Amazing Stores, Inc.

AMAZING STORES Amazing Stores, Inc. and United Food and Commer- ical Workers International Union, Local 1357, AFL-CIO. Cases 4-CA-15602, 4-CA-15683, and 4-RC-16096 June 15, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On July 27, 1987, Administrative Law Judge George F. Mclnerny issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed exceptions, a supporting brief, and a response 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, findings,' and conclusions and to adopt the recommended Order as modified.2 We agree with the judge's finding that the Re- spondent violated Section 8(a)(3) of the Act by re- fusing to pay Gail Davis her Christmas bonus and by her subsequent discharge in January 1986. Davis was a long-term employee who had worked with Lieberman and Segal, the owners of the Respond- ent, for 5 years when she was discharged.3 The judge found and we agree that during the organiza- tional campaign Lieberman and Segal visited the stores in order to conduct one-on-one interviews with employees in which they repeatedly commit- ted violations of Section 8(a)(1) of the Act. It is clear that when the owners came to the store in which Davis worked in early December 1985 and she was informed by her store manager that the 1 The Respondent and the General Counsel have excepted to some of the judge's credibility findings. 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 2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings 2 The Respondent filed a motion to reopen the hearing to adduce addi- tional evidence regarding the turnover of employees The Respondent argues, as it has at the hearing and in its exceptions, that a bargaining order is not warranted because the turnover of the employees would dis- sipate any lingering effects of its alleged unfair labor practices and thus would not prevent the conducting of a second election The motion is denied The Respondent's unfair labor practices were pervasive and serious and committed by the highest management offi- cials The misconduct was directed at virtually every employee in the bargaining unit So extensive were the unlawful acts that it is foreseeable that the Respondent's record of coercion would become known to new employees and the impact of the Respondent's violations would be likely to persist despite any turnover, .bus preventing the holding of a fair elec- tion S We think it is appropriate to term Davis a long-term employee in light of the Respondent's repeated arguments that turnover at the stores is significant 163 owners wished to discuss the Union with her in the store's backroom, she declined to participate. This action on Davis' part displayed a lack of receptivi- ty to the Respondent's antiunion message, which message as noted above we have found violative of Section 8(a)(1) of the Act. This refusal provided the Respondent with reason to infer that Davis was sympathetic to the Union. It was this very refusal to participate in the antiunion discussion with the owners that her store manager referred to when Davis questioned him about why she was the only employee in her store not to receive a Christmas bonus some 3 weeks later. Davis' understandable reaction to this discriminatory refusal to award her Christmas bonus was to inform her store manager that she would be leaving work early that day. The store manager expressed no problem with Davis' decision to leave early and, thus for the reasons stated in the judge's decision, we agree with his conclusion that Davis had not resigned but rather was discharged in violation of Section 8(a)(3) of the Act. We also agree with the judge's finding that Ralph Atwell was denied a Christmas bonus and pay raise because of his union activities. The Re- spondent admitted that it reviewed all employees for pay raises in January 1986. Atwell, whom the judge credited over the Respondent's witnesses, testified that in January 1986 when he requested a pay raise, the only reason Segal gave for denying a raise was that Atwell had given them a difficult time about the Union. Segal had previously con- fronted Atwell with the allegation that he had heard that Atwell was the ringleader in the Union. Thus, the Respondent's motivation is clearly shown. We affirm the judge's analysis and conclusion that the Respondent's unlawful conduct warrants a bargaining order under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). However, in order to re- quire the Respondent to bargain with the Union it is necessary to set aside the election. Irving Air Chute Co., 149 NLRB 627 (1964), enfd. 350 F.2d 176 (2d Cir. 1965). As noted in the judge's deci- sion, a mail ballot election was conducted from December 19 through 30, 1985; the Union filed timely objections to the election which track the unfair labor practice allegations. The conduct found by the judge to be violative of Section 8(a)(1) and (3) is sufficient to warrant setting aside the election and we do so. Dal-Tex Optical Co., 137 NLRB 1782 (1962). The judge in his remedy recommended that the Respondent be ordered "not to discontinue its op- erations, at any of its locations." We find that remedy inappropriate. There is no charge , allega- 289 NLRB No. 24 164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion, or finding that the Respondent discontinued any portion of its operation due to the union activi- ties of its employees. Rather, the allegation is that the Respondent threatened to take such action. Having found that the Respondent violated the Act by threatening its employees with store closure, the judge provided the appropriate remedy, i.e., an ap- propriate order and the posting of a notice with the requisite language. The judge's proposed remedy goes further and attempts to remedy possible pro- spective action of the Respondent. In the event the Respondent does close any of its operation because of the activities of its employees on behalf of a union or any other protected activity, charges may be filed, an investigation initiated , and if necessary a complaint issued . At that time, if the allegation is proven, a proper remedy will be ordered. Accord- ingly, the remedy is modified. The judge granted a visitatorial provision. Under the circumstances of this case we find it unneces- sary to grant such provision. Cherokee Marine Ter- minal, 287 NLRB 1080 (1988). In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpay- ment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U.S.C. § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Amazing Stores, Inc., Philadelphia, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Delete paragraph 1(b) and reletter the subse- quent paragraphs. 2. Reletter current paragraph 2(e) as paragraph 2(f), delete current paragraph 2(f), and add the fol- lowing as paragraph 2(e). "(e) Remove from its files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the dis- charge will not be used against her in any way." 3. Add the following as paragraph 2(g). "(g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply." 4. Substitute the attached notice for that of the administrative law judge. IT IS FURTHER ORDERED that the election in Case 4-RC-16096 is set aside, and the petition is dismissed. APPENDIX 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 interrogate our employees con- cerning their union activities, nor give them the im- pression that their union activities are under our surveillance, nor threaten our employees with clo- sure or sale of our stores, nor promise increased benefits to our employees or threaten to take away their benefits, because they have engaged in union activities. WE WILL NOT terminate any of our employees nor deprive them of bonuses or pay raises to which they are entitled because of their activities on behalf of the Union or any other labor organiza- tion. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All full-time and regular part-time sales per- sonnel, stock personnel, cashiers and truck drivers employed by the Employer at its 816 Chestnut Street, 1124 Chestnut Street, 1621 Chestnut Street, 7140 Frankford Avenue, 5645 N. 5th St., Academy Plaza, Academy and Red Lion Rds., and 139 W. Chelton Ave., Philadel- phia, Pennsylvania locations and its Sharon Hill Plaza, Chester Pike, Sharon Hill, Pennsyl- vania, 734 Hamilton Street, Allentown, Penn- sylvania locations, excluding all other employ- AMAZING STORES ees, guards and supervisors as defined in the Act. WE WILL offer Gail Davis immediate and full re- instatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed and WE WILL make her whole for any loss of earnings and other benefits resulting from her discharge , less any net interim earnings, plus interest. WE WILL notify her that we have removed from our files any reference to her discharge and that the discharge will not be used against her in any way. WE WILL make Ralph Atwell whole for any loss of wages incurred as the result of his being denied a raise by payment of the appropriate sums of money involved , with interest. WE WILL make Gail Davis and Ralph Atwell whole for any monetary losses they may have suf- fered by reason of our failure to pay them the 1985 Christmas bonus, with interest. AMAZING STORES, INC. Susan L. Stahl, Esq. and Henry R. Protas. Esq., for the General Counsel. Laurance B. Baccini, Esq. and Dale P. Schomer, Esq. (Schnader, Harrison, Segal & Lewis), of Philadelphia, Pennsylvania, for the Respondent DECISION AND REPORT ON OBJECTIONS GEORGE F. MCINERNY, Administrative Law Judge. This case arises out of several matters filed by United Food and Commercial Workers Local No. 1357, AFL- CIO (the Union), with the Philadelphia Regional Office Region 4. The first matter was a petition filed by the Union on 15 November 1985,1 in Case 4-RC-16096 seek- ing an election to be conducted by the Regional Office under the provisions of the National Labor Relations Act, 29 U.S C. § 151 et seq., and certification of the Union as bargaining representative for a unit of employ- ees of Amazing Stores, Inc. (Respondent or the Compa- ny). After a stipulation by the Union and the Company, approved by the Regional Office, an election was held by mail ballot between 10 and 30 December among the company's employees . The Union lost the election and filed a series of objections to conduct by the Company that, it was said , affected the results of the election. On 16 July 1986, the Regional Office referred the matter to an administrative law judge for a report on the objec- tions Meanwhile, the Union filed a charge against the Com- pany on 10 February 1986, in Case 4-CA-15602, and on 20 March 1986, in Case 4-CA-15683, containing allega- tions that the Company had violated Section 8(a)(1), (3), and (5) of the Act. Then, on 31 July 1986, the Regional ' All dates are in 1985 unless otherwise specified 165 Office consolidated all of these cases and issued a com- plaint and notice of hearing on the consolidated matter. Respondent filed a timely answer denying the commis- sion of any unfair labor practices. Thereafter, on 17, 18 , and 19 November 1986, a hear- ing was held before me at Philadelphia, Pennsylvania, at which the Respondent and the General Counsel were represented by counsel , and had the opportunity to present testimony and documentary evidence , to examine and cross-examine witnesses, to present motions and to make objections, and to argue orally. After the close of the hearing, both the Respondent and the General Coun- sel submitted briefs, which have been carefully consid- ered. Based on the entire record , including my observations of the witnesses and their demeanor, I make the follow- ing FINDINGS OF FACT I. JURISDICTION The complaint alleges, the answer admits, and I find that the Respondent is a Pennsylvania corporation that maintains retail stores in the city of Philadelphia, and at Sharon Hill and Allentown, Pennsylvania . During the year immediately preceding the issuance of the com- plaint, Respondent derived gross revenues in excess of $500,000 and purchased goods valued in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Stipulations Amazing Stores, Inc. is a chain of nine retail stores selling housewares and giftwares , consisting mainly of closeouts or imports, in the city of Philadelphia and its vicinity. The Company is owned by four individuals, Joseph Lieberman, Jack Segal , Glenn Segal (Jack's son), and Sidney Burezin. It appears from the evidence here that Jack Segal and Joseph Lieberman, referred to re- spectively as Segal and Lieberman, handle the day-to- day management of the enterprise , assisted by sundry store managers and assistant managers. It was stipulated by all parties that an appropriate unit for collective bargaining composed: All full-time and regular part-time sales personnel, stock personnel, cashiers and truck drivers em- ployed by the Employer at its 816 Chestnut St., 1124 Chestnut St., 1621 Chestnut St., 7140 Frank- ford Ave., 5645 N. 5th St., Academy Plaza, Acade- my & Red Lion Rds., and 139 W. Chelten Ave., Phildelphia, PA locations, and its Sharon Hill Plaza, 166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Chester Pike, Sharon Hill, PA , 734 Hamilton St., Allentown, PA locations, excluding all other em- ployees, guards and supervisors as defined in the Act. It was further stipulated that the following named em- ployees were employed in the stipulated bargaining unit during the period from 1 October 1985 through 15 No- vember 1985: Roger Parker Ralph Atwell Curtis Leroy Bond Jerome Thomas Lisa Huffnagle Francine Wilson Chander Lewis Francys Cotto Maurice Monroe Joyce Florence Robert Young Edward Hutton Margaret Smith Marlo Jackson John De Marco Richardson Jarman Nancy E. Powell Bruce Kraskow Curtis Snyder Jr. Sandy Giordano Debbie Bruner Kenneth J. Phillips Dan Dihert Robert Cressman Arlene Tolliver Ellen Faragasso Atoinette Walker Sidney R. Parker Celia Abraham Peggy Russo Geneva Henry Steven Carl Calhoun Edward Manwiller Gail Davis Robert Snyder It was further stipulated that certain of these employ- ees had signed cards authorizing the Union, Local 1357, to represent them for purposes of collective bargaining; that the signatures on certain authorization cards are au- thentic and the cards were signed about the dates ap- pearing thereon; and that the authorization cards re- ceived in evidence here are authentic . The names of the individuals so stipulated and the dates appearing on their cards are listed below: Chander Lewis Oct. 29, 1985 Marto Jackson Nov. 5, 1985 Francys Cotto Nov. 1, 1985 Kenneth J. Phillips Oct. 4, 1985 Joyce Florence Nov. 3, 1985 Curtis Leroy Bond Nov. 3, 1985 Arlene Siers Nov. 13, 1985 Curtis Snyder, Jr. Nov. 25, 1985 Sidney R. Parker Nov. 3, 1985 Richardson Jarman Nov. 3, 1985 Steven Carl Calhoun Oct 25, 1985 Jerome Thomas Nov. 11, 1985 Francine Wilson Oct. 25, 1985 Marie Barseghian Nov. 4, 1985 Karen Andrews Nov. 4, 1985 Ralph Atwell Nov. 2, 1985 Lisa Huffnagle Nov. 3, 1985 John De Marco Nov. 7, 1985 Roger Parker Nov. 3, 1985 Edward Hutton Oct. 25, 1985 Robert Cressman Nov. 13, 1985 Arlene Tolliver Nov. 2, 1985 Nancy E. Powell Nov. 8, 1985 Gail Davis Oct. 29, 1985 The parties agreed not to agree on the status of three individuals, Marie Barseghian, Arlene Siers, and Karen Andrews. The General Counsel and the Union contend that these people were permanent full-time or regular part-time employees who should be included in the above-stipulated unit, the Company arguing that they were temporary employees who should be excluded from the said unit . Karen Andrews testified that she was hired as a full-time, permanent employee. However, Joseph Lieberman testified that Andrews was "seasonal." He said he did not "plan on her" being permanent, but admitted that at no point was Andrews told she was only temporary. Ellen Nancy Faragasso, the manager of the Company's Frankford Avenue Store, testified that An- drews was only temporary . I cannot find on this evi- dence that Andrews was a permanent full-time employee from October to December 1985. Barseghian did not testify, but Faragasso and Lieber- man testified that she was hired in September or Octo- ber, and resigned, of her own accord, in June 1986. There is no indication that she could not have continued to work if she had not resigned . I find Barseghian to have been a full-time, permanent employee in October, November, and December 1985. Arlene Siers did not testify and there was no evidence in this record on her status. I make no finding whether she was a full-time, permanent employee. Based on these findings, I would add the name of Bar- seghian to the stipulated list of employees given above, making a total of 36 names. I would then delete the name of Arlene Siers from the list of cardsigners, leaving 23 names. Since a total of 18 persons would constitute a majority of the employees stipulated as being in the unit, I find, referring to the stipulated dates on the cards, that the Union had a majority, in effect stipulated to by the parties, on and after 7 November 1985. B. Organization and Request for Recognition John Myerson, an organizing representative for the United Food and Commercial Workers Union, testified that he received a telephone call on 27 October from Steven Calhoun, an employee of the Company, indicat- ing an interest in organizing a union at the Company. On 29 October, a meeting was held at a Roy Rogers restau- rant in downtown Philadelphia between Myerson and four employees representing the Company 's three Chest- nut Street stores. Myerson explained what had to be done to organize the stores, and he distributed authoriza- tion cards to the employees who were there. Additional meetings were held on 3 November at the home of employee Ralph Atwell, and on 24 November at the Union's offices. By the second week in November, as stated by Myerson, and as I have already found, the Union had valid authorization cards from a majority of the employees in the bargaining unit. On Friday, 15 November, Myerson and another union representative went to the Company's office at 4530 Lacony Street and there spoke to Jack Segal. The union representatives presented Segal with a letter demanding recognition and, according to Myerson, told him that they represented a majority of the Company's employ- AMAZING STORES ees, and requested that he recognize the Union as the bargaining representative for the Company's employees. Segal then asked if they knew how many people were employed at Amazing Stores. When the union represent- atives told him, Segal accused these people of being "in- grates" and pointed out that he had personally helped many of his employees during the course of their em- ployment and, finally, said he was going to refer the matter to his attorney. Segal's version of this meeting stated that the union representatives began by telling him that they had, not a majority, but over 30-percent signature cards. Segal asked if he could see the cards and was refused. He then denied that he had used the word "ingrates" to describe his employees, but did say that he told the union repre- sentatives that he could not understand why his employ- ees had gone to the Union, emphasizing his generosity and fairness to the employees. The testimony by Myerson that he requested recogni- tion based on a union majority is much more logical than Segal's statement that the union representatives said only that they had over 30 percent of the people signed up. There would have been no point in Myerson's trip out to the Company's headquarters if all he was going to say was that the Union had over 30 percent of the cards signed . He could have notified the Company of that either directly, by letter, or by filing a petition with the Board's Regional Office. That office, in turn, would have notified the Company. Segal must have been referring in his testimony to something he had heard, somewhere, about an administrative requirement for 30-percent cards signed in order to process an election petition.2 While I found Segal to be a truthful witness, I think that his testi- mony shows that he did not have a good memory in re- calling individual conversations that occurred in connec- tion with this case. In this instance, as in others, Segal just did not accurately recall the content of the conver- sation with Myerson and his associate. C. The Company's Reaction Whether Segal actually used the word "ingrates" in referring to his employees, there is no dispute that he was hurt and upset by the news that the employees had selected, or were going to select, a union to represent them. He had, according to his testimony, never had trouble negotiating with any of his employees. He felt that he had never been unfair to any employee. He did not recall ever turning down an employee for a raise, and did recall many instances where raises were given without even a request by the employee. He had never refused anybody anything within reason, he had helped people buy houses, helped them in times of stress, had lent money constantly at no interest, even though he had to pay interest when he borrowed. Moreover, Segal testified, he personally felt that if the Company had a union, he just, at this stage in his life,3 2 Lieberman testified that Segal told him that the Union men told him that they had a "majority of our employees signing cards that they wanted a Union " 2 Segal is not a young man, but he appeared tnm and vigorous-cer- tainly not doddering nor incapable of the daily tasks in running a busi- ness 167 did not want strangers dictating to him. He therefore de- cided that if they had a union he just could not live with it. A few days after the 15 November meeting, Lieber- man and Glenn Segal returned to Philadelphia from out of town and the three of them sat down to discuss the union situation. Segal told his associates that if the Union came in he would like to take his share of the equity in the Company in stores rather than in dollars. He would then sell these stores for dollars. Two of the three other owners of the business, Glenn Segal and Sidney Burezin, did not testify at this hearing. Leiberman did testify, and stated that he, too, was going to sell the stores if the Union came in. There is no indication, in this record, of any discus- sions among management people of any concerted plan of opposition to the Union. Segal and Lieberman both testified that during the union campaign, in November and December, they heard from their store managers that the union activity was upsetting employees and im- pairing efficiency in the stores. Segal and Lieberman therefore determined to visit the stores and talk to as many individual employees as would talk to them about the Union and its impact on the Company.4 Segal tried to downplay the fact that he and Lieberman visited all the stores and made efforts to contact, personally, each and every employee with their message of opposition to the Union, but he did not deny that this is what he and Lieberman did. The procedure followed was for Segal and Lieberman, or one or the other of them, to go to a store and have the manager ask the employees to come to a back room to talk with whichever manager was present.5 It is the content of these meetings that is alleged by the General Counsel to contain violations of Section 8(a)(1) of the Act. D. Alleged 8(a)(1) Violations The General Counsel brought in a number of wit- nesses who testified about matters contained in the com- plaint. The testimony of these witnesses consisted princi- pally of reports of the meetings held by Segal and Lei- berman, together or separately. All the General Coun- sel's witnesses agreed that they were asked to participate in these meetings either on request of the store managers or by encountering Segal or Lieberman in their stores. After listening to a number of these witnesses relate sub- stantially identical versions of what occurred in these meetings, I declined to allow the General Counsel to adduce further testimony on the proposed sale of the stores or the promises of improved working conditions. Offers of proof made by the General Counsel did not induce me to change my mind. At the most, the addi- tional evidence proposed to be adduced would have been redundant, merely adding additional testimony on the * Segal and Lieberman were accustomed to visiting all the stores on a regular basis, but they did not as a rule stop and talk to employees dung those visits other than to exchange greetings or pass the time of day. 5 The evidence is undisputed that Segal did most of the talking, but Lieberman joined in from time to time Several employees could not re- member which of the managers said what at their meeting. 168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD same type of allegations for which this decision will afford adequate relief. With a single exception,6 I found the General Coun- sel's witnesses to be generally credible . Although no one, either the witnesses for the General Counsel or the Re- spondent, were very precise on dates or details, this is not a case that will turn on the exact day or hour a par- ticular event occurred. The facts as related by the Gen- eral Counsel's witnesses concerning the threats to close the stores, or to sell out to Korean purchasers were con- sistent, were mutually corroborated without appearing staged, and were frankly admitted by Segal and Lieber- man. Similarly, other complaint allegations including promises of benefits, solicitation of grievances, withhold- ing of bonuses from individuals and from all the employ- ees, were consistently related by employee witnesses and not seriously controverted by the Respondent's wit- nesses. In other parts of the complaint, including the al- leged discharge of Gail Davis and the layoff of Karen Andrews, there are some issues of credibility that I at- tempt, below, to resolve. Turning to the specific testimony, Francys Cotto, an employee of the Company's store at 16th and Chestnut Streets, testified that about 2 weeks before the ballots were to be turned in to the Board's Regional Office, her manager, Trace Dribier, told her to go to the back of the store and talk to Segal and Lieberman. According to Cotto, both Segal and Lieberman talked to her. They said that things were going to get better if they did not have a union. They also said that they would sell the store if they had a union. Segal did not deny this last statement, adding, in his testimony concerning this meet- ing, that he did not want anyone putting a hand in his pocket, and that his plans were to sell some of the stores. Lieberman testified that Cotto told Segal and he that she was being harassed by other employees, but he had no memory of what Segal may have said to Cotto. Marlo Jackson, an employee at the 11th and Chestnut Streets store at the time of the union campaign, testified that his manager, Joe Giordano, told him that Segal and Lieberman wanted to meet with him in the back room of the store. Jackson went to the back room and met with Segal and Lieberman. Segal did most of the talking, tell- ing Jackson that if the Union got in they would sell the stores, but if not, the employees would get a raise. Jack- son further said that the employees discussed their con- versations with Segal and Lieberman and the selling of the stores. About 2 weeks after this conversation, Jack- son said he saw Sid Burezin, one of the Company's owners, in the store showing an oriental man around the premises. Neither Segal nor Burezin testified about the matter. Robert Cressman worked at the Frankford Avenue store at the time of the union campaign, and at the time he testified here, almost a year later, he had been pro- moted to manager at the 1124 Chestnut Street location. Cressman testified that Lieberman approached him in the back room of the Frankford Avenue store in mid-De- 6 Employee Roger Parker seemed to me to be a preoccupied witness with only a limited sense of his relation to the subject matter of his testi- mony I do not credit his statements regarding the issues herein cember and asked if he knew anything about the Union. At this time Cressman had signed a union authorization card, had given a card to another employee, Karen An- drews, and had attended at least one union meeting. However, he replied to Lieberman's question by saying no. Leiberman said that he thought Cressman would know about the Union because Ralph Atwell, the com- pany's driver and deliverer, "was going around telling people" about the Union. A bit later Lieberman again asked Cressman what he thought about the Union. Cressman answered that he did not care. He said that he needed his job, and asked Lie- berman for medical coverage and a transfer out of that store. Lieberman responded to this by saying that he would get Cressman out of that store by March, and would see what he could do about medical coverage. At another meeting, in about the same period, and on a Friday night, Lieberman, together with Jack and Glenn Segal, engaged Cressman in conversation. Cress- man said they were all talking, again asking about the Union, and again he said he did not care about it. They told him that if the Union came in they would sell the stores individually to Koreans and that the employees would lose their jobs. After this Cressman stated that he saw Lieberman in the Frankford Avenue store accompa- nied by a Korean man. At the time that the employees were preparing the mail ballots to send to the Board's Regional Office, Cressman testified that he overheard Lieberman telling employees Marie Barseghian and Sid Parker? that if they brought their ballots in to him he would stamp and mail them. Lieberman had very little precise recollection about these conversations. He did state that Cressman had told him he did not care about the Union, but could not recall who initiated the discussion about the Union. Lie- berman further verified that he told Cressman that "we would be moving him up," and that the Company would sell the stores if the Union came in. Lieberman testified that he told employees to be sure to vote and to get their ballots in. He did say that Barseghian had offered to show her ballot to him, but that he told her that she did not have to prove anything to him. Segal testified that he did not remember much about the interviews with Cress- man. Lisa Huffnagle was working as a cashier at the 11th and Chestnut Streets store in the fall of 1985. She was friendly with Robert Cressman and in November or De- cember went to see him at the Frankford Avenue store. While there she ran into Segal who asked her what she thought of the Union. Huffnagle was afraid for her job and said nothing. Segal then asked what he could do for her, adding that he would give her a "little bit more" money if the Union did not get in. Emboldened by this, Huffnagle asked about medical benefits. Segal said no, but repeated that he would give her more money. Segal told her that he did not want the Union in because he would "have bosses over top of him." At this point in the conversation Lieberman came up to where Segal and ' Erroneously referred to in the transcript as "Sue" Parker AMAZING STORES Huffnagle were talking. Segal then said that the stores Would close if the Union got in, that they would sell the stores one by one to Koreans. Huffnagle later saw a person she described as a Korean at the store with Segal, and later with Lieberman. She stated that she had never seen Koreans in that store before. Huffnagle also testified that Jim Giordano, the manag- er of the 11th and Chestnut store in the fall of 1985, told her that if the Union got in the stores would close imme- diately. Segal testified that he believed he had met with Lisa Huffnagle, but that "that one is a little vague to me." Lieberman did recall that Huffnagle mentioned problems at 11th Street but he was also very vague and general about what was said in his talk with Huffnagle. He did say that she had asked for more money but he and Segal told him they could not give anyone raises at that time. Giordano, an admitted supervisor, did not testify at all. Arlene Tolliver is a cashier at the 8th and Chestnut Street store. About a month before she was to mail in her ballot, she was working at the Chelton Avenue store and testified that Jack Segal approached her in the back room of that store. Segal began by asking Tolliver if she had "any gripes." This apparently was repeated, and fi- nally Tolliver told Segal that she was not happy with the fact that she had not received a raise for a year and a half. Segal said he was sorry and that he would see what he could do after the union vote. Nothing could be done right then. He also said that he would close the stores down if the Union got in. Segal not only did not deny these statements attributed to him, but added that at that meeting Tolliver asked for, and was granted, a day off on Dr. Martin Luther King's birthday, which happened to be the same day as her own birthday. Francine Wilson is a cashier at 11th and Chestnut and was employed at 8th and Chestnut at the time of the union campaign late in 1985. She had attended union meetings and had assisted in the processing of employee authorization cards. In November 1985, Segal talked to her in the back room of the 816 Chestnut Street store. He said that he had heard Wilson was the secretary for the Union, adding that he would "hate to lose" her, but he would not hold that over her head. He also told Wilson that he had his own business for so long that he could not afford to "let somebody else come in" and he would be forced to sell the stores one by one. Wilson also testified that her manager had previously recom- mended her for a raise, and that Segal had approved it, but when he came to talk to her in the back room he said that he could not give it then, but would get it after the election was over. She did receive a raise in January 1986, after the election.' In addition to this, there was some conversation about how good Segal had been to Wilson's mother and cousin, giving them jobs and protecting them in those jobs. In fact, as Segal pointed out in his testimony, Wilson changed in the course of that conversation, tell- 8 Wilson had been employed since 1983, and had received a raise every year Segal agreed that she was clever , a good employee, and had received four raises up to 1986 169 ing him that she no longer wanted the Union, and that she would inform the employees at the 11th and Chest- nut store of this conversation. John De Marco was employed at the Company's Sharon Hill store from September 1985 to October 1986. He testified that he had signed a card that was given him by Ralph Atwell. About 3 weeks before the election Lie- berman called De Marco into the back room at the Sharon Hill store. De Marco's testimony came out a bit garbled in the transcript, but I think it is fair to say from what does appear there, and from my memory of De Marco's testimony, that Lieberman told him that things would get better if the Union lost, and that he was going to sell the store to Koreans if the Union won. Whatever Lieberman said about improvements in conditions at the store De Marco was foggy on the details, but concluded that whatever was said "was really nice, it was great." Lieberman was not asked about this conversation. Two other employees, Ralph Atwell and Karen An- drews, were named in the complaint as having suffered discriminatory treatment, but they also testified concern- ing actions that come within the allegations in this sec- tion of the decision. Atwell worked in the Company's warehouse at 4530 Tacony Street from May 1984 to February 1986. His duties involved driving the Company's van or truck making deliveries to the stores scattered around the Philadelphia area, and to Sharon Hill and Allentown. Atwell also acted as a courier for the Union during the campaign, passing out and picking up cards at the stores. He hosted a union meeting at his house, which was at- tended by "quite a few" employees. He testified that Segal approached him one day after he got involved with the Union, and said he had heard a rumor that Atwell was a "ringleader" in the Union. Segal asked Atwell why he had not come and told him. Atwell re- plied that Segal would not have believed him anyhow.9 Karen Andrews was hired by Amazing Stores on 16 October 1985, and worked through 31 December of that same year at the Frankford Avenue store. Robert Cress- man gave her a union authorization card, which she signed and returned, and she attended at least one union meeting . At the beginning of December Lieberman called her into the back room of the store, and he asked her about the Union. She said that she had attended a meeting and Lieberman replied that he knew she was there, it did not matter who told him, 10 but he knew she was at a meeting . Lieberman told Andrews how good he had been to employees, granting raises and days off, and stated that if the Union got in they would probably sell the stores-if they had to pay benefits and higher wages prices would go up and they would lose business. If the Union did not get in they were going to revamp all the stores, and were going to get rid of the people who were not doing their jobs. When asked about who Lieberman said he was going to sell the stores to, Andrews quoted him as saying he 8 Atwell's further dealings with the Company will be related in sec III,E,1, below io From Lieberman's testimony it appears that Cressman told him that Andrews was at a union meeting 170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD already had a Korean guy coming in, looking at the stores, and if the Korean people got in, they would even- tually bring their families in and the current employees would all be let go. Segal then joined them and asked Andrews what the Union had offered her. She said the Union just offered information, and she continued to describe Segal's com- ments, quoting him as saying that the stores were his livelihood, and if the Union got in it would not be worth it to him (to continue the business). The testimony of Andrews on this meeting was not denied either by Segal or Lieberman. I have already found that the testimony of the General Counsel's witnesses was generally credible. In dealing with this section of the complaint, I found that the Gen- eral Counsel's witnesses to be entirely credible. More- over, this substantive testimony was either corroborated or undenied in all respects by the testimony of Lieber- man and Segal . The latter two made it obvious that they were acting in concert, that they made every effort to carry their message to all of the employees, that their primary message was if the Union was to win the elec- tion the stores would be closed or sold to Koreans, that the Koreans would hire their family members to staff the stores, and that whether the stores have closed or sold, the employees would lose their jobs. Segal was candid in admitting that he went to a Korean broker and arranged for a Korean potential buyer to be escorted around to some of the stores." I conclude, in view of these facts, that Segal and Lieberman talked to almost all the em- ployees of all the Amazing Stores, causing widespread concern shared jointly by all the employees and ex- pressed in considerable discussion among themselves. The testimony of Huffnagle, Wilson, Andrews, and Cressman shows that these employees were apprehensive about their jobs. These were not throw-away jobs for these people, but were the employees' means of survival. The employees' fears were exacerbated by the actions of Segal and Lieberman in walking through the stores with Koreans or other oriental persons, who could be taken to be prospective buyers. An additional allegation noted that admitted Supervisor James Giordano told employee Lisa Huffnagle that the stores would be closed if the Union won the election. I find that this occurred as relat- ed by Huffnagle. Giordano did not testify. I find these activities by Respondent violated Section 8(a)(1) of the Act. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969); Seal Trucking Limited, 237 NLRB 1091 (1978). I find, further, that Respondent unlawfully gave the impression to its employees that their activities on behalf of the Union were under surveillance. This is alleged in the complaint with respect to Lieberman's remarks to Karen Andrews that he knew she had attended a union meeting, and that it did not matter who told him, but he knew it This necessarily had a coercive effect on em- 11 I cannot say that this was not legitimate insofar as the prospective buyer was concerned I am not so sure about Segal 's motivation in solic- iting such potential purchases Whatever the motive, I find that the ap- pearance of the Korean in the stores served to emphasize and dramatize the threats to sell or close the stores The fact that the matter was dropped after the elections shows that the whole idea of a sale was calcu- lated to frighten and intimidate the employees ployee union activity, and violated Section 8(a)(1) of the Act. Edward A. Utlaut Memorial Hospital, 249 NLRB 1153 (1980); Brodart, Inc., 257 NLRB 380 (1981).12 Respondent violated the law through Lieberman's questions to Karen Andrews about her knowledge of the union campaign, and to Lisa Huffnagle on what she thought about the Union. In the circumstances of these interrogations, conducted by the company's highest offi- cials in intimidating circumstances in back rooms with no other employees present the qualifications noted in Ross- more House13 do not apply; Robins Federal Credit Union, 273 NLRB 1352 (1985). With respect to allegations in the complaint concern- ing promises of benefits by the Respondent to employees if the Union did not win the election, I find that Jack Segal told Mario Jackson that the employees would get raises if they rejected the Union; Lieberman and Segal promised Francys Cotto that "things would get better" if they did not have a union; and Lieberman's promise of "more money" and unspecified "approvements" to em- ployees John De Marco. All of these incidents constitute violations of Section 8(a)(1) of the Act. Baker Mfg. Co., 218 NLRB 1295 (1975); Martin City Ready Mix, 264 NLRB 450 (1982). The complaint also alleged that the Respondent, through the activities of Lieberman, or Segal, or both, had solicited grievances from an employee (Segal); threatened an employee with less favorable benefits and working conditions (Lieberman and Segal); and threat- ened to delay, and in fact did delay, the payment of em- ployee Christmas bonuses (Lieberman and Segal). Arlene Tolliver testified that Segal repeatedly asked her if she had any grievances at their meeting in the stockroom of the Chelten Avenue store. When she complained that she could not take off on Martin Luther King's birthday, Segal replied that he did not see why she could not have the day off. He also indicated that he would see about a raise for her as soon as the "union thing" was settled. I find this solicitation of grievance to violate Section 8(a)(1). Rexair, Inc., 243 NLRB 876 (1979). The allegation dealing with alleged threats to reduce benefits stems, according to the General Counsel's brief, from the conversation between Segal, Lieberman, and Karen Andrews in the stockroom of the Frankford Avenue store. Lieberman pointed out to Andrews in that meeting that the Company had accommodated Andrews' schedule and had given her raises. The implication is ob- vious. If she continued to support the Union, then those privileges would be withdrawn. I find this, too, to be a violation of Section 8(a)(1). Rosewood Mfg. Co., 269 NLRB 782 (1984). There is no question here that the Company had, for at least 2 years prior to 1985, distributed a Christmas bonus to employees just before that holiday. In 1985, however, Lisa Huffnagle testified that Lieberman and Segal told her that the employees would not receive bo- nuses because that would appear to be a "bribe." Fran- cine Wilson testified that she was told by her manager 12 Segal made similar remarks to Francine Wilson and Ralph Atwell, but these incidents were not alleged as violations in the complaint 13 269 NLRB 1176 (1984) AMAZING STORES that the reason for the delay in giving bonuses was the employees' union activities. In fact bonuses were given, but were not distributed until New Year's Eve, 31 De- cember 1985. The election was conducted by mail ballot between 10 and 30 December 1985, and the ballots were counted on 16 January 1986. It thus appears from the credible testimony of Huffnagle and Wilson, undenied by Respondent's witnesses, that the bonuses were delayed because of the employees' participation in the election process being conducted under the auspices of the Board. The threat to take this action and the action itself are separate violations of Section 8(aXl) of the Act; Franklin Parish Broadcasting, 222 NLRB 1133 (1976); National Micronetics, 277 NLRB 993 (1985). As I have noted above, I do not consider the testimo- ny of Roger Parker to be reliable. I therefore cannot fmd that his testimony about Lieberman's alleged request to employees to bring their ballots in to him and he would mail them to the Board to be credible. Nor do I find that statements alleged by Parker to have been made by Su- pervisor Sarah Block are reliable enough to base a find- ing. E. Alleged 8(a)(3) Violations 1. Ralph Atwell As described above, Respondent became aware of Atwell's union activity early in the campaign . Segal had confronted him with the accusation that he was the ring- leader of the union activity. Atwell was not the person who brought the Union into contact with the Company's employees. That person was Steve Calhoun. But Atwell was highly visible in his support for the Union and acted as a courier between union adherents in the scattered stores. In December 1985 the Company, presumably through the decisions of Lieberman and Segal, determined that Atwell would not be given a Christmas bonus. This deci- sion was made allegedly because of Atwell's poor work performance. Segal claimed in his testimony that he warned Atwell about his work performance late in De- cember. Segal said he called three employees to witness his conversation with Atwell, but none of these "wit- nesses" were called on to testify in this case. Atwell denied that the incident took place, and I credit his testi- mony in this regard. The remaining testimony by Segal concerning Atwell reflects, in my opinion, that Segal re- sented the fact that Atwell's job took him around to the stores where he could and did talk about the Union to the employees. There is no substantial evidence that Atwell disrupted work in the store, or otherwise did not perform in a satisfactory manner. In addition to its denial of a Christmas bonus to Atwell, the Company also denied him a pay increase when it reviewed its employees' wages in January 1986. The same reasons were advanced for this as for the denial of the Christmas bonus. There being no legitimate or credible business justifica- tion for these actions, I find that Respondent violated Section 8(a)(l) and (3) in denying Atwell a Christmas bonus in 1985, and a pay increase in 1986. 171 2. Gail Davis Davis began working for Lieberman and Segal at an- other store owned by them, called Top Banana, in 1981. In 1983 she moved to the Amazing store at 1124 Chest- nut Street. She remained at this last location throughout the union campaign. In early December, her manager, Jim Giordano, told her that Segal was in the back room and wanted to talk to her. She asked if she had to. Giordano said no, so Davis said she did not want to go back there . According to Davis, everyone else in the store went to the back room to talk to Segal except Steve Calhoun and herself. Calhoun later did talk to Segal about the Union. On New Year's Eve 1985, Lieberman and Segal came to the 1124 Chestnut Street store about 2:30 or 3 o'clock in the afternoon. Davis and Lisa Huffnagle were both working on separate cash registers, although both testi- fied that it was not busy that afternoon . 14 All the em- ployees who were in the store that day were called to the back room and received a bonus with the exception of Gail Davis. After Lieberman and Segal had left Davis called Manager Jim Giordano over and asked about her Christmas bonus. Giordano replied that she would not go back to see Lieberman and Segal when they wanted to talk to her, so she was to get no bonus. This last was corroborated by Lisa Huffnagle . Giordano did not testi- fy. Segal and Lieberman averred that they did have a bonus for Davis, but the store was so busy that she could not be relieved at the time they were there. They stated that they went to another store further west on Chestnut, then returned later to fmd that Davis had already left. t a In the meantime, after Girodano told her that she would not be receiving a bonus, Davis told Giordano that she was leaving early. She was upset and, in re- sponse to Huffnagle's request that she give her a call, re- plied "what for?" and when Huffnagle asked her if she was coming back, again said "what for?" Davis was not so angry that she did not wish everyone a happy new year before she left. Notwithstanding the strained cir- cumstances of her departure, Davis testified, credibly, that she told Giordano that she was leaving, she did not say that she was quitting, and that Giordano did not say anything to her, merely shrugging his shoulders. The next working day, 2 January 1986, according to Davis, she called Giordano and told him that she would not be in that day. This was the normal procedure for employ- ees who were taking a day off. Giordano said "O.K." Later that day, however, Giordano called Davis on the telephone and said, "Gail, you are being replaced." She asked if she was being fired and Giordano replied, "No, you quit." Davis later went to the Company's office to pick up her check. While she was there she asked Lie- berman why she was fired. He said she had quit, but she was given no opportunity to return to the 1124 Chestnut store, or to be reassigned somewhere else. Nor was she given the bonus check that Segal and Lieberman testified 14 Bruce Kraskow testified that he was a relief cashier at the 1124 Chestnut Street Store, but that he was not called to fill in on that day. is They did not attempt to explain why they did not make arrange- ments to pay the bonus to Davis, or even to send it to her if, as they maintained, she had quit. 172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD they had not been able to give her on 31 December at Chestnut Street. On the bonus check, I think the record is clear that Segal and Lieberman had no intention of giving the check to Davis when they visited the 1124 Chestnut Store on 31 December. There is no question that the store was not busy. Huffnagle, the other cashier, was re- lieved to get her check. Kraskow, the relief cashier was not called to relieve Huffnagle. There is no testimony to corroborate the testimony of Segal and Lieberman that they returned to the store later that evening. In fact both Huffnagle and Kraskow testified that they did not return. Davis' testimony that Giordano told her that she did not get a bonus check because she had refused to talk to Segal and Lieberman earlier, during the union campaign, is both credible and undenied. I find, in these circum- stances, that Davis was denied her bonus because of her refusal to meet with her employers, a clear violation of her right to engage in protected activity on behalf of the Union in violation of Section 8(a)(1) and (3) of the Act. The next question is whether Davis' leaving the store on the afternoon of 31 December constituted a resigna- tion from her employment. I think not. Davis testified, again credibly, that she told Giordano that she was leav- ing. She had been publicly humiliated by not receiving a check, and Giordano's explanation of why she had not been paid the bonus had been overheard at least by Huff- nagle. Giordano's reply was a noncommittal shrug. He did not say she could not or should not go. There is no indication in this record that punching out early was an offense against company rules or policies. At that point, despite what Davis may have said to Huffnagle, even in the presence of Giordano, Davis had not indicated to any responsible company official that she was not coming back. In any event, any ambiguity left in the at- mosphere of New Year's Eve should have been clarified for the Company when Davis talked to Giordano on the morning of the next working day 2 January 1986. She told him that she would not be in that day and he agreed with that statement, saying "o.k." We do not know what happened after that morning telephone call, but the next thing that Davis knew, Gior- dano called her at 4 or 4:30 on the afternoon of 2 Janu- ary and told her she had been replaced. The only logical explanation for this is that a decision was made, I infer and find it was made by Lieberman and Segal, to use Davis' angry departure on New Year's Eve as an excuse to get rid of her. This, I find, follows logically from the refusal to pay this troublesome and uncooperative em- ployee a bonus, and her natural irritation at being told that the reason for the refusal to pay the bonus was her exercise of her rights under Section 7 of the Act, to re- frain from meeting with Segal and Lieberman. In these circumstances, I find that Davis was, in fact, discharged in further retaliation for her exercise of statutorily pro- tected rights. 3. Karen Andrews Andrews was hired on 6 October 1986 as a cashier in the Frankford Avenue store. She maintained that she was hired as a permanent , not a seasonal, employee. Robert Cressman testified that he had suggested to Lie- berman in the fall that they needed another person at Frankford Avenue for holiday work. Andrews was hired after that, but there does not seem to be a connection be- tween Cressman's recommendation and Andrew's hiring. In any event, she was hired by Store Manager Ellen Nancy Faragasso. Lieberman indicated at one point in his testimony that Andrews was a "seasonal" employee, and at another point he was not so clear about her status, fending off questions about her absenteeism and job per- formance, saying that at that time they needed all the hours she could give them.' 6 It is accurate to say that Andrews was not the most faithful of workers. She had a problem in that she had to drop her little boy off at school about the time she was scheduled to report for work making her, by her own admission, 10 minutes or so late every morning." Beyond this chronic tardiness, Andrews was marked as being sick for at least 1 day in November, according to the two timecards in evidence. She was described by Faragasso as being sick at other times and not calling in. Andrews also obtained another job in December. This was a daytime waitress position at a local restaurant on Thursdays and Fridays. She testified that she had to begin as a day employee at the restaurant in order to work her way on to the night shift. She was moved to nights at the restaurant in January. Meanwhile, after Christmas, Andrews noted that she was scheduled for only 1 day in the following week. She asked Lieberman about this and he replied that he was having a hard time finding hours for her. He did say that he would try to find some hours, and asked her if she would work at other stores. She said she would. Howev- er, on the next day, 31 December, Lieberman called An- drews and told her he could not find any hours for her and had to lay her off. When she protested he said there was nothing he could do for her when she was coming in late all the time and missing days. Aside from Lieberman's answer to one question on the layoff of Andrews, the position of the Company is con- sistent, through the testimony of Faragasso and Cress- man, who I found to be credible witnesses, that Andrews was hired as a seasonal employee. The season ended right after the holidays, and she was laid off. I do not believe that the General Counsel has established a prima face case that this layoff was motivated by any reasons other than the seasonal nature of Andrew's employment, and her admitted tardiness and poor attendance. There- fore, I do not find a violation of Section 8(a)(1) and (3) in the Andrews' layoff. 16 Faragasso also testified that Andrews was hired as a seasonal em- ployee, and that she was warned constantly about lateness and absentee- ism 17 Two timecards submitted in evidence by the Respondent show that this statement was substantially accurate, although the cards do not bear out Andrew's assertion that she worked 8 hours a day, 6 days a week, rather they show her working only 3 days in each of the 2 weeks cov- ered AMAZING STORES F. The Alleged Refusal to Bargain I have already found, based on the arithmetical figures represented by the names of employees agreed on by the parties, and by my findings regarding Andrews, Barsegh- ian, and Siers in section III,A, above, the Union' held au- thorization cards for a majority of the employees from 7 November through 15 November 1985. On 15 November the Union made a valid demand for recognition based on this majority. The Company re- fused to recognize the Union, instead it began what I find to be a calculated plan of coercion and intimidation orchestrated and implemented by Joseph Lieberman and Jack Segal, through individual meetings with all but one of the Company's employees. The centerpiece of the campaign was the constantly repeated assertion by Lie- berman or Segal or both in these meetings where they each applied pressure to the unaccompanied, sometimes frightened, individuals by means of threats that the stores were going to be closed or sold to Koreans who, in turn, would hire their own relatives and discharge the current employees. The threats uttered at,the individual meetings were given additional substance by appearances of Lie- berman and Segal accompanied by one or more oriental persons, a theatrical device I have found to have been staged by Segal in order to heighten the employees' anxi- eties. The critical points that I discerned in all this were, of course, the coercive impact of the threats and the ap- pearances of the Koreans; the other unfair labor prac- tices I have found, the interrogations, promises of im- proved conditions, denial of bonuses, giving the impres- sion of surveillance; but the fact that both Segal and Lie- berman not only admitted that they had threatened em- ployees that they would close or sell the stores, but the fact, from my observation of both Lieberman and Segal while they were testifying, that they meant exactly what they were saying, and that if the Union had won the election they would have sold off the stores, to Koreans, or anybody; and rid themselves of any obligation to bar- gain collectively with the Union chosen by their employ- ees. Moreover, I discerned not one iota of regret or re- morse that they had done these things. I have no doubt that if, as the result of my recommendations in this case, a second election were to be ordered, Lieberman and Segal would find the means to let their employees know that their joint will is unchanged and that the advent of the Union would mean the end of their connection with Amazing Stores. It is for this last reason, more than the other unfair labor practices, even the mistreatment of Ralph Atwell and the discharge of Gail Davis, that I feel that the ordi- nary remedies of notice posting, cease and desist, and a new election would not properly protect the rights of the employees here so egregiously disregarded, and that a bargaining order, as requested by the General Counsel, would be the most appropriate remedy.18 I therefore 18 Indeed, I feel that the possibility of the closing or sale of stores is so real a risk that I am recommending a broad order here to put whatever emphasis I can on the danger of disregard and nullification of the effect of this decision by the Respondent; Hickmott Foods, 242 NLRB 1357 (1979). 173 find that the Respondent has failed to bargain in good faith with the majority representative of its employees in the unit stipulated to by the parties in violation of Sec- tion 8(a)(1) and (5) of the Act. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969); Precision Graphics, 256 NLRB 381 (1981); Michigan Expediting Service, 282 NLRB 210 (1986). G. The Objections In view of my disposition of the unfair labor practice portion of this case , see section III,F, above, I recom- mend that the objections to the election be dismissed. IV. THE REMEDY Having found that the Respondent has violated Sec- tion 8(a)(1), (3), and (5) of the Act, I shall recommend that it cease and desist therefrom and that it take the fol- lowing affirmative action designed to effectuate the poli- cies of the Act. I will recommend that the Respondent offer to Gail Davis immediate reinstatement to her former position or, if that position no longer exists, to a' substantially equivalent position without prejudice to her seniority or other rights and privileges that she had en- joyed, and that she be made whole for any loss of earn- ings suffered by her as a result of the discrimination against her by the payment of sums equal to those she would have earned, absent such - discrimination, with backpay computed in accordance with the formula in F. W. Woolworth Co.; 90 NLRB 289 (1950), and with in- terest compounded in the manner described in Florida Steel Corp., 231 NLRB 651 (1977). I will recommend that the Respondent pay to Gail Davis and to Ralph Atwell sums equivalent to the bo- nuses that were unlawfully denied them in December 1985, and to Atwell a sum equal to any pay increase he would have been awarded in January 1986, to the time of his voluntary termination from employment with Re- spondent together with interest thereon. I will recommend that the Respondent on request bar- gain in good faith with the Union as the representative of its employees in the unit heretofore found to be appro- priate, concerning wages, hours, and other conditions of employment for the employees in said unit. Because the unfair labor practices found here are egre- gious and widespread, going to the heart of the Act, and vitally affecting the livelihood of employees, I shall rec- ommend that a broad order issue in this matter; Hickmott Foods, supra, and I shall grant the General Counsel's re- quest for a remedial visitatorial provision. Because there is a real possibility that Respondent will sell one- or more of its retail stores in order to frustrate its employees' wishes, or this recommended order, I shall recommend that it be ordered not to discontinue its oper- ations, at any of its locations. CONCLUSIONS OF LAW ,1. The Respondent, Amazing Stores, Inc., is an em-°' ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. United Food and Commercial Workers, Local 1357, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of Respondent constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 8(b) of the Act: All full-time and regular part-time sales personnel, stock personnel , cashiers and truck drivers em- ployed by the Employer at its 816 Chestnut St., 1124 Chestnut St., 1621 Chestnut St., 7130 Frank- ford Ave., 5645 N. 5th St., Academy Plaza, Acade- my & Red Lion Rds, and 139 W. Chelten Ave., Philadelphia, PA., locations, and its Sharon Hill Plaza, Chester Pike, Sharon Hill, PA., 734 Hamilton St., Allentown, PA., locations, excluding all their employees, guards and supervisors as defined in the Act. 4. By interrogating its employees, by giving them the impression their protected activities were under surveil- lance, by promising them benefits, coercing and threaten- ing them in order to interfere with their right to choose a representative for collective bargaining, the Respond- ent has violated Section 8(a)(1) of the Act. 5. By threatening to withhold employees' bonuses and by withholding those bonuses for a period of 1 week, the Respondent has violated Section 8(a)(1) of the Act. 6. By failing and refusing to pay bonuses and pay in- creases to Gail Davis and Ralph Atwell, the Respondent has violated Section 8(a)(1) and (3) of the Act. 7. By discharging Gail Davis, the Respondent has vio- lated Section 8(a)(1) and (3) of the Act. 8. By refusing to bargain collectively and in good faith with the Union, in the unit set out above, the Respond- ent has violated Section 8(a)(1) and (5) of the Act. 9. The unfair labor practices set forth above affect commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed19 ORDER The Respondent, Amazing Stores, Inc., Philadelphia, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating its employees; giving its employees the impression that their protected activities are under surveillance; threatening its employees with the closure or sale of its stores; promising increased benefits to its employees or coercing or threating them, in order to interfere with their rights to choose a collective-bargain- ing representative. (b) Threatening to discontinue its operations or to sell its stores, or discontinuing its operations or selling its 19 If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules , be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. stores to retaliate against its employees because of their activities on behalf of the Union. (c) Terminating any of its employees because of their union activity. (d) Refusing to pay bonuses or pay raises because of employees' union activity. (e) Refusing to bargain in good faith with the Union over wages, bonuses, and conditions of employment for its employees. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and on request bargain collectively and in good faith with the Union as the exclusive bargaining representative of its employees in the appropriate bar- gaining unit described as follows: All full-time and regular part-time sales personnel, stock personnel, cashier, and truck drivers em- ployed by the Employer at its 816 Chestnut St., 1124 Chestnut St., 1621 Chestnut St., 7130 Frank- ford Ave., Philadelphia, PA. locations, and its Sharon Hill Plaza, Chester Pike, Sharon Hill, PA., 734 Hamilton St., Allentown, PA. locations, exclud- ing all other employees, guards and supervisors as defined in the Act. (b) Pay to Gail Davis and Ralph Atwell the bonuses unlawfully withheld from them in December 1985, to- gether with interest thereon. (c) Pay to Ralph Atwell the raise in pay unlawfully withheld from him in January 1986, together with inter- est thereon. (d) Offer to Gail Davis immediate and full reinstate- ment to her former or substantially equivalent position, together with backpay to which she may be entitled, be- cause of its discrimination against her, together with in- terest thereon. (e) Post at its facility in Philadelphia, Pennsylvania, copies of the attached notice marked "Appendix. 1120 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. For the purpose of deter- mining or securing compliance with this Order, the Board, or any of its duly authorized representatives, may 20 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 " AMAZING STORES 175 obtain discovery from the Respondent, its officers, pervision of the United States court of appeals enforcing agents, successors, or assigns, or any other person having this Order and may be had upon any matter reasonably knowledge concerning any compliance matter, in the related to compliance with this order, as enforced by the manner provided by the Federal Rules of Civil Proce- court. dure . Such discovery shall be conducted under the su-