barbaro called him into the office and explained that he was being laid off for economic reasons. On the next day, October 2, Nesmith, Boyd, Lanigan, Clinton, Cole, Smith, Terzis, Cammarata, Lamb, and Thompson were laid off or discharged. Nesmith was first told of his termination by Malcolm Freeman. Freeman asked him if he signed a card. When Nesmith responded affirmatively, Freeman told him that this was the reason he was being let go. Freeman told Nesmith that if he had not signed the card, Freeman would have hired him in the Cambridge store. Freeman told Nesmith that he should "learn to kiss ass a little." Shapiro later called Nesmith into the office and told him he was being let go for economic reasons. Lanigan was notified of his termination by Shapiro. Shapiro told him that the layoffs were because of the Union. Lanigan protested that he "hadn't gotten involved with the Union." Shapiro then told Lanigan to get in touch with him the following week. Lanigan did and he began working again at the Washington Street store on or about Wednesday October 8.6 By the end of the day, the only personnel remaining in the Washington street store were Supervisors Barbaro, Dunn, and Freeman, and Westgate, Guikeri, and Morand, who General Counsel asserts, and I find infra, were management trainees, and part-time employees Stephen Cassis and Ida Home. Two temporary employees from Handy Andy were called in to work at the Washington Street store on October 3, 1975. On October 2, Shapiro asked Terry Westgate if he wanted to work overtime that weekend to move merchan- dise from the second floor and basement storerooms at the Washington Street store to storerooms newly available at the Copley Square and Harvard Square stores. Westgate declined. On October 4 and 5, Saturday and Sunday, Respondent hired nine additional employees from Handy Andy and, using a rented truck, they began moving merchandise to the new stores in preparation for their opening. During the next week, Shapiro hired 13 additional Handy Andy temporaries for varying amounts of time. These employees were paid at a flat rate of about $3.40 per hour.7 The Handy Andy employees worked for about 2 or 3 weeks after October 6 at the rate of 10 or 11 per day. They unpacked merchandise for the new stores. Shapiro testified that, in early October 1975, two employees were transferred to the Washington Street store from Respondent's headquarters in New York. The payroll records for the week ending October 9, 1975, list five new employees not counting Lanigan who returned to work on October 8. Shapiro testified that both Dunn and Freeman began hiring new employees for the new stores on October 6. Since these stores did not actually open until later in among the discriminatees in terms of backpay. Moreover, he did return to work on or about October 8, thereby giving credence to his testimony about what Shapiro had told him. 7 The terminated employees who had been working on the second floor preparing merchandise for the new stores were paid $2.50 per hour. 532 WRANGLER WRANCH October, the new employees presumably unpacked, sorted, and hung merchandise. Shapiro also testified that Barbaro began recalling the four laid-off Washington Street em- ployees, Boyd, McLeod, Lanigan, and Nesmith, on October 6, 1975. Nesmith testified, credibly in my view, that he was never recalled.8 4. Additional instances of coercion by Respondent One of the Handy Andy temporaries, Geneva Ward, approached cashier Ida Horne sometime in October to inquire about possible permanent employment. Horne directed her to Barbaro who did not hire Ward. Barbaro later gave Horne an explanation, saying that Shapiro did not want to hire Ward because "she was too old ... she was not a pretty boy" and "her ass was too close to the Union." Ida Horne also testified that, on October 3, the day after the discharges, which had occurred on her day off, Irving Shapiro asked her whether she had signed a union authorization card or talked to union representatives. She said she did not. She later asked Barbaro why Shapiro had questioned her. He told her that if Shapiro had learned she had signed a card she "would have been out the door with everyone else." Several days later, Barbaro told her that if she "ran into Emery . . .or Robin . . . or Curtis Boyd, that I should tell them that if they left their union associations alone that they would be rehired." 9 Westgate talked to Barbaro in the week following the discharges about rehiring some of the former employees because the store was so short of help. They discussed Lanigan, and Westgate told Barbaro that Lanigan's involvement with the Union was minimal. Two weeks later they had a similar discussion about Hoag. Barbaro told Westgate he would not rehire Hoag because he "felt Hoag was too involved with the Union." 'o s Barbaro contradicted the thrust of Shapiro's testimony by testifying that he did not recall McLeod but simply ran into him sometime in November at a subway station and told him that there was a "possibility" he could put him back to work. He also said he never tried to contact or recall Nesmith and he was able to provide no iniormation concerning the alleged recall of Boyd. The above provides an additional reason in support of my reluctance to accept or credit any part of Shapiro's self-serving testimony on any crucial issue in this case. 9 Shapiro denied he questioned Home. I credit Home. She impressed me as a candid and truthful witness who had not supported the Union in the campaign and thus could be relatively objective in her testimony. Barbaro did not specifically contradict Home's testimony concerning their conversa- tions. i' The above findings of fact are based primarily on the testimony of employees Westgate, Horne. Nesmith, Hoag, and Lanigan whom I found to be candid and reliable witnesses. In some instances their testimony was uncontroverted. To the extent that there are conflicts, I reject the testimony that is contrary to that I have credited and set forth in the statement of facts. I specifically reject the testimony of Shapiro. He did not impress me as a reliable witness. Shapiro was evasive in much of his testimony and was contradicted by Barbaro on several occasions as to whether and when certain employees were recalled after their discharge. Barbaro also contradicted Shapiro on the issue of who was a temporary and who was a regular employee. For example. Barbaro claimed that he hired Clinton for work on the selling floor and that Boyd and Nesmith worked "mostly" on the second floor doing stockwork. I have detailed more precisely some of the other reasons for rejecting Shapiro's testimony elsewhere in this decision. Barbaro did not deny many of the specific remarks attributed to him by employees. On cross-examination, he made general denials that he talked to B. Discussion and Analysis 1. The 8(aXl) violations Based on the credited testimony set forth above, I find that Respondent violated Section 8(aX I) of the Act by the following conduct: (a) The interrogation by Supervisor Barbaro of employee Ida Home on September 19, 1975, as to whether she signed a union card and whether she knew who had attended the union meeting the night before. (b) The interrogation by Supervisor Freeman of employ- ee Hoag on September 29 as to what conversations he had with Union Representative Lamothe.n (c) The statements of Freeman to Hoag on or about September 29 that if the Union came in there would be no breaks and no chance of getting into management. These were threats of reprisal. (d) The threats on October i, 1975, against employees Westgate and Home by Barbaro that if employees signed cards or were involved with the Union they would be terminated. (e) The interrogation of employee Nesmith by Freeman on October 2 as to whether he signed a card and the contemporaneous statement that he was being let go because he signed a card which I find to be coercive and a threat of reprisal. (f) The statement by Barbaro to Ida Horne sometime in October that a Handy Andy temporary employee, Geneva Ward, was not hired by Respondent because she was "too close to the Union." This is coercive and a threat of reprisal. (g) The interrogation of Horne by Shapiro on October 3 as to whether she had signed a union authorization card. (h) The statement by Barbaro to Horne later on October 3 that if she had signed a card she would have been discharged with everyone else. This was a threat of reprisal. any employees about signing union cards and only had one discussion about union cards and that with Westgate who brought up the subject. I found Barbaro to be evasive in his testimony on this issue and do not credit his denials. n' I do not believe that an isolated, apparently noncoercive inquiry by Barbaro of Hoag on September 26 as to whether Lamothe had ever shown employees his credentials was unlawful. The General Counsel also alleges that Freeman's denial of access by Union Organizer Lamothe to employees outside the store on September 29 was unlawful. The evidence indicates that Lamothe was standing outside the store and that Freeman brought Hoag outside to talk to Lamothe and, as I have found, unlawfully interrogated him; this appears to have been on Hoag's worktime and I do not consider Freeman's conduct to have constituted a denial of access. The only other specific example of interference was Freeman's statement that he did not want employee Terzis to meet Lamothe outside the store. It is unclear as to whether this confrontation took place during Terzis' working time. Later that day, Terzis and Lamothe met for lunch. My reading of the record leads me to conclude that Freeman's objection to Lamothe's speaking to employees was based on the fact that they may have been on their worktime when they came outside the store to talk to Lamothe. Earlier in September union representatives were permitted to come into the store to talk to employees and Shapiro had objected to this interference with their work. Since Hoag was called outside by Freeman, the only employee who was prevented from talking to Lamothe was Terzis. Terzis did not testify. In these circumstances. I do not believe that the General Counsel has shown by a preponderance of the evidence that Respondent violated the Act by denying Lamothe access to employees outside the store on September 29. 533 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (i) The statement several days later of Barbaro to Horne that Nesmith, Smith, and Boyd would be rehired if they "left their union associations alone." This was a promise of benefit for foresaking union activities. (j) The statement in early October by Barbaro to Westgate that Hoag would not be rehired because he was "too involved with the Union." This was threat of reprisal. 2. The discriminatory terminations on October I and 2, 1975 The General Counsel asserts that employees Nesmith, Boyd, McLeod, Lanigan, Terzis, Clinton, Cole, Smith, Lamb, Thompson, Hoag, and Cammarata were terminated on October 1 and 2, 1975, because the Union sought to represent the Respondent's employees. Respondent claims that Nesmith, Boyd, McLeod, and Lanigan were laid off because of declining sales at the Washington Street store and the rest were terminated because they were hired only for a temporary period and were no longer needed and because they were not good workers. I reject Respondent's reasons and find that the terminations were motivated by Respondent's desire to rid itself of the Union which had sought recognition. Respondent's antiunion posture and knowledge of the Union's organizing efforts is clear.' 2 The timing of the terminations without advance warning, a day or two after the Union's demand, is powerful evidence that this was the prime motivation for the Company's action. Indeed, some of the employees had just been hired days before in mid and late September. And the only remaining employees after the terminations were supervisors, managerial train- ees, and part-time employees. The inference is made all but conclusive when the credited testimony of Horne, Nesmith, Lanigan, and Westgate concerning conversations with management officials before and after the terminations is considered. Horne and Westgate were threatened with discharge if they signed cards or engaged in union activity. Barbaro said that Shapiro was "very nervous" about the union activities. Freeman actually told Nesmith he would have been retained if he had not signed a card. After the terminations, Horne was told by Barbaro that fired employees would be rehired if they gave up their "union associations." Lanigan was told the layoffs were because of the Union and he was in effect rehired after he told Shapiro he was not involved with the Union. And Westgate was told specifically by Barbaro that Hoag had been dis- charged because of his union activity. This is direct evidence of antiunion motivation on the part of manage- ment representatives who actually participated in the discharges. Further support for the finding of discrimination is shown by Respondent's conduct after the terminations. Immediately after the Union's demand, it hired Handy Andy temporaries to move the second floor merchandise to the new stores even though they were not ready to open for several weeks. This was done furtively on a weekend. Shapiro's feeble explanation that he was suddenly in- formed that construction had progressed to such an extent 12 Respondent's contention that there was no specific evidence of knowledge of the union activity of each of the discnminatees is unavailing. Respondent sought to rid itself of the Union by wholesale discharges and that the merchandise could be moved to portions of the new stores is discredited. No corroborative evidence- either testimonial or documentary-was offered in support of Shapiro's testimony. In addition Respondent actually hired an essentially equivalent number of temporary employees from Handy Andy within days after the terminations to unpack and sort merchandise in the new stores and began hiring from the street the very next week. Indeed, Freeman and Dunn began hiring new employees the Monday after the terminations. Moreover, the work force at the Washington Street store was augmented by two employees from corporate headquarters in New York about whom both Shapiro and Barbaro were secretive or unknowledgeable in their testimony. This evidence indi- cates that, even assuming that some of the employees were doing only stockwork in the Washington Street store, the same kind of work was being done in the new stores by new employees and even temporary day workers whose compe- tence was obviously untried and risk-laden. An employer would not normally operate this way unless there was a pressing and overriding reason for the wholesale termina- tion of an existing work force. On this record that reason was the Union's successful campaign to organize the employees. The Respondent's reasons for the terminations are unpersuasive. They are based primarily on the testimony of Shapiro who did not impress me as a reliable witness. As I have indicated, the second floor employees were not temporary employees as he asserted. He also added as a reason for their termination their poor work performance. Yet he was unable to give specifics as to the inadequacies of the particular employees and neither Dunn nor Free- man, their immediate superiors, testified. Furthermore, except in one instance, involving Clinton, none of the employees were told that poor performance was a factor in their termination. It is clear that Clinton was part of the mass termination and Respondent's real reason for his termination is the same as that for other employees terminated at the same time. Indeed, Respondent's wit- nesses gave contradictory testimony on this issue. For example, Morand, whom I do not credit, corroborated Barbaro's testimony as to poor work performance, but he pointed out that Nesmith made many errors. Yet Shapiro testified that Respondent attempted to recall Nesmith who he stated was a regular sales employee. Barbaro testified that he did not recall Nesmith. Respondent's contention that the regular Washington Street sales staff was cut because of slack sales is likewise unpersuasive. The parties stipulated that sales dropped from about $20,000 per week on September 11, 1975, to about $12,000 per week in October 2, 1975. However, sales continued at this level for 6 successive weeks subsequent to October 2. I reject this as the motivating reason for Respondent's termination of the four so-called regular Washington Street employees, Boyd, McLeod, Nesmith, and Lanigan. There was no advance warning of layoffs for economic reasons as there would have been had this been Respondent's sole motive. Two New York employees were thus there is no requirement that there be "direct evidence that the employer know [the union) and was displeased or wanted to make an example of them." N. LR.B. v. Link-Belt Co., 311 U.S. 584, 602 (1941). 534 WRANGLER WRANCH transferred to the Washington Street store immediately after the alleged layoffs and Lanigan recalled the very next week. Shapiro's testimony on the two New York transfers was particularly evasive and unimpressive. Finally, there is no logical reason why these so-called regular employees who Respondent asserted were laid off and intended to recall could not be utilized at the new stores instead of the temporary and new help used the very next week. The failure to recall Nesmith and the accidental confrontation with McLeod in November when he was told he might have his job back indicate that the four employees were terminated and not laid off subject to recall. Indeed, Barbaro's testimony conflicts with that of Shapiro since Barbaro seems to categorize Nesmith and Boyd as primarily second floor and thus not Washington Street employees. In short, Respondent's defenses are far from sufficient to overcome the overwhelming evidence that I I Washington Street employees were discriminatorily discharged in October 1975, in violation of Section 8(aX3) and (I) of the Act. 3. The 8(a)(5) violation and the bargaining order remedy The General Counsel asserts that, as of September 30, 1975, the date of the Union's demand for recognition, the Union represented a majority of Respondent's employees. The General Counsel also asserts that because Respondent thereafter undertook a course of unlawful conduct to defeat the Union's representative status, Respondent's failure to bargain with the Union violated Section 8(aX5) and (1) of the Act requiring a bargaining order remedy under the principles set forth in N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), and Trading Port, Inc., 219 NLRB 298 (1975). General Counsel also asserts that the bargaining obligation should extend to the three-store unit of Respondent's stores in the Boston area, rather than the single-store unit in which the Union made its demand. As of September 30, Respondent employed some 18 employees at the Washington Street store, many of whose unit placement is contested by the parties. Both parties agree that employees Home, Lanigan, McLeod, Boyd, Whitehouse, and Clinton are properly included in the unit.'3 Respondent seeks to exclude employees Lamb, Thomp- son, Hoag, Smith, Cole, Nesmith, Terzis, and Cammarata because it asserts that they were temporary employees. I reject this contention which is based primarily on the discredited testimony of Shapiro that these employees were hired by Dunn and Freeman for second floor stockwork, specifically as temporary employees. As I have indicated, Dunn and Freeman did not testify but some of these so- called temporary employees did. None were told that they were hired for a temporary period and some testified that they expected to be employed at the new stores when they opened. No terminal date was set as to their employment. In these circumstances, the employees were not temporary employees and they are properly included in the unit total. 1:s Cyrus is not included in the unit because he was not unlawfully discharged as alleged by General Crounlsel and thus not an employee or entitled to reinstatement as of September 30. The General Counsel urges that three employees, Guikeri, Westgate, and Morand, were management train- ees and thus excluded from the unit total. These employees assisted the store manager, were salaried and paid more than other employees, and had some limited authority to direct other employees. They were hired with the expecta- tion that they would move into management positions and all eventually did so after Respondent opened the new stores and discriminatorily terminated a good part of its work force. It is thus clear that these employees exhibited little community of interest with other rank-and-file employees in the unit and should be excluded from the unit. See The Dayton Tire & Rubber Company, 206 NLRB 614, 618 (1973), affd. 503 F.2d 759 (C.A. 10, 1974). The General Counsel also asserts that part-time employ- ee Stephen Cassis should be excluded from the unit total because he is a guard. Cassis works as a fitting room checker on Saturdays. He performs no selling functions. He observes customers to insure that no garments are stolen by persons in the fitting rooms. He also returns garments left in the fitting rooms to the selling floor. Cassis had no authority to enforce rules against other employees and there is no possibility that because of his duties his inclusion in the unit would present a conflict of loyalties which would justify his exclusion. In these circumstances, Cassis was not a guard within the meaning of the Act and he should be included in the unit total. In view of the above, I find that the Respondent employed 15 employees on September 30, 1975, the date of the Union's demand. The evidence also shows that the Union obtained signed authorization cards from 10 of these employees: Hoag, Boyd, Clinton, Cammarata, Lanigan, Smith, Whitehouse, Cole, Nesmith, and McLeod. Their cards were identified and authenticated either by the employees themselves or by union representatives who solicited their signatures or were present when the cards were signed. Despite attempts by Respondent to show misrepresentations by union solicitors that the employees were told that the cards would be used for an election, it is clear from the testimony that the employees were told that the cards would be used to present to Respondent for collective bargaining and, if that failed, for an election. At no time were employees told that the cards would be used solely for an election. In these circumstances, it is clear that a majority of Respondent's employees as of September 30, 1975, had properly selected the Union as their bargaining representative. In view of Respondent's unfair labor practices as detailed above including the discriminatory termination of most of the unit employees shortly after the Union's demand for recognition and the other 8(a)() violations, I would find that a bargaining order would be the only appropriate remedy in this case under the principles of the Supreme Court's Gissel decision cited supra Because of the character of Respondent's misconduct, the passage of time, and the absence of any indication from Respondent that such misconduct would not recur, a free election is impossible and traditional remedies would not be sufficient to remedy the Respondent's misconduct. Thus, under 535 DECISIONS OF NATIONAL LABOR RELATIONS BOARD either of the standards set forth in Gissel, supra, a bargaining order would be required to remedy Respon- dent's violations; and, under Trading Port, supra, the Respondent violated Section 8(a)(5) and (1) of the Act as of October 1, 1975, when it undertook its course of unlawful conduct. The General Counsel asserts that despite the fact that, as of September 30, 1975, Respondent only operated one store in the Boston area, the evidence indicates that two other stores were going to and did open shortly after the events herein. He thus urges that the bargaining order should cover the three-store unit which he alleges is an appropriate unit for bargaining. Assuming arguendo that either the single-store unit or the three-store unit would be appropri- ate,' 4 in the circumstances of this case, the bargaining order would run only to the single-store unit. The Union's demand and its arithmetic majority were both in the single- store unit. All employees were carried on the Washington Street store's payroll. The other two stores were not open or fully staffed as of the time of the Union's demand. The evidence is unclear as to the full staffing of the new stores and thus it would be speculative to presume that the 15 employees working at the Washington Street store in September 1975 were representative of the full complement of employees eventually employed by the three stores. Compare: Clement-Blythe Companies, A Joint Venture, 182 NLRB 502 (1970). Accordingly, the bargaining order, if any should be issued herein, would cover only the single- store unit. The pivotal question concerning the proposed bargaining order remedy concerns the fact that, as revealed during the second day of this hearing, the Union herein, which was selected by the employees, merged into Local 1445, another local of the Retail Clerks International Association, in January 1977. The General Counsel sought to show that that merger was valid and that Local 1445 succeeded to the bargaining rights of the Union with respect to Respon- dent's employees. However, I must conclude, on the basis of the evidence and the applicable authorities, that Local 1445 did not succeed to the bargaining rights of the Union in this particular unit. The evidence shows that, in September 1976, four local unions of the Retail Clerks International Association in Massachusetts decided to merge. One of those was the Union herein. The largest of the four, Local 1445, was to survive. A notice was sent to all members of the Union in October 1976, and the members thereafter voted over- whelmingly by secret ballot to merge into a single local, Local 1445. The merger became effective January 1, 1977. The Union herein, Local 1291, was dissolved and does not currently exist as a separate entity. Local 1445 had about 4,500 members before the merger. The Union herein had approximately 1,300 members. The surviving Local 1445 now has about 12,500 or 13,000 members. Only members of the Union were eligible to vote in the merger election. The evidence also shows that employees must actually apply for membership before becoming members and this procedure is separate and apart from the i' A single-store unit is presumptively appropriate but the evidence shows that the three stores herein are geographically proximate and Shapiro, as area supervisor, has considerable authority over the individual store managers, particularly in personnel and payroll matters. signing of an authorization card. There is no provision made in the merger election for those people who have signed authorization cards in existing organizational campaigns. Consequently, the Respondent's employees who signed authorization cards were not eligible to vote in the merger election. The evidence also indicates that the surviving union has an expanded executive board made up of board members from the merged locals. The only officer of the Union who is now an officer of the surviving union is its former president who is now a vice president of Local 1445 and heads the department store-mercantile division of Local 1445. The Union represented primarily department store and mercantile employees. Local 1445 now represents some 6,000 department store or mercantile employees. The assets of all four unions party to the merger are now combined. And the same personnel administer the con- tracts now covered by the surviving union as administered them under the constituent locals. In deciding whether a union is a successor to another union in any particular unit, the Board "looks to a number of factors, including whether democratic procedures have been followed in any vote on affiliation or merger, whether the new organization has succeeded to the assets and liabilities of the predecessor, whether the employees in the bargaining unit have had an opportunity to register their desires and whether there is a continuity in the leadership and representation of the employees in the bargaining unit." Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Gene Graham Ford, Inc.), 188 NLRB 515, 518 (1971). The Board has indicated that whether the employees in the unit have had an opportunity to pass on the change of representative is "the primary concern" in such cases. Newspapers, Inc., Publishers of the Austin American and the Austin Statesman, 210 NLRB 8, 9, fn. 4 (1974), affd. 515 F.2d, 334 (C.A. 5, 1975). See also William B. Tanner Company, (Formerly Pepper & Tanner, Inc.) 212 NLRB 566, 567 (1974), enforcement denied 517 F.2d 983 (C.A. 6, 1975), and Factory Services, Inc., 193 NLRB 722 (1971). In the instant case, it is clear that the employees who had selected the Union to represent them did not vote in the merger election and, since they were not members of the Union, they were not eligible to vote. It is quite clear therefore that they were not given proper notice and an appropriate opportunity to vote on the change in represen- tative within the meaning of the above authorities. The General Counsel did not specifically discuss the above infirmity or the adverse case law in his brief. The General Counsel does state, however, that, but for the Respondent's unfair labor practices, the Respondent's employees would have become members of the Union and would have been afforded a full opportunity to vote on the merger since Respondent was bound to bargain with the Union as of October 1975. It is obvious, of course, that authorization for representation by a union is different than union membership. 5s Although, under Gissel and other authorities, the Respondent may have been obligated 1i See Terrell Machine Company, v. N. LR.B., 427 F.2d 1088 (C.A. 4, 1970), cert. denied 398 U.S. 929 (1970). 536 WRANGLER WRANCH to bargain with the Union as of October 1, 1975, and violated the Act by failing to do so, the Respondent's misconduct did not preclude the employees from partici- pating in the merger vote. The Union's rule that only members could vote in a merger election was the disquali- fying factor. There was no guarantee that a contract would be signed with Respondent or that a union-security provision would be included in such a contract so as to assure that the employees herein would become members and thus eligible to vote in the merger election. Thus, the evidence on this record does not permit the inference that, but for Respondent's misconduct, the employees herein would have become members of the Union. Nor does the evidence permit the inference that the employees who selected the Union would have been satisfied with the successor union. The Union itself apparently had no procedure to cover nonmembers who had signed authoriza- tion cards in the merger vote and the employees were never contacted concerning their desires. Although this factor alone probably would not have defeated a successorship finding, Local 1445 was a much larger, different union than that which the employees had selected. It cannot be presumed that the Respondent's employees would have approved of this change. In these circumstances, I cannot conclude that Local 1445 succeeded to the bargaining rights of the Union, which is now dissolved, on behalf of the Respondent's employees. Accordingly, I find that even though Respondent violated Section 8(a)(5) and (1) of the Act by failing to bargain with the Union on and after October 1, 1975, a bargaining order should not issue in this case in favor of Local 1445, a union which the bargaining unit employees did not select and had no notice or opportunity to select in the election wherein the Union was merged into Local 1445.16 4. The alleged timing of employees and elimination of breaks About a week after the union meeting on September 18, 1975, Barbaro called employee Nesmith and other employ- ees aside and announced that there would be changes made in the operation of the store and that the employees' work would be timed. The employees were thereafter timed. The timing was instituted to increase efficiency and lasted only a short period. Westgate testified that manage- ment tightened up its supervision of employees at this time and that employees' breaks were limited. Barbaro testified that the store's policy was "no breaks" other than lunch hours. He was corroborated by Morand and Shapiro. Westgate testified that in September 1975 "we paid a lot more attention to breaks, lunch breaks and coffee breaks ... " Employee Hoag testified that he did not recall that breaks were more strictly enforced after the union meeting. Nesmith testified that on one occasion Malcolm Freeman refused to permit Nesmith and Guikeri i6 The General Counsel also argues that the authorization cards designated the bargaining representative as the International Association or "its chartered local" and suggests that the employees validly designated Local 1445 and that a bargaining order should be issued in favor of that union. I reject this argument. The employees intended to designate Local 1291, the Union herein, whose officials solicited their signatures. There is no to leave the floor to get a drink of soda. As Nesmith testified, "Freeman said that I have-I want the Union. What more do I want?" The General Counsel asserts that the above evidence supports the complaint allegation that Respondent timed employees and eliminated breaks after the onset of the Union-particularly after the union meeting of September 18-in order to interfere with the lawful union activity of employees. I will dismiss this aspect of the complaint. The evidence is unclear as to the denial of breaks. During much of September, Respondent did permit union representa- tives to come into the store to talk to employees. That policy ceased, but, of course, Respondent was not obligat- ed to permit this activity in the first place. Except for Nesmith's example, there is no specific evidence as to the denial of breaks and even that specific example does not show that breaks were generally denied for union reasons. Indeed, the evidence is unclear as to Respondent's policy on breaks or whether breaks were permitted at any time before the union campaign. Furthermore, even though there is testimony that employees were timed after the union meeting, there is no evidence to show that this measure was instituted for union reasons. Nor is there any evidence to indicate that the effect of this measure on employees would coerce or restrain them with respect to protected activity. In short, the General Counsel has not shown by a preponderance of the evidence that Respon- dent interfered with union activity or coerced or restrained employees from engaging in union activity by timing employees or eliminating breaks in violation of the Act. 5. The discharge of John Cyrus John Cyrus began working for Respondent as a full-time employee on or about August 20, 1975. He worked on the second floor preparing merchandise for the new stores as well as on the selling floor of the Washington Street store. He attended the union meeting on September 18, 1975, and signed a union authorization card on that date. Cyrus was a diabetic and he had been absent frequently during the period he worked at the Washington Street store. He testified that he had to leave work when he was having an insulin reaction and that he remembered that this occurred about 6 to 9 days during his employment. He reported to a supervisor as he was leaving. He also testified that no store manager spoke to him about these absences. On September 19, Cyrus suffered an insulin reaction before work, called in and spoke to Shapiro. Shapiro told him not to bother to come in and that he was no longer needed. Shapiro testified that he did not know about Cyrus' diabetes, but he was aware that Cyrus was often absent. He testified that he authorized Store Manager Barbaro to discharge Cyrus on September 19 because of excessive absenteeism and the decision was made on that date. The payroll records indicate that Cyrus worked 28 hours the week ending August 28; 28-1/2 hours the week ending evidence that they meant to designate another local or any local assigned to them by the International. Indeed, the demand for recognition was made by the Union, not the International on behalf of its local, and the General Counsel never suggested that the bargaining order should run in favor of the International. 537 DECISIONS OF NATIONAL LABOR RELATIONS BOARD September 11; and 27-1/4 hours the week ending Septem- ber 18, 1975. In support of his allegation that Cyrus was unlawfully discharged, the General Counsel relies principally on two pieces of evidence, together with the fact that the discharge occurred the day after Cyrus attended the union meeting and signed a card. The General Counsel alleges, first, that Manager Sterling Dunn, who did not testify, interrogated Cyrus about his union activity, and, second, that Respon- dent, through its supervisor, Barbaro, admitted that the discharge was unlawfully motivated in a conversation at a bar subsequent to the discharge. Cyrus first testified that he had a conversation with Sterling Dunn between September 5 and 18 where he asked Cyrus if he had been to the union meeting and signed a card and that Cyrus replied that he had. After stating that the conversation occurred during the working day and that the union meeting was after the end of work, Cyrus was questioned further on this matter. He then testified that Dunn asked him if he was going to the union meeting and asked how involved he was with the Union. Cyrus told him he was in favor of the Union. Cyrus' testimony was quite confusing on this issue, but Dunn did not testify, and I am inclined to believe that Dunn did interrogate Cyrus as he testified last, i.e., was he going to the union meeting and how involved was he in the Union. There was a notice posted at the store concerning the meeting and there was much discussion in the store about the Union. Cyrus was confused as to whether Dunn's inquiry was about a past or future union meeting, but he was quite sure that the date was before the union meeting. Although the issue is a close one, even on Cyrus' own testimony, I find that Cyrus was questioned prior to the union meeting by Dunn and that he told Dunn that he favored the Union.1 7 The second more crucial piece of evidence is the subject of conflicting testimony. Gary Dotterman, Cyrus' roommate, testified that he called the store the day after Cyrus' termination. He asked to speak to Barbaro, whom he knew personally. Barbaro told him that the reason Cyrus had been fired was his union activity and that his absenteeism "was just an excuse on the surface." Dotterman asked Barbaro to meet with him later to discuss the discharge. The following Wednes- day, September 24, the two men met for a drink at the bar where Dotterman worked. Dotterman asked, "Do you really take the Union as that serious a threat?" According to Dotterman, Barbaro replied, "No, but Johnny was vocal about it and it didn't help the situation. And he'd been absent so they had a reason to get rid of him." Barbaro denied that this conversation had taken place. Donald Richard, the proprietor of the bar in which the conversation was alleged to have occurred, testified that he remembered seeing Barbaro in the bar on a Wednesday evening in mid-September. Richard also testified that Dotterman told him, in Barbaro's presence, that Barbaro had fired Cyrus because of his union activity and that Barbaro did not respond to this statement. I do not credit Dotterman's testimony that Barbaro admitted firing Cyrus for his union activity. First, Dotter- " The General Counsel has not specifically alleged that this interroga- tion violated the Act. man's close relationship with Cyrus makes his testimony suspect. Second, there is no corroborating evidence to show that Cyrus was a "vocal" union supporter, as Dotterman testified Barbaro stated. Cyrus testified that he simply had some "casual" conversations with Respondent's supervi- sors. Moreover, Dotterman sought to embellish the Barbaro conversation by adding his own words "and he wore the button [presumably a union button] into the store," a fact which was not corroborated by Cyrus or any other witness. Finally, Dotterman testified that he encour- aged Cyrus to "go to the Union and call for a strike" and that he mentioned a possible strike to Barbaro. Cyrus did not testify about Dotterman's alleged suggestion. And this apparent intensity of feeling is belied by the fact that no charge of a violation concerning the termination was filed and only I year later was the matter added to the complaint herein. Richard's testimony simply confirms that Dotterman expressed his views to Barbaro that Cyrus was fired for union activity and it is not probative as to Barbaro's remarks or the Respondent's motivation. Thus the evidence as to the discharge of Cyrus shows as follows: Cyrus expressed his support of the Union to Supervisor Dunn in response to the latter's question as to whether he was going to attend the union meeting and how involved he was with the Union. This conversation probably took place sometime in September before the union meeting. Cyrus was discharged the day after the union meeting, after he called in absent. Balanced against this evidence is the fact that Cyrus, by his own testimony, was absent some 6 to 9 days and that he had only been working for Respondent for about 1 month. The record does not show that Respondent exhibited any union animus toward Cyrus or that he was particularly vocal or active on behalf of the Union. Moreover, when Cyrus was discharged, the Union had not attained majority status and Respondent had not yet perceived the threat caused by the Union's obtaining majority support. This had been the trigger for the mass discharges of October 1 and 2. Indeed, Respondent had permitted a notice to be posted in the store announcing the union meeting and apparently let union organizers openly solicit employees inside its store. Finally, other employees who attended the union meeting were not singled out at this time. Accordingly, I am not convinced that the General Counsel has sustained his burden in proving by a preponderance of the evidence that Respondent's discharge of Cyrus on September 19 was discriminatorily motivated and I shall dismiss this aspect of the General Counsel's complaint. CONCLUSIONS OF LAW I. By interrogating employees concerning their union activities and those of other employees, threatening employees with reprisals, including discharge, for engaging in union activities, and by promising benefits for refraining from supporting the Union, Respondent engaged in unfair labor practices affecting commerce in violation of Sections 8(a)(l) and 2(6) and (7) of the Act. 538 WRANGLER WRANCH 2. By discriminatorily discharging employees Nesmith, Boyd, Lanigan, McLeod, Clinton, Cole, Smith, Terzis, Cammarata, Lamb, and Thompson, Respondent commit- ted unfair labor practices affecting commerce within the meaning of Sections 8(aX3) and (1) and 2(6) and (7) of the Act. 3. The Union represented a majority of Respondent's employees in an appropriate unit-all part- and full-time employees at its Washington Street, Boston, store, exclud- ing supervisors and guards-as of September 30, 1975. 4. By failing and refusing to bargain with the Union after October 1, 1975, and until its merger and final dissolution in or about January 1977, Respondent engaged in unfair labor practices affecting commerce within the meaning of Sections 8(aX5) and (1) and 2(6) and (7) of the Act. 5. A bargaining order is not warranted in favor of Local 1445, Retail Clerks International Association, the successor to the Union herein, because it did not succeed to the bargaining rights of Respondent's employees in any appropriate unit. 6. Respondent has not otherwise violated the Act. THE REMEDY I shall recommend that Respondent be required to cease and desist from its unlawful conduct and take certain affirmative action which is necessary to effectuate the policies of the Act. Having also found that Respondent discriminatorily terminated II of its employees in October 1975, 1 shall recommend that it be required to offer them immediate, full, and unconditional reinstatement to their former jobs or, if these jobs no longer exist, to substantially equivalent ones, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings suffered by reason of such discrimination, by paying them sums of money equal to the amount they would have earned from the date of the discrimination against them to the date of Regpondent's offer to reinstate them as aforesaid, less their net earnings during that period, in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 18 The Respondent, Goodfriend Western Corp., d/b/a Wrangler Wranch, New York, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: IR 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. (a) Interrogating its employees regarding their union activity and that of other employees. (b) Discharging employees because they engage in union activities or support a union. (c) Discouraging employees from support of or member- ship in the Union or other labor organization by discharge or any other discrimination affecting their tenure or condition of employment. (d) Threatening employees with reprisals including termination because of their union activities or because the Union is selected as their bargaining representative or promising benefits for employees who forsake union activities. (e) Refusing or failing to bargain with a union which has the support of a majority of its employees in an appropriate unit by engaging in unfair labor practices which destroy the union's majority or make a free election impossible. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to Maria Cammarata, John Clinton, Steve Cole, Everett Hoag, Eros Lamb, Emery Nesmith, Robin Smith, Phillip Lanigan, Curtis Boyd, George Terzis, and Michael Thompson, if this has not already lawfully been accom- plished, immediate and full reinstatement to their former positions or, if they no longer exist, to substantially equivalent ones, without prejudice to the seniority and other rights and privileges previously enjoyed by them, and make them whole for any loss of pay, including any raises which may have been given to employees, that they may have suffered by reason of their unlawful discharge, with interest thereon of 6 percent per annum. (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records and reports and all other records required to ascertain the amount, if any, of backpay due under the terms of this Order. (c) Post at its Washington Street store in Boston, Massachusetts, copies of the attached notice marked "Appendix." 19 Copies of said notice, after being duly signed by its representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps have been taken to comply herein. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges unfair labor practices not found herein. 19 In the event 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." 539