S. E. Nichols, Inc.

556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD S. E. Nichols, Inc. and Local No. 1, United Food and Commercial Workers International Union, AFL-CIO. Cases 3-CA-9304 and 3-CA-9714 30 June 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 31 December 1980 Administrative Law Judge Josephine H. Klein issued the attached deci- sion. The Respondent and the General Counsel each filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,' fmdings,2 The Respondent has excepted to the Judge's consolidation of Case 3- CA-9304, in which the hearing had closed, with Case 3-CA-9714, in which the complaint had just issued. It contends (1) that the judge "may have already reached certain determinations and conclusions" in Case 3- CA-9304 and thus her decision on issues in that case would prejudice her determinations and (2) that the issuance of the complaint in Case 3-CA- 9714' may affect considerations already made m Case 3-CA-9304 and therefore may have made it impossible for her to render a fair decision in the earlier case. The record shows, however, that the two cases involve the same parties and factually related events and that both parties had a full and fair opportunity to examine all the witnesses and to litigate all the issues. Furthermore, on our consideration of the entire record in these proceedings we find no evidence that the judge prejudged the cases, made prejudicial rulings, or demonstrated bias against the Respondent in her analysis and discussion of the evidence. We therefore find no merit to the claim that the Respondent was denied due process by the consolida- tion or to its argument that the judge exhibited bias. The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.241 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. At the hearing in Case 3-CA-9714 the parties stipulated that the record from the 10(j) injunction portion of this proceeding be accepted in lieu of testimony before the judge. In her decision the judge noted that the court made no credibility findings, stated that her appraisal of credi- bility was based on considerations other than demeanor, and in all but the following three instances stated the basis for crediting testimony: employ- ee Pumiho's testimony that Store Manager Hathorn asked him why "the Federal Labor Board wanted [Punulio] to testify"; Pumilio's testimony that District Supervisor Korcz told him to remain henceforth in his de- partment; and employee Klimacek's testimony that, contrary to past prac- tice, she had to load cases of oil onto a pallet unassisted. The Respondent contends that all the judge's credibility resolutions were based on de- meanor. Concerning the above three instances we find nothing m the judge's decision to indicate, and the Respondent has not shown other- wise, that her crediting Pumilio and Klimacek in these instances was based on demeanor rather than other considerations. Moreover, the judge generally credited Pumdio and Klimacek, rather than the supervisor, be- cause they testified against the Respondent while in its employ. Such tes- timony is against their own interests and therefore is more reliable than the supervisor's testimony. Rodeway Inn of Las Vegas, 252 NLRB 344 (1980). Further, bias and partiality are not established merely because the judge resolved factual conflicts in favor of the General Counsel's wit- nesses. NLRB v. Pittsburgh Steamship Co., 337 U.S. 656 (1949). We correct four inadvertent errors of the judge. First, in fn. 24 of her decision, the judge incorrectly stated that the Respondent's president, Brecker, testified at the district court trial that all employee meetings and conclusions 3 only to the extent consistent with this Decision and Order. 1. Thp judge found that the Respondent's pre- 1980 no-solicitation and no-distribution rule violat- ed Section 8(a)(1). Although she relied on then- current Board law which held that rules prohibit- ing employee solicitation and distribution during "working time" are presumptively valid,4 the judge found that the Respondent's use of the phrase "the working time" (emphasis added) ren- dered the rule fatally ambiguous. The judge rea- soned that the Respondent's rule would be under- stood by employees as being broader in scope than a lawful reference to times when employees would be actually at work. In effect, the judge equated this rule using the phrase "the working time" with a presumptively invalid rule using the phrase "working hours." We disagree with this analysis. We fail to see any meaningful distinction between "working time" and "the working time" or how the addition of "the" as a preface to "working time" causes that term to become ambiguous; nor do we believe that the employees would see any significance to this difference in wording. In either construction of the term we fmd that it "connotes periods when employees are performing actual job duties, periods which do not include the employ- ees' own time such as lunch and break periods." Our Way, 268 NLRB at 395. Accordingly, we shall dismiss the 8(a)(1) allegation with respect to the pre-1980 rule. were taped when, in fact, it was District Supervisor Korcz who so testi- fied in the hearing in Case 3-CA-9304. Second, the judge identified two of the Respondent's witnesses in the district court hearing in Case 3-CA- 9714 as Rose Stagliano and Edward Lintz. The record discloses that the two witnesses were Beverly Stagliano and Rose Ceneviva. Third, the judge found that Brecker spoke at the 18 April employee meeting when, in fact, it was Korcz. Finally, the judge stated that the Respondent oper- ates 42 stores in 3 States. The record establishes that the Respondent op- erates 43 stores in 10 States. These inadvertent errors do not affect the conclusions reached in this case. We agree with the judge that the Union's failure to file objections to an election held in Case 3-RC-7578 did not constitute an admission of the absence of merit in complaint allegations about conduct which oc- curred during the critical preelection period. We disavow, however, any reliance on the judge's discussion of the reasonableness of the Union's ac- tions. The failure to file objections has no legal relevance to the merits of unfair labor practice allegations involving Sec. 8(a)(1), (3), and (4), re- gardless of the reasons for such failure. 3 We agree with the judge's conclusion that the Respondent violated Sec. 8(a)(3) and (1) of the Act by discharging employees Reinhardt, Vin- cent Styles, and Burkle. Her analysis is consistent with Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981). See also Limestone Apparel Corp., 255 NLRB 722 (1981). 4 Essex International, 211 NLRB 749 (1974). The Board later partially overruled Essex in T.R.W. Bearings, 257 NLRB 442 (1981), holding that rules prohibiting employees from soliciting during "working time" with- out further clarification were, like rules prohibiting such activity during "working hours," presumptively invalid. However, the Board subsequent- ly reversed T.R.W. and returned to the Essex standard. See Our Way, Inc., 268 NLRB 394 (1983). We also rely on Our Way in adopting the judge's fmding that the Respondent's revised rule using the phrase "working hours" is presumptively invalid. 284 NLRB No. 55 S. E. NICHOLS, INC. 557 2. The judge also found that the Respondent vio- lated Section 8(a)(1) by requesting that employees report on organizing activities. In part, the judge relied on a section of the Respondent's employee handbook. That section, entitled "Your Employee Rights Under 4 Union Organization Drive," in- cludes a paragraph reading: Remember, do not sign a card because you are threatened, tell us and we will protect you. It is your right to have a union. It is your right not to have a union. Our Company will try to see to it that your rights are preserved no matter how you choose. Tell us if someone is trying to stop your freedom of choice. The judge also relied on her findings that on sev- eral occasions during meetings with employees, District Supervisor Korcz advised employees to report "harassment," "threats," or "trouble" to management officials, including its attorney, and that Korcz also said that the Respondent's attorney would help the employees with respect to union harassment. The judge found that Korcz' com- ments to employees demonstrated that he subjec- tively equated "harassment" with solicitation of union support and the handbook's reference to "freedom of choice" with the absence of such so- licitation and that therefore Korcz was inviting em- ployees to report on union activities. The judge found that both the oral and written requests for information were unlawful and cited S. E Nichols of Ohio, Inc., 195 NLRB 939 (1972), in which the Board had found similar invitations in the context of the corresponding section of the handbook to be violative of Section 8(a)(1). We agree with the judge's analysis and findings with respect to the oral requests for information about "harassment" and "trouble." These words are vague and ambiguous in the context of union organizing and reasonably could encompass per- fectly lawful union efforts to persuade or even merely to inform employees about the asserted ben- erns of unionization. However, we disagree with the judge with respect to the quoted portion of the handbook and to Korcz' oral request for reports on "threats." We find that here the Respondent's re- quest for information merely advised employees that the Respondent would be available to protect employees froth conduct that might restrain or coerce them in the exercise of their Section 7 rights. We note that in S. E. Nichols of Ohio the Board found it unnecessary, in the absence of a specific allegation, to pass on whether the hand- book language was unlawful per se. Here, we must address the issue, and we find that the handbook provision is not reasonably subject to an interpreta- tion that would unlawfully affect the exercise of Section 7 rights. Regardless of Korez' equation in his mind of "freedom of choice" with no soliciting for the Union, there is no evidence that he explicit- ly expressed that view to the employees. We there- fore shall dismiss the 8(a)(1) allegation concerning the quoted portion of the handbook and Korcz' re- quest for information on threats. 3. In addition to the provision quoted above, the handbook also includes the following paragraph: Do not sign a card because you are told that if you sign now, you will not have to pay initi- ation fees, and that non-signers will be forced to pay such fees if the Union gets certified. The judge found that even though the underlining of the words "do not sign a card" in this paragraph deemphasizes the qualifications that follow, the ad- monitions by themselves fall within the permissible limits of Section 8(e) in that they contain no threat or promise of benefit. However, the judge went on to consider these statements in the context of other statements found in the employee handbook. The pre-1980 version also admonished employees to "remember to stay out of problems, the only paper to sign is your pay receipt." The judge found that this was a coercive discouragement from signing authorization cards because the statement appeared in the section of the handbook that also stated that one company "benefit" was protection from "being exploited" or being taken advantage of by "outsid- ers" who most frequently were "Union Organiz- ers." The judge found that all these statements taken together against the background of the Respond- ent's other unfair labor practices constituted unlaw- ful "brinksmanship" and thus violated Section 8(a)(1). Although we agree with the judge that the now-deleted reference to signing only pay receipts is an implicit threat and thus a violation of Section 8(a)(1), we note that the judge does not mention that the handbook also states clearly, "So, if the union organizers call on you and you want the union, you should sign the card." Absent the pay receipt statement, the handbook in its entirety is not so unbalanced in its presentation to constitute interference, coercion, or restraint with respect to the employees' Section 7 rights. Accordingly, we shall dismiss the general complaint allegations re- garding the handbook in its 1980 edition.5 5 Contrary to our dissenting colleague, we affirm the judge's finding that the Respondent violated Sec. 8(a)(1) through Korcz' telling several employees that they could recall or withdraw authorization cards that they might have signed. Although Korcz did not explicitly "ask" em- ployees to withdraw their cards, the judge correctly found Korce re- peated comments to be coercive in the context of the Respondent's nu- merous contemporaneous unfair labor practices. The judge particularly Continued 558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4. At an 18 April 1980 employee meeting, Dis- trict Supervisor Korcz repeated the earlier state- ments of Respondent's president, Manfred Brecker, that it was futile for employees to resort to the Board because the Respondent would win in the end. The judge found that Brecker violated Section 8(a)(1) of the Act but made no findings with regard to Korcz. We find that Korcz' repetition of Brecker's statements also violated Section 8(a)(1) of the Act because it intefered with the employees' use of the Board and its processes. Scott's, Inc., 159 NLRB 1795, 1797-1798 (1966). The judge also found that Korcz condoned the Respondent's use of unlawful campaign tactics, but did not specifically find that this conduct violated the Act. The record shows that on 24 April 1980 the Union sent employees a letter, which stated that the Respondent was continuing its use of the "scare tactics" at the Herkimer store that it had used to defeat the Union at its Marcy store, located 13 miles away. At an employee meeting 2 days later, Korcz acknowledged that the Respondent would continue to engage in the same conduct— conduct that Korcz well knew was unlawful. See S. E. Nichols Marcy Corp., 229 NLRB 75 (1977). A continuation of the unlawful conduct at the Herki- mer store had already resulted in the Respondent's discharging the four leading union adherents and engaging in numerous 8(a)(1) violations. We find that Korcz' threats to continue to engage in known unlawful conduct violated Section 8(a)(1) of the Act.6 5. Employees June Klimacek and Fred Pumilio informed Store Manager Robert Hathorn that they had received subpoenas from the General Counsel to appear at the March 1980 hearing in Case 3- CA-9304. Hathorn asked Klimacek if she knew what it was about, and she replied, "Not really." He also asked her if she had received any tele- phone calls about the subpoena and she answered in the negative. Later that day Hathorn spoke to Pumilio and "wondered" why the Board wanted him to testify. Pumilio said that he did not know and ignored Hathorn's repetition of the inquiry. The judge acknowledged that Hathorn did not di- rectly interrogate either employee about his or her forthcoming testimony. However, she found Hath- noted that Korcz' "advice" was given following the four discriminatory discharges and that Korcz had attributed them in substantial part to the discrimmatees' having solicited cards. In these circumstances, the em- ployees could reasonably assume that Korcz was telling them to with- draw their support for the Umon or risk the same fate as befell the discn- mmatees. 6 The judge found that the Respondent violated Sec. 8(a)(1) of the Act by Korea' statements to employees that they could refuse to speak to Board agents investigating the case. The record fails to show, however, that Korcz or any of the Respondent's representatives made such state- ments. Therefore we shall reverse and dismiss this 8(a)(1) allegation. orn's "implied probing" to be coercive interroga- tion. We disagree and find no violation of Section 8(a)(1) of the Act. Hathorn's questioning of Klima- cek and Pumilio was indirect, was not pressed fol- lowing the employees' noncommittal or negative responses, and was totally unaccompanied by threats or promises. Accordingly, under Rossmore House, 269 NLRB 1176 (1984), we find Hathorn's behavior was noncoercive and thus we shall dis- miss the allegation of unlawful interrogation based on it. 6. The judge found that the Respondent violated Section 8(a)(1) by "in effect" adopting certain re- marks made at employee meetings on 18 April and 5 June 1980 by employee Edward Lintz. On 18 April at a meeting called by Korcz, during which other employees also spoke, Lintz spoke for ap- proximately 15 minutes during which he stated that if the Union won the election, the store might close down or some employees would be laid off and re- maining employees wOuld have increased work- loads. No other evidence was provided detailing the remainder of Lintz' comments. According to three witnesses, Korcz nodded his head in agree- ment during Lintz' speech. This event formed the basis of the allegation in the 8 May 1980 complaint in Case 3-CA-9714 that Lintz was the Respond- ent's agent whose statements violated Section 8(a)(1). In the other incident, on 5 June, Brecker con- vened a meeting of all store employees and store officials during which he asked each individual named in the complaint as having committed a vio- lation to rise and deny the allegations against him.7 Lintz, who was named in the complaint, took the opportunity to repeat his comments of 18 April. Employee IClimacek specifically testified, however, that Brecker then told the assembled employees that Lintz was an employee and that anything he said was not a reflection on the Company. The judge acknowledged this summary disavowal of the Respondent's responsibility for or acceptance Of Lintz' remarks but stressed that Brecker did not specifically deny their substance. It was on this latter basis, as well as her finding that the Respond- ent "permitted" Lintz to speak at length on 18 April and signified approval through Korcz' non- verbal behavior, that she found an adoption of Lintz' views by the Respondent. 7 We adopt the judge's rmdmg that Brecker violated Sec. 8(a)(1) at the employee meeting on 5 June 1980 In so doing, we agree with her that Brecker's overall use of ridicule and parody directed at the Board and its agents was not itself unlawful, but that his specific request in this context of "manipulated hilarity" that three chscriminatees also respond in the presence of their fellow employees to complaint allegations naming them was coercive and thus violated Sec. 8(a)(1). S. E. NICHOLS, INC. 559 Regarding Lintz' remarks on 5 June, we cannot agree that Brecker should have been required to go beyond a blanket disavowal of a rank-and-file em- ployee's authority to speak for the Respondent in order not to be charged with adopting each of Lintz' statements. Because Brecker's statement on 5 June was made directly following Lintz', the as- sembled employees could have no doubt that Lintz was speaking for himself on 5 June and did not bind the Respondent. Concerning the earlier events on 18 April, Korcz testified that prior to the meeting he did not know that Lintz was going to speak or what he was going to say. According to Korcz, all employees in attendance were free to speak, were encouraged to do so, and several did take advantage of the oppor- tunity. Although three of the employees observed Korcz "nodding" his head during unspecified por- tions of Lintz' 15-minute speech, this evidence is insufficient to indicate Korcz made such a move- ment during that portion of the speech relied on as the basis of the complaint allegation. Moreover, the "nodding" of a listener's head during a speech, or in this case a series of speeches, is subject to inter- pretations other than "approval." Owing to this ambiguity there is an insufficient factual basis for finding ratification by the Respondent of Lintz' views on the effects of unionization. Accordingly, we shall dismiss the complaint allegations concern- ing Lintz without finding it necessary to consider whether his remarks themselves were violative of the Act if attributable to the Respondent. 7. In affirming the judge's conclusion that the Respondent violated Section 8(a)(4) by denying employee Margaret Goldsmith a raise in retaliation for her testimony at a Board hearing, we find that contemporaneous raises given other employees, ad- ditional duties assigned to Goldsmith, and the com- ments of the Respondent's agents in denying Gold- smith's request for a raise establish that she ordinar- ily would have received a raise sometime in April or May 1979. We agree with the judge that this disparity in wage treatment was an act of unlawful discrimination.° REMEDY We adopt the judge's recommended remedies with some modifications. We first agree that the extent of the 8(a)(1), 9 (3), and (4) violations war- s As part of the backpay remedy pertaining to Goldsmith, the judge recommended that she also be made whole for wage losses suffered prior to 2 April 1980, the date on which the Respondent discriminatorily denied her a wage increase. We find no reason to commence Goldsmith's backpay period earlier than 2 April 1980, and we amend the recommend- ed remedy accordingly. 9 Contrary to our dissenting colleague we affirm the judge's fmdings that the Respondent violated Sec. 8(a)(1) by timing the announcement of rants a broad cease-and-desist order, reinstating the employees unlawfully discharged, and making em- ployees whole for losses caused by the Respond- ent's unlawful conduct. 1° We further agree with the judge that certain additional remedies are nec- essary to dissipate fully the coercive effects of the unfair labor practices found, to give S. E. Nichols employees an understanding of their Section 7 rights, and thereby to effectuate the remedial poli- cies of the Act. Specifically, the judge is correct in concluding that the Respondent's prior history of violations at 5 of the other stores in its 43-store op- eration requires the imposition of extraordinary notice and access remedies. The judge found the Respondent's history before the Board and the courts" to be similar to that in the I P. Stevens line of cases and recommends, with modifications, the corporatewide notice and access remedies parallel to those ordered by the Board in J P. Stevens & Co., 244 NLRB 407 (1979).12 a "shrinkage" bonus to influence the election and by offering to provide its own counsel to employees during their interviews with Board agents. Concerning the bonus announced 2 weeks before the election, there is no written statement of the policy underlying it and no evidence that the Herkimer employees had previously known of it. In particular, the judge found that the Respondent provided no evidence on the formula for de- termining a store's entitlement to a bonus or its timmg and amount and no evidence that the Herkimer store has actually earned such a bonus. We therefore agree with the judge that the granting of the bonus to two nearby stores does not prove that the bonus was awarded pursuant to any established company policy. The judge correctly found that the Respond- ent failed to present a defense to the General Counsel's prima facie case. See NLRB v. Tommy's Spanish Foods, 463 F.2d 116 (9th Cir. 1972). Concerning the offer of counsel, we agree with the Judge's clear expo- sition of the reasons the Respondent's offer is distinguishable from the statements found not coercive by the courts in Garry Mfg. Co., 630 F.2d 934 (3d Cir. 1980), and Florida Steel Corp., 587 F.2d 735 (5th Cir. 1979). Essentially, telling employees that they might need protection in an action against the Respondent would tend to dissuade them from cooperating with the Board. Secondly, here the Respondent did not recommend ob- taining independent counsel but offered only its own attorney, thus, in the judge's words, "temptingly proposing a serious conflict of interests." 19 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest will be computed at the "short-term Fed- eral rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U.S.C. § 6621. " See S. E. Nichols Marcy Corp., 229 NLRB 75 (1977), enfd. by con- sent judgment No. 77-4154 (26 Cm 1977); S. E. Nichols Co., 156 NLRB 1201 (1966), enfd. in relevant part 380 F.2d 438 (2d Cir. 1967); S. E. Nichols-Dover, Inc., 159 NLRB 1071 (1966), enfd. 374 F.2d 115 (3d Cir. 1967); 165 NLRB 924 (1967); 167 NLRB 832 (1967), enfd. 414 F 2d 561 (3d Cir. 1969), cert. denied 397 U.S. 916 (1970); 179 NLRB 249 (1969), enfd. 73 LRRM 2816 (3d Cm 1970), cert denied 400 U.S. 831 (1970); S. E. Nichols of Ohio, Inc., 195 NLRB 939 (1972), enfd. 472 F.2d 1228 (6th Cir. 1972); NLRB v. S. E. Nichols of Ohio, Inc. 100 LRRM 2840 (N.D. Ohio 1978), affd. 592 F.2d 326 (6th Cir 1979) (civil contempt); 258 NLRB 1 (1981), enfd 704 F.2d 921 (6th Cir. 1983); S. E Nichols Shilling- ton Corp., 195 NLRB 189 (1972), enfd 475 F 26 1395 (3d Cir. 1973), cert. denied 414 U.S. 860 (1973). Unreported cases include: NLRB v. S. E. Nichols Shilhngton Corp., Civil Action No. 75-1751 (3d Cir. 1975) (con- tempt); DeProspero v. S. E. Nichols Marcy Corp., No. 76 CV 5 (D.N.Y. 1976) (10(j) injunction granted); Eisenberg v. S. E Nichols, Inc., Civil Action No. 78-2613 (D.N.J. 1979) (10(j) injunction granted). 12 These include. (1) Posting of the Board notice in each store, to be signed by Brecker, Korcz, and the respective store manager; (2) mailing Continued 560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Respondent's many previous acts of miscon- duct over the 16-year period preceding the 1979- 1980 unionization effort at the Herkimer store are detailed in the cases cited at footnote 11. In par- ticular, in S. E. Nichols of Ohio, Inc., 258 NLRB 1 (1981), the Board stated that as of 1981 the Re- spondent's history of committing unfair labor prac- tices clearly demonstrated that it had repeatedly committed unlawful acts in response to attempts to organize its stores. Specifically, with respect to the 8(a)(3) discriminatee at issue in S. E. Nichols of Ohio, whose original discharge was first found un- lawful in 195 NLRB 939 (1972), the Board stated, "Scrutiny of this pattern of illegal conduct clearly indicates Respondent's bad faith in complying with the Board's and the court's remedial orders." The judge in the instant proceeding is therefore justified in characterizing the Respondent as a "recidivist" who has at the Herkimer store continued to engage in an "obdurate flouting of the Act." We join the judge in noting the repetitions of President Brecker's attacks on the Board's neutrali- ty through his telling employees that the Board fa- vored unions and unionization, and we affirm her conclusion that extraordinary notice and access remedies are necessary to "clear the atmosphere poisoned by Respondent's unrelenting, egregious, and pervasive trampling on its employees' statutory rights." We disagree, however, with the judge's recommendation that the extraordinary remedies be applied corporatewide to all 43 stores in the Re- spondent's operation. The massive multiplant viola- tions by J. P. Stevens are not parallel to S. E. Nichol's history, which involves a smaller number of proceedings, each restricted to one facility. Al- though it is true that never before with this Re- spondent have we found it appropriate to extend the geographical scope of the notice and access remedy beyond the individual stores where the vio- lations occurred, we will this time approve a limit- ed expansion to encompass all eight stores in the of the notice to each employee with an explanatory letter signed by Brecker; (3) a reading of the notice by Brecker in each store; (4) union access to bulletin boards in all stores during a 2-year period with access to last for 1 year from the date of request; (5) affording two union repre- sentatives access for 30-minute speeches within 10 days of any election scheduled at any S. E. Nichols store within 2 years; (6) affording any union an opportunity to be present at and to respond to any speech given by the Respondent at any store concerning union representation within the next 2 years, (7) furnishing unions with lists of the names, addresses, and classifications of employees at any store where an organizational campaign is bemg conducted and to keep such lists current at the end of each 6 months during a 2-year period. Additionally the Judge recom- mended that the Respondent give each supervisor at its Herkimer, Marcy, and New Hartford, New York stores a copy of the notice and give written instructions to each supervisor concernmg compliance with the notice and that the Respondent publish the notice in company publi- cations and in newspapers in Herkimer and Utica, New York corporate division supervised by Henry Korcz.13 In our view this remedy is proportionate to the violations, when viewed in historical context. Ac- cordingly, the judge's recommended Order is modified below." ORDER The National Labor Relations Board orders that the Respondent, S. E. Nichols, Inc., Herkimer, New York, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Threatening employees with loss of employ- ment, loss of benefits, or increased work duties if they choose to be represented by a labor organiza- tion. (b) Soliciting employee complaints and griev- ances and promising to remedy them. (c) Promising employees any wage increase, bonus, or other benefits to discourage membership in or support of any labor organization. (d) Soliciting employees to withdraw or retract their authorizations for union representation. (e) Coercively directing or advising employees not to sign union authorization cards or any papers other than pay receipts. (f) Telling employees that the Respondent or its counsel would learn the identity of employees who signed union cards. (g) Telling employees that discriminatorily dis- charged employees had not been and would not be reinstated or that any such employees who are re- instated will not remain in the Respondent's employ. (h) Promulgating, maintaining, or enforcing any rule prohibiting employees from soliciting or dis- tributing written materials on behalf of any labor organization during working time without affirma- tively and clearly specifying the times during which employees may lawfully engage in such ac- tivities. (i) Imposing or enforcing any restriction or limi- tation on solicitation and distribution by any em- ployee on behalf of any labor organization greater 13 The record shows that President Brecker personally participated in unfair labor practices at four other stores prior to the events at Herkimer, two of them located in District Supervisor Korcz' district, and Korcz joined him at one of them We fmd, however, no evidence to support the judge's suggestion that their various career promotions over the years have been at least in part intended as corporate "rewards" for their mis- conduct under the Act Korcz supervises five stores in upstate New York (New Hartford, Marcy, Herkimer, (iloversville, and Amsterdam) and three stores in Ohio (Wooster, Ashtabula, and New Philadelphia). 14 We do not adopt the judge's recommendation that the Respondent publish the notice in company publications and in local newspapers in Herkimer and Utica, New York We find such publication is unnecessary because the postmg and reading of the notice will properly and fully inform employees of the Respondent's violations. S. E. NICHOLS, INC. 561 than restrictions on solicitation or distribution by employees for any other purpose. (j) Telling employees that an employee was dis- charged for engaging in protected concerted activi- ties. (k) Keeping in effect or distributing its employee handbook (or any past or future version thereof) so long as it contains its present rules concerning so- licitation and distribution or the advice that em- ployees sign no papers other than pay receipts found in the section entitled "Employee Rights & Unions—Your Employee Rights and Legal Rights under a Union Organization Drive." (1) Expressing approval of, and threatening to engage in, conduct similar to that which has previ- ously been found to violate the Act. (m) Withholding wage increase from any em- ployees because they have testified on behalf of the General Counsel in a Board proceeding or because they support a labor organization. (n) Discharging, embarrassing and ridiculing, dis- ciplining, or subjecting to increased supervision or otherwise discriminating against any employees be- cause they have testified in any Board proceeding, or have been named in any unfair labor practice charges or complaints, or because they support or have supported any labor organization or have en- gaged in protected concerted activities. (o) Soliciting employees to inform the Respond- ent of the union or other protected activities of other employees. (p) Offering the assistance of the Respondent's counsel to employees in connection with Board in- vestigations or proceedings. (q) In any other manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Dorothy C. Reinhardt, Douglas Vin- cent, Kristin Burkle, and Denise Styles immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their se- niority or other rights or privileges previously en- joyed, and make them whole for any loss of earn- ings and other benefits suffered as a result of the discrimination against them. (b) Grant Margaret Goldsmith a wage increase of not less than 15 cents per hour. (c) Make all the employees whole for any loss of pay they have suffered by reason of the Respond- ent's discrimination against them in the manner set forth in the remedy section of the judge's decision and this Decision and Order. (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Remove from its records and destroy all ref- erences to the written warnings given to employee Fred Pumilio on 26 March 1980 and to employee June E. Klimacek on 7 April 1980 and to the dis- charges of Dorothy Reinhardt, Douglas Vincent, Kristin Burkle, and Denise Styles. Notify each of the cliscriminatees in writing that this has been done and that their respective disciplines will not be used against them in any way. (f) Remove from its employees' handbook the rules concerning employee solicitation and distribu- tion of literature. (g) Post in conspicuous places at all its stores in the corporate district supervised by Henry Korcz copies of the attached notice marked "Appendix A."15 Copies of the notice, on forms provided by the Regional Director for Region 3, after being duly signed on behalf of the Respondent by Presi- dent Manfred Brecker, by Henry Korcz, and by the highest managerial official of the store in which the notice is posted, shall be posted by the Re- spondent immediately upon receipt and maintained by it for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other mate- rial. (h) Reproduce and mail to the home of each of its employees at all its stores in Korcz' district a facsimile of the signed notice, together with a letter appended hereto as "Appendix B." The letter shall be reproduced on the Company's regular business stationery and signed by President Brecker and by the highest official of the recipient's store. The Re- spondent shall provide the Regional Director for Region 3 with proof of such mailing. (i) Reproduce and give to each supervisor at its Herkimer, Marcy, and New Hartford, New York stores a facsimile of the notice, and give written in- structions, signed by the highest official at each store, to each supervisor to comply with the provi- sions of the notice. The Respondent shall provide 15 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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." 562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Regional Director for Region 3 with proof of compliance with this paragraph. (j) At such reasonable time after the entry of this Order as the Board may request, convene during working time all its employees in each of its stores in Korcz' district and also the supervisors at the Herkimer store, and have the notice read by Presi- dent Manfred Brecker. The Board shall be afforded a reasonable opportunity to provide for the attend- ance of a Board agent at all such meetings. (k) On request of a union, made within 2 years from the date hereof, immediately grant such union and its representatives reasonable access to the store bulletin boards and all places where notices to employees are customarily posted at each of the Respondent's stores in Korcz' district for a period of 1 year from the date of request. (1) In the event that during a period of 2 years following entry of this Order any supervisor or agent of the Respondent convenes any group of employees at any of the Respondent's stores in Korcz' district and addresses them on the question of union representation, give notice to any union attempting to organize the employees and afford two union representatives a reasonable opportunity to be present at such speech and, on request of the representatives, permit one of them to address the employees for the same amount of time as the Re- spondent's address. (m) If within the next 2 years the Board sched- ules an election at any of the Respondent's stores in Korcz' district then, on request by any participat- ing union, afford at least two representatives of such union reasonable access to each of the Re- spondent's stores and appropriate facilities to deliv- er a 30-minute speech to employees on working time, the date to be within 10 working days before but not within 48 hours prior to any such election. (n) On request of a union immediately furnish it with lists of the names, addresses, and classifica- tions of all the Respondent's employees at any store in Korcz' district where the Union is con- ducting an organizing campaign, as of the latest available payroll date, and furnish a corrected, cur- rent list to such union at the end of each 6 months thereafter during the 2-year period referred to above. 1 6 (o) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 15 If either Brecker or Korcz no longer occupies the position he held during the commission of the unfair labor practices found herein, then the specific obligations set forth in par. 2 of this Order shall be earned out by the individual currently holding that position. IT IS FURTHER ORDERED that those allegations of the complaint for which no violations have been found are dismissed. CHAIRMAN DOTSON, dissenting in part. Contrary to my colleagues, I would not adopt the judge's findings that the Respondent violated Section 8(a)(1) by telling employees it would help them with "trouble" and union "harassment"; by instructing employees not to sign authorization cards; by soliciting employees to withdraw authori- zation cards they may have signed; by the granting of a shrinkage bonus; and by the offer to provide counsel to employees. I further disagree with the majority's granting of extraordinary access and notice remedies. 1. On several occasions during the union orga- nizing campaign, District Supervisor Korcz ad- vised employees to report "threats," "trouble," or "harassment" to management and told them that the Respondent's attorney would help them "as far as the union harassing" them. During this period the employee handbook contained a request to report "threats" associated with organizers' at- tempts to secure signed authorization cards. The judge found that by these oral and written state- ments the Respondent violated Section 8(a)(1) by soliciting employees to report on union organizing activities. I agree with the majority's fmding that the handbook provision is not unlawful in that it contains no threat or promise of benefit and thus is protected by Section 8(c) of the Act. For the same reason, I agree with my colleagues' adoption of the judge's finding with respect to the oral statements of Korcz about "threats." They, like the handbook, only seek to inform employees that the Respondent stands ready to assist them if they should be faced with unprotected union ac- tions in violation of Section 8(b)(1)(A). I disagree, however, with the finding of a violation with re- spect to Korcz' statements about "trouble" and "harassment" for the reason just set forth. Accord- ingly, I would dismiss this complaint allegation in its entirety. 2. The majority adopts the judge's finding that the Respondent violated Section 8(a)(1) by main- taining in its pre-1980 edition of the employee handbook the closing statement admonishing em- ployees to "remember to stay out of problems, the only paper to sign is your pay receipt." The judge found that this was a coercive discouragement from signing authorization cards since the state- ment appeared in the section of the handbook which also stated that one company "benefit" was protection from "being exploited" or taken advan- tage of by "outsiders" who Most frequently were S. E. NICHOLS, INC. 563 "Union Organizers." My colleagues have adopted this finding relying at least in part on the judge's analysis of the handbook. As my colleagues ac- knowledge, however, the judge does not mention that the handbook also clearly states in this section, "So, if the union organizers call on you and you want the union, you should sign the card." Thus, even with the pay receipt statement, the handbook is thus not so unbalanced in its presentation as to constitute any interference, coercion, or restraint with respect to the employees' Section 7 rights. I would therefore dismiss this complaint allegation. 3. The judge finds, and my colleagues agree, that the Respondent further violated Section 8(a)(1) by "soliciting" employees to withdraw authorization cards that they may have submitted to the Union. Korcz told several employees that if they had signed cards they were entitled to recall or with- draw them Employee testimony supports his claim that at no time did he either directly or indirectly ask them to do so and the judge concedes that in fact no "solicitation" took place. The handbook, to which Korcz referred in his conversations with employees, merely advises employees that if they change their minds after signing a card they have the right to do so. In my view, both the handbook and the oral statements of Korcz were simply in- formational in nature, correct as a matter of law, and devoid of any threat or promise of benefit and thus protected under Section 8(c). Because I see no realistic possibility that employee coercion could have resulted from Korcz' volunteered comments, I would dismiss this complaint allegation. 4. Two weeks before the election in June 1980, the Respondent's president, Manfred Brecker, an- nounced that the Herkimer store employees would receive a $2000 "shrinkage bonus" to be divided among employees and supervisors. The judge found, and my colleagues agree, that the Respond- ent violated Section 8(a)(1) of the Act by timing this benefit announcement unlawfully to influence the election. I disagree. The undisputed testimony of ID is tr lc t Manager Henry Korcz shows that the Respondent's policy was to grant such bonuses to any store in its chain that improved its record with respect to losses from theft or improper handling. Two other stores in the same geographical area as the Herkimer store had recently earned and re- ceived this bonus. The General Counsel has neither alleged nor presented evidence that the bonus as announced was either not earned or not in accord- ance with the Respondent's normal business prac- tice. Thus, because the shrinkage bonus was a ben- efit that the Respondent could lawfully grant, it cannot be an unfair labor practice to announce it. Cardivan Co., 271 NLRB 563 (1984). 5. During the Regional Office's investigation of the charges in Case 3-CA-9304, Korcz told em- ployees that Board agents would be visiting the store and might want to interview them. Korcz tes- tified that he further told employees that if they needed help during the interviews they could see the Respondent's attorney. Relying primarily on Florida Steel Corp., 233 NLRB 491 (1977), enf. denied 587 F.2d 735 (5th Cir. 1979), and Garry Mfg. Co., 242 NLRB 539 (1979), enf. denied in rel- evant part 630 F.2d 934 (3d Cir. 1980), the judge found, and my colleagues agree, that the Respond- ent violated Section 8(a)(1) of the Act by offering employees the assistance of its attorney during interviews with Board agents. For the reasons set forth below, I am persuaded by the reasoning of the United States Court of Appeals for the Fifth and Third Circuits, respectively, in denying en- forcement in Florida Steel and Garry Mfg.' Ac- cordingly, I would overrule the Board's decisions in those cases and dismiss the 8(a)(1) allegation as to Korcz' offer to provide legal assistance to the Respondent's employees. In Florida Steel the company distributed a letter during the Board's investigation of the unfair labor practice charges advising employees that they had a right to consult with counsel before talking to the Board agent and that the company would recom- mend an attorney to any employee who so desired. The Fifth Circuit held, contrary to the Board, that the letter was protected under Section 8(c) of the Act in that it was not coercive and contained no threat of reprisal. Further, the letter neither re- quired nor compelled any employees to report to or consult with the company regarding the obtain- ing of counsel. The letter made it clear that any action employees took with respect to obtaining counsel or talking to a Board agent was entirely optional with them. Finally, the letter offered as- sistance without regard to the positions employees took with respect to the union or talking with the Board agent. Because Korcz' statements to employees con- tained no threat of reprisal or promise of benefit, they too were protected under Section 8(c). Korcz demanded nothing of his employees, but merely of- fered the assistance of the Respondent's attorney to any employee who Wanted it without any inquiry into their positions with respect to the Union's or- ganizing campaign. Accordingly, in the absence of any coercive impact flowing from Korcz' offer, I would dismiss this 8(a)(1) allegation. 1 The Board in Garry Mfg. relied on its decision in Florida Steel and the Third Circuit in turn relied on the Fifth Circuit's reasoning in Florida Steel in denying enforcement of the Board's Order. 564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6. I agree with my colleagues that despite the Respondent's history of unfair labor practices, the corporatewide access and notice remedies ordered by the judge are inappropriately broad with respect to the violation, limited to its Herkimer store, spe- cifically found in this proceeding. I part company with them, however, to the extent they order any additions to the conventional remedies for the 8(a)(1), (3), and (4) violations herein (a broad cease- and-desist order, reinstatement of employees un- lawfully discharged, the making whole of employ- ees for losses caused by the Respondent's unlawful conduct, and the normal notice posting). The majority agrees with the judge that the Re- spondent's prior history of violations at 5 of its other 43 stores requires the imposition of extraordi- nary notice and access remedies, but limits the im- position of these remedies to the 8 stores super- vised by Korcz. This remedy is ordered with the majority's acknowledgement that the Board has not, in prior cases involving this Respondent, ex- tended the scope of the notice and access remedy beyond the individual store where the violations occurred. Unfortunately, my colleagues have of- fered no reason why such an extension is appropri- ate here. Unlike the pattern of misconduct in the J. P. Ste- vens cases, there is no evidence that the unfair labor practices found in previous S. E. Nichols cases currently remain unremedied, and no evi- dence that corporate policy ever led to extensive and detailed publicizing of its illegal activities at any one store to employees of any other store. The record contains neither allegation nor proof that the unlawful activities at the Herkimer store herein affected the employees at any of the Respondent's other locations. Similarly, there is no evidence that the Union experienced access problems during the relevant timeframe. To compare this Employer's unfortunate but limited history of unfair labor prac- tices to the widespread and pervasive practices en- gaged in by J. P. Stevens defies common sense. The judge, in making such a comparison and or- dering the same remedies as were ordered in J. P. Stevens & Co.,2 appears to have been unduly influ- enced by the Respondent's belief that the Board was not "neutral." While the Respondent's impres- sions of the Board are unfortunate, we cannot allow them to serve as a justification for punishing the Respondent through punitive remedies that far outreach the specific violations herein. Likewise, the Board should not allow the use of a respond- ent's history of unlawful conduct as a per se justifi- cation for punitive remedies that do not specifically 2 244 NLRB 407 (1979). address the unfair labor practices found in a par- ticular case. The majority's imposition herein of ex- traordinary remedies in all the stores in Korcz' di- vision represents just such a practice. Because in my view the record here does not support a find- ing that even divisionwide remedies are necessary to offset the coercive effects caused by the Re- spondent's conduct at issue in this proceeding, I would require only the conventional remedies de- tailed in the Order. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT threaten you with loss of employ- ment, reduction in benefits, or increased work as- signments if you choose to be represented by a union. WE WILL NOT solicit your grievances or com- plaints and promise to adjust them in order, to interfere with your union activities. WE WILL NOT promise any wage increase, bonus, or other benefits in order to discourage you from seeking union representation. WE WILL NOT solicit you to withdraw or retract authorizations for union representation that you have executed. WE WILL NOT direct you or coercively advise you not to sign union authorization cards or any papers other than pay receipts. WE WILL NOT tell you that we will learn the identity of any of you who sign a union authoriza- tion card. WE WILL NOT tell you that discriminatorily dis- charged employees will not be reinstated or that any such employees who are reinstated will not remain in our employ. S. E. NICHOLS, INC. 565 WE WILL NOT tell you that an employee was dis- charged for engaging in protected concerted activi- ties. WE WILL NOT restrict your right to solicit or to distribute written or printed material on behalf of any labor organization without clearly telling you when you may lawfully engage in such activities. WE WILL NOT impose any greater restriction on the solicitation or distribution or receipt of written or printed material on behalf of a union than is im- posed on all other forms of solicitation or distribu- tion and receipt of material. WE WILL NOT withhold wage increases from any of you because you have testified in a Board pro- ceeding or because you support a labor organiza- tion. WE WILL NOT indicate to you that we approve of or will repeat any type of conduct by which the Board has determined that we have previously vio- lated the National Labor Relations Act. WE WILL NOT ask or solicit any of you to report to or inform us of the union or other protected concerted activity of other employees. WE WILL NOT offer to you the assistance of our attorney in connection with Board investigations or proceedings. WE WILL NOT discriminate against you because you have engaged in union or protected concerted activities or because you have testified in National Labor Relations Board hearings or have been named in any charge or complaint before the Board, or to discourage membership in or support of any labor organization. Specifically, WE WILL NOT discriminate against any of you by discharging you; reprimanding, warning, or disciplining you, withholding wage increases from you; subjecting you to increased supervision; subjecting you to rid- icule or embarrassment; or in any other manner. WE WILL offer Dorothy C. Reinhardt, Douglas Vincent, Denise Styles, and Kristin Bur1de immedi- ate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their se- niority or any other rights or privileges previously enjoyed and WE WILL pay each of these four em- ployees for any earnings and other benefits they lost as a result of our discrimination against them, kss any net interim earnings, plus interest. WE WILL give Margaret Goldsmith a wage in- crease and pay her, with interest, for any loss she suffered as a result of our having previously with- held a wage increase from her. WE mail. notify Fred Pumilio and June Klima- cek that we have removed from our files any refer- ences to the written warnings given them on 26 March and 7 April 1980, respectively. WE WILL notify Dorothy Reinhardt, Douglas Vincent, Denise Styles, and Kristin Burkle that we have re- moved from our files any references to their dis- charges. WE WILL also notify all these employees that their discipline will not be used against them in any way. WE WILL rescind and withdraw from our em- ployees' handbook the rules concerning employees' solicitation and distribution of literature. WE WILL withdraw our employee handbook from distribution and circulation until such time as the portions referred to above have been physically deleted. WE WILL, for 2 years, give all our supervisors at our Herkimer, Marcy, and New Hartford, New York stores copies of this notice and instruct them to comply with its provisions. WE WILL grant to any union access to our bulle- tin boards, list of the names and addresses of our employees and, as ordered, speaking opportunities at any store at which the requesting union is at- tempting to organize our employees. WE WILL send to all our employees copies of this notice, with an explanatory letter; and WE WILL read this notice to all our employees. S. E. NICHOLS, INC. APPENDIX B Dear Nichols Employees: Pursuant to an order of the National Labor Rela- tions Board, this letter and enclosed notice are being sent to assure you that your rights as em- ployees under the National Labor Relations Act will be honored and protected. The National Labor Relations Board has found that, since 1965, we have violated the rights of our employees in the course of union organizing cam- paigns in our stores in Dover, Delaware; Shilling- ton, Pennsylvania; New Philadelphia, Ohio; and Elmira and Marcy (Utica), New York. When these decisions by the National Labor Relations Board have been appealed, the United States circuit courts of appeals have affirmed them. We have also been held in contempt of court for violating such orders at our New Philadelphia, Ohio, and Shillington, Pennsylvania stores. In addition to the cases referred to above, on our settlement agree- ments, orders have been issued against us for our conduct in connection with a union campaign at our store in Matawan, New Jersey. Most recently it has been held that we violated the National Labor Relations Act in a union organizational cam- paign at our store in Herkimer, New York. The Board has held that, in large part, our cam- paigns have followed much the same general pat- 566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tern in all union organizational campaigns. That pattern, as reflected in the enclosed notice, in- cludes, among other things, discharge of employees who attempt to unionize; discrimination in various ways against employees who support a union or who cooperate with the National Labor Relations Board in investigating and prosecuting cases against us; threats of detriment to employees who choose to be represented by a union; promises of benefits to discourage employees from choosing union representation; restriction of employees' legal rights to solicit for and distribute literature on behalf of unions. In the situation that occurred at Herkimer, it has been found that we have interfered with investiga- tions by the National Labor Relations Board and that we have improperly led our employees to be- lieve that the Board is interested in supporting unions but is unable and unwilling to protect the rights of employees under the Act. We disavow any such statements and implications. The Board is open to all persons who believe that any violation of the National Labor Relations Act has been com- mitted and the Board is required to protect the rights of all persons under the Act. We may, of course, exercise our right to free speech concerning union matters. However, we assure you that we will make every possible and sincere attempt to keep our conduct within proper bounds. We want you to know that you are entire- ly free to consult the National Labor Relations Board if at any time you believe we may have vio- lated your rights under the National Labor Rela- tions Act. We will not unlawfully inquire about or otherwise interfere with any contacts, direct or in- direct, you may have with the Board. Very truly yours, Manfred Brecker, President Thomas .1. Sheridan, Esq. and Alfred M Norek, Esq., for the General Counsel. Leonard W. Wagman, Esq., Stephen M. Rathkopf; Esq., and Robert S. Goodman, Esq. (Golenbock & Barell), of New York, New York, for the Respondent. Harold Cohen, Esq., of Rochester, New York, for the Charging Party. DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Administrative Law Judge. Pur- suant to a charge filed by Retail Store Employees Union Local 345, United Food and Commercial Workers Inter- national Union, AFL-CIO,' on September 7, 1979, 2 a complaint was issued against S. E. Nichols, Inc. (the Company or Respondent) on October 10 (amended on March 5), alleging that, at its store in Herkimer, New York, Respondent has maintained an unlawful rule pro- hibiting employees' accepting literature on company property; in September, during a union organizing cam- paign, Respondent committed numerous acts of miscon- duct in violation of Section 8(a)(1) of the Act; 2 and on September 3 and 4 Respondent discharged employees Douglas Vincent, Dorothy Reinhardt, Denise Styles, and Kristin Burkle in contravention of Section 8(a)(3) and (1), of the Act. Pursuant to due notice, a trial on the com- plaint was held before me in Utica, New York, on March 17, 18, and 19. Thereafter, briefs were filed on behalf of the General Counsel and Respondent. On April 2, Local 1 (the Union; see fn. 1) filed an ad- ditional charge against Respondent, pursuant to which a complaint was issued on May 8 (and amended on June 11 and September 3),4 alleging that on various occasions between March 7 and June 6 Respondent engaged in nu- merous acts violative of Section 8(a)(1) and (3) of the Act at its store in Herkimer, New York. On May 12, the General Counsel moved to reopen the hearing in Case 3- CA-9304 and to consolidate that case with the second complaint (Case 3-CA-9714) for further hearing. The Regional Director also petitioned the United States Dis- trict Court for the Northern District of New York for an injunction against Respondent under Section 10(j) of the Act (No. 80-CV-467). On June 18, an election was held pursuant to the Union's petition filed on September 7. The Union lost the election and no objections were filed. On July 3, 1980, I granted the General Counsel's motion to reopen the record and consolidate the two complaints and scheduled a hearing for September 15, 1980, On July 8, 1980, at the conclusion of a 4-day trial, District Court Judge Neal P. McCurn denied an injunc- tion. The General Counsel's appeal from Judge McCurn's decision is pending in the Court of Appeals for the Second Circuit. At the hearing convened before me in Utica, New York, on September 15, 1980, I granted the request of counsel for all parties that I accept the transcript of the district court trial in lieu of direct evidence. The record before me, consisting of the district court record supple- The charge in Case 3-CA-9304 was filed by Retail Store Employees' Union Local 345, United Food and Commercial Workers International Union, AFL-CIO However, union organizer Mark Alexander testified, without contradiction, that Local 345 was merged with Local 1 of the International in November 1979. Although the representation petition was filed by Local 345, the election was held and the certification was issued with Local 1 named as the petitioning labor organization. Accord- ingly, although no motion has been filed, I have corrected the caption of the consolidated proceeding to show that Local 1 is now the Charging Party in both cases. 2 Unless otherwise specified, all dates are in the period August 1979 through June 1980. 'National Labor Relations Act, 29 U.S.0 §-151 et seq. 4 Three amendments were made on September 3. The second amend- ment was withdrawn at the hearing on September 15 The third amend- ment merely requests detailed remedial provisions in any order to be issued against Respondent S. E. NICHOLS, INC. 567 mented by stipulations and arguments of counsel, was closed as of September 25, 1980. Supplementary posttrial briefs have been filed by the General Counsel and Re- spondent On the entire record, 5 careful observation of the wit- nesses who testified before me, and consideration of the briefs of the General Counsel and Respondent, I make the following FINDINGS OF FACT I. PRELIMINARY FINDINGS Respondent, a New York corporation with its princi- pal office and place of business in New York, New York, maintains several stores in New York State and in other States, including a store in Herkimer, New York, where it is engaged in the retail sale and distribution of various products. In the course of its business operations at the Herkimer store, Respondent annually sells and distributes products valued in excess of $500,000 and receives goods valued in excess of $50,000 directly from points outside the State of New York. Respondent is now, and was at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Local 1, United Food and Commercial Workers Inter- national Union, AFL-CIO (including Local 345; see fn. 1) is, and was at all times material, a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. 8(a)(3) Discharges 1. The General Counsel's case a. The evidence Respondent operates some 42 discount department stores in upper New York State, Pennsylvania, and Dela- ware. The present case involves the store in Herkimer, New York. On Friday, August 17, apparently without any prior indication, Henry Korcz, Respondent's district supervi- sor, announced at a meeting of the approximately 70 em- ployees that Lyle Genung had been discharged as store manager, a position he had apparently held for many years. Genung apparently had been well liked by the store's employees, many of whom were shocked and upset by his summary dismissal. At least some of the em- ployees immediately became concerned that the sudden discharge of a long-term store manager meant that no company employees had reasonably reliable job security. Alleged discriminatee Dorothy C. Reinhardt, who had worked in the Herkimer store for 11 years, was so upset by the announcement of Genung's discharge that she left the employee meeting before its conclusion. That evening she and alleged disciiminatee Douglas Vincent, who had been employed by Respondent for about 5-3/4 months, discussed the Genung discharge and agreed that 6 The General Counsel's unopposed motion to con ect the transcript in Case 3-CA-9304 is granted in certain respects. it would be wise to consider getting a union for protec- tion of the employees. Reinhardt testified that the next day her immediate supervisor, Peter Bifora, manager of the store's home center, told her that he might also be fired. 6 Thereupon, Reinhardt spoke to another employee in the home center about the advisability of unionizing. The next day Reinhardt started a scheduled 1-week va- cation. On Monday, August 20, Robert Hathom, who until then had been assistant manager of Respondent's store in New Philadelphia, Ohio, arrived at the Herkimer store to replace Genung. No employee meeting was called to in- troduce Hathorn, but apparently he was introduced to some individual employees as they reported to work. Several employees soon expressed displeasure that Hath- orn had almost immediately begun to give orders and call employees to the office without even having been properly introduced. On Wednesday, August 22, Reinhardt, on her own ini- tiative, interrupted her vacation and worked at the store all day without compensation. She heard some employee complaints about Hathom. She also observed Hathom treat employees in what she considered an improper manner, causing one employee to cry. Reinhardt then spoke about the matter to I3ifora and to Linda Abrarnc- zyk, a district supervisor, under Korcz. Thereafter, Abramczyk introduced Hathorn to Reinhardt. Hathorn apparently was very cordial and told Reinhardt that he had heard that she was a good worker. When she spoke of her desire to become an assistant manager, he said that vacancies often occurred and that all she needed to do was keep up her good work. 7 Later that day Reinhardt indicated to Abramczyk that perhaps Reinhardt had judged Hathom too hastily. Korcz remained at the store with Hathorn on August 20 through 24. For that week, the work schedules desig- nated by Genung were left undisturbed. Korcz spent the next week visiting stores in Ohio, but apparently spoke with Hathom on the telephone on occasion. During her vacation, Reinhardt spoke to Nick Gian- none, an organizer for the Union, but no defmite plans were made for a future contact. On August 31, alleged discriminatees Denise Styles and Kristin Burkle, security employees, had lunch with a fellow employee and Alvin Madison, an assistant manag- er trainee, admittedly a supervisor. Styles and Burkle tes- tified that they spoke about the possibility of unionization and asked Madison if he would sign a union card or peti- tion if it were available. According to Styles, Madison said he would sign. Madison testified that he had said he did not know whether he would sign. He also testified that Styles and Burkle spoke about a possible walkout. I credit Styles' denial that they mentioned a walkout be- cause the evidence as a whole shows that consideration of a walkout did not arise until after lunch. On returning to the store after lunch on August 31, Styles and Burkle saw a new work schedule posted, under which their hours were to be increased from 38 to 6 Bifora did not deny this testimony by Reinhardt. 7 There is no contention that Hathorn promised a promotion. 568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 40 per week, but they were to work 6 days a week rather than the 5 days they had been working. They im- mediately went to see Hathorn, who spoke to them indi- vidually. He said they would have to observe the new schedule for 3 weeks, after which he would decide whether to make it permanent. Burkle testified that she also inquired about her 6-month wage increase and was told that she would receive it "in a couple of weeks." Styles and Burkle thereupon agreed to try to arrange an employee walkout at noon the next day. Styles, who was then running a cash register in place of an absentee, spoke to 12 to 15 employees, mainly on the store inter- com telephone. Burkle also spoke about the matter with several employees at her security post. Around 10 em- ployees agreed to join a walkout. Reinhardt soon learned of the proposed walkout and informed Bifora, her supervisor. He told her to dissuade the employees from such action and she agreed to do so. Bifora testified that he had confidence in Reinhardt's ability to forestall the walkout and therefore did not inform his superiors of the plan. Madison testified that during that afternoon he overheard Reinhardt say that "Whey should get a union started." Madison denied that he informed his superiors of this occurrence. Reinhardt advised the employees against walking out, warning that it might end their employment and remove any possibility of unionization. Styles and Burkle were willing to drop the planned walkout if Reinhardt actually got in touch with a representative and initiated organiza- tional activity rather than simply continuing to talk about it. Alleged discriminatee Vincent, who was not scheduled to work on Friday, August 31, visited the store that afternoon to pick up his pay stubs. At that time Rein- hardt informed him of the planned walkout and request- ed that he make immediate contact with a union repre- sentative. That evening, after Reinhardt finished work, she and Vincent met with union organizers Mark Alex- ander and Giannone, from whom they received blank au- thorization cards. Reinhardt and Vincent then returned to the store, where they had some cards signed and gave blank cards to Styles, who also obtained four signatures that evening. On Saturday, September 1, Styles spoke to employees, informing them of the incipient union organization and calling off the planned walkout. Styles testified that when she asked Madison to sign a card, he asked where she got the cards, and she replied that Reinhardt and Vincent had obtained them. According to Styles, Madi- son said that, having discussed the matter with the wife, he would not sign a card until he had spoken with Korcz. Madison denied having had that conversation. However, I credit Styles. This credibility resolution is based on two main factors. First, Madison's testimony was generally unreliable. For example, he first testified that at lunch on August 31 there was no union talk, but he later conceded that he was asked if he would sign a union petition. Second, Madison testified that he was there in the midst of his own "dispute" with Respondent and did not know whether his own job would continue. It is understandable that he would not sign a union card before settling his own job problem. His supervisory job was assured in a meeting with Korcz the next day. It is reasonable to assume that in that meeting Madison would impart his knowledge of employee activities to Korcz. On Friday, Saturday, and Sunday, Reinhardt, Styles, and Vincent obtained about 27 signed cards (including their own), many of them in or near the store. Vincent delivered those cards to the Union on Sunday. Reinhardt had at least one card signed on Monday. The total number of cards introduced into evidence was 29. In ad- dition to obtaining cards, the four alleged discriminatees spoke about the Union to several employees at work. Reinhardt testified that, after work on Saturday, her husband informed her that Assistant Manager Alan Levy, a supervisor, had said that Korcz knew of the "big trouble" in the store and would be there on Sunday. Levy did not testify. As the General Counsel notes, pro- bative value may be given to hearsay that is admitted without objection. O'Malley Lumber Co., 234 NLRB 1171, 1175 (1978); NLRB v. Operating Engineers Local 12 (Ledford Bros.), 413 F.2d 705 (9th Cir. 1969). The predic- tion attributed to Levy proved accurate; although Korcz had been at the store for only a very short time on Sat- urday, he was there apparently all day Sunday and Monday, which was Labor Day. Hathorn had left town on Friday afternoon and did not return to the store until Tuesday morning. Reinhardt and employee Fred Pumilio testified that on Saturday evening, September 1, Assistant Manager James R. Worden, a supervisor, spent an unusual amount of time in the home center where Reinhardt and Vincent worked. Vincent testified that Worden also made fre- quent visits, for no apparent reason, to the stockroom while Vincent was working there. Warden maintained that he did not recall being in the home center except as he passed through en route to the automotive depart- ment, which he also manages, but then he added that he had been in the home center checking on lumber for his personal use. I credit the employee testimony. In midafternoon of Labor Day, September 3, Rein- hardt was called to the office where she was summarily discharged by Korcz. That evening, toward the end of his shift, Vincent was called to the office where he, too, was summarily discharged by Korcz. After receiving executed union, cards from Vincent on Sunday, the Union sent Respondent a mailgram on Monday, claiming majority representation and requesting a card check. Hathorn received the mailgram apparently on his return to work on September 4. That morning Korcz initiated a series of employee meetings Later that day, Burkle and Styles were called into the office, sepa- rately, and summarily discharged by Hathorn. In each of the four discharges, the employee's final check had already been prepared. None of the four was given any advance notice; nor was any of them given any opportunity to discuss the matter. b. Discussion and conclusions The evidence establishes that by Sunday, September 2, at the very latest, Korcz knew of the union activities at the store. Indeed, Korcz testified that on Sunday he had been informed by Assistant Manager Levy that there S. E. NICHOLS, INC. 569 were union activities at the store. 8 And, as noted previ- ously, Madison, who knew that Reinhardt and Vincent had obtained union cards and that Styles and Burkle had distributed them, settled his own problems with Korcz on Sunday. 8 Additionally, all four alleged discriminatees engaged in union activities at the store. Although the store might not strictly qualify as a "small plant," it was operated in such a manner that the union activities would normally come to the attention of the employees and supervisory personnel. See, e.g., U.S. Soil Condition- ing Co. V. NLRB, 606 F.2d 940,948 (10th Cir. 1979). It is significant that Korcz summarily discharged Rein- hardt and Vincent on Labor Day while Hathorn was out of town for the holiday weekend. There was no evidence of any urgency that might explain Korcz' taking such drastic action without consulting Hathorn, whose re- sponsibility it was to keep the store staffed and operating properly. Hathorn's discharge of Styles and Burkle is even more inexplicable on any legitimate grounds. He fired them the day he returned from his weekend vacation and there is no suggestion that he contemplated any such action before he left on Friday afternoon. Although he testified to the great importance he placed on trained security personnel, he gave no thought to replacements for Styles and Burlde for at least a week after their discharge. Since the discharges here in issue came so rapidly on the initiation of concerted and union organizational ac- tivities, there can be no substantial evidence of antiunion animus previously displayed at the Herkimer store. How- ever, Korcz began his antiunion campaign immediately, calling employee meetings the morning of September 4 between the discharges of Reinhardt and Vincent and those of Burkle and Styles. As discussed below, the cam- paign was vigorous and included several violations of Section 8(a)(1). Additionally, Respondent's longstanding antiunion animus is documented in numerous cases involving other stores. I take official notice of such prior reported cases as follows: S. E. Nichols Marcy Corp., 229 NLRB 75 (1977), enfd. by consent judgment (Dover, No. 77-4154 (2d Cir. 1977)); S. E Nichols Co., 156 NLRB 1201 (1966), enfd. in relevant part" 380 F.2d 438 (2d Cir. 1967); idem., 159 NLRB 1071 (1966), enfd. 374 F.2d 115 (3d Cir. 1967); idem., 165 NLRB 924 (1967); idem., 167 NLRB 832 (1967) and 179 NLRB 249 (1969), enfd. 414 Fad 561 (3d Cir. 1969) and 73 LRRM 2816 (3d Cir. 1070) cert. denied 397 U.S. 916 (1970) and 400 U.S. 831 (1970); S. E. Nichols of Ohio, Inc., 195 NLRB 939 (1972), mkt 472 Fad 1228 (6th Cir. 1972); S. E. Nichols Shill- 8 The testimony was in essential conflict with Korcz' pretrial affidavit, in which he said that he first learned on September 4 or 5 when Hathorn telephoned about receipt of the Union's telegram Korcz explained the discrepancy by saying that on Sunday Levy merely mentioned general union activities without naming any union. 9 Bifora also knew of the union activities However, it is possible that, as he testified, he did not pass his information on to Hathorn or Korcz because 13ifora appears to have been sympathetic with the employees and may well have thought he had done enough by getting Reinhardt to pre- vent the-proposed walkout ° In the first Dover case the court affirmed the Board's finduigs of nu- merous violations of Sec. 8(a)(1) during a union campaign, but declined to enforce an 8(a)(5) bargaining order on the ground that the union's ma- jority status had not been established ington Corp., 195 NLRB 189 (1972), enfd. 475 F.2d 1395 (3d Cir. 1973), cert. denied 414 U.S. 860 (1973). Re- spondent was later held in civil contempt of the Sixth Circuit's judgment in the Ohio case. NLRB v. S. E. Nich- ols of Ohio, Inc., 100 LRRM 2840 (N.D. Ohio 1978), affd. 592 F.2d 326 (6th Cir. 1979)."- There is nothing in the present record to suggest that Respondent's view of unionism was changed an iota. Indeed, Korcz was found to have committed numerous unfair labor practices in the Marcy case, and in the dis- trict court trial of the 10(j) injunction proceeding con- cerning the Herkimer store he testified that Respondent was "using the same tactics" in Herkimer as it had in Marcy and he expressed his approval of those tactics. With Respondent's antiunion animus and knowledge of the employees' union activities so clearly shown, the General Counsel has obviously established a strong prima facie case of unlawful discharges. The abrupt and unheralded discharge of all four union activists within 3 or 4 days after they initiated the organizing campaign is most persuasive evidence of Respondent's unlawful moti- vation. See, e.g., NLRB v. Elias Bros. Big Boy, 325 F.2d 360 (6th Cir. 1963); NLRB v. Tru-Line Metal Products Co., 324 F.2d 614, 615-616 (6th Cir. 1963), cert. denied 377 U.S. 906 (1964). 2. Respondent's defense a. General matters To rebut the General Counsel's strong prima facie showing, Respondent sought to establish that all four al- leged discriminatees were discharged for poor perform- ance. Before analysis of each individual case, a few mat- ters common to all should be noted. Employee Margaret Goldsmith testified that on Sep- tember 3, shortly after Reinhardt's discharge, she asked Madison if Reinhardt had been fired for union activities and Madison replied that "he couldn't say," but added that "there would be more to go; it wasn't the end." Madison's apparent denial of this testimony was, at best, equivocal, and I credit Goldsmith. In context, Madison's statement could have meant nothing other than that other discharges for union activities would follow. Re- spondent argues that Madison had no way of knowing management's plans. However, as previously noted, Madison had been assured of his own supervisory posi- tion in a meeting with Korcz on the day before Rein- hardt's discharge. Madison thus presumably spoke with knowledge of management's thinking and plans. Goldsmith also testified that in employee meetings KorcZ said that the alleged discriminatees "had been fired for not doing their jobs and not cooperating with management" and "were passing out cards and he didn't want them harassing people in the store while they were working." Employee Linda Sheppard testified that in " The General Counsel also cites the following unreported cases: NLRB v. S. E Nichols Shillington Corp., Civil Action No. 75-1751 (3d Cir. 1975) (held in contempt), DeProspero v. S. E. Nichols Marcy Corp. No 76 CV 45 (N.D.N Y. 1976) (10(j) injunction granted); Eisenberg v. S. E. Nichols, Inc., Civil Action No 78-2613 (D.NJ 1979) (10(j) injunction granted). 570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD one employee meeting Korcz said that Styles had har- assed employees and had threatened some in the lounge. According to Sheppard, Korcz defined harassment as "[t]rying to get people to sign union cards." Korcz did not specifically deny having informed employees that the discharges were, in part at least, related to the discrimin- atees' having "harassed" employees to support the Union. However, because Korcz and Hathorn denied having known of the individuals' union activities, Re- spondent cannot maintain that any such "harassment" led to their discharge. And they presented no evidence of "harassment" by the dischargees. Additionally, because, as discussed below, Respondent did not have in effect any lawful rule restricting employee solicitation or distri- bution, and discriminately applied what rule it had, the discharges would clearly have violated the Act if they had been based on claimed violation of a rule against so- licitation. b. Dorothy C. Reinhardt Reinhardt had been employed at the Herkimer store some 11 years. The record leaves no doubt that she was an exemplary, conscientious employee. She frequently and voluntarily worked substantial hours "off the clock"—coming to work before scheduled, leaving later than her scheduled departure, cutting her luncheon break from 1 hour to as little as 15 minutes, etc. Reinhardt tes- tified that she chatted with Korcz on August 17 when he visited the store to announce Genung's discharge. Ac- cording to Reinhardt, Korcz said to her, "I haven't told you but I've told several other people, you're a very good worker, and keep up the good work and some day you will be an assistant manager," a position which she was seeking. Although Korcz denied having spoken to Reinhardt on August 17, 12 I credit Reinhardt. She was forthright throughout and displayed a clear and precise memory. On the other hand, Korcz' testimony was vague and usually lacking in details. Additionally, in some instances his testimony was inconsistent with his pretrial affidavit and with testimony of Hathorn. There is no question that Reinhardt was well regard- ed. Bifora, her immediate supervisor, testified that she was a very good employee. She admittedly earned high incentive commissions. Abramczyk also apparently thought well of her. And Genung obviously had thought highly of her work. Korcz testified that on August 17 and 18 he observed that Reinhardt's "paint department was not like it should be." Despite the claimed deficiencies, Korcz said nothing to Reinhardt. There is no evidence that Hathom ob- served or commented on any supposed deficiencies in Reinhardt's paint department on August 22 when he met her. Respondent apparently maintains that the deficiency in Reinhardt's performance was reflected most strikingly in the presence of unopened cases of merchandise on the floor and/or in the aisles of her work area. A large por- tion of the merchandise she was in charge of is pur- la it would appear strange for Korcz not to speak with Reinhardt if, as he also testified, he noticed blatantly unsatisfactory conditions in her de- partment at the time. chased from F. R. Schreiber Company. The general practice is that a Schreiber salesman comes to the store on a Wednesday to take orders and the merchandise is then delivered on the next Wednesday. It was on Wednesday, August 22, that Reinhardt worked during her vacation so she could give the Schreiber order. Al- though delivery was due the next Wednesday, it did not arrive until the afternoon of Friday, August 31. It con- sisted of some 183 to 189 cartons in two shipments. Rein- hardt immediately set about emptying the cartons and packing the merchandise on the counters, but was unable to complete the job by her scheduled departure at 6 p.m." She had removed all the cartons from the floor of the department by the time she left work on Saturday, September 1. At the hearing on Reinhardt's unemployment compen- sation claim, 14 Hathom testified that it had taken Rein- hardt from Wednesday to Friday or Saturday 15 to take care of the Schreiber order, during which time there were cartons on the floor. When, in the trial in the present case, Respondent's records clearly established that the order had not arrived until Friday, Hathorn tes- tified as follows concerning his prior testimony at the un- employment compensation hearing: I had felt at that time that Schreiber had come in on Wednesday. There was a previous shipment that came in the week before, it was also a Schreiber shipment. Whether it was eight or five" or what- ever departments they were, I'm not sure, but I do know that I saw merchandise on the floor and I had assumed it was the Schreiber shipment from the prior week. But Hathom could not have assumed that any packages on the floor were from "last week's" Schreiber shipment, because such shipments were received only on alterna- tive weeks. He did not mention any cartons on the floor before Wednesday, August 29. Additionally, according to his own testimony, he accused Reinhardt of "miscon- duct" without even ascertaining in which department or departments he claimed to have seen cartons on the floor. Hathorn conceded that he made no attempt to have Reinhardt reinstated when he learned of his "error." It is thus clear that Hathorn was fabricating sup- port for Reinhardt's discharge by Korcz. In its brief, Respondent says that Korcz "noticed on two occasions as he walked through the paint depart- ment that Reinhardt was not there and that it was neces- sary to page someone to come to the department." The reference apparently is to Korcz' testimony that he was 13 She credibly testified that she had intended to stay on to finish the job that evening, but left to accompany Vincent to meet with the union busmess agents because Styles had to work. 14 All four alleged discrmunatees applied for unemployment compen- sation and their claims were originally denied on Respondent's contention that the employees had been fired for misconduct. However, after a hear- ing on review, an administrative law judge reversed, finding no employee misconduct and granting the clams. At the original trial in the present case, Respondent's counsel stated that an appeal from the grants of unem- ployment compensation was pending. 15 Hathorn left on the Friday afternoon to spend the weekend in Ohio. 16 Reinhardt's department was No. 8. S. E. NICHOLS, INC. 571 at the store on Saturday and Sunday, September 1 and 2, but "didn't see [Reinhardt] in her department." In answer to a subsequent question, Korcz conceded that on one of those days Reinhardt was not scheduled to work. In testifying, and in a pretrial affidavit, Korcz indicat- ed that he had not discussed Reinhardt's deficiencies with Hathorn before the discharge. Hathorn, however, testified that on August 29, 30, or 31, during his second week at the store, he had telephonically complained to Korcz about Reinhardt's work. In any event, it is undis- puted that Korcz summarily discharged Reinhardt on Labor Day without consulting either Bifora, her immedi- ate supervisor, or Store Manager Hathorn, who was due back at the store the next day. When she was called into the office on September 3, her final check had already been prepared and Korcz initially simply announced her discharge. He apparently stated a reason only after she expressed her incredulity. Concerning the reason, Korcz testified: I told her that I was terminating her employment because she was not doing her job, I could not have two store managers running the store. I did not have her cooperation with the present store manag- er because I felt that she was favored by the last manager and I was terminating her employment for these reasons. There is no evidence of how she was attempting to "run the store." As to the claim that she had been "favored" by Genung, Korcz testified that she "had excessive hours" under Genung, but then conceded that he did not compare her timecards for the periods before and after Genung's departure and that she had been scheduled for 7 hours' overtime in the week ending September 1. Rein- hardt testified that Korcz terminated the discharge inter- view by saying that she was not working out well with the new management and that, if she wanted to discuss it further, she could call Respondent's president or vice president in New York City for advice, which indicates that the discharge was directed at the corporate level. Respondent apparently recognizes the manifest anoma- ly of its summary discharge for poor job performance of a long-term employee with an indisputably established record and reputation for superior performance and de- votion. To explain the claimed sudden deterioration in Reinhardt's work, Respondent speculates that she had been much favored by Genung and intentionally lowered the quality of her work on his unceremonious discharge. There is no question that, as Reinhardt freely testified, she was shocked and distressed by Genung's sudden dis- charge. But several facts belie Respondent's speculation concerning Reinhardt. Korcz testified that he observed deficiencies in Reinhardt's paint department on August 17, the very day he appeared unexpectedly at the store to announce Genung's termination. And shortly after Genung's discharge Reinhardt donated to Respondent a full day's work during her vacation, a fact hardly evi- dencing a vengeful attitude. Perhaps most significant to Respondent's speculative argument concerning Reinhardt are the facts concerning her alleged vindictive motives. Respondent did establish that Reinhardt had been given somewhat more paid overtime work than the average in the store. However, there is no evidence that other employees resented this fact. On the contrary, the only pertinent evidence in the record shows that the employees liked Genung and were pleased with his management of the store. Without any contradiction, Reinhardt fully explained her relatively high overtime work. She had previously worked under Genung in the office. In that period she had spent con- siderable time, including many overtime hours, planning and arranging for the installation of the home center. On the opening of the home center, she was transferred to it to operate its paint department. When Genung then tried other employees to assist in his office duties, he often found them unsatisfactory and thus called on Reinhardt. Finally, after his arrival, Hathorn changed the work schedules of many employees, increasing the hours of some and decreasing those of others, but he left un- changed Reinhardt's 45-hour-a-week schedule. The evidence establishes beyond question that Rein- hardt was not discharged for poor performance. Indeed, there is no evidence of poor performance that could even provide a pretext for discharge for cause. Particu- larly in view of the roughly simultaneous discharge of the three other union activists and the nature of Re- spondent's subsequent antiunion campaign (discussed below), there can be no doubt that Reinhardt was dis- charged solely for her union activities." c. Douglas Vincent Vincent had started to work at the Herkimer store, in the automotive department, around March 1979. In the middle of August, at his own request, he transferred to the camera department because he had experience in photography, which he viewed as his future career. Nor- mally there are two employees covering the camera, record, and appliance departments in the evening. In ad- dition to running the camera department, which, unlike other departments, is basically not self-service, he cov- ered the nearby record department and assisted in the ap- pliance department. As previously set forth, Vincent engaged in consider- able organizing activity at the store from Friday, August 31, until near the end of his shift on September 3 when he was called to the office and discharged by Korcz. Ac- cording to Vincent, Korcz said that he had "been ob- serving" Vincent that night and a "few" earlier times and Vincent did not "seem to be doing [his] job; [he] seem[ed] to be sitting around a great deal." 8 As in the case of Reinhardt, and the two employees fired the next day, Vincent's final pay had already been prepared and was given to him on the spot. 17 In the district court trial, Klimacek testified that Brecker at one point accused Remhardt of fomenting the walkout planned for September 2 The fact is that Reinhardt prevented the walkout. 18 Vincent also testified that Korcz said, untruthfully, that there were no other departments to which Vincent could be transferred. It would seem strange for Korcz to mention the possibility to transfer if he be- lieved that Vincent was a shirker 572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Korcz testified that during the week of August 20 through 24, Hathorn's first week at the store and possi- bly Vincent's first week in the camera department, Korcz observed that "Vincent was consistently sitting in his department and then when he wasn't sitting there [Korcz] couldn't fmd him." Korcz added that he "felt there was definitely no coverage in that department."" Vincent further testified that any time he had been paged when away from the department he had been at or en route to or from the office for a legitimate business reason, such as delivering large-denomination currency or getting change. Other evidence indicates that Vincent may have stopped to talk to other employees en route. However, such conduct appears to have been common in the store, and there was no rule against employees' con- versing. Vincent testified that on Sunday, September 2, Korcz visited the camera department and "took a look around at the records and so on." Korcz observed that no music was being played and said he wanted the record player "playing the entire time the store was opened." Accord- ing to Vincent, Korcz returned to the department the next day and asked Vincent to "straighten up and dust and so on" and Vincent complied. Korcz later visited again and "started looking through [Vincent's] salesbook and just general records within the department." There is no evidence that Korcz found anything amiss in the records. Vincent testified that "Mr. Korcz normally is not in the store giving instructions, usually it's the man- ager." Hathorn testified that during his first 2 weeks at the store, he once noticed Vincent "sitting [on] the back showcase in the camera department." Vincent testified that it was impossible to sit on the counter, but added that he had used a glass-doored cabinet "as a leaning post." When in answer to Hathorn's inquiry Vincent said he had no work to do at that time, Hathorn suggested that Vincent assemble some bicycles. According to Vin- cent, a stockboy then delivered two small, unassembled bicycles, which Vincent assembled. Thereafter, Hathorn criticized Vincent for having worked too slowly and having assembled only two bicycles. Two l0-speed bicy- cles were then delivered to Vincent, who assembled them. Hathorn also testified that once, during his first or second week in the store, he passed through the camera department when "there were some customers at the counter and Mr. Vincent wasn't anywhere to be found." Hathorn then added that this had happened a "couple" of times that he could recall. He later testified that he spoke to Vincent "[j]ust that one instance when I asked him what he was doing on the showcase," which hap- pened "[s]ometime the first week I was there." But then Hathorn added that during his second week he spoke to Vincent "when I saw him back in the sporting goods de- partment." However, in a pretrial affidavit, Hathorn had said that "the only cautionary remark" he could recall having made to Vincent concerned the bicycle assembly. Korcz did not state what Vincent was sitting on and there is no evi- dence that there were any chairs m the department. See discussion of Hathorn's testimony below Korcz testified that, at some unspecified time, he spoke about Vincent to Assistant Manager Charles Turner, Vincent's superior. He gave no details. Turner did not testify. Korcz testified that, during the week of August 27 through 31, when he was visiting stores in Ohio, he re- ceived a telephone call from Hathorn, who reported "that he had a problem in the camera department, that [Hathorn] could not get the man [Vincent] to do any- thing; that he was always sitting down, and [Hathorn] felt he was not getting the fullest from [Vincent] and [Vincent] was not performing his job." However, in a pretrial affidavit, Korcz had said that he had never spoken to Hathom about any problems with Vincent before Hathom left on August 31 for the Labor Day weekend. Yet, Hathorn testified that he believed he had never mentioned to Korcz any problems involving Vin- cent. Even without its internal inconsistencies, Respondent's evidence is inadequate to establish that Vincent was dis- charged for cause. It is fair to infer that Vincent had been a satisfactory employee because he had never previ- ously been reprimanded; on March 25 Hathorn thanked him for having worked overtime to fill in for absent em- ployees; and, after only 5 months' employment, he was given a transfer that he requested. Respondent does not offer even a speculative reason why Vincent might have lessened his industry immediately on getting the job he wanted. Perhaps most significant is the fact that Korcz, a dis- trict supervisor, discharged Vincent around 9:30 p.m. on Monday, with Store Manager Hathorn due back at work the next morning and Vincent presumably not scheduled to work before Tuesday evening. Thus, even if it had been shown that Vincent's work was deficient, the record would not support a fmding that his discharge was dictated by such deficiency. But, finally, the record does not establish any conduct by Vincent warranting discharge. In this connection, it bears repeating that Assistant Manager Turner, Vincent's immediate supervisor, did not testify and was not quoted as having any dissatisfaction. It is undisputed that Vin- cent was never warned of any possible discipline, let alone the supreme penalty of discharge. Accordingly, I conclude that Respondent did not rebut the General Counsel's prima facie showing and that Vincent was discharged for his union activities, in violation of Section 8(0(3) and (1) of the Act. d. Denise Styles and Kristin Burkle Styles and Burkle were primarily security employees, although they were frequently assigned to other tasks. They worked the same hours, one of them stationed at the security desk at the front of the store while the other was at the rear of the store." Their duties were to check packages brought into the store, to observe pack- ages taken out, and, with the assistance of closed-circuit television monitors, to watch for suspected shoplifting. The television cameras were located and operated in the 20 They arranged between themselves to alternate posts. S. E. NICHOLS, INC. 573 front office, where there were also monitors used by management and office personnel. Hathorn did not specifically testify as to when he de- cided to discharge these two employees. There is no evi- dence that he entertained any such action before he left for Ohio on Friday afternoon, August 31. He did testify that on September 4 he "again observed packages in the store, customers were bringing stuff into the store, the girls were not at their posts, [he] couldn't fmd them any- where around the store and general security just wasn't there." He provided no specifics. And, so far as it ap- pears, he did not speak to either of the employees at the time of his claimed observation and did not refer to any such specific incidents in the discharge interviews. Nei- ther employee had ever before been disciplined or warned of possible discipline or discharge. Burkle testi- fied, without contradiction, that on Friday, August 31, Hathorn had assured her "that he and Mr. Korcz were going over files and that [she] was going to get [her] raise in a couple of weeks," an unqualified assurance that would be most unlikely if he was dissatisfied with her work. Bur1de conceded that during Hathorn's first week at the store, he spoke to her about her having permitted a customer to enter the store carrying a Nichols' package. She replied that Genung, the former store manager, had said that it was all right to permit such conduct as long as the package was stapled closed and the receipt was readily visible. Hathorn then instructed her not to do so in the future. That was the end of the matter. Burkle tes- tified further that, also during his first week at the store, Hathorn spoke to her about her not wearing the store- provided smock that employees were required to wear. It is clear that employees frequently are specifically in- structed to don their smocks, but there is no evidence that any employee has ever been disciplined when found without her smock. Korcz testified that he had never observed any defi- ciencies in Burkle's work, nor had he discussed any such deficiencies with Hathorn. Hathorn also testified that on August 22, 2 days after his arrival, by viewing the televi- sion monitor, he observed that Burlde was not at her se- curity desk. He spoke to her on the telephone and "men- tioned, 'Don't you think you belong at your security desk' and she agreed." He then testified that on another occasion, also during his first week, he spoke to Burkle about lb]asically the same thing I had mentioned to her, be at your post, stuff getting into the store, please do your job." Burkle denied that Hathorn had ever spoken to her about being away from her work station. Based on the general unreliability of Hathorn's testimony, the pre- cision of Burkle's testimony, and careful observation of the demeanor of the witnesses, I credit Burkle." Korcz testified: 21 In its brief, Respondent says. "Burkle admitted that when she left her position she usually didn't get someone to watch it while she was gone." In support of this statement, Respondent cites a portion of Bur- kle's cross-examination, which reads, in pertinent part: Q. Did [Mr. Genung] give you any Instructions about what to do when you left the secunty booth, were you to get somebody to take your place? On the day after Labor Day [Hathorn] had men- tioned that he had a problem with Denise [Styles] and Kristin Burlde and he felt that the problem was serious enough that he was going to be taking action on it. I explained my viewpoints. Korcz did not reveal the "viewpoints" he imparted to Hathorn and Hathorn did not corroborate Korcz' testi- mony that the two men had discussed the matter before the discharges. Korcz testified that he had not observed any deficiencies or problems in Burkle's work before her discharge and he did not retreat from the statement in his pretrial affidavit that he had not discussed any work problems of Burkle or Styles with Hathorn before the latter's departure on Friday, August 31. In view of Hath- orn's and Korcz' testimony, it is impossible even to spec- ulate on what basis Korcz might have believed that the two employees should be discharged. Yet, it is incon- ceivable that Hathorn would have fired them against Korcz advice; Hathorn had been at the store for less than 3 weeks, while Korcz had supervised it for many years and, according to his testimony, had visited each store at least once a month. Respondent's case against Styles is no better or clearer than that against Burkle. Styles had commenced working at the store in April 1977 and had spent about 75 percent of her time in security for some 6 months before her dis- charge. She testified that she had never been disciplined and had never been criticized for her security operations. She said that she had been criticized only twice, and then not for security operations: once, while Genung was still manager, Korcz told her "[t]o stop eating potato chips at [her] booth," and once Hathorn directed her to don her smock, which she had eliminated because of the heat caused by the breakdown of the store's air- conditioning. Respondent adduced no evidence of any written warnings or other discipline ever given to Styles. Korcz' testimony concerning his observation of Styles after August 20 was characteristically devoid of specifics as follows: I noticed that security was not being handled properly. On several occasions upon leaving the A. If it was an emergency situation or [you] were called to an- other part of the store by another employee and didn't have time to look for someone to relieve us. During breaks and lunch we had to have a relief. . . . . Q. When you left the security booth did you always get someone to take the position? A. Yes. . . . Q. Were you asked [at the unemployment compensation hearmg], did you get someone to watch it while you left and did you answer, not usually? A. We were asked by other employees to get change and do a price check. Usually the employee who asked us would keep an eye on the security booth while we were gone. Q. I want to ask you whether or not you were asked that question and gave that answer at the unemployment compensation hearing, "Did you get someone to watch it while you were goner' Answer, "not usually?" A. Yes. I do not read the colloquy as an "admission" of any wrongdoing by Burkle. 574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD store I had to have my bags checked and I had to summon her to check it. 22 On several occasions she was munching at the security desk. I personally told her to straighten up and look like a store security personnel. Respondent apparently does not content that Styles was fired for not "look[ing] like a store security personnel," a condition never described. In its brief, Respondent says: "It is also clear from her own testimony that Styles was likewise inattentive to her duties." Respondent adds two record references: the first to Styles' testimony that after lunch on August 31 she telephoned 12 to 15 employees about walking out the next day, and the second to her testimony that on Sep- tember 1, while she was running a cash register, she tele- phonically solicited employees to sign union cards. There is no evidence that employees were forbidden to use the store intercom telephone for personal conversations or that Styles' calls delayed or interfered with work. And Hathorn did not mention this incident when he dis- charged Styles. Indeed, Respondent could not make any such contention while it maintained that it did not know of Styles' involvement in a proposed walkout or in any union activities." On the foregoing considerations, I find that Respond- ent has failed to establish that either Burkle or Styles was discharged for cause. The credited evidence as a whole compels the conclusion that they were terminated solely for their union and/or other concerted activities. B. Section 8(a)(1) 1. General comments The complaint, as amended, alleges several independ- ent violations of Section 8(a)(1), which will be discussed individually. But certain general observations should be made initially. Most of the alleged 8(a)(1) violations occurred during a series of employee meetings conducted by Korcz on and after September 4. Thus, the conduct in question oc- curred in the shadow of the blatantly unlawful discharge of all the union activists, after the employees' anxieties had already been aroused by the precipitous discharge of Genung. It has previously been found that the testimony of Korcz and Hathorn was unreliable. An additional consid- eration arises concerning the employee meetings. Undis- puted testimony by employees called by the General Counsel establishes that Respondent had all the employ- ee meetings taped and/or stenographically recorded." Yet, Respondent did not offer in evidence any transcripts and did not explain its failure to do so. Because there is frequent conflict concerning what was actually said at 22 An unexplained lese majeste. 23 However, it appears that at the unemployment compensation hear- ing Respondent's counsel did argue that Styles' "allowing herself to be diverted from her activities" by these telephone calls was at least part of the cause for discharge, which would make her ineligible for unemploy- ment compensation 24 In the later district court trial Brecker, Respondent's president, testi- fied that all employee meetings were taped. some of the meetings and the context in which state- ments were made, verbatim transcripts would be of ines- timable value. Accordingly, I infer that the transcripts would not support Respondent's position and resolve against Respondent's witnesses all conflicts of evidence concerning statements made by Respondent's representa- tives at employee meetings. Taylor Bros., 230 NLRB 861 (1977). 2. Specific allegations a. 25 Threat of discharges As set forth above, employee Goldsmith credibly testi- fied that, when she asked Madison, an admitted supervi- sor, if Reinhardt had been fired for union activities, he replied that "he couldn't say," adding that "there would be more to go, it wasn't the end." In context, Madison's statement could not be understood other than as a threat of further discriminatory discharges. In its brief, Respondent says: "Since Madison testified that he had no conversations with Korcz concerning union activity . . . he obviously could not have made the alleged statements to Goldsmith." That argument is an obvious nonsequitur even if Madison's testimony is accepted as true. Madison was aware of what had tran- spired and thus was in a position to draw inferences without confirmation by Korcz. Even if he was actually stating his own inference (or even conjecture), his state- ment would be attributed to Respondent because he was an admitted supervisor. Accordingly, I find that, as alleged, Respondent violat- ed Section 8(a)(1) by Madison's statement to Goldsmith on September 3 shortly after Reinhardt's discharge. b. Solicitation of complaints with promises of rectification Employee Fred Pumilio testified that, in a meeting of about 10 employees on the morning of September 4, Korcz said that Hathorn's new schedules, a source of employee complaints, would not be put into effect. Pu- milio also testified that, at one of the meetings, Korcz so- licited employee suggestions for improvements. One em- ployee recommended installation of a suggestion box, which was promptly effectuated. Employee Robert Price testified that, when Korcz so- licited complaints at one meeting, employee Diana Buono said that she had unsuccessfully asked Assistant Manager Levy about a raise due her, whereupon Korcz said "he would take care of it." Goldsmith testified that at an employee meeting, in re- sponse to Korcz' asking if there were any problems, one employee said she needed a clock and lights. Within a few days the clock was provided. Goldsmith did not know if a light was installed. Employee Klimacek testified that at one meeting an employee said she had not received jury duty pay and Korcz said that he would remedy the matter, which he did. Klimacek also testified that she asked about a raise 25 The letter designations in this section are taken from the relevant sections of the complaint. S. E. NICHOLS, INC. 575 and Korcz replied that he and Hathorn were reviewing the payroll. She also asked about Blue Cross-Blue Shield coverage and Korcz said that Respondent "did not sell insurance but there was a benefit [the employees] could have by paying a computer fee." Respondent's employee handbook lists life insurance and hospitalization as exist- ing benefits. None of the foregoing testimony was con- tradicted. Respondent contends that the Korcz' statements were merely restatements of Respondent's established "open- door policy." Korcz testified: I don't solicit employees' complaints or griev- ances; the company has always tried to have an open-door attitude towards our employees; if they had a question or problem pertaining to store policy—whether it be pay raise, whether it be life insurance, whether it be time off—if it's about a complaint I will take care of it because it was my job to make sure that company policy and rules were being followed. The evidence is undisputed that before the union cam- paign began no meetings had ever been held in which employees were encouraged to ask questions or state their complaints. Neither Korcz nor any other represent- ative of Respondent stated when or how employees were invited to discuss their problems with management. It may also be noted that Korcz testified that a major reason for Genung's discharge was his failure to carry out company policies, including the grant of automatic raises at the end of an employee's first 6 months. Because Korcz testified that he visits each store under his super- vision at least once a month, it appears that the claimed "open-door" policy was not so widely known as to assure employees the benefits supposedly due them. The employee handbook is revealing. The following is a portion of the section of the handbook entitled "Your Employee Rights Under a Union Organization Drive." In this quotation, the portions italicized were deleted and the sentence in bracks was added in 1980. Your company's automatic pay increases, vaca- tion plan, sick leave benefits and promotional ad- vantages are the best in your community. These are discussed on previous pages of this booklet given to you when you are hired. Do not be deceived. Any prob- lems which you wish to discuss and to which you have not received a satisfactory answer, write to: ATTENTION: PERSONNEL DIRECTOR [New York City] You will receive a satisfactory answer to the best of our ability. Remember, you are the first and last link between Nichols and our customers. If you are not happy, our customers will know it, and this can hurt us. [Our goal is to make you happy.] In closing, remember to stay out of problems, the only paper to sign is your pay receipt, which will get bigger the longer you work at your job doing the best you know how. While the section concerning unions ended the earlier handbook, in the 1980 revision some further material was appended, concluding: Our company encourages good communications. We invite you to talk with any member of the man- agement team whenever you feel the need to do so. Sincerely, Store Manager It thus appears that the employee handbook originally referred to communication by employees only which the personnel director, at the corporate office in New York City, and only during a union organizing campaign. The manifest purpose of such communication was to give Re- spondent an opportunity to keep the employees from being "deceived" into supporting a union and signing union cards. It was only belatedly that Respondent invit- ed employees "to talk with any member of the manage- ment team whenever [they felt] he needed to do so." At the same time Respondent added the Company's "goal . . . to make [the employees] happy." Thus, when an "open-door" policy was suggested, the message still was that the employees did not need a union because Re- spondent would make them happy without one. On all the evidence, I find that, as alleged, Respondent violated Section 8(a)(1) of the Act by soliciting employee grievances and complaints and promising to remedy them for the purpose of dissuading employees from sup- porting a union. c. Promises of wage increases As set forth in the preceding section, employees credi- bly testified that Korcz told employee Buono that he "would take care of" the raise she said she had unsuc- cessfully sought through Levy. Goldsmith testified that Korcz said Genung did not "go over raises periodically" as he should have, and added that "after this thing blew over [Korcz] would have the new manager go over our raises and give us periodic raises." And Klimacek testi- fied that Korcz said that Hathorn "was reviewing the payroll." Pumilio testified that Korcz "said he couldn't promise any [raises] at the time [because] that would be bribery," but "he would go over raises with Mr. Hath- orn in the future." As noted below, Korcz made it clear that there was no assurance of raises if the Union became the employees' bargaining representative. Thus, there can be no doubt that Korcz clearly implied that raises would be forthcoming if the employees rejected the Union. Respondent contends that Korcz was simply promising to effectuate the Company's established policy of grant- ing each employee a wage increase at the end of his first 6 months. According to Korcz, he was called up to do so because Genung had failed to execute that policy. But Korcz had been Genung's supervisor and, as such, vis- ited the store at least on a monthly basis. Thus, if it was true that Genung had ignored the "policy," it follows that it was not uniformly applied. Indeed, the employee handbook provides for a 10-cent-per-hour raise after an employee's first 6 months, but "Whereafter, increases 576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD will be made at the discretion of the manager." 28 Korcz' promise to "review" wages during the union campaign were not shown to conform to any established pattern. The same is true of the raises actually given shortly before the election. I conclude that, as alleged, Respondent, through Korcz, promised wage increases to dissuade employees from supporting the Union, in violation of Section 8(a)(1) of the Act. d. Solicitation of employees to withdraw union authorization cards There is considerable uncontradicted and credited em- ployee testimony that on several occasions, always on his own initiative, Korcz told employees that they could recall or withdraw union cards that they might have exe- cuted. Korcz testified that he told the employees they could talk to him about such retractions. He offered to give employees an address to which to send retractions. Respondent's employee handbook contains specific in- structions in this connection" and Korcz discussed the matter in virtually all his numerous meetings. Additional- ly, Klimacek testified, without contradiction, that em- ployee Chet Cornaccio gave her, at the store, a prepared form for retraction addressed to the president of Local 345.28 Respondent argues: It is not a violation of the Act for an employer to suggest that it is possible for employees to with- draw their union authorization cards. 1V.L.R.B. v. Monroe Tube Company, 545 F.2d 1320, 1325 (2nd Cir. 1976). That is all that occurred here and there- fore there was no violation of the Act. In Monroe Tube, the court held only that solicitation of employees to withdraw their union cards was not per se violative of the Act. As the court said in Monroe Tube, cited by Respondent (545 F.2d at 1325): While it is certainly true that an employer's solicita- tion of withdrawal letters may violate the Act under some circumstances, the propriety of such conduct must be assessed in the light of all the facts in the case, particularly the employer's prior and contem- poraneous conduct in dealing with union activities. 26 The manual also says "Nichols has a system of automatic pay in- creases which go mto effect from the day you start working This system saves you the trouble of asking for pay raises." (Emphasis added.) 27 This handbook provision is. If you have signed a Union Card and you change your mind and you now wish to withdraw your card for any reason you decide, YOU CAN DO SO AT ANY TIME. Write to the President of the Local to whom you have given your signature and simply say you no longer want your card to be used, and keep a copy. Goldsmith testified that in the employee meetings Korcz orally advised employees to "make sure you have a copy [of your retraction] and give it to a friend so someone else knows that you have retracted your card." 22 Cornaccio had been recently employed part-time at the Herkimer store. His functions do not appear and the testimony was that he spent his time going through the store and spent considerable time talking and drinking coffee with management personnel, who frequently summoned him. Unlike Monroe Tube, the present case involves much more than a suggestion that employees have a right to retract their union cards. The frequency of Korcz' rep- etitions of the unsolicited advice surrounds it with an aura of inordinate importance that would naturally tend to cause employees to fear future adverse action if not heeded. Additionally, the portion of the handbook in which the information is contained has a general, overall coercive tone and effect. Cf. S. E. Nichols of Ohio, Inc., supra, 195 NLRB at 941, 943. Most significantly, this repetitious "advice" was given after the four instigators of the union campaign had been fired and Korcz attrib- uted the discharges in substantial part to their having so- licited union cards. And, finally, the "advice" was an in- tegral part of what is here found to be an overall pattern of coercive misconduct. It may be conceded that Korcz did not in haec verba "ask" employees to withdraw or retract their authoriza- tion cards, but, against the backdrop of Respondent's animus and other coercive conduct, his repeatedly volun- teering the suggestion and the emphasis thereon in the employee manual would clearly suggest to employees that they would be well advised to withdraw their cards to avoid the fate of their four discharged colleagues. The eschewal of a direct "request" amounts to unsuccessful "brinkmanship." Cf. NLRB v. Gissel Packing Co., 395 U.S. 575, 620 (1969) (quoting Wausau Steel Corp. v. NLRB, 377 F.2d 369, 372 (7th Cir. 1967)).28 Within the court's language in Monroe Tube, Respondent's "contem- poraneous conduct in dealing with union activities" is described in this decision; its "prior" conduct is graphi- cally revealed in other Board and court decisions cited above. It was largely on the basis of the absence of prior or contemporaneous misconduct that the Second Circuit distinguished Monroe Tube from numerous other cases in which courts have sustained Board findings of 8(a)(1) violations consisting of soliciting employees to recall their union authorization cards. It may be added, although this is not necessary to the present decision (NLRB v. Monroe Tube Co., supra, 545 F.2d at 1327), that several employees did in fact with- draw their union authorization cards. Accordingly, I find that, as alleged, Respondent violat- ed Section 8(a)(1) of the Act by soliciting employees to withdraw their union authorization cards. e. Threat of loss of benefits Considerable employee testimony establishes that, in one form or another, Korcz repeatedly expressed vari- ations on the theme that if the Union became the em- ployees' representative "bargaining would start from scratch" and existing benefits, which Respondent de- 22 In Trojan Battery Co., 207 NLRB 425 (1973), it was held that, in context, "advice" amounted to "admonition," violative of the Act. In Air- porter Inn Hotel, 215 NLRB 824, 826 (1974), overruling Trojan Battery pro tanto, a Board majority rejected the view that "all admonitions are unprotected by Section 8(c)." But it was recognized that the decision must be made m the light of the context. It may further be noted that two of the three-member majority m Airporter Inn (Chairman Miller and Member Kennedy) are no longer on the Board, Whereas present Chair- man Fanning and Member Jenkins dissented in Airporter, citing Trojan Battery (215 NLRB at 827 fn. 10). S. E. NICHOLS, INC. 577 scribed as "the best in the area," could be lost. In consid- ering Korcz' conduct, it is perhaps best to start with his own testimony as to what he said. On direct examina- tion, he testified: Q. . . . Did you inform employees that in the event the Nichols employees selected the union, all existing benefits would be removed? A. No, I did not. I informed the employees that if a union would be established, their rights would go back to where they would have to go back to step I. Q. They would have to bargain? A. They would have to bargain. I did not tell them they would lose everything since I had no knowledge of what they would lose or what they would not. [Emphasis added.] He repeated the same thought on redirect examination: A. The employees had mentioned that fact that what if we have a union and what benefits do you have and I said, I don't know what benefits you have, you'd have to start at Step I. You have to go back and negotiate for what you want. Q. What do you mean by Step 1? A. They would have to negotiate for wages, they would to negotiate for life insurance and benefits that would either remain the same or improve or be deleted. It will be noted that Korcz' basic thought was "going back to Step I," the concept of bargaining being injected first by a leading question by Respondent's counsel. And even with the help of counsel, Korcz never indicated that he had suggested that "horse-trading" or "give-and- take" nature of bargaining. Goldsmith attributed to Brecker the more common terminology that they would "have to start all over if they got a union in, [they] would start from scratch." According to Goldsmith, Korcz warned: "You don't know what you are going to end up with, you might not do so well." Employee Sheppard quoted Korcz as saying "[t]hey would wipe the booklet clean and have to start all over again." The Board has recently clearly restated the governing principles in Taylor-Dunn Mfg. Co., 252 NLRB 799, 800 (1980), as follows: It is well established that "bargaining from ground zero" or "bargaining from scratch" state- ments by employer representatives violate Section 8(a)(1) of the Act if, in context, they reasonably could be understood by employees as a threat of loss of existing benefits and leave employees with the impression that what they may ultimately re- ceive depends upon what the union can induce the employer to restore. On the other hand, such state- ments are not violative of the Act when other com- munications make it clear that any reduction in wages or benefits will occur only as a result of the normal give and take of negotiations. . . . In our view, [the respondent's representative's] remarks clearly conveyed to employees a threat of loss of existing benefits. In this regard, [his] statements were unaccompanied by any assurances that such losses, if any, would be the result of the normal give and take of collective-bargaining and not of employer retaliation. In addition, these comments were made in the context of a preelection campaign replete with numerous unfair labor practices com- mitted by Respondent, including its declarations of an anticipatory refusal to bargain with the Union. . . . Therefore, we find that [his] statements violat- ed Section 8(a)(1) of the Act, and that issuance of a remedial order for this violation is fully warranted. The present case falls within the holding in Taylor-Dunn. Accordingly, I find that Respondent violated Section 8(a)(1) of the Act by threatening loss of benefits if the employees chose to be represented by the Union. f. Threat of company knowledge of union cards Employee Pumilio testified that at two employee meet- ings Korcz "said that his lawyer can receive the union cards." Despite Korcz' conclusory denial of having told the employees that Respondent's attorney would be in- formed of all employees who signed cards, I credit Pu- milio. Korce statement, as reported by Pumilio, might rea- sonably place employees in fear that their signing union cards might well become known to Respondent. In view of the known fate of Reinhardt, Vincent, Styles, and Burkle, even the least timid employee might well refrain from signing a union card out of fear of possible disclo- sure. As the General Counsel observes, such conduct by Respondent is not unprecedented. See, e.g., S. E. Nichols Marcy Corp., supra, 229 NLRB at 79, 80, in which a Nichols district manager informed an employee that Re- spondent was "going to subpoena the cards," and it was found that Respondent had violated Section 8(a)(1) by, inter alia, "warning employees that the Company would find out from the Board who had signed cards." Accordingly, I find that Respondent violated Section 8(a)(1) of the Act by indicating to employees that their signing union cards might become known to Respondent. g. Threat to discharge discriminatees if reinstated Employee Goldsmith testified that at one employee meeting Korcz was asked if the four discriminatees would be reinstated, to which he answered, "[Y]es, but once they're reinstated, they don't last too long"; in other words, pretexts would be found for their later dis- charge. I credit Goldsmith, despite a blanket, conclusory denial by Korcz.30 It is concluded that Respondent violated Section 8(a)(1) of the Act by threatening to discriminate against any employee whom the Board might order reinstated. 30 As the General Counsel observes, such conduct is m line with Re- spondent's past course. See NLRB v. Nichols of Ohio, Inc., supra, 100 LRRM 2840, in which Respondent was held in contempt for failure to comply with a reinstatement order 578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD h, i, and 1. 31 Distribution and solicitation Respondent's employee handbook, as in effect during the period here involved until January or February 1980, contained the following provisions: An employee shall not solicit or distribute literature to other employees for any cause or purpose during the working time inside Company buildings or on Company property. [Emphasis added.] In Essex International, 211 NLRB 749 (1974), the Board held that a rule prohibiting employee solicitation during "working time" is presumptively valid because "the term 'working time' or 'work time' connotes the period of time that is spent in the performance of actual job duties," as distinguished from "working hours," which "connotes the period of time from the beginning to the end of a workshift." Without nitpicking, in the present context a distinction may well be drawn between "work- ing time" and "the working time"; "working time" would reasonably be understood as referring to the time the particular employees involved were working, where- as "the working time" could reasonably be understood as more general, meaning "the working time in the plant." Had Respondent meant to limit the prohibition to the time during which an employee was working, it could have said just "working time." Thus, use of the phrase "the working time" creates an ambiguity. In any event, the revised version, using the phrase "working hours," is presumptively invalid under Essex International. Although it is possible that the earlier rule was adopted before the Board spelled out the presump- tions, the revision came some 4-1/2 years after the Essex decision. Respondent has not explained the change in wording. In view of Respondent's extensive involvement with Board law, the change appears to have been made in advertent defiance of applicable Board law.32 To rebut the presumptive invalidity of the rule under Essex International, Respondent had the burden of re- moving the ambiguity. Cf. Our-Way, Inc., 238 NLRB 209, 214 (1978). It could meet this burden by extrinsic evidence establishing that "the 'working hours' rule was communicated or applied in such a way as to convey an, intent clearly, to permit solicitation during breaktime or other periods when employees are not actively at work." Essex International, supra, 211 NLRB at 750. To meet this burden, Respondent relies primarily on the testimony of Goldsmith and Korcz. On cross-examination, Gold- smith's testimony was: Q. Did Mr. Korcz say anything about how the employees in the store could solicit for a union if they wanted to? A. He said the only way we could was off-store premises or when we were punched out on lunch- time but not on company time. 32 These letters conform to the subpars of pt. V of the complaint in Case 3-CA-9304. However, the complaint in Case 3-CA-9714, which contains a related allegation and evidence from the district court record, is included in this decision. 32 Respondent does not argue that the Essex rule is improper or in- valid; it argues only that its written rule is not the rule actually in effect. Q. He told you it was all right to solicit for a union but not on company time? A. Right. Korcz did not testify that he ever had informed the em- ployees that the rule in effect was different from that ap- pearing in the handbook, as Respondent's counsel ex- pressly stated before Judge McCurn. The publication of the 1980 revision belies any such contention. And in tes- tifying, Korcz failed to "clarify" the rule so as to render it valid. He testified that, in employee meetings on Sep- tember 5, he told employees not to hand out union cards on working hours. In later meetings he "told them there should be no solicitation of union cards on the company property, to do it on your own time." He proceeded: Q. Did you tell them they couldn't do it at all on the store premises? A. I told them to do it on their own time. Q. Did you tell them they could not do it in the lounge when they were on breaks? A. I didn't tell them that; I said if you want to do it, do it on your own time in the lounge or what- ever. Nor did the employees have any clear understanding of the rule. Before Judge McGurn, employee Rose Cene- viva, called by Respondent, testified: Q. [By Respondent's counsel] Is there a rule about distributing literature in the store? A. On store time, there is. . . . . THE COURT: . . . Is there a rule about . . dis- tributing literature on the premises? THE WrrNEss: Yes, you shouldn't be doing any- thing. THE COURT: Now, is there such a rule, is there a company rule about distributing literature on, the premises of Nichols Department Store which em- ployees are made acquainted with? THE WITNESS: I can't remember. It is clear that the rule, as interpreted by Respondent, is invalid. The evidence establishes that employees are entitled to a 10-minute break during each 4 hours.33 Such breaks are nonworking time but are paid for. Yet, in its brief Respondent says: "It is clear from the testimo- ny of district supervisor Korcz and employee Margaret Goldsmith that solicitation is permitted in nonwork areas . . . and while the employee is clocked out on a break." There is no evidence that employees "clock out" for their breaks. The ambiguity goes not only to the temporal restric- tion, but also to the spatial limitation. As indicated above, at least Ceneviva claimed to understand that em- ployees were not to do any distribution on company premises. In its brief, Respondent apparently attempts to equate "inside Company buildings" and "inside Company buildings or on Company property" with "non-work 33 This privilege was wntten into the 1980 revision of the employee handbook, but apparently existed before then. S. E. NICHOLS, INC. 579 areas," saying: "The enforcement of this rule to limit union solicitation to non-work areas is proper." Respond- ent cites Montgomery Ward & Co., 145 NLRB 846 (1964), enfd. in pertinent part 339 F.2d 889 (6th Cir. 1965). But that case permits total prohibition of employee solicita- tion in public portions of retail stores; a "ban [of] all union solicitation on company property" was held un- lawfuL On the foregoing considerations, I find that, as alleged, Respondent's no-solicitation and no-distribution rule, both before and after its revision early in 1980, violates Section 8(a)(1) of the Act. It is also alleged that the rule was discriminatorily ap- plied against union solicitation. It was apparently dis- cussed only at employee meetings called in connection with the union campaign and, so far as it appears, the discussion concerned only union solicitation and distribu- tions. At various times Respondent's representative main- tained that Reinhardt, Vincent, Styles, and Burkle had been discharged in part for union solicitation in violation of the rule. Pumilio was given a written warning for "distributing union handbooks on Company time and using the Company equipment to store such matter." Employees Reinhardt, Ptunilio, Sheppard, Goldsmith, Klimacek, Styles, and Burkle testified to frequent solici- tations by employees at the store during working hours. They ran the gamut from charitable fundraising, through collections for gifts to employees and management repre- sentatives on various occasions, sales of Avon products, Tupperware, Sarah Coventry jewelry, etc., to baseball pools. Without expressly so stating, Korcz sought to create the impression that all such solicitations were to be conducted on luncheon breaks and in nonwork areas. However, he did not so state." Yet, there is no evi- dence—not even conclusory testimony—that any em- ployee had ever been reprimanded for, or told to cease, soliciting or distributing for nonunion purposes. For the foregoing reasons, I find that, as alleged, Re- spondent discriminatorily applied and enforced a restric- tion on union solicitation and distribution. The employee handbook originally also contained the following provision: Employees shall not accept any literature distribut- ed, for any purpose, by persons not employed by the Company inside Company buildings or on Com- pany property. In the 1980 revision, the words "during working hours" were added at the end of the sentence. The vestibule of 34 On direct examination he testified. A. If an employee wanted to collect for something within the store, meaning a funeral or a fire, March of Dimes or something worthwhile and it was done in a low-keyed manner such as in the lounge and It was not blown out of proportion, we accepted it Q. What about these Tupperware, Avon sales and promotions of that kind, what was the procedure that was supposed to be followed in the Company concerning that/ A. The procedure that was to be followed at that point, if an indi- vidual was on their lunch hour and there was a book there for Tup- perware or Avon or anything else and the individual wanted to select something from that book and they were on their lunch break, they could do so the store was also posted against any solicitation. The General Counsel maintains that the quoted rule violates the Act. Because an employer, may legitimately prohibit all so- licitation and distribution by nonemployees on his prem- ises, it appears reasonable that he may also forbid em- ployees to abet such proscribed conduct by accepting material from outsiders on his property. I read the rule under consideration as forbidding employees only from receiving literature on company premises only directly from outsiders, i.e., as not prohibiting accepting literature from other employees merely because it may have origi- nated with nonemployees. So read, the rule is permissi- ble. McGraw Edison Co., 216 NLRB 460, 464 (1975), enfd. in pertinent part 533 F.2d 1266 (D.C. Cir. 1976), cited by the General Counsel, is not to the contrary be- cause the rule there invalidated on its face forbade all sales and solicitations. j. Request for employee reports of union activities Respondent's employee handbook, in both the original and the revised versions, says: Remember, do not sign a card because you are threatened, tell us and we will protect you. It is your right to have a union. It is your right not to have a union. Our Company will try to see to it that your rights are preserved no matter how you choose. Tell us if someone is trying to stop your freedom of choice. At employee meetings Korcz repeatedly advised em- ployees to report "harassment," "threats," or "trouble" to management, whose counsel would "help [the em- ployees] out as far as the union harassing" them Klima- cek also testified that Korcz said that if the employees "had any problems, [they] could go to him, or M. Hath- Korcz also told the employees that "if they felt they were threatened, if they felt they had problems, and they did not have an attorney or they couldn't afford an attorney, that they could see [Respondent's] attorney," Korcz said that two employees "wanted to see an attor- ney." However, he then conceded that he had first broached the subject and offered the services of Re- spondent's counsel. He added: "The only thing that em- ployees said that led to the fact if they needed an attor- ney was the fact that one girl had mentioned that date she went out and her tire was slashed and she was con- cerned." The employee purportedly quoted did not testi- fy. There is no evidence that the Union was in any way involved or that Respondent made any investigation or attempt to "protect the employee." Because Korcz equated "harassment" with solicitation of union support and "freedom of choice" with the ab- sence of union solicitation, it is clear that he was inviting employees to report any union solicitation to Respond- ent's management and its counsel. The Board had previ- ously condemned such conduct and the corresponding portions of Respondent's employee handbook. S. E. Nichols of Ohio, Inc., 195 NLRB at 942-943. On that au- thority, I find that, as here alleged, Respondent violated 580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Section 8(a)(1) of the Act by soliciting employees to report on union activities at the Herkimer store. k. Instructing employees not to sign union cards The General Counsel contends that Respondent's em- ployee handbook unlawfully instructs employees not to sign union cards. It contains the following statements: Do not sign a card because you are told that if you sign now, you will not have to pay initiation fees, and that non-signers will be forced to pay such fees if the Union gets certified. Remember, do not sign a card because you are threatened, tell us and we will protect you. It is your right to have a union. It is your right not to have a union. Our Company will try to see to it that your rights are preserved no matter how you choose. Tell us if someone is trying to stop your freedom of choice. Respondent's emphasis on only the words "Do not sign a card" in the first paragraph quoted above makes that ad- monition stand out, relegating the qualification to rela- tive insignificance. However, despite that deceptive em- phasis, those statements by themselves would fall within the permissible limits set in Airporter Inn Hotel, 215 NLRB 824, cited by the General Counsel. But the quoted statements do not stand by themselves. In the pre-1980 revision, which was in effect during a large part of the preelection campaign, there is further flat advice: "In closing, remember to stay out of prob- lems, the only paper to sign is your pay receipt, which will get bigger the longer you work at your job doing the best you know how." Against the background of the four discriminatory discharges, employees would reason- ably infer that their job futures depended on their not signing union cards. This message is underscored by the further message, at the beginning of the section on unionization, telling the employees of "one more benefit your company gives you," namely, protection from "being exploited or taken advantage of by outsiders," most notably "Union Organizers." As previously noted, the Board has previously adopted an administrative law judge's decision giving weight to such handbook provi- sions in appraising Respondent's conduct. S. E. Nichols of Ohio, Inc., supra, 195 NLRB 939. Again, Respondent has failed in its brinkmanship. I find that, as alleged, Respondent has violated Section 8(a)(1) of the Act by coercively discouraging its employ- ees from signing union cards. 1. Offer to provide counsel in employee interviews with Board agents Goldsmith testified that Korcz told employees that Board agents would visit the store the next week and might want to interview them. He then said that "if [they] needed any protection he would get his lawyer to sit in on the meeting." After considerable fencing and equivocation, Korcz conceded that, on his own initiative, he told employees they could see Respondent's attorney if they needed help in connection with anticipated re- quests by Board agents for employee statements. As the General Counsel argues, Florida Steel Corp., 233 NLRB 491, 494 (1977), is authority for fmding Korcz' conduct violative of the Act. In Garry Mfg. Co., 242 NLRB 539 (1979), the Board reaffirmed its Florida Steel view. I am bound by the Board's decisions, even though, as to the point under consideration, both were reversed by a court of appeals: 35 Florida Steel by the Fifth Circuit, 587 F.2d 735 (1979); Garry Mfg. by the Third Circuit, 630 F.2d 934 (1980). Although the Board has well articulated the statutory and policy consider- ations underlying its rulings, the very recent reversal by the Third Circuit suggests the advisability of some fur- ther explication. In Florida Steel, the court stated (587 F.2d at 752): "The Board concedes that employees do have a right to obtain legal counsel, if they so desire, prior to talking to an agent of the Board." 36 However, at the time both Florida Steel and Garry Mfg. arose and wound their way through the Board and the courts, the Board had not an- nounced any such policy, either in its binding Rules and Regulations or in its nonbinding Field or Casehandling Manuals. 3 7 The original 1967 Field Manual governing unfair labor practice proceedings contained no provisions for or ref- erence to any right to counsel in Board investigations. The 1975 version of the Casehandling Manual contained a carefully restricted provision for the right of a cooper- ative respondent's counsel or representative to be present when a Board agent interviewed "any supervisor or agent whose statements bind a respondent." 38 In No- vember 1978 a provision was added giving a charging party the right to have counsel or a representative present during a Board agent's interview "of the charg- ing party or any supervisor whose statements or actions 35 Hotel & Restaurant Employees Local 28, 252 NLRB 1124, 1133-1134 (1980) 36 The Board's brief in Florida Steel contains a passing, ambiguous "concession" as follows "While it is true that employees are free to seek legal counsel, this does not immunize from violations employer state- ments that tend to coerce employees from giving evidence to the Board." I do not know if any further "concession" was made in oral argument. 37 The Board's first publicly available Field Manual was issued in 1967. At that time, portions of the previously existing internal instructions to field employees of the Board were withheld from publication However, with the publication of the Casehandhng Manual, in 1975, confidentiality of general instructions to field personnel was ended The Casehandhng Manual has at all times contained the following prefatory statement. Purpose of Manual This manual has been prepared by the General Counsel of the Na- tional Labor Relations Board pursuant to his authority under Section 3(d) of the Act It is designed only to provide procedural and oper- ational guidance for the Agency's staff in administering the National Labor Relations Act, and is not intended to be a compendium of substantive or procedural law, nor a substitute for a knowledge of the law The guides are not General Counsel or Board rulings or di- rectives and are not a form of authonty binding upon the General Counsel or upon the Board. 38 The Casehandhng Manual also provides for advising parties of their right to counsel in the initial notification of the receipt of a charge. How- ever, such initial notice is cursory and does not define the nature or extent of the nght to counsel. The provisions discussed m the text herem relate specifically to investigations S E. NICHOLS, INC. 581 would bind the charging party." It was not until March 17, 1980, that the manual contained any provision con- cerning a right of witnesses to have counsel in the course of a Board investigation." This matter is of particular importance in view of the apparent underpinning of the courts' decisions in Florida Steel and Garry Mfg.. For example, in Florida Steel, the court said (587 F.2d at 752): Our case involves the advising of employees of one of the most treasured and sacred rights possessed by citizens of this nation. Thus we need go no further than to say that we can conceive of no circum- stances where accurately informing an employee of his right to counsel could amount to an interfer- ence, restraint, or act of coercion. On innumerable occasions the Federal courts, includ- ing the Supreme Court, courts of appeals, and district Courts, have pointed out that there is no constitutional right, under the 5th, 6th, or 14th amendments, to repre- sentation by counsel except in criminal proceedings. See, e.g., Hannah v. Larche, 363 U.S. 420 (1960); FCC v. Schreiber, 329 F.2d 517 (9th Cir. 1964), modified on other grounds 381 U.S. 279 (1965); Smith v. U.S., 250 F.Supp. 803, 806 (D.N.J. 1966), appeal dismissed 377 F.2d 739 . (3d Cir. 1967); U.S. v. Wierzchucki, 248 F.Supp. 788 (W.D.Wis. 1965); Suess v. Pugh, 245 F.Supp. 661 (N.D.W.Va. 1965); Ferguson v. Gathright, 485 F.2d 504, 506 (4th Cir. 1973), and cases cited at footnote 3 therein, cert. denied 415 U.S. 933 (1974). The absence of a right to representation by counsel in noncriminal proceedings has been upheld even where the "witness" involved is the "target" of the proceeding and personally subject to adverse action therein. A Presidential Order expressly prohibiting Selective Service registrants from being rep- resented by counsel before local draft boards ' has been upheld even though their draft classifications could be subjected to only very limited review in subsequent criminal trials for draft evasion. Cf. U.S. v. Wierzchucki, supra. A doctor has been held not entitled to representa- tion by counsel in a hearing on charges against him that could result in termination of his temporary employment by the Veterans Administration. Suess v. Pugh, supra. And the respondent in a state proceeding to revoke a driver's license was held not to have a constitutional right to representation by counsel even though he could later be (and was) convinced of a criminal offense and 39 That provision (not present at the time here involved) reads. 16056 2 Interviews of Witnesses: Where a witness, whether offered by the charging party or the charged party, who is not a representative or an agent of any party to the proceeding is represented by counsel or other representative and the witness requests that counsel or other representative be present during an interview, the interview should be conducted with counsel or other representative present so long as this presence does not delay or hamper the interview This policy will normally not prevail where counsel or other representative also represents a party to the case unless the Region, m the exercise of its discretion, wishes to proceed with the interview under such circum- stances. In the event the Region declines to proceed with the inter- Vim of the witness in the presence of counsel or other representa- tive, the witness should be advised that he or she may submit docu- mentary evidence or a statement which, if timely submitted, will be considered. have his existing parole revoked if he drove after the revocation. The absence of a constitutional right to rep- resentation by counsel is a fortiori applicable to "investi- gations . . . of a fact-finding, non-adjudicative nature." Smith v. U.S., supra, 250 F.Supp. at 806. Any right to representation by counsel in noncriminal proceedings must be dependent on a statutory or regula- tory provision. The only statutory provision possibly rel- evant is Section 6(b) of the Administrative Procedure Act (now 5 U.S.C. § 555(b)), which reads, in pertinent part: A person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by coun- se1.40 As was noted in U.S. v. Steel, 238 F.Supp. 575, 577 (S.D.N.Y. 1965), affd. 359 F.2d 381 (2d Cir. 1966), and Smith v. U.S., supra, 250 F.Supp. at 806, "[T]he Supreme Court has not decided the question as to whether the Administrative Procedure Act affords the right to coun- sel in a fact-finding non-adjudicative investigation." What- ever the proper answer to that question, it is clear that the statutory provision applies only "to persons com- pelled to appear." Ibid.; U.S. v. Murray, 297 F.2d 812, 820-821 (2d Cir. 1962), cert. denied 369 U.S. 828 (1962); Suess v. Pugh, supra, 245 F.Supp. at 664-665 (quoting the Attorney General's Manual on the Administrative Procedure Act, 1947, 61-62). An underlying vice in an employer's advising his em- ployees that they are entitled to representation by coun- sel in interviews with Board agents is the necessary im- plication that the employees might need protection. The present case involves a charge against the Employer. In no way could the interview result in any adverse action against or legal detriment to any employee. 4' But the employer's indication that employees might need the protection of counsel manifestly would tend to dissuade them from cooperating with the Board's investigation. Respondent's conduct in the present case is improper and clearly coercive for an additional, and perhaps more telling, reason. Respondent offered the services of its own attorney in the Board's investigation of charges against Respondent—charges that it had violated the em- ployees' rights vis-a-vis Respondent. An employee who accepted Respondent's suggestion that he be accompa- nied by counsel would reasonably also accept the offered services of Respondent's attorney because securing inde- pendent counsel would entail expense and, probably, in- convenience. Respondent is thus temptingly proposing a serious conflict Of interests. There is no apparent way that an attorney could properly advise and represent both employees and the employer who has been accused of violating their rights. 49 The section also provides- "A party is entitled to appear in person or by or with counsel or other qualified representative in an agency pro- ceeding." (Emphasis added.) As previously noted, the Board expressly recognizes this right of parties. It is unnecessary here to define the word "proceeding" within the purview of this provision. 41 Of course, the employee's fifth amendment rights would be protect- ed if necessary, 582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD As shown above (fn. 39), the Board, as a general rule, expressly prohibits representation of witnesses by counsel for any party to the proceeding. Other administrative agencies and courts have been sensitive of the dangers, both to "witnesses" and to the regulatory agencies, in- herent in multiple representation by counsel. See, e.g., U.S. v. Smith, 87 F.Supp. 293 (D.Conn. 1949), in which the court held that, under Section 6(b) of the Adminis- trative Procedure Act, an officer, a director, and a stock- holder of a corporation were entitled to representation by counsel when subpoenaed to appear before a special agent of the Bureau of Internal Revenue in an investiga- tion of the corporation, but then (at 294) restricted them to "the presence only of outside counsel (other than counsel for the taxpayer) for the witnesses to advise upon their constitutional rights." Similarly, in U.S. v. Steel, supra, 238 F.Supp. 575, the court sustained a regu- lation and ruling of the SEC that a person subpoenaed in the course of a fraud investigation could be accompanied, represented and advised by counsel, but such counsel may not represent any other wit- ness or any person being investigated unless permit- ted in the discretion of the [SEC] officer. . . upon being satisfied that there is no conflict of interest in such representation and that the presence of identi- cal counsel for other witnesses or persons being in- vestigated would not tend to hinder the course of the investigation. The most fearless employee would find it difficult to provide the Board with information against his employer when he was accompanied and being "advised" by the employer's counsel. The Board, with judicial approval, has consistently held that an employer violates the Act when it requests that employees furnish him copies of, or repeat to him the substance of, statements they have given to the Board. Winn-Dixie Stores, 143 NLRB 848, 849-850 (1963), enfd. 341 F.2d 750, 752-753 (6th Cir. 1965), cert. denied 382 U.S. 830 (1965); Siegel Co., 143 NLRB 388 fn. 1 (1963), enfd. 328 F.2d 25, 27 (2d Cir. 1964). If such requests are coercive, a fortiori, the pres- ence of the employer's counsel when such statements are given would be coercive. Even if an employee sua sponte requested representation by the employer's attor- ney, the Board could properly deny the request because of the inhibiting effect of such representation on the em- ployee's freely providing full and accurate information. Cf. Hannah v. Larche, supra, 363 U.S. at 454-485. Accordingly, on the authority of the Board's decisions in Florida Steel and Garry Mfg., supra, and for the fur- ther considerations set forth above, I find that, as al- leged, Respondent coerced the employees and interfered with their Section 7 rights when Korcz volunteered that they could be represented by counsel in interviews with Board agents and offered them the services of Respond- ent's counsel. The evidence establishes that Korcz advised the em- I that they need not speak to Board agents who might seek interviews with them. Although the amend- ment to the complaint made orally at the trial does not specifically allege such statements as violative of the Act, they are intertwined with the statements alleged. Although Korcz testified after employees attributed such statements to him, he did not disavow them. According- ly, their lawfulness may be decided herein. Pioneer Natu- ral Gas Co., 253 NLRB 17 fn. 2 (1980); Gordonsville In- dustries, 252 NLRB 563, 564 fn. 7 (1980). The Board has held that an employer violates the Act when he advises employees "that they need not cooper- ate in the Board investigation" even though "it may be technically true that an individual may not be forced to give statements to a Board agent unless subpoenaed." Certain-Teed Products Corp., 147 NLRB 1517, 1520-1521 (1964); R. G. Barry Corp., 162 NLRB 1472, 1476 (1967), enfd. as modified 405 F.2d 1212 (6th Cir. 1969), cert. denied 396 U.S. 838 (1969). On the basis of these deci- sions, I also find that Respondent violated Section 8(a)(1) of the Act by Korcz' stating at employee meetings that the employees could refuse to speak to Board agents in- vestigating the charge in this case. Bryant Chucking Grinder Co. v. NLRB, 389 F.2d 565, 567 (2d Cir. 1967), cert. denied 392 U.S. 908 (1968).42 C. Case 3-CA-97I4 1. Preliminary considerations As previously stated, on April 2, 1980, the Union filed a second charge, on which a complaint was issued on May 8, alleging, in the main, that Respondent had com- mitted numerous unfair labor practices connected with or arising out of the prior proceeding. The General Counsel then petitioned the United States District Court for the Northern District of New York for an injunction under Section 10(j) of the Act pending Board decision. After a trial, the court (District Court Judge Neal P. McCurn) denied the petition. The General Counsel's appeal from that decision is pending in the Court of Ap- peals for the Second Circuit. The Second Circuit denied a request for injunction pending the appeal. When the second case came on for trial before me on September 15, 1980, after a pretrial discussion," I grant- ed the joint request of all parties that I accept the tran- script of the trial before Judge McCum in lieu of testi- mony presented directly to me. Before me, the district court trial record was supplemented by certain additional material. In its posttrial brief, Respondent apparently contends that Judge McCum's decision is binding on me as to credibility of the witnesses, at least so far as demeanor is involved. However, Judge McCurn made no express, specific findings as to credibiity. The record before me clearly shows that all parties understood that I was to appraise credibility independently. Not only did I have 42 As held in Bryant, Chucking Grinder Co, 160 NLRB 1526, 1564 (1966) Respondent was thus unerfenng with the employees' right to utilize the statutory protection of their Section 7 rights without fear of re- prisal for giving information or testimony adverse to it. This conduct had the tendency to obstruct and impede the Board in its investiga- tion and trial procedures and to depnve employees of vindication by the Board of their statutory rights *3 The credibility problem was discussed and I was assured that most of the witnesses had appeared before me in the first E. NICHOLS, INC. 575, 613-614 (1969); Chromalloy Mining & Minerals v. NLRB, 620 F.2d 1120 (5th Cir. 1980); PayW Save Corp., 247 NLRB 1346 (1980); NLRB v. Gissel, supra, 395 U.S. at 613-614. Although the Union claimed a majority and requested a card check on September 5, 1979, the com- plaints do not allege violation of Section 8(a)(5) and the General Counsel did not attempt to establish a union ma- jority. The Union could not expect to gain anything by pursuing election objections; in the absence of a majority showing, it could not hope for a bargaining order45 and, until the unfair labor practices were remedied and the employees were assured that their statutory rights would be protected, the Union could not reasonably hope to win a second election. And it was virtually impossible for any relief to be forthcoming within the year before a new petition could be filed. A second election loss within that year might well further undermine the Union's chances for ultimate success. Thus, rejecting Re- spondent's argument, I draw no adverse inference from the Union's failure to file objections to the conduct of the election. In any event, the General Counsel would not be bound by any express or implied "concession" by the Union unless the Regional Director formally granted a request to withdraw the charges. 2. The alleged violations The complaint alleges that after the trial in Case 3- CA-9304 Respondent harassed employees who support- ed the Union and/or cooperated with the Board in the earlier proceedings. Employees who had been subjected to the coercive and intimidating conduct heretofore found would normally be particularly sensitive to the message conveyed by further action by the Employer, no matter its sophistication. Coercion is not rendered less violative of the Act by an increase in the employer's sub- tlety. Ohio Hoist Mfg. Co., 189 NLRB 685, 687-688 (1971). The detailed allegations of the complaint will here be considered in the light of Respondent's past con- duct. 583 S. the district court record, but I also had had the opportu- nity at the first trial to observe many of the witnesses who testified before Judge McCurn. As will appear here- inafter, demeanor plays no part in my resolution of the credibility of persons who did not testify before me. Indeed, all my credibility resolutions are supported by considerations other than mere demeanor. No evidence was presented to Judge McCurn concern- ing the matters involved in Case 3-CA-9304 and he ex- pressly refused to receive the transcript of the trial in that case. Although the substance of the first case may not be germane to the question whether an injunction should issue during the pendency of the second case, the facts in the earlier case are of inestimable value as back- ground. Conduct alleged as violative of the Act in the second complaint which might, by itself, appear innocent and/or inconsequential may take on a more ominous col- oration when seen as a continuation of a flagrantly un- lawful course of conduct. Thus, although Judge McCurn's decision on the evidence before him is entitled to careful and respectful consideration, it is not disposi- tive of the issues presented in this proceeding. Judge McCurn held, as a conclusion of law, that the Regional Director "did not have reasonable cause to be- lieve" that Respondent had engaged in the unfair labor practices alleged in the complaint This conclusion was based at least in part on implicit interpretations of the Act in conflict with the Board's. The court's decision contains no discussion or citation of any decisions under the Act. The Board is the agency statutorily charged with administering the statute and its decisions can be re- viewed and reversed only by courts of appeals or the Su- preme Court under Section 10(e) and (f) of the Act. Thus, in this proceeding, I am bound by Board prece- dents even if they conflict with a judicial decision in an ancillary proceeding. In his brief to the Second Circuit, in support of his un- successful attempt to obtain an injunction pending the appeal, the Regional Director said that much of his evi- dence had been contradicted by Respondent's "and the ultimate merits of the case may not be entirely free from doubt." Respondent would apparently read that state- ment as somehow a "concession," calling for dismissal of the complaint, But conflict and doubt are in the heart of litigation. This decision sets forth the resolutions, which I have been charged with making. Respondent also argues that the Union's failure to file objections to the conduct of the election, which it lost, amounts to an "admission" of the absence of merit to the present complaint, which alleges preelection misconduct. So far as it appears, the Union made no attempt to with- draw its charges or to have the complaints dismissed. There is an obvious reason why the Union might reason- ably follow the course it did.44 It has long been recog- nized that egregious and pervasive unfair labor practices can, and frequently do, so Undermine a union's support and contaminate the atmosphere as to make it impossible to hold a fair election within the immediate or presently forseeable future. NLRB v. Gissel Packing Co., 395 U.S. 44 Union counsel briefly addressed this matter before Judge McCurn However, the transcript does not clearly show counsel's position. a. Section 8(a)(1) (1) Conduct of President Manfred Brecker On April 2, 1980, Respondent's president, Manfred Brecker, paid an unusual visit to the Herkimer store.46 On April 2 and 3 and thereafter he conducted meetings of small groups of employees, attended also by the em- ployees' supervisors. He then held meetings of all store employees and supervisory personnel on April 18 and June 5. It is alleged that in the course of these meetings Brecker committed numerous unfair labor practices. 46 All the events involved antedated the Third Circuit's decision in United Dairy Farmers v. NLRB, 633 F 2d 1054 (1980), 46 There is no evidence of any prior visit, and in a letter to the em- ployees, dated April 15, the Union said: "Recently, the president of S. E. Nichols Co., paid a visit to Herkimer for the first time in many years. Stop and think about it, all these years before he [never] bothered to leave New York City to come Upstate and show his 'concern." 584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (a) Credibility At the outset, it should be noted that Brecker did not testify before Judge McCurn. Further, no tapes or steno- graphic transcripts of these or other employee meetings were offered in evidence, although tapes and/or tran- scripts were made. 47 Korcz and Hathorn did not testify at any length or in any depth about Brecker's meetings. The General Counsel's witnesses were Klimacek, Goldsmith, and Pumilio, alleged as discriminatees in Case 3-CA-9714. In addition to supervisory personnel, four employees were presented by Respondent. Specific deficiencies in their testimony will be noted below. How- ever, some general observations are appropriate at this point. Before Judge McCurn, Respondent's counsel argued that one employee, Joseph H. Nicolette, "who has no ax to grind. . . took courage to come in and testify against someone he works for." Nicolette was called by and tes- tified in favor of Respondent. Additionally, he had re- ceived a wage increase in May. Similarly, employees Rose Stagliano and Judith Guise also had received raises in May. Stagliano also circulated an antiunion petition and passed out "No" buttons to employees while work- ing in the store. Edward Lintz had recently transferred to the Herkimer store from the Marcy store, where he had been vocally and conspicuously antiunion. These four employees testified in favor of Respondent. On the other hand, Klimacek, Goldsmith, and Pumilio obviously desired to keep their jobs, yet testified against Respond- ent. Thus, it is the General Counsel's employee witnesses who are entitled to the benefit of the principle invoked by Respondent's counsel. Rodeway Inn of Las Vegas, 252 NLRB 344 (1980). (b) The alleged violations The complaint alleges that Brecker threatened a loss of benefits if the Union were voted in and said that "Re- spondent would not negotiate with the Union." Klima- cek testified that on April 2 Brecker "said that if the Union got in he would negotiate with them but we might end up with less than what we have already." Al- though Assistant Manager Bifora had attended the meet- ing, he did not testify. Klimacek also testified that at a storewide meeting Brecker "said he didn't have to nego- tiate with the Union but he would; but we would prob- ably end up, we could end up, with less than we had now." Goldsmith testified that Brecker said: [W]hen the Union comes in you will lose your ben- efits . . . we will have to start all over negotiating; you don't know what you are going to earn . . . right here I have your benefits and you know what you have, so we should keep them. In my opinion, Brecker's statements, as quoted, do not amount to anticipatory refusals to bargain as alleged. However, they carry on the "bargaining from scratch" 47 The evidence establishes that Respondent regularly records such campaign meetings. Respondent introduced into evidence a tape of a meeting conducted by Brecker m the Marcy store S. E. Nichols Marcy Corp., 229 NLRB 75, 80 fn. 10 (1977) motif of Korcz' statements previously found to be viola- tive of Section 8(a)(1). In the context of Respondent's unrelenting assault on unionization, the statements would naturally engender a fear in the employees that they would lose existing benefits if they chose union represen- tation. Klimacek testified that on April 2 Brecker also said that "Dottie Reinhardt was fired for being the head of the walkout and that it was her fault that Kris Burkle and Denise Styles got fired." When Klimacek interjected that Reinhardt had not sponsored the proposal for a walkout on September 1, 1979, but rather had "told ev- erybody to stay in the store and to get some kind of rep- resentation," Brecker, obviously angry and agitated, re- plied that Klimacek "didn't now what [she] as talking about and that he knew more about what was going on in that store than [Klimacek] did." This undenied testi- mony by Klimacek establishes that Brecker violated the Act by informing employees that other employees had been discharged for protected concerted activities.48 Pumilio and Goldsmith testified that in April meetings Brecker said the Board was a "kangaroo court," the ad- ministrative law judge was a "kangaroo," and Board em- ployees and agents were "idiots and jerks." Guise testi- fied that she did not recall any such statement and Stag- liano did not recall Brecker's ever having said anything derogatory about the Board. In the June 5 all-employee meetings, Brecker adopted "humor" as his major weapon." The principal buts of Brecker's ridicule were the Board and its agents, along with the present com- plaint and the employees named therein as discrimina- tees. Brecker read the complaint paragraph by para- graph, commenting on each. According to Klimacek, Brecker indicated disagreement with the allegations, which he indicated were worthy only of ridicule and dis- dain. Theatrically, he mocked the notion that he and the management representatives named in the complaint could be considered "criminal." In mock histrionics, he had each named company agent rise to deny the com- plaint allegations against him. The charade produced considerable laughter. As Klimacek stated, Brecker "read [the complaint and] went through [it] calling everybody a criminal and had everybody laughing and making a big joke out of it." He also called on the three alleged discri- minatees to comment on the allegations concerning them. Against the backdrop of manipulated hilarity, the discri- minatees could scarcely receive any sympathetic reaction but, on the contrary, could only be embarrassed. Goldsmith testified that at the June 5 meeting Brecker denied ever having referred to the Board as a "kangaroo court" or to Board agents as "idiots and jerks." Accord- ing to Pumilio and Goldsmith, Brecker said he could not remember his own past statements. He indicated that the 49 Brecker's statement also appears to have created the impression of employer surveillance of employees' protected activities However, be- cause no such specific allegation is made in the complaint, no corre- sponding finding of violation is here made. 49 This is apparently Brecker's established tactic See S. E. Nichols Marcy Corp., supra, 229 NLRB at 80. "Brecker further stated that his meeting's] with employees were 'pretty happy ones,' jokes were told, dif- ferent employees also spoke, and he said he was under the impression that everyone enjoyed his meetings" S. E. NICHOLS, INC. 585 employees must have equally faulty memories and, thus, if they claimed they "knew word for word what he said, [they] had to be lying." Stagliano also testified that Brecker denied the "kangaroo court" and "idiots and jerks" allegation. 50 The hearsay testimony concerning Brecker's self-serving denials on June 5 are entitled to no weight. He did not testify and subject himself to cross- examination. Additionally, Respondent did not present any tapes or stenographic transcripts of the April meet- ings. The "kangaroo court" allegation is circumstantially corroborated by documentary evidence. In a letter to employees dated April 15, the Union referred to Brecker's first meetings and said: [Brecker] proceeded to make wild attacks on unions in general, Local One in particular, and even the National Labor Relations Board.. . . The NLRB is far from being a kangaroo court. The Union's reference to a "kangaroo court" would appear strange except as a response to a prior statement by Brecker. Many of Brecker's criticisms of the Board were not made under the guise of humor. There was considerable testimony that, in one form or another, Brecker im- pressed on the employees that Board proceedings would be entirely futile in protecting employees' statutory rights because the Board had no concern for the employ- ees and Respondent was adept at frustrating the Board's remedial process. For example, Pumilio testified that at a meeting with about eight employees on April 2 or 3 Brecker said there would be no way in hell that [Reinhardt, Vincent, Styles, and Burkle] would ever come back and work in his store; they would have to go to the Supreme Court before he would let them in. Employee Klimacek also quoted Brecker as saying that "hell would have to freeze over before they would get hired again." Similarly, Goldsmith testified that Bre,cker said that he would not reinstate people that partici- pated in Union activities . . . and he also said some of these cases will go to court for eight to ten years; they will take a long time; he will keep appealing them until they get to the highest [Supreme] court and he said he would never give any back pay and he hoped they didn't ever expect it especially for eight years back. Goldsmith testified that when she stated her understand- ing that some employees had been reinstated at the Marcy store, Brecker said "Well, wait a minute, let me think" and he goes .on, "Yes, I do recall two people being reinstated," he goes, "but I just did that to settle, it." He goes, "A few people I have given back pay just to get rid of them," and then he said "When they do come 52 She placed Brecker's demal at a small employee meeting early in March But the first trial did not start until March 17 and Brecker did not meet with any employees until April 2. The complaint was issued on June 8. back they don't last because people don't get along with them and I consider them troublemakers and then they leave."51 Pumilio testified that in a meeting with a small group of employees on April 2 or 3 [Brecker] said that the Federal Labor Board didn't care about us, they weren't really worried about it, and he mentioned something about—I didn't really understand what he meant by it, but he said the people who worked on the side of the Federal Labor Board if a Union came in, they would have no need for us and we would probably be fired. Goldsmith cast a little more light on the subject. She tes- tified that Brecker said "the Labor Board is working for the unions" and, if the Union got in, it would control employment, jeopardizing the jobs of present employ- ees. 52 The purport of the statements was clear: Brecker was effectively saying Respondent eventually could, and probably would, fire union supporters with impunity be- cause the Board would have no interest in protecting them after they had testified in support of the pending complaints. There was credited testimony that Brecker bragged that, although it might lose some cases before the Board, it won its "big" cases in the courts. As set forth below, Korcz repeated this message. However, the facts do not support the boast. Respondent's batting average before the Board and the courts is low by any objective stand- ard. The foregoing evidence establishes that Brecker pro- claimed that the Board was furthering unions, but was both unable and unwilling to protect employees' statuto- ry rights. He boasted of his past success in resisting the remedial processes of the Act and exuded consummate optimism of his continued success in the future. He left no doubt that the Board was no match for Respondent and thus employee resort to the Board would be futile. And the fate of the employees who had initiated the union campaign advanced futility to extreme danger. The message, in short, was that the employees were at the mercy of Respondent, on whom they were economically dependent, and could expect no protection from the Board. The right to criticize and satirize the Government and its agents is a basic privilege of citizens in a democracy. Whatever one may think of the taste of crass ridicule of a tribunal by a party to a pending case, it does not of itself constitute an unfair labor practice. The Board has survived intact at least its fair share of criticism, includ- ing parody and ridicule. 5i Contrast Respondent's protestations, in the employee handbook and in employee meetings, that Respondent will protect employees from being "harassed" by sohcitation of umon cards and "threats" by union supporters 52 Her testimony was: "[Brecker] said the unions are working—the Labor Board is working for the inuons and he said that the Labor Board is not, you know, you would get hired out through the unions, that is how they are making their money" 586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD It has clearly held that criticism of the Board is not in itself violative of the Act. McGraw-Edison Co., 195 NLRB 462 (1972). But the precious right of free speech does not extend to protect an employer's intimidating his employees not to use statutorily provided protection from depredations by their employer. Statements by an employer not unlawful in themselves may be violative of the Act "in a context of unfair labor practices." Id. at 463 fn. 1 (referring to Brearley Co., 163 NLRB 637, 638 fn. 1 (1967)). Respondent's offense lay not in its criticism of the Board, but in its message that resort to the Board would be futile. Scott's, Inc., 159 NLRB 1795, 1796-1797 (1966), enfd. as modified sub nom. Electrical Workers IUE v. NLRB, 383 F.2d 230 (D.C. Cir. 1967). 53 Particu- larly where, as here, the employees had already seen the severe punishment Respondent meted out to employees who exercised their statutory rights, it is difficult to imagine more coercive and threatening conduct than propounding the futility of resort to the Board, which was asserted to be no match for Respondent. The use of humor does not render noncoercive, and thus lawful, conduct that has a necessary, natural tendency to dis- suade employees from using their statutory tools to pro- tect their rights. As Respondent has previously been told, the test of employer conduct is "whether the con- duct is reasonably calculated or tends to interfere with the free exercise of the rights guaranteed by the Act." S. E. Nichols Marcy Corp., supra, 229 NLRB at 80. The present record clearly establishes that, through coercion and misrepresentation, Brecker interfered with Respondent's employees' availing themselves of the pro- tections of the Act." In the course of committing this violation, Brecker also managed to violate the Act by, inter alia, stating that other employees had been dis- charged for union and protected activities, threatening a loss of benefits in the event of unionization, threatening loss of job security in the event of unionization, and threatening refusal to reinstate or retain discriminatorily discharged employees. (2) Conduct of Division Supervisor Henry Korcz Korcz' campaign activities before the trial in Case 3- CA-9304 have been discussed above. The evidence es- tablishes that he followed much the same pattern during the rest of the preelection period. The complaint alleges that Korcz participated in a campaign of "[d]isparaging the Board's processes by in- forming [Respondent's] employees that the Labor Board wins the small cases but Respondent always wins in the end." IClimacek credibly testified that Brecker had made statements to that effect at a small meeting on April 2 and at a meeting of all employees and supervisory per- sonnel on June 5. Korcz testified to having repeated Brecker's views at a meeting on April 18.55 53 Cases cited by Respondent sustaining employees' right to criticize unions obviously have no bearmg on the Issue here involved. 54 At least to some extent, Brecker's efforts were successful. At the June 5 meeting Goldsmith was placed on the defensive, protesting that she had not intended that information she provided to a Board agent would be used as the basis of charges against Respondent. 55 He testified that before holding employee meetings, he discussed them with Brecker. He proceeded to state that in such a discussion Again, Respondent was attempting to convince the employees that the Board was powerless to protect them from Respondent's misconduct. The facts are that in liti- gated cases courts have ordered enforcement of Board orders against Respondent and Respondent has been held in contempt of judicial enforcement orders. Respondent's dubious success has not been achieved in the courts but in its contumacious flouting of the courts and the Board. The Union's letter of April 15 to the employees said that at Herkimer Respondent was using the same tactics as it had at Marcy. In an employee meeting on April 26 Korcz said that the Union was right in that statement. According to Korcz, Respondent's tactics at Marcy had been to disseminate the truth. As hitherto noted, howev- er, the Board disagreed and found that Respondent's Marcy campaign included massive unfair labor practices. The complaint further alleges that Korcz "[d]iscour- aged its employees from attending a Union meeting." Goldsmith testified that on March 31, at a meeting with about six employees, Korcz referred to an announcement of a union meeting and said "he wanted to let everyone know they did not have to attend even though it sound- ed like they were forcing you to attend, it's up to you." The union announcement does not expressly or impliedly indicate that attendance at the meeting was compulsory. Titus, Korcz went out of his way to suggest that em- ployees not attend. However, he did leave it up to the employees. They were able to read the meeting an- nouncement and appraise Korcz' comment. I find that, under the circumstances, Korcz' conduct did not violate the Act. (3) Store Manager Robert Hathorn The complaint alleges that Hathorn improperly ques- tioned employees as to the testimony they were going to give at the first trial. Klimacek and Pumilio both in- formed Hathorn when they were subpoenaed by the General Counsel to appear at the hearing in March. Kli- macek testified that Hathorn "asked [her] if [she] knew what it was all about and [she] told him not really and he said it was to do with the Union." Thereafter, Hath- orn asked her if she had received any telephone calls about the subpoena and she replied in the negative. Pu- milio testified that, when he first told Hathorn about the subpoena, Hathorn merely said that it was nothing to worry about and Pumilio should "just tell the truth and everything will be all right." Later that day, however, Hathorn joined Pumilio, who was talking with another employee. According to Pumilio, Hathorn "was wonder- ing why the Federal Labor Board wanted [Pumilio] to testify." Pumilio said he did not know and then ignored Hathorn's repetition of the inquiry. Hathorn in essence corroborated Klimacek's testimony and Pumilio's testi- mony concerning his first conversation, but denied having had the second conversation reported by Pumilio. I credit Pumilio. before the April 18 employee meeting "and during the time of that con- versation, Mr. Brecker said that he had won a big case, or he had won, and he said in Board hearings we lose, but m the courts we wm. And this is what I told the employees, that we won a case in the courts, but we lose them before the Board." S. E. NICHOLS, INC. 587 Hathorn did not directly ask either Pumilio or Klima- cek what they would testify to at the hearing. But Hath- orn knew that the subpoenaes had been issued on behalf of the General Counsel and therefore presumably the employees' testimony would support the complaint. Thus, by wondering out loud why they had been sub- poenaed, Hathorn clearly was inviting the two employ- ees to reveal what information, if any, they had given to the Board and what testimony Respondent would have to meet at the trial. Particularly when viewed in the context of Respond- ent's aggressive campaign, which included attempts to frustrate Board processes, Hathorn's implied probing of Klirnacek's and Pumilio's prospective testimony consti- tuted coercive interrogation violative of Section 8(a)(1) of the Act. (4) Edward Lintz The complaint alleges that Edward Lintz, an agent of Respondent, threatened employees with possible closure of the Herkimer store if the employees chose to be repre- sented by the Union. The evidence leaves no doubt that, at an employee meeting held by Brecker on April 18, Lintz spoke for about 15 minutes. He said that, if the Union got in, wages would probably rise, but the store would be unable to absorb such increases for all employ- ees, with the result that some would be laid off and the rest would have to work twice as hard as they had in the past. Additionally, Lintz said that grocery stores had been going out of business and retail stores could not continue operations with a union. According to Gold- smith, Lintz "said other stores have closed down from unions being there but it doesn't mean the Herkimer store will close down." There was no contradiction of testimony by Klimacek, Pumilio, and Goldsmith that throughout Lintz' speech Korcz smilingly nodded his ap- proval and agreement. Goldsmith testified that Brecker said he agreed with Lintz' statement. Brecker also said that if Lintz was considered Respondent's agent, Gold- smith, Puna°, and Klimacek, the alleged discriminatees, would be deemed agents of the Union. In reviewing the present complaint at the June 5 meet- ing, Brecker called on Lintz to comment on the allega- tion concerning him. Lintz seized the opportunity to repeat his previous message. According to Goldsmith, Lintz said that he had previously "said a lot of stores had closed down but he didn't say the Herkimer store would close down." Klimacek said that Lintz then said that the Union had been defeated at Marcy and repeated that under a union "there would be less manpower for more money and that [the employees] would be working harder and that the store could possibly close," Accord- ing to Klimacek, Brecker said that Lintz was merely an employee "and that anything Edward Lintz said was not any kind of reflection on the company." But there is no evidence that Brecker or Korcz ever disavowed the sub- stance of Lintz' statements. Respondent's only defense to the allegation concerning Lintz is that he was not an "agent" of Respondent and thus Respondent cannot be held responsible for his state- ments. Lintz had been working at the Herkimer store only about a week before the meeting at which he spoke. He had previously worked at the Marcy store, where he ardently worked against the Union. His unexplained transfer during the active preelection campaign strongly suggests that it was motivated by his known antiunion sentiments. Although the complaint specifically alleged that Lintz was an "agent" of Respondent, Respondent did not present him as a witness. Respondent argues that an adverse inference should be drawn from the General Counsel's failure to subpoena Lintz. But the General Counsel was not required to present the targets of the complaint. I fmd that Respondent's unexplained failure to call Lintz and Brecker warrants an inference that they could not corroborate Korcz' denial that he knew Lintz would speak at the meeting. By permitting Lintz to speak at length on April 18 and then inviting a repetition on June 5, and signifying ap- proval and agreement, Brecker in effect adopted Lintz' views. Thus, Respondent is responsible for Lintz' state- ments, which contained threats of store closure, loss of employment, and increased work burden, in violation of Section 8(a)(1) of the Act. Telex Corp., 171 NLRB 1155, 1156 (1968). See also Litho Press of San Antonio, 211 NLRB 1014, 1015-1016 (1974), enfd. 512 F.2d 73 (5th Cir. 1975); Dal-Tex Optical Co., 152 NLRB 1317 (1965), enfd. 378 F.2d 443 (5th Cir. 1967). (5) Shrinkage bonus An amendment to the complaint alleges that on June 5, shortly before the election, Brecker announced that the Herkimer store would receive a $2000 "shrinkage bonus," to be distributed among the employees and su- pervisors. No such bonus had ever been granted before at the Herkimer store. According to Korcz, Respondent has a practice of granting bonuses to stores where the amount of loss from shoplifting, pilferage, etc., had been reduced during the preceding year. There is no written statement of any such policy or practice and, so far as it appears, the Her- kimer employees had never previously been informed thereof. Respondent provided no details, such as the method or formula for determining a store's entitlement to a bonus or the timing and amount thereof. The only evidence concerning bonuses granted to other stores was that those in Marcy and New Hartford had recently re- ceived their first. Herkimer is about 13 miles from Utica and, according to a system map placed in evidence by Respondent, the Marcy and New Hartford stores are in the Utica metropolitan area. Korcz, who had previously served as manager of each of these stores, has been found to have committed numerous unfair labor practices at Marcy. By itself, the fact that such bonuses had re- cently been awarded for the first time at Marcy and New Hartford has no tendency to prove any established company policy. An amendment to the complaint made on September 3, 1980, alleges that on that date Respondent unlawfully granted the promised shrinkage bonus. At the hearing on September 15, the General Counsel withdrew that allega- tion. Repondent argues that the withdrawal "constitutes an admission by the Board that it does not have evidence to show that granting the bonuses was an unfair labor 588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD practice" and thus it "follows as a matter of logic that promising the shrinkage bonus was not done to discour- age Union activity." As noted above, on September 15 all counsel desired to submit the case on the district court record. Because the bonus was allegedly granted on September 3, obviously it could not have been litigat- ed in the district court trial in July Under the circum- stances, no adverse inference can be drawn from the General Counsel's withdrawing the allegation that the bonus was granted. The promise of a new benefit made before the election was clearly violative of the Act. Whether the subsequent grant of the bonus (which is impliedly confirmed in Re- spondent's brief) also violated the Act is not before me. b. Section 8(a)(3) and (4) (1) June E. Klimacek Klimacek works in the automotives department. She and Hathorn testified that before the trial he passed through the automotives department just a few times a day. Klimacek testified that, beginning on March 19, the day after she testified, Hathorn visited the department more frequently and for longer periods, standing around, "just keeping an eye on" Klimacek. Toward the end of March, Klimacek was instructed to load 39 cases of snowmobile oil in a tractor-trailer onto a pallet for transfer to a Nichols truck. When she asked for some assistance, Hathorn spoke to the truckdriver and then informed Klimacek that there was nobody to help her. She testified that before then she had always been given assistance in such loading or unloading operations. Hathorn testified that when Klimacek asked for help, he replied: "Why don't you get a stock boy to help you do it." Hathorn did not provide any details, such as the availability of a stockboy. I credit Klimacek's testimony that, contrary to past practice, she had to perform the job unassisted. On the same day, Klimacek was paged to the front of the store to pick up some refunds. As she was proceed- ing, Korcz stopped her and asked why she had left her department unattended and why she was wearing a Nichols garage jacket rather than a smock. She explained that she had been paged and the person operating the home center keeps an eye on the automotives department in such cases. Female employees are required to "wear the store smock56 whenever they're on the sales floor, in the office, or at the register." However, Klimacek testified that she has "always worn a garage jacket" and had not previously been rebuked therefor. As described, the jacket appears most suitable for loading tasks such as she did that day. Korcz testified that wearing of smocks "is important because by wearing the smocks, they identify themselves as Nichols personnel," which "helps to pre- vent shoplifting," and the smock "protects the clothing of the individual." the garage jacket also contains the 56 This appears in the "Dress Code" in the 1980 employee handbook. The "Dress Code" in the earlier version was considerably shorter and very general, saying that, when dealing with the public, employees "should choose the appropriate attire" and that "appearance and groom- ing" largely determine the first impression one makes on others. Nichols name, thus providing the desired identification. The employee handbook tells employees to wear their identification badges with their names "prominently dis- played" at all times. Selling, as such, presents little danger to an employee's clothing and the male sales per- sonnel wear no smocks or similar "protective" garments. The next day Klimacek bought some candy Easter eggs. When, in answer to Hathorn's inquiry, she said she was going to eat them in the department, he took them from her, threw them on. a counter, and said they would be in the front of the store when she wanted them. She replied that other employees ate while on duty, but re- fused to "squeal on" any. The employee handbook con- tains no rule about eating. The absence is noteworthy be- cause the "General Rules to Remember" (formerly called "General Tips") do tell employees to "[a]void chewing gum during working hours." Employee Beverly Stagliano, called by Respondent, testified that Hathorn had told the employees that they were not to eat or smoke on the selling floor. Employee Rose Ceneviva did not testify to any such general admonition, but opined that "the employees should know that they shouldn't be eating in front of customers." The evidence establishes that, if there is any "rule" against employees' eating while at work, it is more honored in the breach than in the observance. For example, on cross-examination, Cen- eviva testified that she had seen employees eat or drink in their departments at least once a week; and that, de- spite supervisory knowledge of such activities, the only "enforcement" of the rule that she knew of occurred about 5 months previously, when an assistant manager told her not to take a drink onto the selling floor. Guise testified that she was reprimanded "everytime [she] was caught," but nonetheless she continued to eat and/or chew gum in the store. Korcz testified that he had "en- forced" the no-eating rule "many times," but the only time he could recall involved the Styles incident dis- cussed above (sec. II,A,2,d).57 On April 7, Klimacek was called to the office. Con- trary to past practice, the office door was left open during her meeting with Hathorn. Hathorn first dis- cussed the possibility that Klimacek had received too large a refund when she returned a purchased item. That matter was adjusted and Respondent levels no criticism of Klimacek because of this. Hathorn next said that em- ployees Judith Guise, Ceneviva, and Marion Dygert "hated" and "were against" Klimacek. He later eliminat- ed Dygert, but said that Guise and Ceneviva had made written statements. He then presented Klimacek with a written "final warning" slip, which said: "Employee had been harrasing [sic] other employees and embarrasing [sic] them in front of customers. Has to cooperate with other employees and not complain in front of custom- ers." Klimacek refused to sign the warning slip. Pursuant to her request, the next day Hathorn gave her copies of typewritten statements by Guise and Cene- viva dated March 28, 1980. Guise's statement recites that, while she was relieving Ceneviva at the register in 57 Ceneviva thinks the antieating rule is "well enforced," but "the em- ployees just don't listen to it" S. E. NICHOLS, INC. 589 the home center, a customer asked for help in the auto- motives department. Guise went to the department, re- moved a stereo from behind the counter, and took it to her register, where she rang up the sale, thereupon making out a commission slip. When Guise told Klima- cek about the incident, Klimacek became irate, rudely asking why Guise had not followed the customary prac- tice of calling Klimacek. Guise's statement adds: "Any time we call June she get[s] mad." Apparently the mutual anger on this occasion concerned entitlement to the commission on the stereo sale. Hathorn, who had seen Guise serving the customer in Klimacek's absence, asked Guise if she would provide a written statement concerning the incident. Guise agreed because, as she testified, she "was mad enough at the time to do any- thing." Ceneviva's statement recited that on her lunch- eon breaks her register is usually watched by Guise. However, Guise was out sick from March 22 through 26. According to Ceneviva, when asked to watch the register in that period, Klimacek became upset and "gave [Ceneviva] a hard time." Using a common obscene epi- thet, Klimacek asked why there were not more employ- ees so that she would not have to neglect her own duties to watch the register. Ceneviva then adds a note of re- sentment at having to mark merchandise for Klimacek, saying: "Maybe if [Klimacek] would ask me instead of telling me I wouldn't mind it so much." Although her written statement does not so report, Ceneviva testified that in the course of the March incident she twice spoke to Hathom and Klimacek did not undertake to relieve Ceneviva until spoken to by Hathorn. Neither Hathom nor Klimacek testified to that effect. Hathorn conceded that he had solicited the two em- ployee statements and he had never previously requested or received any such statements. In explanation, he testi- fied: [T]be reason being because I understood that June [Klimacek] had testified before the Court, the Na- tional Labor Board hearing, I felt it was necessary for her to have another warning for her on the co- operation that she was giving the employees in the store, that she wasn't being cooperative at all, and turned one of the written statements forward to our attorneys to see if it warranted a warning or not kir my own protection if I was to warn her.58 It is significant that Hathorn sought legal advice without making any investigation. It is difficult to understand how he could hope to act fairly without at least hearing Klimacek's side. It is also unclear how counsel could "advise" on a managerial decision without more informa- tion. The testimony of Guise and of Ceneviva clearly shows that they were bent on supporting Respondent's position. Ceneviva, especially, attempted to avoid answering ques- tions that might have adduced evidence adverse to Re- spondent." Her desire led to frequent inconsistencies 58 At another pomt Hathorn testified that he sent both employees' statements to counsel. Respondent's counsel said that his office had "receive[d] typed statements for review." 59 One example will suffice to refleci her testimonial attitude - within her testimony. It is perhaps no coincidence that Guise and Ceneviva both received 15-cent-per-hour wage increases in May." The record establishes that on December 8, 1979, Kli- macek had received a written warning for being uncoop- erative in helping at the home center register. In answer to that warning, IClimacek maintained, inter alia, that Ceneviva and Jennifer Talbot turned over the register to Klimacek without sufficient money for operation and overstayed the breaks for which Klimacek relieved them. Klimacek testified that she had spoken to Assistant Man- ager Worden, her immediate superior, who thereupon timed the employees and reported that Klimacek was indeed right—Ceneviva and her colleague did overstay their alloted breaks. Klimacek testified that she had not requested recall of that warning notice because Worden had assured her that, although it would be in her file, "it wasn't going to be sent to New York or anything." In October or November 1979, after a complaint by Talbot, Hathom had spoken to Klimacek about operating one of the home center's two registers. Klimacek testified that she had discussed the matter with Worden, who told her to "keep a notebook and to tell him who was taking how much time and when this happened." The notebook she then kept was the basis for her defensive statement to the December written warning, Because Worden did not tes- tify, Klimacek's testimony concerning him is undenied and is credited. So far as it appears, Hathorn did not consult Worden before issuing the April "final warning," which could lead to discharge on the next claim of misconduct by Klimacek. Thus, Hathom subjected Klimacek to severe discipline on the one-sided complaints of other employ- ees, solicited by him, without any investigation. Because Hathorn himself testified that his procedure was dictated by the fact that Klimacek had testified in the first hear- ing, the inference is inescapable that he was building a record for Klimacek's discharge for any claimed misstep in the future. As noted above, on June 5 Brecker conducted an em- ployee meeting in which he reviewed the complaint item by item. In carrying forward his parody of the com- plaint, he questioned Klimacek about the allegations con- cerning her. The evidence leaves no doubt that his manner of questioning subjected her to ridicule and em- barrassment. She refused to answer the questions or make any comments." Q. . . . Isn't it a fact that Mr. Hathorn asked you to write up a statement against her, isn't that correct? A. He didn't ask you [sic] He said it was up to me if I wanted to do it it was my own free will. He didn't tell me I had to write it Up or anything like that. Q. Did he approach you or did you approach him? A. I don't remember. Q. Isn't it a fact that he approached you? A All right, he approached me. 60 Hathorn testified that Staghano and Joseph Nicolette, the two other employees who testified on behalf of Respondent, had also received raises of 15 cents per hour in May. 61 To avoid the necessity of answering, she said that counsel for the General Counsel had instructed her not to comment on the complaint, but, in testifying, she acknowledged that she had not received any such Continued 590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The foregoing summary of the evidence concerning Respondent's conduct vis-a-vis Klimacke shows a con- sistent pattern of badgering from the time she revealed that she had been subpoenaed by the General Counsel to testify at the first trial. Accordingly, I find that, as al- leged in the complaint, Respondent discriminated against Klimacek in violation of Section 8(a)(3) and (4) of the Act. 6 2 (2) Margaret Goldsmith Goldsmith had worked at the store since around the beginning of 1978 and in the toy department since August 1979. In January 1980 she was also given duties in the furniture department and swimming pools were added to her responsibilities in March. Her predecessor in the toy department had not had such other duties. Before March 24, 1980, when she testified in the first trial, she had never been adversely criticized, disciplined, or reprimanded. She testified, without contradiction and credibly, that Hathorn and Worden, her immediate su- pervisor, had praised her work. Goldsmith testified that before the March hearing Hathorn paid two or three brief visits per day, during which he merely complimented her and never gave her any instructions. However, beginning on Monday, March 24, Hathorn spent considerably more time in the toy de- partment, criticizing and directing her work. She testified that Hathorn prepared a written list prescribing the order in which she was to perform her duties. Goldsmith testified that at that time she "was behind in work" be- cause of the hearing the previous week, death of her grandfather, and her having been out of work for illness. Hathorn corroborated that before March he had visited the toy department "about the same as automotives, home improvements, two, three, maybe four times a day," but increased the visits to "five or six times" a day after the hearing. He denied that he had prepared a list of duties for Goldsmith, but maintained that the toy de- partment remained a "mess." At Goldsmith's request to Korcz, Hathorn provided her temporary assistance and the department got straightened out. According to Hath- orri, the department remained in good condition "about a couple of weeks," but then "started looking bad again, merchandise was scattered all over the place" through April and May. However, Hathorn also indicated that in- ventory in the toy department is normally low in Janu- ary and February, following the Christmas season, and comes in in large quantities in the spring, beginning in March. Hathorn also failed to mention Goldsmith's having been out sick and on vacation. Linda M. Abramczyk, departmental supervisor for eight stores, with her office in New York City, testified that the department had been a "mess" in March and April. She was vague about dates, saying: "1 can't give you specific days. I go in there about every two or three instruction. Contrary to Respondent's contention, I do not find that her fib at the employee meetmg casts any doubt on her testimonial credibil- ity. 62 Although prime motivation appears to have been retaliation for Klt- macek's testifying at the first hearing, in violation of Sec. 8(a)(4), the sup- port of the Union she revealed in testifying also played a part The af- firmative remedy would be the same under either Sec. 8(a)(3) or (4). times, four times, a month. . . . I would have to look it up on my calendar." 63 She then testified that, during a "full week" she spent there in April, she and Warden straightened out the department. She then conceded that Goldsmith could have done nothing "that particular week" because she was on vacation. In any event, it ap- pears that Abramczyk said nothing to Goldsmith until June, despite her indication that the department's appear- ance was satisfactory only when she and Worden straightened it up. And then she testified that she had had to work with Goldsmith straightening out the de- partment 3 or 4 hours on each of 20 to 30 visits she had made since January, belying Hathorn's contention that a deterioration in Goldsmith's department required his in- creased observation after the hearing. Hathorn conceded that he had taken notes concerning his observations. Goldsmith testified that he had never previously done so. Stagliano testified, with no details, that she had "occasionally" seen Hathorn take notes pre- viously. But, because Stagliano works in the pharmacy, and indicated that she does not have much occasion to observe employees on the general selling floor, her cur- sory testimony could not overcome Goldsmith's specific testimony. In any event, for reasons shown elsewhere, I find Stagliano to be a most unreliable witness, whose tes- timony is unworthy of credit. Before her vacation in April Goldsmith placed under a counter some merchandise that she intended to purchase. During her vacation, Hathorn saw the merchandise and had it removed and placed back on the shelves. Despite considerable testimony to the effect that it was custom- ary for employees so to reserve merchandise for their own purchase, and that supervisory personnel were fully aware of this practice, Respondent maintains that Hath- orn's action with respect to Goldsmith's merchandise was proper because of claimed rule that all merchandise to be purchased by employees was to be taken to the layaway desk and held there until payment. There is no such rule in the employee handbook or in any other written form. There is considerable evidence that Re- spondent's representatives knew that at least some em- ployees did not know of any such rule. To establish its existence, Respondent presented Ceneviva and Stagliano. But both of them on cross-examination acknowledged that no such general rule existed or was enforced,64 63 She also testified: "I have a specific set schedule that I am on" 64 Ceneviva's testimony in this connection is illustrative of her testimo- ny generally and of much of the testimony of other witnesses for Re- spondent: Direct examination Q. What should an employee do if they want to buy merchandise for themselves from the store? A. I usually put it m the office on the layaway section, hang it up or on the shelves. Q. And do you know that it is a rule that you shouldn't put it under your counter' A. Yes, Q. Have you ever seen that rule enforced? A. Yes—Well, I haven't, I mean I haven't seen anyone but I have heard that— It is not m the handbook but I mean Mr. Hathorn was said, Don't keep merchandise under your counters or stuff like that. Cross-examination. Continued S. E. NICHOLS, INC. 591 Stagliano said that Hathorn had asked employees not put merchandise under the counters "before Christmas be- cause he didn't want Christmas merchandise. . . under- neath counters until after the holidays." And "a couple of times" employees were told by a P.A. announcement to pay by Friday, payday, or "[alt least before the sale is over" for "any merchandise in their stockroom." The best Hathorn could testify was that he "was under the assumption at that time that all employees were aware of this" rule. During Brecker's employee meeting on April 2 Gold- smith asked why she had not been given a wage raise in view of her added responsibilities in furniture and pools. After the meeting, Brecker spoke with Goldsmith. Korcz and Hathom joined them. Brecker said they "were going to have to straighten. . . out" the matter of Goldsmith's pay. After Brecker and Korcz then spoke privately, Brecker returned to Goldsmith and said: "Well, with Union activity we cannot do anything aobut it right now." When she protested that she had been promised a raise in August, Brecker "said he couldn't do what the previous manager didn't do and. . . Mr. Genung must not have gotten along with" Goldsmith. 65 Brecker ad- vised Goldsmith to "ask the Union to give [her] a raise." She quoted Brecker as then saying: "If you want a raise, write about [your] hardships to me, I will give it to the Labor Board and the Labor Board will decide whether you can get a raise without my getting any charges." Not having testified, Brecker obviously did not deny any of Goldsmith's testimony. Nor did Korcz or Hath- orn deny it. Hathorn confirmed Brecker's expressed posi- tion, saying: "We have constantly put employees off in the store because of the union problems . . . and we didn't want it to be considered as a bribe at that time." Korcz testified to the same effect. When asked how he squared the "bribery" fear with the actual grant of in- creases to 10 other employees in the month or two before the election, Korcz replied that he "had no con- cern with the other employees. They were doing their job," but he "excluded [Goldsmith]. . . because she was not doing her job, and [Korcz] was afraid that [he] was going to get accused of bribery." The logic of this posi- tion is not apparent: Was he afraid that the Union would claim that giving a raise to an identified union supporter was a "bribe," while simultaneous raises to antiunion em- ployees would go unchallenged? In any event, the pend- ency of the Board proceedings was the only reason Brecker gave Goldsmith for withholding her raise; she was not told that her performance was unsatisfactory. Q.. . [D]o you m fact know that employees do in fact put mer- chandise under their counters? A. Yes.. . Q. Isn't it a fact what they do normally is if there is a sale, they are allowed or they do take merchandise on sale and put it under the counters for their purchase, is that correct? A. Yes Q. That is normal practice in your store, is that right? A. A lot of employees do it, yes. Q. And supervisors are aware of this? A. I guess so, yeah 65 Contrast Respondent's claim that Genung was discharged for his failure to grant wage increase. Hathorn testified that because employees were de- manding raises during the union campaign he and Korcz, with advice of counsel, "devised a system [by] which we would pass out raises in this respect to make it fair to ev- erybody and what we decided upon was anniversary dates. . . if an employee had been there a year without another raise then they would get a raise." There was no attempt to show that the 10 or so raises granted before the election conformed to the anniversary formula and the evidence does establish that one employee received a raise in considerably less than a year. During his satirical review of the second complaint on June 5, Brecker questioned Goldsmith about the accusa- tions involving her. She revealed that, pursuant to his previous advice, she had sought Board approval of a raise for her, but the Board could not help. Brecker's calling on and questioning Goldsmith could not fail to embarrass her before her peers. The next day Hathorn told Goldsmith that "he didn't want any more harassment charges brought up against him" and in the future he would bring four witnesses when he discussed her department with her. Goldsmith replied that she had become involved only because she thought Reinhardt's discharge was unfair and would not press any further charges. Thereupon, Hathorn said he would bring only one witness when he spoke to her about her department. After initially protesting, Gold- smith said she would not object to the presence of Worden. Hathorn rejected the suggestion, saying that, for his "protection," he needed a nonmanagement "wit- ness in case something happened." At that, Goldsmith said that if' Hathorn thought her work was not good, she wanted to be transferred. The matter was then tabled. Hathom testified that he wanted somebody to "verify" that he had "talked to her about. . the condition of the department . . . to protect [himself] against any unfair labor practice charges." He added: "If there were charges that would be brought up, I was going to bring four people back . . and they would go through the department with me to verify what the department looks like and that I have not harassed" Goldsmith. Because there is no evidence that Hathorn normally subjected employees to the presence of "witnesses" to discussions of work, it is clear that he was subjecting her to a dis- criminatory working condition because of her testimony at the earlier trial. The record leaves no doubt that immediately after the first trial Respondent embarked on a persistent course of discrimination against Goldsmith with regard to wages and working conditions in retaliation for her testimony and designed to prevent any further erhployee recourse to the Board. As such, it was clearbi violative of Section 8(a)(4) and (1) of the Act. (3) Fred Pumilio Pumilio, who has worked at the Herkimer store for over 6 years, testified that, before the first trial, Hathorn spent little time in the home center "because Mr. Bifora was our boss" and Hathorn was called in only if there were problems. However, after the hearing Hathom and Korcz both spent more time than before in the home 592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD center and the adjacent automotives department where Klimacek worked. Nicolette, a witness for Respondent, testified that the home center "doesn't require a lot of su- pervision from the store manager so on any given day, he might come back to the Home Center once during the day and browse around," but, beginning in mid- March, Korcz visited the Herkimer store more than he had previously and spent time "[w]alking around looking at things talking to people" while Pumilio was in the store. According to Pumilio and Klimacek, Hathorn took notes while observing this area, which he had never pre- viously been seen to do. Pumilio testified that on the evening of March 24 Goldsmith gave him some union books for distribution among the employees. He placed them in a manila enve- lope, which he then put in his filing cabinet. The enve- lope was a used one ready to be discarded. The next evening he placed the books on a table in the front cafe- teria. As he was leaving, he passed Supervisor Madison, who thereupon paged Hathoni. 66 Later that evening, Hathorn spent an hour or more in the home center watching Pumilio. The next morning, Pumilio was called to the front office, where, in the presence of about four office employees and Hathorn, Korcz displayed the en- velope full of union books and said that "[p]assing out union books and storing them in Company equipment" was "against store policy." Korcz rejected Pumilio's claim that he had not acted "on store time," stating that Hathorn had checked the lounge both at lunchtime and during Pumilio's break and the books had not been there then Korcz then handed Pumilio a previously written warning slip for "[d]istributing union handbooks on com- pany time and using company equipment to store such matters." Korcz accused Pumilio of "harassing the people in the store" and "walking around not doing [his] job." Korcz directed Pumilio henceforth to stay in the home center. According to Pumilio, during this meeting, Korcz spoke in a loud voice and, contrary to usual prac- tice, the office door was kept open so other employees could hear what was going on. Although Korcz testified that he could not recall "restrict[ing] Pumilio's movement in the store," I credit Purnilio's testimony that Korcz told him henceforth to remain in his department. And, despite Korcz' testimony that he spoke in his "normal tone of voice," I credit statement that Korcz spoke in a "high-pitched" tone, which could be heard by employees outside the office." Respondent maintains that the General Counsel waived any claim that the warning slip given to Pumilio was discriminatory because the Board's brief in the Second Circuit (on the appeal from Judge McCurn's denial of a 10(j) injunction) states, in Respondent's words, that the Regional Director "is not appealing the finding . . . that there was no reasonable cause to be- lieve that Nichols maintained rules barring solicitation and distribution of union literature in order to prohibit 66 Hathorn later conversed with employee James Grates Punitho testi- fied that Grates later reported that Hathorn had asked Grates if he was being harassed about the Union or bothered m any way by Punnlio. This hearsay testimony was received without objection 67 The encounter occurred before the store was open for business, so that, as Punuho indicated, no customers could have heard it. and/or discourage. . . union activities [or] the finding of no reasonable cause to believe that Korcz had wrongful- ly issued a warning to Pumilio in enforcement of this al- legedly discriminatory rule." Before me, the parties stip- ulated that the General Counsel did expressly exclude certain allegations of the complaint from the appeal in the injunction action. However, the stipulation is garbled in the transcript and it is impossible to say whether Re- spondent's statement of the exclusions is correct. In any event, there are many possible reasons other than an "ad- mission" for not appealing specific portions of an adverse decision. The issues and decisional standards in Section 10(j) and Section 10(a)-(f) proceedings are different. The General Counsel is fully within his legal rights in now attacking the warning given Pumilio. It is at least doubtful whether merely placing literature on a table in the cafeteria would constitute "distribu- tion." In any event, as previously held, the no-distribu- tion rule was invalid. And it was discriminatorily applied to Pumilio. His "distribution" could not have taken more than a few seconds from his work because it occurred near the office, where he had gone in the course of busi- ness. It is clear that employees are permitted to conduct personal business, such as making purchases, and engage in personal conversations during working time. Nor did Respondent establish the existence of any restriction on employees' keeping personal property in company-pro- vided file cabinets. 68 And the manila envelope had no further utility to Respondent. Respondent would justify Korcz' angrily reprimanding Pumilio within earshot of other employees by his "false- ly" denying having distributed union literature on com- pany time. But the written warning and oral reprimand were not for untruthfulness Manifestly, Korcz' anger stemmed not from any untruthfulness or abuse of work- ing time, but from the union orientation of Pumilio's con- duct. The message could not have been lost on any em- ployees who overheard. Respondent further argues that Korcz would have been justified in restricting Pumilio's movement because Pumilio himself revealed that, as known to management, he had engaged in fairly extended conversations with employees Grates and Dave Marconi during working time. The evidence shows that Hathorn joined the con- versations. Pumilio had never before been reprimanded. Neither Hathorn nor Bifora, Pumilio's supervisor, 69 testi- fied that he neglected his work in favor of chatting with fellow employees. On Friday, March 28, Respondent included in the em- ployees' pay a separate envelope indicating the amount the union dues would probably be. Pumilio objected and told Hathorn that he would file charges if he received another such envelope. Shortly thereafter, Korcz and Hathorn went to the home center, where Korcz loudly 68 The employee handbook does say: "Check purse and valuables at the office. No personal belongings (this includes cosmetic-bags) are to be taken onto the sales floor. All packages brought into the store should be OK'd and checked at the store office." Respondent does not rely on, or even mention, that rule, which, m any event, would undoubtedly be in- valid as applied to statutorily protected distribution. 69 Bifora did not testify in the district court. S. E. NICHOLS, INC. 593 said that "it was his business and he could do what he wants"; adding that Pumilio was to stay in his work area, away from other employees, and "to leave the rest of the employees alone and not to harass" them. Respondent would justify its conduct because Pumilio threatened to file a charge for employer conduct, which the Board has held to be permissible. Allison-Haney, Inc., 185 NLRB 852 (1970). But it is well established that an employee must have full and ready access to the Board even though his view of the law may be incorrect. Acme Paper Box Co., 201 NLRB 240, 246 (1973). It does not appear that Korcz told Pumilio (or even that Korcz knew) that the Board had held such action to be permissible. In- stead, he took the opportunity to express his anger within the hearing of other employees. Such conduct would naturally tend to discourage employees from exer- cising their statutory rights. And, as discussed above, Brecker subjected Pumilio, along with Klimacek and Goldsmith, to ridicule and em- barrassment at the general employee meeting on June 5. As in the cases of Goldsmith and Klimacek, the record shows that Pumilio was made the object of discriminato- ry action after he testified in the first complaint trial. There can be no doubt that Respondent's conduct was a response to Pumilio's testimony and would tend to dis- courage employees from engaging in union activities and/or resorting to the Board for protection of their stat- utory rights. CONCLUSIONS OF LAW 1. S. E. Nichols, Inc. is an employer engaged in com- merce or an industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Retail Store Employees Union Local No. 1 (includ- ing former Local 345), United Food and Commercial Workers International Union, AFL-CIO is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by: promulgating, maintaining, and enforcing improper rules restricting solicitation on behalf of a union and distribu- tion of union literature; discriminatorily restricting solici- tation and distribution on behalf of a union; telling em- ployees that other employees have been discharged or disciplined for solicitation or distribution on behalf of a union; soliciting employees to withdraw union authoriza- tion cards; threatening store closure, loss of benefits, loss of employment, and increased work duties if employees choose to be represented by a union; interrogating em- ployees concerning their anticipated testimony in a Board proceeding; advising employees that they need not cooperate with the Board in its investigations; offering employees the assistance of Repondents representatives and counsel in connection with Board investigations; so- liciting employees to report to Respondent concerning union and protected concerted activities of other em- ployees; soliciting employee grievances or complaints, with express or implied promises to remedy them; prom- ising bonuses or other benefits; informing employees that Respondent will learn the identity of employees signing union authorization cards; coercively advising employees not to sign union authorization cards; informing employ- ees that wage increases are being withheld because of a union organizing campaign; telling employees that an employee was discharged for engaging in protected con- certed activities. 4. Respondent has violated Section 8(a)(3) and (1) of the Act by discharging Dorothy C. Reinhardt, Douglas Vincent, Kristin Burkle, and Denise Styles, and failing and refusing to offer them reinstatement, because those employees engaged in union activities and to discourage membership in and support of the Union. 5. Respondent has violated Section 8(a)(3), (4), and (1) of the Act by giving employees Fred Pumilio and June E. Klimacek written warnings, by withholding a wage increase from employee Margaret Goldsmith, and by subjecting those three employees to increased supervision and unfavorable working conditions because they testi- fied on behalf of the General Counsel in a Board pro- ceeding and/or because they supported the Union to dis- courage employee resort to the Board and to discourage membership in and support of the Union. 6. The unfair labor practices found above have an effect upon commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend the customary cease- and-desist and notice-posting remedies. Because of the nature and extent of Respondent's unfair labor practices, as found in the present, as well as past, proceedings, I shall recommend issuance of a broad cease-and-desist Order. St. Francis Hospital, 252 NLRB 1247 fn. 3 (1980). Additionally, having found that Dorothy C. Rein- hardt, Douglas Vincent, Kristin Burkle, and Denise Styles were discriminatorily discharged, I shall recom- mend that Respondent be required to offer them immedi- ate and full reinstatement to their former jobs or, if any such jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges. Respondent maintains that Burkle and Styles should not be reinstated because they "planned a disruptive walkout for the Labor Day weekend" because of Hathorn's posted schedule changes. There is no ques- tion that these employees were engaged in protected concerted activity. See S. L. Industries, 252 NLRB 1058, 1061-1064 (1980), involving a brief walkout, without prior notice, to protest anticipated schedule changes and the discharge of a supervisor. The timing of the pro- posed walkout would not render it unprotected. M & M Bakeries, 121 NLRB 1596 (1958), enfd. 271 F.2d 602 (1st Cir. 1959). Respondent will also be required to make the dischargees whole for earnings lost by reason of their discharges. Additionally, having found that Margaret Goldsmith was discriminatorily denied a wage increase, I shall recommend that Respondent be required to grant her one and compensate her for the loss she has suffered by reason of the withholding of such increase since the date of the first increase granted to any Herkimer em- ployee in April or May 1980. The amount of such in- crease shall be not less than 15 cents per hour, the amount granted to some eight other employees in April Or May 1980. Because it appears that some employees re- 594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ceived larger raises and Goldsmith claimed she had been promised an increase around August 1979, when her duties had been increased, a larger amount than 15 cents per hour and/or a period beginning earlier than April or May 1980 may be established if the Regional Director decides to institute a supplemental backpay proceeding. Backpay shall be computed in accordance with the for- mula prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest computed in accordance with Flori- da Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). Additionally, Re- spondent will be ordered to remove from its records and destroy the written warnings given to Fred Pumilio and June E. Klimacek on March 26 and April 7, 1980, re- spectively, and to expunge from its records any reference to such warnings. Respondent will also be required to rescind its no-so- licitation and no-distribution rules, which appear in its employee handbook. As set forth above, the employee handbook also includes a lengthy section purporting to advise employees concerning their "rights" in connection with union organizing campaigns. Contending that that portion of the handbook "is fraught with illegal lan- guage," the General Counsel requests that Respondent be required to revise the handbook and, specifically, to "excise" the section entitled "Employee Rights & Unions—Your Employee Rights under a Union Organiza- tion Drive." Normally, I should be reluctant to recom- mend prohibition of any statements other than those spe- cifically found to violate the Act. On the other hand, re- quiring deletion or revision of specific paragraphs, sen- tences, phrases, or words might constitute "censorship" more restrictive of free speech than would requiring ex- cision of an entire section. In the present case, elimina- tion of specific offending statements would be virtually impossible because the tenor of the entire section, read as a whole, is coercive. For example, the section begins as follows: Dear Employees: Now that you know what is expected of you and what your privileges are as employees of the S. E. Nichols Company, we want you to be aware of one more benefit your company gives you. We will protect all of our employees from being exploited or taken advantage of by outsiders.. . . The most frequent seller and exploiter of our em- ployees will be various Union Organizers who will try to sell their organizations to our employees through various means, and will always try to sell the idea that they are fighting your battles for you against your "bad" employers. Respondent's aim to give employees the "benefit" of "protection" from unions, both at work and at home, is repeated: In conclusion, remember the following: 1.You are never alone—Your company will pro- tect you. 2. Do not be threatened by anyone. Your compa- ny will protect you. . . . . 7. No one can force his way into your home if you do not wish him to see someone. Tell him to go. If he does not, call the Police. Your company will protect you. Just as the law of libel takes into account innuendo to flesh out words used, in determining whether statements are coercive, it is necessary to consider them as a whole and in the context of surrounding circumstances. Re- spondent gives the handbook to all new employees, thereby gratuitously instilling a fear of unionization and Respondent's predictable reaction thereto. The unioniza- tion section thus of necessity tends to intimidate employ- ees to reject exploration of their statutory rights. On bal- ance, being fully aware of employers' free speech rights, I agree with the General Counsel's contention that the section of the employee handbook under discussion must be withdrawn. The General Counsel contends that Respondent's mis- conduct at the Herkimer store, particularly when ap- praised in the light of its extensive history of similar mis- conduct in other stores, requires extensive additional pro- visions. I agree that "the egregious facts of [this] case in- volving a recidivist employer" require extraordinary broad remedies. United Dairy Farmers v. NLRB, 633 F.2d 1054 (3d Cir. 1980). "Obviously, the discharge of a leading union advocate is a most effective method for undermining a union organizational effort." NLRB v. Longhorn Transfer Service, 346 F.2d 1003 (5th Cir. 1965); Pay' N Save Corp., 247 NLRB 1346 (1980). Here, all the union instigators were discharged immediately on the ini- tiation of the organizational campaign and Respondent has been found guilty of similar misconduct in the past. 7° Respondent has previously been found to have engaged in virtually every type of unfair labor practice found in this case. All conduct in opposition to unioniza- tion has been directed from Respondent's corporate headquarters in New York City, with Brecker and Korcz conspicuously involved. Respondent's obdurate flouting of the Act is most similar to that found in J. P. Stevens & Co., 244 NLRB 407 (1979). Respondent's strategy, like Stevens', has all been directed and largely executed by the corporate office. During the period of their misconduct both Brecker and Korcz have been rewarded by successive promotions, so that now Brecker is corporate president and Korcz is manager of a division embracing five stores in New York and three in Pennsylvania. The employee handbook is distributed to employees of all stores wheth- er they have been involved in any union campaigns. As the Board said concerning another chain of retail dis- count stores, Respondent's history before the Board and 70 In addition to the present case, involving four discriminatory dis- charges, orders have been issued for offers of reinstatement and backpay to at least 26 other Nichols employees: 4 at Dover, Delaware (159 NLRB 1071, 165 NLRB 924, 167 NLRB 832), 1 at Shillington, Pennsylvania (195 NLRB 189), 2 at New Philadelphia (195 NLRB 939); 10 at Marcy, Utica, New York (229 NLRB 75); and 9 at Matawan, New Jersey (Cases 22-CA-8465, 22-CA-8646, and 22-CA-9100). Respondent was held in contempt of the reinstatement and backpay order as to two employees of the New Philadelphia store (100 LRRM 2840 at 2762). S. E. NICHOLS, INC. 595 Board and the courts shows that it "has a labor policy in all its stores that is opposed to the policies of the Act" and "it is by now clear that Respondent's conduct here is but part of a pattern of unlawful antiunion conduct en- gaged in by Respondent's top officials throughout Re- spondent's entire operations for the purpose of denying to all of its employees the exercise of those rights guar- anteed to the employees by Section 7 of the Act." Heck's; Inc., 172 NLRB 2231 (1968) and 191 NLRB 886 (1971), enfd. sub nom. Meat Cutters Local 347 v. NLRB, 433 F.2d 541 (D.C. Cir. 1970), and 476 F.2d 546 (D.C. Cir. 1973)," cert. denied 414 U.S. 1069 (1973). Respondent maintains that it is not in Stevens' recidivist class because it has been involved in violations at "only a half-dozen locations over a period of fourteen years." (Em- phasis added.) So far as it appears, these are the only lo- cations at which union campaigns have been initiated. Respondent maintains that it should not be brought to brook unless and until a union campaign is initiated and charges are brought against it at a particular location. If the past holds any lessons, it must teach employees and unions that any attempt by Nichols' employees to exer- cise their freedom to make a choice contrary to Re- spondent's desires will be both hazardous and doomed to failure, at least without long and tortuous litigation, which, as the present case shows, may itself pose danger for the employees. The Act does not permit, let alone re- quire, that employees be subjected to such odds, which result from the "status quo" created by Respondent's un- lawful conduct. As previously found, Respondent has accused the Board of favoring unions and furthering unionization. Respondent repeats this charge in its brief as follows: Nichols believes [the requested] relief . . . has been improperly and unconstitutionally requested in order to . . . initiate and promote unionization, of Nichols' employees at the Herkimer and at other Nichols stores. It later speaks of "[t]he attempt by the Regional Director . . . to try to initiate unionization of Nichols." In a simi- lar vein, Respondent contends that extending the notice requirements to stores in which there apparently have been no union campaigns would "chang[e] the status quo in favor of unionization rather than restoring the status quo." The repetition of Respondent's attack on the Board's neutrality points up the need for firm preventive action because public confidence in that neutrality is indispensa- ble to effectuation of the congressional mandate of the Act. The remedies here recommended are not designed to promote unions or unionization; they have been reluc- tantly recommended because it is necessary to clear the atmosphere poisoned by Respondent's unrelenting, egre- gious, and pervasive trampling on its employees' statuto- 71 The D.C. Circuit required the imposition of remedies in addition to those prescribed by the Board. The Supreme Court, however, held that the circuit court had exceeded its authority and remanded the case to the Board for further consideration 417 U S. 1 (1974). On that remand, the Board explained its reasons, based on the procedural history, for not en- larging the remedial provisions in that specific case. ry rights. The remedies have been designed for the sole purpose of assuring an atmosphere in which the employ- ees may freely choose, without fear or favor, whether they want to make common cause, with or without a union, in dealing with their employer. The aim is restora- tion of the status quo before Respondent's massive viola- tions of the Act. For the foregoing reasons, I shall recommend the notice and access requirements imposed in J. P. Stevens & Co., supra, 244 NLRB 407, with modifications appropri- ate to the Nichols situation. Apparently, the same union has been involved at all the Stevens facilities. With Nichols, however, different unions have been involved at various stores. For exam- ple, at Marcy the union was Amalgamated Meat Cutters, Butcher Workmen and Affiliated Crafts of North Amer- ica, AFL-CIO; at the Shillington store, the union was Retail Clerks, Employees Union, Local 1393, Retail Clerks International Association, AFL-CIO; at New Philadelphia, it was Retail Clerks International Associa- tion, Local 698, AFL-CIO; and the present Charging Party is Retail Store Employees Union Local 345 (into Local 1 has merged), United Food and Commercial Workers Union, AFL-CIO. Because of the blanket nature of Respondent's unlawful resistance to any union- ization, proclaimed in the systemwide handbook, there is no apparent reason to limit protection to activities by or on behalf of the particular local union involved at the Herkimer store. To confme the remedy in that manner would invite unnecessary repetition of litigation like the present. I shall therefore recommend that the remedial provisions inure to the benefit of any labor organization that may seek to organize employees at any of Respond- ent's stores. 7 2 In Stevens, 244 NLRB 407, the Board required that written instructions be given to supervisors only at the specific facilities there involved. Although only the Her- kimer store was directly involved in the present case, the record establishes that Herkimer is only some 13 miles from Utica, where Respondent operates two other stores—Marcy and New Hartford. All three stores are within the company division supervised by Korcz. The recent union campaign at the Marcy store was frequently referred to in the Herkimer campaign, with Respondent indicating its approval and continuation of such tactics at Herkimer. Lintz, an antiunion veteran of the Marcy cam- paign, was employed at the Herkimer store and pursued antiunion activities during its campaign:73 Thus, the situ- ation is such that events at one of the three stores will inevitably be known to an affect the conduct of the em- ployees of all three. Accordingly, I recommend that Re- pondent be required to give written instructions concern- ing union organizing campaigns to all supervisors at the Herkimer, Marcy, and New Hartford store. In Stevens the Board rquired that union representatives be granted reasonable access to nonworking areas of the 72 There is no evidence of any interumon disputes or rivalries m con- nection with any of the past Nichols campaigns. Should any presently un- forseen problems arise in the future, the Board will be available to take appropriate action. 73 The same is apparently true of employee Cornaccio 596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD company's premises for communication with employees during their nonworking time. However, in other cases such access has not been required. See, e.g., Heck's, Inc., supra, 191 NLRB at 887. The evidence in the present case indicates that employees frequently work irregular hours with no defined "shifts." Also, it appears that em- ployee lunch and other breaks vary widely. Thus, to communicate with all employees, it would be necessary for union representatives to be present virtually all the time a store was open. Balancing the employees' need for full information and Respondent's right to control its own property, I reject the General Counsel's request for such an access requirement. Respondent objects to being required to give unions access to company bulletin boards because there is no evidence that Respondent has used bulletin boards in its antiunion campaigns. But Respondent has distributed its employee handbook to all employees and has continuous- ly available convenient, inexpensive means of communi- cating with its employees. Because Respondent has im- properly used its available arenas of communication un- lawfully, it is appropriate to provide the unions concern- ing "effective vehicles for making a substantive presenta- tion of the fact that unions can be useful and effective, a fact which Respondent has improperly sought to throw into doubt by engaging in unlawful conduct" at stores where there has been organizational activity. J. P. Stevens & Co., 239 NLRB 738, 771 (1978). Reasonable access by a union to company bulletin boards and other places where notices to employees are posted is a moderate measure, having minimal risk of interference with Re- spondent's operations. In line with J. P. Stevens & Co., supra, 244 NLRB 407, I shall recommend having the prescribed notice and ac- companying letter read at meetings called for that pur- pose in all Nichols stores. Because the Herkimer and other campaigns have been directed and largely executed by Brecker and Korcz, I shall require that the notice be signed by both, as well as by the manager of each store in which it is read. In Stevens, loc. cit., the company was given the option of having the notice read to the em- ployees by a Board agent rather than by a company offi- cial. Respondent objects to the absence of such options from the remedies requested by the General Counsel Brecker was a stellar performer in the Herkimer cam- paign. Despite that fact, he failed to testify, thus appar- ently attempting to disassociate himself from the Compa- ny's conduct. It is essential that unequivocal assurance be given the employees that Brecker, the director and per- petrator of the wrongs, assumes responsibility for reme- dial action and it will not be left to lower echelon man- agement. In furtherance of this consideration, I shall also recommend that all supervisors be required to attend any meetings in their stores when the notice is read to em- ployees. As Brecker's comrade in arms, Korcz will also be required to attend the meetings. In Stevens, 244 NLRB 407, the Board required Re- spondent to reimburse the union for its organizational costs and the Board for its litigation expenses. However, no such remedies have been requested in the present case. In the absence of any such request, I shall not rec- ommend inclusion of such provisions in the present order. [Recommended Order omitted from publication.]