W. T. Grant Co.

National Labor Relations Board - Board Decisions

Mar 22, 1972

195 N.L.R.B. 1000 (N.L.R.B. 1972)

1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W. T. Grant Company and Retail Clerks Union, Local
# 1552, Retail Clerks International Association,
AFL-CIO. Cases 9-CA-6103, 9-CA-6205, and 9-
RC-8844
March 22, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On December 14, 1971, Trial Examiner Herzel H. E.
Plaine issued the attached Decision in this proceeding.
Thereafter, the Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed limited
exceptions. - -
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief, and has decided to affirm the Trial Examiner's
rulings, findings,' and, conclusions and to adopt his
recommended Order, as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as, its Order the recommended Order of
the Trial Examiner and hereby orders that the Re-
spondent, W. T. Grant Company, Dayton, Ohio, its
officers, agents, successors,, and assigns, shall, take, the
action set forth in the Trial' Examiner's recommended
Order, as modified below.
The last ' paragraph of the Trial Examiner's recom-
mended Order following 2(e) should be deleted and the
following substituted:
"IT IS FURTHER ORDERED that the election in Case
9-RC-8844 be, and it hereby is, set aside, and that the
petition be, and it hereby is, dismissed."
' The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board's established policy not to overrule a Trial
Examiner's resolutions with Respect to credibility unless the clear prepon-
derance of all of the relevant evidence convinces us that the resolutions were
incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d
362 (C A. 3). We have carefully examined the record and find no basis for
reversing his findings. Nor do we find merit in the Employer's contention
that because the Trial Examiner generally discredited the Employer's wit-
nesses and credited the General Counsel's witnesses, his credibility resolu-
tions are erroneous or attended by bias or prejudict N.L.R.B v Pittsburgh
Steamship Co., 337 U.S. 656.
TRIAL EXAMINER'S DECISION
HERZEL H. E. PLAiNE, Trial Examiner: The consolidated
proceedings charge misconduct by the Respondent-Employer
(the Respondent) against its Fairborn, Ohio, store employees
constituting unfair labor practices and affecting the results of
a representation election and the possibility of holding a fair
195 NLRB No. 183
election to an extent, it is said, that warrants setting aside the
election and issuing a bargaining order in= favor of the Charg-
ing Party-Petitioner (the Union).
The complaint in the two unfair labor practice cases, 9-
CA-6103 and 9-CA-6205, alleges violations of Section
8(a)(1),'(3), and (5) of the National Labor Relations Act (the
Act), founded on charges filed by the Union February 19 and
April .8, 1971. Respondent, through its supervisors, is
charged with threatening employees and Union agents with
arrest to discourage union activities, surveillance and creating
the impression of surveillance of employees' union activities,
interrogating employees concerning union activities and
threatening to divulge information gained to management,
threatening to close the store rather than recognize the
Union, preelection and postelection discharges of union acti-
vists and sympathizers and failure to recall other union sym-
pathizers from layoff status, failure to grant recognition and
to- bargain with the Union on three separate requests in
December 1970 and January 1971, and engaging in the above
alleged acts of misconduct to undermine the majority status
achieved and maintained by the Union when it made its
several requests for recognition.
In the representation case , 9-RC-8844, an election was
held on February 5, 1971, under which the results to date
have been inconclusive. There were 30 votes for the Union,
34 votes against the Union, and 13 challenged ballots. The
Union also filed objections to' the Respondent's conduct
affecting the results of the election. Asa result of the Regional
Director's report (June 17, 1971) on the election and objec-
tions, the Board in its order of July 8, 1971, sustained the
challenges to 5 of the 13 challenged ballots (thereby eliminat-
ing these 5 ballots); overruled the challenges to 3 of the 13
challenged, ballots (thereby retaining these 3 for possible fu-
ture counting); and deferred action on the remaining 5 ballots
of 5 discharged or laid-off employees pending trial of whether
the respective discharges and failures to recall were dis-
criminatory under the Act. Also deferred, and referred for
trial, were unresolved objections grounded upon Respond-
ent's alleged threats to employees of loss of jobs, interrogation
concerning employees' union activities, and attempted arrest
and removal of discharged employee Gregory from Respond-
ent's store, refusing him restaurant service provided to the
general public, and ordering Union representatives out of the
public restaurant.
Because these various issues in the representation case are
also embraced in the two unfair labor practice cases, all three
cases were consolidated for trial, held in Dayton, Ohio, July
12-15, 1971, and August 2-3, 1971. General Counsel and the
Respondent have filed briefs.
At trial, General Counsel established that the Union had
authorization cards from a majority of the unit employees at
the times of its demands for recognition (which were refused);
and at the conclusion of the trial, Respondent conceded that
the Union had such a majority. Respondent has defended on
two grounds, (a) that it committed no wrongs against its
employees, and (b) if it did, the misconduct was not so ex-
treme and pervasive as to require the remedy of a bargaining
order under the tests explicated in N.L.R.B. v. Gissel Packing
Co., 395 U.S. 575 (1969).
Upon the entire record of the case, including my observa-
tion of the witnesses and consideration of the briefs, I make
the following:
W. T. GRANT CO. 1001
FINDINGS OF FACT
I JURISDICTION
Respondent is a Delaware corporation engaged in the retail
sale of goods at many locations in the United States, including
the retail store at Fairborn, Ohio, involved in these cases,
Annually, Respondent purchases goods valued in excess of
$50,000 from outside Ohio and causes the same to be shipped
directly to its location in Fairborn, Ohio. Annually, Respond-
ent has a gross volume of sales in excess of $500,000.
Respondent is engaged, as it admitted, in commerce within
the meaning of Section 2(6) and (7) of the Act.
The Union is, as Respondent also admitted, a labor organi-
zation within the'meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Union's Majority Status, Requests for Recognition
Refused
About December 1, 1970, Union Organizer Sherman Ham-
mergren received a call from employee Edwin Shields about
organizing Respondent's retail store employees at Fairborn,
Ohio. Hammergren arranged for-a meeting of employees Fri-
day night, December 4, 1970, and about a dozen employees
attended and signed authorization cards. The authorization
card used, is a simple single-purpose form by which the em-
ployee authorizes the Union (international or local) "to
represent me for the purposes of collective bargaining re-
specting rates of pay, wages, hours of, employment, or other
conditions of employment, in accordance with applicable
law."
A subsequent meeting was arranged for the next night,
attended by other employees and some of the first-nighters,
and thereafter a series of meetings was held up to the first
week in February 1971. -
At the first union meeting on December 4, employee Evan
Gregory stood up and made a speech, urging his fellow em-
ployees to sign up for the Union, and employee Edwin Shields
was designated as a channel for getting authorization cards
to the employees and signed cards' back to the Union.
By December, 10, 1970, Union Organizer Hammergren had
43 signed authorization cards in the unit of 83 employees (see
(1C Exh. 38, payroll week ending December 10, 1970), which
was a majority of the unit. He sent telegrams to the store
manager and district manager asking for recognition and
bargaining. These telegrams were received by the addressees
on the same day, December 10. Upon receiving replies from
the district and store managers to make his demand for recog-
nition to Respondent's New York office, Hammergren ad-
dressed a second request on December 16 to the New York
office. This was received by Respondent on December 22,
1970. Atthat point,' the Union had in hand 53 signed author-
ization cards in the unit of 83 employees (see GC Exh. 38,
payroll week ending December 17, 1970), an even larger
majority than with the previous demand.
Respondent, by its Attorney Steinberg, replied on Decem-
ber 28, 1970, refusing recognition.
The Union had filed a petition with the Board on Decem-
ber 11, 1970, for a representation election. However, as the
result of a conversation between Union Organizer Wellnitz
and Merchandise Manager Bennington in January 1971 con-
cerning recognition, in which conversation Bennington
claimed that, with a reduction in the size of the unit by layoffs
' The majority status of a union requesting recognition and bargaining is
normally determined as of the time of the receipt of the request by the
employer, NLR.R v. Security Plating Ca , 356 F.2d 725, 727 (C.A 9,
1966).
and-discharges, the Union no longer represented a majority
of the employees, Organizer Hammergren sent off a third
request for recognition on January 14, 1971. This third re-
quest was received by Respondent on January 18, 1971. At
that date, adding signed cards received after December 22
and subtracting cards of employees no longer on the payroll
(justifiably or not), the Umon had a majority of 35 of the 67
employees listed on the payroll (see GC Exh.. 38, payroll for
week ending January 14, 1971.1
Hence it is clear that at the time of each of these three
demands for recognition the Union represented a majority of
the employees. In this connection the General Counsel au-
thenticated each of the 59 signed cards that substantiated the
majorities behind the several demands, either through the
employee who signed the card or the person who obtained-the
signed cards. Respondent had full opportunity to cross-exam-
ine each and cross-examined most"of the witnesses on the
circumstances of, and any representations accompanying, the
signings.' The cross-examination reaffirmed the validity of
and established the absence of any misrepresentation or coer-
cion affecting the authorizations; and Respondent then
conceded that the Union had authorizations from a majority
of the employees when it made its three demands for-recogni-
tion and bargaining (see &3, supra).
B. The Unit and the Election
The parties were in agreement that the appropriate unit for
the purposes of collective bargaining comprised,
"All regular full-time and part-time sales and non-sales
employees, including office clerical- employees, employed by
Respondent at its Fairborn, Ohio location, but excluding all
guards, professional employees and-supervisors as defined in
the Act."
Under a stipulation for certification upon consent election
executed January 22, 1971, the Board conducted a represen-
tation election, among the employees of the unit on February
5, 1971. As indicated at the head of this decision, there were
30 votes for the Un(on, 34 votes against the, Union,- and 13
challenged ballots. By actions of the Regional Director and
Board on the challenges and on the Union's objections to
Respondent's conduct of the election, 5 of the 13 challenged
i Even using the so-called Excelsior list; for the week ending January 21,
1971, GC Exh 37, listing 68 employees, the Union's 35 cards constituted
a majority. Still later, on January 31, 1971, the Union acquired an additional
authorization from employee Salow, GC Exh. 29.
i In the case of one card, GC Exh. 70, signed by a cashier employee Linda
Jean Hunter, employee Hunter failed to appear and testify in response to
a subpoena by General Counsel, because she was pregnant. To avoid delay
of the trial, if enforcement of the subpoena were required,, on a matter that
was not crucial, General Counsel proved the signature through a fellow
employee who had been a school chum of Hunter's and knew-her writing
and signature. Respondent was afforded the opportunity to compare and
bring in specimens of employee Hunter's signature and handwriting, of
which there were many available to Respondent, since she filed cashier's
reports among other signed papers Instead, Respondent brought in afellow
cashier who said she had known employee Hunter only"briefly and could not
say whether the card signature was -or was not Hunter's signature. In the
circumstances, including the fact that the card was- among those received
and stamped by the Board on December 11, 1970, along with the group
supporting the petition for an election, I admitted'the card into evidence as
reliably shown to be the employee Hunter's authorization executed on the
d'ay it was dated, December 7, 1970 Actually, the card .was-not needed to
sustain the Union's majority on either December 10 or 22, 1970; and was
not among the cards counted for the majority on January 18, 1971 'Indeed,
at the close of the trial, with the 59 cards held valid, General Counsel made
an offer of proof of a sixtieth authorization card executed by employee
Maurer on December 6 and received in the Board office December 11, 1970.
The offer was withdrawn when Respondent agreed that the Union had a
majority on the three dates of its demands
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ballots have been thrown out, 3 have been retained for possi-
ble future counting, and the validity of the remaining 5 ballots
rests on the determination (as a result of this trial) of whether
these 5 voters, whose employment relation had been severed
at the time of the election , were discriminatees under the
Act.' The five are Evan Gregory, Edwin Shields, Connie
Stringer, Gary Powers, and Cathy Williams.
C. Discharge of Evan Gregory
1. The circumstances
Evan Gregory was the senior of two salesmen handling the
appliance department of Respondent 's store. He worked at
the store for almost 12 years from January 1959 until his
discharge December 9, 1970. Employee Gregory started as a
stockboy, and in 1965 attained the job, which he held until
his discharge , called "appliance manager." This was not a
statutory supervisory job, as Respondent agrees. Gregory's
main duty was to sell.
Employee Gregory sold radios, television sets, refrigera-
tors, washers, dryers, and other appliances carried by his
department (No. 30). He sold from the store floor and, in
addition, was expected to pull in new customers or prospects
by daily telephone and mail procedures . Selling included sell-
ing service contracts for the major appliances, taking cus-
tomer complaints and orders for service under or outside the
service contracts and sale warranties , and turning these or-
ders over to the repair contractors who supplied appliance
service for the store . Gregory also assembled or prepared
appliances for delivery, when required . He prepared sales
reports, claims for warranty parts, inventories , and ordered
merchandise . For all of these tasks over the long day of a
retail store, Gregory had one helper, who had the title "sales-
man." In 1970, the helper-salesman was Edwin Shields.
Respondent 's Fairborn store is 1 of 28 stores in the Ohio
district, and is one of the larger stores doing a gross annual
business of almost $2.5 million , according to District
Manager Boyle. Of the 30 to 40 store departments , Depart-
ment 30, the appliance department , has been the largest single
producer of sales, accounting for from 8 to 10 percent in gross
dollar volume of sales.
Employee Gregory apparently was a good salesman. In
1966 he had been selected for a company training program
for improving sales, in early 1968 he won a substantial prize
for placing second in a company sales contest , and in late
1968 he was awarded a company certificate of merit for out-
standing performance.
In 1970 , the store sales performance as a whole was down,
using gross sales as the index (the only index offered by
Respondent) and comparing 1970 gross sales with 1969 gross
sales (see Resp . Exh. 13). The overall drop for the year ave-
raged out about three percent (a decline by $74,000 from
$2,473;000 in 1969 to$2,399,000 in 1970), with the decline
heavier in the last 6 months of 1970 than in the first 6 months.
Employee Gregory testified that he, the new store
manager, George Casper, who had come into the store in July
1970, and Merchandise Manager Bennington discussed each
month the drop in sales in the fall of 1970, noting the gener-
ally depressed economy ' and the special problem for them
caused by the General Motors Company strike . General Mo-
tors is a large employer in the area . The strike began in
mid-September and lasted till late in November 1970 and was
known to be coming well before it started, causing before-
hand , said Gregory, a fear against buying.
" Of course , also to be determined is the larger issue of whether the results
of the election have been nullified by employer misconduct.
In October 1970, according to employee Gregory,
Manager Casper told Gregory and employee Shields to con-
centrate on sales from then to Christmas in preference to their
other duties . Actually, said Gregory, his sales started to im-
prove in the last 3 weeks he worked . The assertion was not
challenged.
Gregory testified that in his conversations with Manager
Casper, prior to his discharge on December 9, it had never
been indicated or intimated that his job was in jeopardy. And,
Manager Casper and Merchandise Manager Bennington gave
no testimony to the contrary.
Employee Gregory attended the first union meeting held
on the night of Friday , December 4, 1970 . Gregory rose and
made a speech at the meeting urging his fellow employees to
sign with the Union and signed a card himself at the meeting.
On the morning of December 9, Gregory was called into
Store Manager Casper 's office and told he was fired . Accord-
ing to Gregory, Casper told him his sales were down, his
service income was down, and his service expenses were up.
Gregory said after I 1 years employment he thought the mat-
ter was worth a little discussion , but Casper said he wouldn't
debate the matter and handed Gregory his pay.
Store Manager Casper 's testimony was in general-accord
on the substance of the exit discussion , except that he added
that he showed employee Gregory some figures for July
through November . Merchandise Manager Bennington, who
had also been present , thought that Casper also mentioned a
lack of processing credits for parts under service warranties;
but when both of them called in the junior appliance sales-
man, Edwin Shields, the same day to tell him they were
moving him into Gregory's place, Casper told him, testified
Shields, that they had let Gregory go because his sales and
service sales in October were down and his service expenses
for October were up.
After his discharge on December 9, Gregory stopped into
the store for the first time on December 28. Merchandise
Manager Bennington accosted him and told him he did not
want him in the store and " would have him thrown out. Greg-
ory said he was there for a birthday card and a cup of coffee.
Bennington followed him to the card racks. Then Store
Manager Casper came by , grasped Gregory by the arm and
said he didn 't want Gregory in the store. Gregory said he,
thought the store was a public place, and,, when Casper let
loose his grasp, went on without purchasing a card to the
restaurant and snack bar (maintained for the public and em-
ployees alike) for coffee. Casper followed and yelled to Res-
taurant Manager Beard not to serve Gregory. No one waited
on him, so Gregory started out the store when he walked into
policemen from two police cars . Merchandise Manager Ben-
nington testified he could not recall whether ' Casper or he
threatened to call the police but said he was responsible for
their being called . On inquiry, the-police refused to make an
arrest telling Store Manager Casper he had not right to refuse
to serve Gregory. Casper repeated he would not provide ser-
vice for Gregory but would check the matter with his New
York lawyer. Whereupon Gregory left. Casper's testimony
was substantially in accord.
Gregory came into the store on two subsequent occasions
for personal business , January 17 and February 4, 1971. On
both occasions, while he was not refused service, he was
followed and watched by Division Merchandiser Orville Loc-
kard, a management trainee and acknowledged statutory
supervisor , who testified he had been told by Store Manager
Casper and Merchandise Manager Bennington to follow and
observe union organizers to see that they did not interfere
with employees at work . Lockard claimed that following and
observing Gregory was his own' idea for the same purpose.
Gregory denied doing any union solicitation in the store and
W. T. GRANT CO. 1003
there was no evidence that he did, though he conceded help-
ing the Union to organize after his discharge.
2. Conclusion
Respondent (specifically Store Manager Casper) claimed it
was not aware until December 10, the day after employee
Gregory was fired , when the Union's telegram for recognition
was received , that there was a union campaign to organize the
store employees , and that it fired Gregory not for antiunion
reasons but for legitimate cause.
However, even before December 9, when Respondent dis-
charged employee Gregory, the Union had held several meet-
ings with the store employees commencing December 4, had
obtained almost all of the 43 signed authorizations that sup-
ported the demand for recognition of December 10, and had
distributed additional blanks both in and about the store.
Indeed there was evidence of employees soliciting manage-
ment people , as, for example, employee Bates (who signed a
card December 5) asking Assistant Restaurant Manager
Hicks to sign up.
Moreover, the vindictive conduct of Store Manager Casper
and Merchandise Manager Bennington , shortly after the dis-
charge, in attempting to eject Gregory from the store and
have him arrested and denying him service without wrongdo-
ing on his part, in the presence of all of his recent fellow
employees within sight and hearing, cannot be explained by
any alleged shortcoming in his work for the company. Such
conduct suggests management knowledge of Gregory's as-
serted leadership in favor of the Union before he was fired and
a continued effort at reprisal to keep his influence away from
the employees.
This motivation becomes even more apparent in light of
Respondent's shifting reasons, largely unsubstantiated, for
the discharge of employee Gregory. He was told that his sales
for both appliances and service contracts were down in the
last half of 1970, which was also true of sales for the whole
store for recognized reasons that affected the economy as a
whole and this store in particular . However no account was
taken of the fact that in late November and early December
his sales had gone up, a fact borne out by the December 30,
1970 , letter of the Chicago Regional Superintendent Baston
to Store Manager Casper (Resp . Exh. 19)., Baston took note
that the store appliance department was "selling 70 % initial
service contracts and that's good . Your renewals are next to
nothing-so be sure to jump on this opportunity etc."
Since the stores including Fairborn report on a monthly
basis, according to Store Manager Casper and District
Manager Boyle , and since the sale of initial service contracts
depends, as employee Gregory pointed out, on sales of the
major appliances , it is obvious that Gregory, the main sales-
man of two comprising the department , was instrumental in,
and entitled to credit for, the boost in sales and service income
at the end of the year up until he left December 9. While
Boyle claimed he personally checked the Fairborn store on
December 1 and found the appliance department was selling
only 3 service contracts out of every 10 appliance sales or only
30 percent , Boyle's superior , Regional Superintendent Bas-
ton, who was dependent upon reports, noted in his letter of
December 30, that the store was selling 7 service contracts
out of every 10 appliance sales, or 70 percent . Boyle could not
account for the difference between his check and Baston's
information , nor did he know the period of time covered by
Baston 's letter.
At trial, Respondent also claimed that the appliance de-
partment's service expenses had increased in the last months
of Gregory 's employment , and that it was discovered after his
discharge that this was due to his extension of warranties
beyond their normal duration . The only evidence of any in-
crease in expenses and extension of warranties , put in by
Respondent, were 22 transactions in the 12 months of 1970
where the store absorbed $310'in service expenses beyond
warranty periods.Apart from the fact that the $310 expendi-
ture in 1 year was a drop in the bucket of income from this
department , and apart from the merits of the warranty exten-
sions, it turned out that all but $60 of this expense was
incurred in the first seven months of 1970, that $ 16.50 was
incurred in August 1970 , $39.50 was incurred in September
1970 , and none of these expenses were incurred in-October,
November , and December 1970. So far as the proof went,
Respondent 's claim was baseless and an afterthought at that.'
Respondent altered its claim, and what it had told Gregory
concerning the cause of his discharge , when it told the Ohio
Unemployment Compensation Commission in January 1971
that it discharged Gregory for "failure to comply with com-
pany rules" and "company policy" by failing "to turn in
warranties on appliances" (as a result of which account Greg-
ory was denied the 1 week of unemployment compensation
he had claimed , see GC Exh . 49). Nothing was said to the
Ohio Commission about discharge because Gregory 's sales
were down and expenses up.
Gregory did not contest the unemployment compensation
matter, he said, because he had obtained another job and felt
it was not worth a contest for 1 week 's benefit. However, he
understood the claim of "failure to turn in warranties" (not
unreasonably) to mean failing to fill out warranty cards on
purchases of appliances . He conceded that there had gener-
ally been a time lag of a week between sale and filling the card,
and that he did the paperwork whenever he found time. But
there had never been a reprimand about his methods in this
regard.
Respondent said that what it meant in its reason given to
the Ohio Commission was Gregory 's failure to claim from
Respondent 's home office credits for parts supplied customers
under warranties . Actually the complaint was slowness, not
total failure, in doing the paperwork . The effect of delay in
getting the credits processed was that in a given month the
appliance department 's expenses in servicing appliances
would appear on the home office profit and loss statement to
be higher than they might have been if the parts credits had
been obtained promptly and figured in. (But not higher by
much , according to Gregory , because, in warranty service
work, labor was the big cost and parts only a small fraction
of the cost.)
However , Store Manager Casper claimed he had been after
employee Gregory every week since he, Casper , took over
management of the store on July 2, 1970, to keep up his
paperwork on parts credits. Gregory testified he filed the
parts credit forms usually on a weekly basis in August and
September, but that in October with the concern over falling
sales Casper told him to concentrate all of his time until
Christmas on sales, as a result of which he neglected the
paperwork in this period. Casper denied telling Gregory to
concentrate his time on sales at the expense of other duties.
The denial appears hollow , however, because if Casper were
actually checking Gregory every week, as he claimed, about
parts credits , and if the credits had the importance Casper
attributed to them , he would not have allowed weeks to pass
without causing the filings to be made. The greater probabil-
5 There was a dispute of testimony as to whether Gregory had been given
authority to extend warranties or required approval of the store manager in
every case Resolving the dispute was of no consequence , however, since the
actual result in dollars during Store Manager Casper's tenure was negligible.
Suffice it to say that employee Gregory did not take the sole responsibility
for such extensions butt obtained approval and even direction for some from
the store manager. No one in the store kept any records of these extensions.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ity is that Casper, like any sensible store manager, put sales
ahead of paperwork and instructed Gregory accordingly
when the store sales situation became bad. Moreover, had
Casper actually been checking weekly since July the presence
of a bulk of unclaimed credits would not likely have turned
up in December after Gregory departed. In any event, even
assuming there was validity to Respondent 's complaint about
Gregory's neglect of paperwork, the alleged fault was discov-
ered after his discharge and could not have been a cause for
his discharge on December 9, 1970.6
Respondent 's total defense of the discharge , in the circum-
stances surrounding it, has the appearance of a search for
legitimacy after the discharge was illegally effected because of
Gregory's leadership in the union movement . The abruptness
of the discharge, without prior warning , of an experienced
and competent employee of 12 years' standing, for shifting
reasons that were either unsubstantiated or afterthoughts,
following almost immediately the revelation of his union
leadership , mark the discharge of employee Gregory as dis-
criminatory , in violation of Section 8(a)(3) and (1) of the Act.
D. Discharge of Edwin Shields
1. The circumstances
Upon discharging employee Gregory, on December 9,
1970, Store Manager Casper and Merchandise Manager Ben-
nington called in the junior appliance salesman Shields.
Casper told Shields that they had let Gregory go because his
sales were down and his service expense was up in October,
and that they were moving Shields into Gregory's job because
they felt that Shields could handle Gregory's job. Shields said
he knew about sales but nothing about service. Casper and
Bennington told him not to worry about service but to con-
cern himself with sales, that they would have Management
Trainee Jesse assist him, and that Regional Service Super-
visor Koepke would be coming in to help teach him about
service. Nothing was said in that discussion about whether
this was ,a permanent or temporary promotion , but later Per-
sonnel Manager Cramer told Shields he had been promoted
to the department manager's job on a 30-day trial basis and
was being paid the department manager 's pay.7
At the close of business the following day, Thursday,
December 10, about 9:30 p.m., employee Shields stood at the
front exit of the store and asked each employee leaving
whether he or she had signed a union authorization card and,
to those who said no , would they be interested (without dis-
tributing any cards at this point). Among others, Shields
inquired of Management Trainee Boyer , who said he did not
think he could sign a card . On the store premises , in charge
of closing, were Assistant Store Manager Atkins , Merchan-
dise Manager Bennington , and Management Trainee Loc-
kard.
' Store Manager Casper sought to claim that in early December 1970
District Manager Boyle made a check of the store and suggested that em-
ployee Gregory be fired because he was not turning in parts credits Boyle
testified to the contrary , saying that he did not know much about parts
credits and assumed when he made his personal check of the store in
December that it was getting its share of parts credits He was interested in
sales and talked about the lag in sales he saw to Casper , but did not testify
that he recommended firing Gregory
' Neither Personnel Manager Cramer , who also testified , nor Store
Manager Casper contradicted Shields' testimony in this matter of a promo-
tion. Merchandise Manager Bennington claimed that Shields had not been
promoted but merely put on a higher incentive plan, and that Management
Trainee Jesse had been put in Gregory 's place . The weight of the testimony
is otherwise and indicates that Jesse was not put in charge until it was later
decided to drop Shields.
At the close of business the next night, Friday, December
11, employee Shields stationed himself in the store parking lot
and solicited the employees to contribute to a fund for dis-
charged employee Evan Gregory. Restaurant Manager Beard
observed the solicitation from a store window , according to
Shields.
The following morning, Saturday,'December 12, employee
Shields came to work as usual, coming ' into `the store about
20 minutes before it opened for business . He engaged in con-
versation with employee Corelli who was sweeping up, and
Store Manager Casper came by and yelle& to Shields that he
did not want to see him talking to anyone on the floor again.
Shields proceeded to the restaurant for coffee, as he had'done
customarily in the past. Restaurant Manager Beard refused
him service , saying the restaurant was not open. This hadnot
happened before.8
During the same day, Merchandise Manager Bennington
lectured employee Shields about his phone solicitation of
possible sales, as a result of which, said Shields, he stayed an
extra hour each day to bear down on telephone prospects.
In the following week , Shields' second week as appliance
department manager , Store Manager Casper began gradually
routing some of the correspondence- for the department to
Management Trainee Jesse, who had been put in the depart-
ment to help employee Shields, until no messages or corre-
spondence were routed to Shields .. Shields asked Personnel
Manager Cramer if he was still manager of the appliance
department and she said he'was on a 30-day trial basis. '
Regional Service Manager Koepke came to the store in the
middle of the second week of Shields' tenure as department
manager but other than a "hello" ' never offered to help or
even discuss appliance service with Shields , contrary to what
had been promised . Instead , all of 'the warranty cards and
work orders were taken from the appliance department, and
Shields was informed that henceforth the store office would
handle service . New instructions or procedures 'on handling
of customer service for appliances were issued under 'date
December 17, 1970, Resp . Exh'. 7. Shields testified he was told
to refer customer requests for service to the office . He was not
told why the shift was being made.
Respondent fired employee Shields the day before Christ-
mas 1970 , December 24. Shortly before the discharge the
store had given out a new contract for the performance of its
television repair work to Accurate TV Electronics Company,
run by a man named Parrent . Parrent testified that he re-
ceived the new instructions about handling customer service,
Resp . Exh. 7 supra, about December 20; and about- that time,
according to Parrent , he said he 'complained to Store
Manager Casper that he was not getting information required
under the instructions on invoices from the store in order to
properly handle service calls. Parrent admitted that Casper
solicited a letter from him regarding the complaint , and Par-
rent obliged under date December 29, 1970 (Resp . Exh. '9),
5 days after Shields' discharge . The letter complained -about
a lack of cooperation by the appliance department and a lack
of concern by that department to improve customer service:
On December 24, Merchandise ' Manager Bennington
called employee Shields into Manager Casper 's office (Casper
was not present) and fired Shields . According to Shields,
Bennington told him he had' not been handling appliance
service properly and they had to let him go. When Shields
remonstrated that he had never known anything about ser-
vice, and that Regional Service Manager Koepke had come
and gone without even talking to him about service, Benning-
' Manager Casper claimed that refusing service to employees before the
store opened had been a mistake and that he later directed ' the restaurant
to go back to the usual practice.
W. T. GRANT CO.
ton replied, it became apparent that "your friendship with
[discharged employee] Gregory meant more than your job."
2. Conclusion
Merchandise Manager Bennington asserted that employee
Shields' general attitude was the reason for his discharge-
that he gave the outward appearance of not caring about
forms concerning service calls and handling them correctly,
or the forms concerning prospective customers.
This abrupt switch from the confidence expressed in
Shields' ability and attitude 2 weeks earlier, when he was
promoted to discharged employee Gregory's job, did not stem
from a lack of previous management knowledge of where
Shields was strong and where he might be weak for the job.
Shields had been a salesman for Respondent for a year. Two
or 3 months before his discharge, Shields had been repri-
manded for his handling of the prospect forms; nevertheless
he was promoted. It was also clearly known when he was
promoted that his work had been almost exclusively sales, at
which he apparently was good; and that he had done and
knew little if anything about service, for which he was prom-
ised training and help. However, Shields never got the train-
ing or help or, indeed, the opportunity to handle the service
work that was removed from the appliance department coin-
cident with the revelation to management that Shields was a
union activist and sympathizer with employee Gregory, who
had just been discharged for his union leadership.
Patently, the complaint regarding Shields' lack of concern
for handling of service is sham. This impression is furthered
by the store manager's obtaining manufactured evidence on
this score after Shields was discharged. The evidence that
appliance department sales were up in December, and service
contract sales running at 70 percent of sales, referred to ear-
lier, would indicate that Shields had applied himself to his
major task.
Employee Shields was apparently the most active of the
employees on behalf of the Union. He had arranged for invit-
ing the Union to organize, had attended all of the union
meetings, had been designated to channel union authoriza-
tion cards to and from employees and had turned over 30
signed cards to the union organizers, had talked "union" on
his lunch hours at the store and had openly solicited for the
Union after hours at the store exit and for funds for dis-
charged union activist Gregory at the store parking lot.
The abrupt discharge, without warning and for specious
reasons, of a hitherto satisfactory employee upon revelation
that he was the leading union activist among the employees
leads to the conclusion that Respondent's desire to discour-
age Union support in the store was the real motive behind the
discharge of employee Shields.' The discharge violated Sec-
tion 8(a)(3) and (1) of the Act.
E. Discharge of Mrs. Connie Stringer
1. Employment
Employee Mrs. Connie Stringer was employed twice by
Respondent. The first time she left because of pregnancy and
a miscarriage. She returned in September 1970, working in
the restaurant as a waitress. About two weeks before termina-
tion of her employment, which occurred on January 12, 1971,
she was promoted to head waitress, which gave her an in-
' Following his discharge, Shields came into the store on one or two
occasions . As in the case of his discharged former colleague Gregory,
Shields was shadowed about the store by Merchandise Manager Benning-
ton. This conduct by the store management sheds further light on the union
animus that motivated the discharge of Shields.
1005
crease in her hourly rate of pay and additional responsibilities
in the restaurant . She was not a statutory supervisor.
2. Supervisors-Beard and Hicks
Employee Stringer 's supervisors were Restaurant Manager
(also called Food Service Manager) Douglas Beard and Assis-
tant Restaurant Manager Jerry Hicks . Both were supervisors
within the meaning of the Act , notwithstanding Respondent's
contention to the contrary respecting Hicks . (Beard was ad-
mitted to be a statutory supervisor.)
Hicks came to Respondent 's Fairborn store as a manage-
ment trainee who upon completion of training would be given
the managership of a restaurant or food service department
in one of Respondent 's stores . He was assigned to work as
assistant to Restaurant Manager Beard , and it was clear that
both Beard (despite his efforts at trial to downgrade Hicks)
and the restaurant employees regarded Hicks as the assistant
restaurant manager with authority to responsibly direct the
employees in the performance of their functions . " As Beard
testified , after he had shown Hicks what he wanted done,
Hicks in turn trained waitresses by telling them and guiding
them in what was wanted . If employees did not do what was
expected , Hicks would correct them . The store and restau-
rant were open for an 11-hour day , hence at time when Beard
was not there Hicks was solely in charge . This occurred
frequently at night , and Hicks was responsible for closing.In
Beard's absence , Hicks had authority to grant time off to
employees when work slackened , and he could control an
employee 's time at the end of the day by sending her home
early . Hicks was salaried , whereas the restaurant employees,
12 in all , were hourly paid.
Employee Stringer testified that Assistant Restaurant
Manager Hicks directed her in her work , corrected her if he
felt things were being done wrong , kept a checklist and record
on her and the other employees , which he discussed with
Restaurant Manager Beard and with the girls, and, if there
was trouble , the employees had to go to Hicks. The authority
enjoyed by Assistant Restaurant Manager Hicks responsibly
to direct the restaurant employees , and his sharing of the
power of management of the restaurant with the admitted
statutory supervisor Beard , marked Hicks a supervisor within
the meaning of the Act, Brewton Fashions, Inc. v . N.L.R.B.,
361 F.2d 8, 11-12 (C.A. 5, 1966) cert. denied 385 U . S. 842;
N.L.R.B. v. J.W. Mays, 356 F.2d 693 , 698 (C .A. 2, 1966).
Buttressing the finding, based upon the supervisory authority
actually enjoyed and exercised by Hicks , was the fact that the
restaurant employees regarded him as their supervisor,
Keener Rubber, Inc. v . N.L.R.B., 326 F . 2d 968, 969-970
(C.A. 6, 1964), cert. denied 377 U .S. 934.11
3. Circumstances of discharge
In mid-December 1970, employee Stringer signed a union
authorization card and thereafter obtained the signatures of
employees to several other authorization cards . She attended
several union meetings . Union Organizers Hammergren and
Wellnitz had started coming into the restaurant for lunch or
coffee and she waited on them until at some point Restaurant
Manager Beard told her not to , that he would wait on them
himself. Beard admitted waiting on them occasionally and
1° In a statement which Restaurant Manager Beard prepared and had a
restaurant employee sign on January 12 , 1971, respecting Hicks, Beard
described him as, "Mr. Jerry Hicks, Restaurant Assistant Manager," Resp.
Exh. 10.
11 As General Counsel correctly asserts, apart from a finding that Hicks
was a supervisor within the meaning of the Act, he occupied a status that
made him a management spokesman in the eyes of the employees, Betts
Baking Co. V. N.L.R .B., 380 F.2d 199, 202-203 (C.A. 10, 1967).
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also conceded that there were no complaints that the union
agents bothered employees at work.
Assistant Restaurant Manager Hicks asked employee
Stringer sometime in January 1971 if she had signed for the
Union and she told him she had and would vote for the
Union. Hicks apparently took a personal fancy to Mrs.
Stringer and pursued her for a date notwithstanding his
awareness that she was married and living with her husband,
who occasionally came to the store for her . Hicks pressured
for a rendezvous , indicating he would let the company know
she was for the Union if she did not acquiesce , according to
Mrs. Stringer . She turned to the union organizers , Wellnitz
and Hammergren , for advice, and they, with the concurrence
of her husband , had her arrange for a rendezvous with Hicks.
At the appointed time, she met Hicks , accompanied by her
husband and the two union organizers . In the discussion that
ensued , Hicks apologized to the Stringers and promised he
would not "get out of line" with Mrs. Stringer again. Hicks
was told that if he did not desist a tape made of his telephone
conversation with Mrs . Stringer, setting up the assignation,
would be disclosed to Respondent and to Hicks' wife.
Shortly before this encounter with Assistant Restaurant
Manager Hicks, Restaurant Manager Beard had promoted
employee Stringer from waitress to head waitress . Beard tes-
tified that she was an excellent worker , and that as a result
of the promotion she became responsible to help Beard with
his books and some of the training of other waitresses, but
that the bulk of her work remained waiting on tables.
Following the encounter with Hicks, on the morning of
January 12, 1971, before the restaurant opened, employee
Stringer was confronted by Restaurant Manager Beard, As-
sistant Store Manager Atkins , and Assistant Restaurant
Manager Hicks , with a demand that she sign a "pink slip"-
a warning by the employer for alleged failure to do her work
properly and for her "attitude." There had been no previous
reprimands or criticism , employee Stringer said , and she in-
dignantly called the slip a lie and refused to sign it.
Instead employee Stringer asked to Store Manager Casper.
Restaurant Manager Beard took her to Casper, and she, sus-
pecting that her union liaison had been revealed as threatened
by Assistant Restaurant Manager Hicks , poured out to
Casper and Beard the whole story of Hicks learning that she
had aligned herself with the Union and using the knowledge
to blackmail her for a rendezvous, and of the assistance of the
union organizers , along with her husband , in frustrating
Hicks.
Store Manager Casper sent employee Stringer back to
work, telling her, she said, he would have to let Assistant
Restaurant Manager Hicks go if her story were true. Casper
and Beard claimed that Casper said only that he would have
to talk to Hicks . But, supporting Stringer 's testimony was the
fact that Beard and Casper were already aware that they had
a staff morale and disciplinary problem with Hicks and, as
Beard told employee Cox, would have to discharge Hicks for
drinking on the job and providing drinks on the job to one
of the female restaurant cooks . Cox was Respondent 's witness
who was responsible for bringing the matter of drinking to
Beard's attention prior to the Hicks-Stringer episode.
Several meetings then ensued involving the various princi-
pals in this tale of intrigue . Manager Casper and Restaurant
Manager Beard called in Assistant Restaurant Manager
Hicks , after the Stringer denouement , and either fired him or
obtained his resignation . Beard testified that Hicks gave sub-
stantially the same account as employee Stringer had given,
except that Hicks claimed Stringer was running after him
rather than he after her. At that point, it was rather obvious
that employee Stringer had not been seeking an illicit affair
since she had come to the rendezvous with her husband and
two other witnesses.
Nevertheless , Manager Casper and Restaurant Manager
Beard finally called in employee Stringer , told her Hicks had
denied her story but had quit anyway, and, according toStringer , pressured her to quit, with the sly hint from Beard
that this might be the way to protect her reputation. When
she did not acquiesce , she was told she had violated company
policy, without saying what policy, and could not work there
anymore . 12 While employee Stringer remonstrated that she
liked her job, had done nothing wrong, and didn't see why she
was being let go, Casper told her he would have the personnel
manager draw her pay.
4. Conclusion
Managers Casper and Beard denied pressuring employee
Stringer to resign and claimed she quit her job voluntarily."
However , the total circumstances suggest the contrary, in-
dicating that Respondent had already inaugurated the
preliminary step to discharge employee Stringer before it
knew of the Hicks -Stringer episode and because it had
learned of her attachment to the Union cause. There was no
other rational explanation for the sudden switch from Re-
spondent 's high regard to low regard for the admittedly su-
perior employee whom it had just promoted . The newly ac-
quired knowledge of the Hicks -Stringer episode provided
Respondent with additional and startling insight into Sprin-
ger's union leanings, and a convenient means to accelerate
Stringer's departure by creating the appearance of a dual
resignation for dual guilt that also conveniently removed As-
sistant Restaurant Manager Hicks, already slated to be
dropped for dissipating, and causing another employee to
dissipate , on the job.
Respondent discharged employee Stringer to discourage
union activity among its employees in violation of Section
8(a)(3) and (1) of the Act.
F. Failure to Reinstate Gary Powers and Cathy Williams
1. The circumstances
With the end of the Christmas shopping rush on December
23, 1970, Respondent laid off 12 employees , most of whom
had been hired for the rush period beginning in the fall of
1970. However, 2 of the 12 employees, Gary Powers and
Cathy Williams, were not in that category. Gary Powers, a
stockboy , had been employed since May 1970. Cathy Wil-
liams, a sales clerk , had been employed almost all of 1970,
since February 1, and previously from October through
December 1969.
While initially the Union claimed (in its objections to the
election results) that all of the layoffs were discriminatory in
violation of Section 8(a)(3) of the Act, it subsequently with-
drew the claim except in the cases of employees Powers and
Williams , contending that Respondent failed and refused to
" Beard , who had been talking to Stringer just before this final interview,
shed some light on management thinking when he told her if her husband
(who had an interest in a job ) expected to work for Respondent, she could
not be involved with the Union; and Beard chided her for turning to the
union people rather than to himself for help with the personal problem
created by Hicks.
" There was a conflict of testimony as to whether employee Stringer said
"I have quit" or "I was quitted" when she left Casper 's office for the last
time, but there was also testimony supplied on cross-examination by one of
Respondent 's witnesses, Cox (who had been called ostensibly to provide
damaging testimony against employee Stringer that did not materialize),
that Stringer told her that morning in the course of these various meetings
that Beard and Casper had asked her to resign , that she didn 't know if she
would , and that she would be back.
W. T. GRANT CO. 1007
recall the two employees from temporary layoff status in
January 1971 because of their union sympathy, in order to
discourage membership in the Union. The Respondent con-
tended that it failed to recall employees Powers and Williams
solely for a lack of business, Report on Election etc. of the
Regional Director , June 17, 1971, page 5 . GC Exh. 1(p).
The complaint, para. 6(c), charged a discriminatory failure
to recall employees Powers and Williams. At trial, Respond-
ent contended that it actually discharged (rather than laid off)
the two employees for unsatisfactory work.
Both employees Powers and Williams testified to being told
by Merchandise Manager Bennington on December 23, 1970
that they were laid off.
Employee Powers said Bennington told him his work was
all right and he would be called back when work was availa-
ble, and certainly by May or June 1. Employee Williams said
that Bennington told her he did not know exactly when he
would be calling her back. At the previous Christmas (1969)
she had been laid off and recalled on February 1, 1970, work-
ing steadily thereafter until Christmas 1970.
Employee Powers came back into the store several times
after his layoff with Union Organizer Wellnitz. On one of
these occasions, 2 or 3 weeks after the layoff, Powers asked
Merchandise Manager Bennington why another stockboy,
Milby, who had come to work for Respondent after Powers
started his employment, had been retained in preference to
himself.'* Bennington replied that Milby could work the
hours the store wanted. Powers said no one had asked him
if he could readjust his hours and he thought it was a pretty
poor way to do business.
Shortly thereafter Respondent hired another boy, Witt, as
a stockboy in Powers' place. When Powers came in and asked
about it , Bennington told him he was not going to be recalled,
and though there had been the possibility of recall when he
was laid off, his work had not been what Bennington though
it should be. There was no evidence of any complaints or
reprimands concerning Powers' work, indeed, he had been
complimented by Store Manager Casper for his work in
cleaning up after a fire.
While Merchandise Manager Bennington admitted that he
had not told employee Powers that his work had been unsatis-
factory until the second post layoff conversation, he claimed
he had told employee Williams at the time of her layoff that
she would not be called back because her work was unsatis-
factory. The circumstances contradict this assertion and indi-
cate that it was also a postlayoff afterthought.
First, Respondent had contended initially that employee
Williams (as well as Powers) had not been recalled for lack
of business. Its own evidence at trial, however, indicated that
Respondent began new hiring in January 1971 and continued
to do so in the succeeding months. Second, Respondent then
offered testimony of its personnel director, Dorothy Cramer,
that the previous store manager, LoDico, told her that em-
ployee Williams had been laid off at Christmas 1969 from a
part-time job because she was not a good worker and then
rehired her a month later to a full-time job because he felt
sorry for her. LoDico himself punctured this somewhat in-
credible story by testifying he didn't remember employee
Williams or her layoff or rehiring (though she had worked at
the store for almost a year while he was store manager). There
was no evidence of reprimands concerning employee Wil-
liams ' performance. More importantly employee Bates, who
was a sectional supervisor (nonstatutory), complained to
Bennington and Store Manager Casper after the Christmas
" Respondent apparently hired high school boys for stock work and they
adjusted their school and work hours accordingly. The boys involved in this
discussion all went to the same high school and knew each other.
1970 layoff that they had dropped two of her best workers,
of whom Cathy Williams had been one for the past year.
2. Conclusion
Neither employee Powers nor employee Williams had been
unusually active for the Union. Both had signed authoriza-
tion cards early in the union campaign . Williams signed hers
at the store, where it passed through several hands before it
reached employee Shields, who was collecting them. And she
attended union meetings following her layoff . Powers ap-
peared in the store several times following his layoff in the
company of one of the union organizers . Such an appearance
can be the basis to infer employer knowledge of the em-
ployee's union activity, N.L.R.B. v. Melrose Processing Co.,
351 F.2d 693, 698 (C.A. 8, 1965).
In the case of both employees, Respondent's use of the
subterfuge of temporary layoffs, followed by failure and
refusal to recall, that avoided informing the employees at the
time of layoff of their discharges and the alleged reasons,
support the inferences that Respondent knew of both em-
ployees' union sympathies and discriminatorily discharged
and refused to recall them, NL.R.B. v. Melrose Processing
Co., supra, 351 F.2d 693, 699-700. The adverse inferences are
strengthened by Respondent's shift in reasons-from lack of
jobs to employees' poor performance to support its refusal to
recall or rehire-which reasons proved to be untrue.
General Counsel has made his point that the Respondent's
refusal to recall these two employees was part of its overall
action to discourage union adherence and dissipate the union
majority before the election. The refusal to recall employees
Powers and Williams in January 1971, 1 month after their
layoffs, was in violation of Section 8(a)(3) and (1) of the Act.
N.L.R.B. v. American Compress Warehouse, 321 F.2d 547,
549-550 (C.A. 5, 1963)."
G. Section 8(a)(1) Violations
In addition to the discharge of union activists and sympa-
thizers among the employees, Respondent's store manage-
ment gave vent to its hostility to, and sought to frustrate,
unionizing of the store by other means that exceeded legal
bounds.
1. Personal indignities, harrassment, surveillance
Shortly before Christmas 1970, after the organizing cam-
paign was well under way, Union Organizers Hammergren
and Wellnitz came into the store restaurant for coffee. Store
Manager Casper and Merchandise Manager Bennington
came by. Hammergren stood up and introduced himself as a
representative of the Union. According to Hammergren and
Wellnitz, Casper ordered them to leave the store or he'd call
the police. When they gave no sign of leaving, Casper told
Bennington to call the police. The two organizers finished
their coffee and left.
Store Manager Casper denied threatening to call or calling
the police, but conceded that he threatened in loud tones to
have Hammergren thrown out if he solicited for the Union
" While the proof would have sustained discriminatory discharges of
both employees on December 23, 1970, the pleadings limited the complaint
to discriminatory refusal to recall employees Powers and Williams in the
latter part of January 1971. General Counsel made no motion to amend the
complaint on that score. The evidence indicated in each case that the failure
to recall occurred about a month after December 23, 1970, when employee
Powers was replaced by a new employee , and a fellow employee (Conley)
in employee Williams' department was recalled. Accordingly, I fix the time
of refusal to recall as January 22, 1971.
1009 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the floor of the store.16 Since Casper, by his own conces-
sion, did not intend to do the evicting personally, I am in-
clined to believe he threatened to have the police do it. More
significantly , Casper's and Bennington 's attempted use of the
police shortly thereafter, in a similar situation involving em-
ployee Evan Gregory, suggests that the encounter took place
as Hammergren described it.
As noted under section C, above, shortly after Christmas
employee Gregory, who had been discharged by Respondent
because of his union activity, came into the store on personal
business . He was ordered to leave or be thrown out by the
police, first by Merchandise Manager Bennington , and then
by Store Manager Casper, who in the course of telling Greg-
ory he did not want him in the store, laid hold of Gregory by
the arm. When Casper let him loose, Gregory went to the
restaurant to obtain coffee but was pursued by Casper, who
yelled to Restaurant Manager Beard not to serve Gregory.
Gregory was not served. He then walked into the arms of the
police summoned by Casper and Bennington , but the police,
on learning what had occurred, declined to intervene. Never-
theless, Casper again refused any store service to Gregory.
Both confrontations, including the threats to use, and the
attempted use of, the police, and the unwarranted evictions
and denial of service, were carried out by Respondent's store
management in a manner calculated to publicly humiliate,
harrass, and intimidate and discourage the store employees in
their pursuit of unionization. Such conduct was a violation of
Section 8(a)(1) of the Act.
On subsequent occasions, prior to the representation elec-
tion, whenever either of the union organizers or discharged
employees Gregory and Edwin Shields (also discharged for
union activity) came into the store, each was followed and
observed by various of the store supervisors-among them,
Merchandise Manager Bennington , Assistant Store Manager
Kenneth Atkins, and Division Merchandiser Orville Loc-
kard. Lockard's testimony indicated that such surveillance
was pursuant to an order to the supervisors from Store
Manager Casper and Bennington , respecting the union or-
ganizers , and extended to the discharged union activists.
When discharged employee Gregory asked Lockard why he
was following him, Lockard replied, "for the same reasons
they fired you." Lockard also told Gregory it was too bad that
he had became involved with the Union, he should have
known Store Manager Casper would fire him.
On one occasion Union Organizers Hammergren and
Wellnitz came into the restaurant for lunch and were joined
by several employees also on their lunch hour. Personnel
Manager Cramer and Assistant Store Manager Atkins made
it a point to sit close by, listening and watching from two
vantage points. Visibly to the employees involved, Atkins
took down notes and names, and then (unknown to the em-
ployees) had Cramer check whether each of the participating
employees was on scheduled lunch time (as turned out to be
the case).
Respondent's surveillance of employee and union organ-
izer actions and association had the tendency to inhibit em-
ployee interest and participation in unionization and con-
stituted unlawful inference under Section 8(a)(1) of the Act.
2. Interrogation, impression of surveillance, threats of
closing
About 3 weeks before the election, Credit Manager John
Hunter, an admitted statutory supervisor, asked employee
Racine Ratcliffe to the restaurant for coffee. As Hunter said,
this was a rather unusual act on his part. Hunter told Rat-
cliffe that "we know who signed union cards," that he knew
she had signed, expressed surprise that she was pushing for
the Union, and asked her why.
Employee Ratcliffe replied that she was interested in ob-
taining health and welfare benefits for herself and family.
Credit Manager Hunter told her that Attorney Steinberg
(who had come to the store from New York to take charge
of Respondent's campaign against the Union) had told the
store management that he "would strike the store" rather
than allow health and welfare provisions in a contract.
Hunter also told employee Ratcliffe she should have the
union people check out the facts, that none of Respondent's
stores have health and welfare benefits, except those in the
State of Washington. Hunter's testimony was in general ac-
cord.
Employee Ratcliffe went back and related her conversation
with Hunter to two of her fellow employees.
Assistant Restaurant Manager Hicks also engaged in inter-
rogation of employees concerning support of the Union. It
will be recalled (see Section E, above) that Hicks inquired of
employee Stringer if she had signed for the Union and, after
learning that she had, attempted to blackmail her by putting
her in fear of her job because of it. In this connection, the
testimony of employee Bertha Holliday, a witness called by
both the General Counsel and Respondent, indicated from
still another source a fear among employees of being fired for
having signed a union card.
Employee Shields testified that on an occasion after his
discharge he came into the store to pay a bill. Division Mer-
chandiser Lockard followed him and watched him while he
paid his bill. Then the two spoke and had coffee. In the course
of conversing over coffee they got around to the subjects of
Shields' discharge and the Union. According to Shields, Loc-
kard told him that "W.T. Grant was so big that they could
just close down the store if they started getting a union in
here, they wouldn't miss it."" Shields related this conversa-
tion to several of the employees.
The described conduct by management representatives, in-
volving interrogation as to union preference and adherence,
creating the impression of employer surveillance of em-
ployees' union activities and threatening store closing if the
Union succeeded or the futility of collective bargaining, vi-
olated Section 8(a)(1) of the Act.
H. Postelection Discharges
1. Brenda Bates
a. The circumstances
Employee Brenda Bates worked for Respondent from Sep-
tember 9, 1967, to March 26, 1971. In September 1970, she
was promoted from being in charge of one department, no-
tions, to section supervisor or merchandiser, which put the
candy and cosmetics department under her wing as well. As
section supervisor or merchandiser, in addition to her con-
tinuing to sell in her department, she had the responsibility
to see that all three departments were stocked and to direct
t° In this connection, there was no evidence at any point in the trial of
union solicitation of employees while on duty, and there was affirmative
testimony by Restaurant Manager Beard that there were no complaints of
union agents bothering employees at work.
" Lockard denied at first that there had been any conversation about
Shields' discharge and about the Union but under prodding admitted that
there had been. In the circumstances, I am inclined to believe Shields'
account.
W. T. GRANT CO. 1009
the other girls where to put the merchandise . The promotion
gave her better hours , which included weekends off, and a 30
cent-per-hour raise in pay.
Management apparently liked her work , as evidenced not
only by the promotion and pay raise , but also the praise of
Merchandise Manager Bennington who told her, said em-
ployee Bates, that she was his best sectional supervisor and
kept telling her that until he found out she had become active
for the Union . " Then , said Bates , over a period of time and
increasingly after the representation election of February 5,
1971, the tenor changed . Bennington began telling her she
was doing lousy work and that she was stupid , set her doing
one job then bawled her out for not doing something else, and
told her to quit if she didn 't like it ." Store Manager Casper,
who had hitherto been reasonable and well disposed toward
her, scarcely spoke to her any more , said Bates, and then only
gruffly or disparagingly.
Employee Bates had became active for the Union . After the
campaign began she solicited the signing of union representa-
tion cards , held a union meeting in her home , and in her zeal
apparently made the mistake of letting management know
she was actively campaigning by asking Assistant Restaurant
Manager Hicks to sign up for the Union.
On February 5, 1971, the day of the representation elec-
tion , the store was open for business as usual . Either because
he was complaining that employees were congregating rather
than working , as Division Merchandiser Lockard said, or
because Lockard was critical of Bates doing a particular job,
as employee Bates said , Lockard told Bates , " it won 't matter
if the Union comes in, your days are numbered ." Bates com-
plained to Attorney Steinberg , who was at the store on the
election day , that she had been threatened . When Lockard
learned of it , he came back and accused Bates of lying about
him, although there was no question (according to his own
testimony) that he had made the statement attributed to him.
Later that day, Bates asked Lockard if he would watch her
department while she voted . He refused and said if she did
vote she better vote "no."
This developing acrimony on the part of supervision
reached a climax on the morning of Friday, March 26, 1971,
when employee Bates asked Store Manager Casper for leave
to accompany her husband to Chicago to visit his 87-year old
grandmother who had just been injured. She was asking for
a half-day of leave , Friday afternoon, since she no longer
worked on Saturdays or Sundays . Employee Edith Warren
testified that she had encouraged Bates to ask Casper for the
leave because he had previously given her a full Saturday off
for a personal reason.
Store Manager Casper , who testified that he had just re-
turned to the store from an absence of 4 work days , taken to
visit with his ailing 80-year old father , thought it was not
necessary that she take the half-day requested, and refused
the leave in admittedly harsh , profane language, suggesting
she get her departments into shape . Among other things,
according to Bates, Casper told her she didn 't need to go
anywhere with her stupid husband.
Store Manager Casper admitted the profanity (although
denying he included Bates' husband in the harsh words).
Shortly thereafter in humiliation and outrage at what was
said to her, and after discussing the matter with her husband,
Bates testified , she came by Casper 's office and told him she
was quitting her job . Bates credibly made the point at trial
'" Division Merchandiser Lockard , who became one of employee Bates'
supervisors in the last few months of her employment and clashed with her,
conceded that she was a capable employee.
" Bennington , who did considerable testifying at the trial , did not con-
tradict employee Bates.
that denial of the few hours leave by itself was not the break-
ing point for her , since she could have left for Chicago a little
later in the day and still have accomplished the weekend visit.
b. Conclusion
Respondent claims it did not discharge employee Bates.
General Counsel contends that Respondent harassed her into
quitting because of her union activity , amounting to a con-
structive discharge.
Respondent has admitted (in its brief) that employee Bates
was known to it as a union activist among the employees. The
intemperate and discriminatory reactions to revealed union
activists by Store Manager Casper , Merchandise Manager
Bennington , and Division Merchandiser Lockard, illustrated
earlier in the cases of employee Evan Gregory and others,
above , is more impressive in judging the cause for Respond-
ent's like reactions to and abuse of employee Bates than
Respondent 's claim that, following 4 years of good perform-
ance and a meritorious promotion , she had suddenly became
a poor employee who was being criticized for sloughing off,
and who had decided to quit anyway when the Union lost the
election in February 1971. The claim of poor performance is
suspect in the circumstances , and the hypothesis that em-
ployee Bates had made up her mind to quit in advance of the
day she left was refuted by Respondent's own witness, Divi-
sion Merchandiser Lockard , who testified to several conver-
sations after the February 5 election in which Bates indicated
unhappiness with the way things were in the store but specifi-
cally stated that she was not quitting.
I find , in agreement with General Counsel , that Respond-
ent harassed employee Bates into quitting her job by its dis-
criminatory conduct toward her because of her union ac-
tivity . Causing this separation from employment was
equivalent to a discharge-a constructive discharge-in vio-
lation of Section 8(a)(3) and (1) of the Act, N.L.R.B. v.
Vacuum Platers, 374 F. 2d 866, 867 (C. A. 7, 1967); N..LR.B.
v. Lipman Bros 355 F.2d 15, 20 (C.A. 1, 1966).
2. Jewell Eversole
a. The circumstances
Employee Jewell Eversole was hired on December 6, 1970,
as a wig stylist (for which she had 2 years ' schooling) and to
run the wig department . She signed a union authorization
card on January 4, 1971, and began attending union meetings
in January , but had no problems with management until the
night before the representation election of February 5, when
she revealed her espousal of the union cause.
It appeared that Respondent 's Attorney Steinberg walked
about the floor of the store that night, talking to employees,
and employee Eversole asked him, if he could solicit em-
ployees to oppose the Union , why couldn't the union repre-
sentatives be present to solicit for the Union. Attorney Stein-
berg, who admitted at trial that he had spent time at the store
prior to February 4, including making himself known to the
employees and personally writing propaganda letters against
the Union to them , disclaimed to employee Eversole that he
was soliciting and asserted that he was merely answering
questions . Eversole then asked , if she called Union Organiz-
ers Hammergren and Wellnitz could they come into the store
and answer questions also. Steinberg told her no , that he and
she both worked for Respondent, and as long as Respondent
was paying them , he could say anything he wanted on com-
pany time. Steinberg , who testified, did not contradict this
testimony.
Thereafter, employee Eversole became the butt of harsh
talk and treatment in several incidents with Store Manager
Casper and Merchandise Manager Bennington , such as being
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accused of chewing gum when she was not chewing gum,
denial of a suitable cash register for the high-priced items of
her department, and denial of a swap with other girls of
Thursday night hours to get to pre-Easter choir practice
(whereas other employees were permitted similar swaps of
schedule for bingo and bowling nights). Casper took advan-
tage of her first day's absence, when she reported by phone
March 11, 1971, saying why she would not be to work that
day,20 to tell her to stay home until he called her. He saw her
the next day and, by his own account, accused her of coming
to work and leaving when she pleased. He told her he wasn't
sure he wanted her to continue working and sent her home
to await his further call. Eversole called Casper on the follow-
ing Monday, when she had not heard from him, and he put
her off again. He finally sent word for her to see him on
Wednesday, March 17, 1971. The message had to be relayed
to her, since she had no telephone of her own, and this
delayed her arrival on March 17 beyond the hour Casper had
appointed. "She came late," said Casper, "and I told her we
didn't need her any more."
b. Conclusion
Store Manager Casper's position at trial was that employee
Eversole came to work when she pleased and left when she
pleased, hence he fired her._ Merchandise Manager Benning-
ton repeated about the same statement, phrasing it, her prob-
lem was coming to work late and leaving late, or punching
out late.
Notwithstanding the fact that Respondent was in posses-
sion of employee Eversole's timecards and could easily have
substantiated its claim of her punching in and out late if it
were true, no evidence was offered other than the bald asser-
tion by both managers. In addition to the absence of any hard
evidence, the contention was also suspect because Store
Manager Casper did not raise the issue or warn employee
Eversole prior to Friday, March 12, 1971, when he suspended
her employment. Indeed, from additional testimony by
Casper it was apparent he was questioning employee Eversole
concerning the validity of her two Thursday absences (one
part day, one full day), on the suspicion (which he did not
voice to her) that she had feigned the need to be absent in
order to attend the choir rehearsals on Thursday nights, for
which he had previously refused her the needed schedule
change if she were to attend. It turned out that one of the
choir rehearsals was held on the Wednesday preceding the
part day absence, and the whole day absence took her to
Hamilton, Ohio, and she did not attend the rehearsal that
night.
Although employee Eversole conceded the ususal prob-
lems of commuting to work that made for an occasional
lateness, and that there were times when she stayed beyond
her regular quitting time to complete service for a customer
because she was the only wig stylist in the store, these conces-
sions were hardly commensurate with Respondent's conten-
tion that she came and went as she pleased or that she had
a poor attendance record. The total proof has indicated that
this contention was not Respondent's real complaint about
employee Eversole, but rather a pretext to drop her from
employment because of her open espousal of the Union cause
and her temerity in having challenged the Respondent's law-
yer for what she had reason to believe was electioneering
against the Union on the working floor of the store.
1° Eversole testified, without contradiction, that she had lost several
hours of 1 previous day, March 4, when she went home from work sick, but
that March I1 was the first time she had not come in for duty.
Of course, employee Eversole's union affiliation and es-
pousal did not immunize her from discharge for other cause,
but in this case, as with the other discharges reviewed, the
stated ground was not the real one, N.L.R.B. v. Ulbrich
Stainless Steels, Inc., 393 F.2d 871, 872 (C.A. 2, 1968). In my
view Respondent's stated ground was designed to conceal the
unlawful motive, Shattuck Denn Mining Corp. v. N.L.R.B.,
362 F.2d 466, 470 (C.A. 9, 1966); and even assuming that a
valid ground for discharge had existed, it does not constitute
a defense to the unfair labor practice where the discharge was
not predicated solely on that ground but was based, even
partly, on a desire to discourage union adherence, N.L.R.B.
v. Nachman Corp., 337 F.2d 421, 423-424 (C.A. 7, 1964).
Respondent's discharge of employee Jewell Eversole on
March 17, 1971, was a violation of Section 8(a)(3) and (1) of
the Act.
1. The Section 8(a)(5) and (1) Violation
The issue posed under Section 8(a)(5) of the Act is whether
the Respondent unlawfully refused to bargain with the
Union, and if so whether a bargaining order should be entered
under the principles enunciated in N.L.R.B. v. Gissel Packing
Company, Inc., supra, 395 U.S. 575 (1969).
It was established, section A supra, in connection with
each of the three demands for recognition and bargaining in
December 1970 and January 1971 prior to the election of
February 5, 1971, that a majority of Respondent's employees
had designated the Union as their bargaining representative
by means of unambiguous authorization cards, and that there
was no misrepresentation or coercion in the signing of any of
the cards, a matter which was thoroughly explored on the
record.
Respondent declined to bargain and engaged in unfair la-
bor practices designed to undermine the Union's support
among the employees. The unfair labor practices included
discharge of the leading union advocates among the em-
ployees and the discharge or refusal to recall from layoff
others who were known supporters of the union;" the inflict-
ing of personal indignities upon employees, discharged em-
ployees, and union organizers and harassment and surveil-
lance of them in their activities and relationships; threats of
closing the store; coercively interrogating employees concern-
ing union sympathies; and creating the impression of em-
ployer surveillance of employees' union activities. These were
egregious violations of Section 8(a)(1) and (3) of the Act that
made impossible the holding of a fair election and constituted
Respondent's refusal to bargain a violation of Section 8(a)(5)
and (1) of the Act.
The violations of Section 8(a)(1) and (3) were so flagrant
and coercive in nature as to require, even in the absence of
a Section 8(a)(5) violation , a bargaining order to repair their
effect. In any event, Respondent's unfair labor practices,
which continued even after the election of February 5, 1971,
were of such pervasive character as to make it unlikely that
their coercive effects would be neutralized by conventional
remedies so as to produce a fair election. In these circum-
stances, it would appear that employee sentiment as ex-
pressed in this case through the union authorization cards is
a more reliable measure of the employee desires on the issue
of representation than an election would be. To effectuate the
policies of the Act, a bargaining order is required to remedy
" The fact that Respondent did not discriminatorily discharge, or other-
wise directly retaliate against, other active adherents of the Union, as Re-
spondent urges in its defense, does not absolve Respondent . The concern is
with the in terrorem effect on other employees of the discharge of anyone
of them, Rust Engineering Co. v. N.L.R.B., 445 F.2d 172 (C.A. 6, 1971).
W. T. GRANT CO. 1011
Respondent's refusal to bargain as well as its other unfair
labor practices.
III. THE OBJECTIONS TO THE ELECTION
It was noted at the head of this decision that the Union's
unresolved objections to Respondent's conduct affecting the
results of the election of February 5, 1971, which were re-
ferred for resolution in the trial of this case, were encom-
passed by the Section 8(a)(1) and (3) unfair labor practices
alleged in the complaint. The commission of these unfair
labor practices has been established.
Additionally, the validity of five challenged ballots were
made dependent on a determination here of whether the five
voters, Gregory, Shields, Stringer, Powers, and Williams,
were Section 8(a)(3) discriminatees and therefore eligible to
vote. Findings that all five employees had been dis-
criminatorily discharged or denied recall from layoff have
been made and their voting eligibility is now established.
Further, it has been established that the series of substan-
tial 8(a)(1) and (3) violations, committed between the filing
of the petition for a representation election and the holding
of the election, interfered with the free choice of the em-
ployees, and therefore destroyed the "laboratory conditions,"
Neuhoff Bros. Packers, Inc. v. N.L.R.B., 362 F.2d 611, 613
(C.A. 5, 1966), desirable for the conduct of a Board election.
A fortiori, the Union's referenced objections to the conduct
of the Respondent affecting the results of the election have
been established and the results of the February 5, 1971,
election must be set aside.
A rerun election would appear to be a futile act that would
permit Respondent to benefit by its misconduct, in view of the
further findings (under section II J, supra) that the effect of
Respondent's misconduct has been so pervasive as to make
the holding of a fair election unlikely with the application of
merely conventional remedies to undo the harm. Hence the
bargaining order has been required, dispensing with the elec-
tion process to measure employee sentiment in the present
state of affairs.
Accordingly, my recommended order will omit any provi-
sion for another election and direct that Respondent bargain
with the Union upon its request.
CONCLUSIONS OF LAW
1. By discriminatory discharge of employees Gregory,
Shields, Stringer, Bates, and Eversole, and by discriminatory
refusal to recall from layoff employees Powers and Williams
because of their union activities or sympathies and in order
to discourage union activities and affiliation by its employees,
Respondent engaged in unfair labor practices in violation of
Section 8(a)(3) and (1) of the Act.
2. By threatening eviction or arrest of, denying regular
store service to, and keeping under surveillance employees,
discharged employees, and union organizers properly in the
store and not engaged in improper union activity; by threat-
ening employees with closing of the store if they chose the
Union to represent them, or if the Union made demands for
health and welfare benefits; by coercively interrogating em-
ployees concerning their union sympathies; and by creating
the impression of employer surveillance of employees' union
activities, Respondent engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act.
3. Prior to the commission of the foregoing unfair labor
practices, the Union represented a majority of the employees
in an appropriate unit. Respondent's misconduct has made
impossible the holding of a fair representation election, so
that Respondent's refusal to bargain with the Union con-
stituted an unfair labor practice in violation of Section 8(a)(5)
and (1) of the Act.
4. The described unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent's unfair labor practices nullified the results
of the February 5, 1971, representation election and cannot
be corrected by conventional remedies including a rerun elec-
tion. Accordingly, it is appropriate that Respondent be or-
dered to bargain with the Union.
THE REMEDY
It will be recommended that the Respondent
(1) cease and desist from its unfair labor practices;
(2) offer to reinstate employees Evan Gregory, Edwin
Shields, Connie Stringer, Brenda Bates , Jewell Eversole,
Gary Powers, and Cathy Williams, with backpay, from the
time of discharge (or from the time of failure to recall from
layoff in the case of employees Powers and Williams), the
backpay to be computed on a quarterly basis as set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), approved in
N.L.R.B. v. Seven Up Bottling Co., 344 U.S. 344 (1953), with
interest at six percent per annum as provided in Isis Plumbing
& Heating Co., 138 NLRB 716 (1962) approved in Philip
Carey Mfg. Co. v. N.L.R.B., 331 F.2d 720 (C.A. 6, 1964),
cert. denied 379 U. S. 888;
(3) bargain with the Union, upon its request; and
(4) post the notices provided for herein.
Because the Respondent by its conduct violated fundamen-
tal employee rights guaranteed by Section 7 of the Act, and
because there appears from the manner of the commission of
this conduct an attitude of opposition to the purposes of the
Act and a proclivity to commit other unfair labor practices,
it will be recommended that the Respondent cease and desist
from in any manner infringing upon the rights guaranteed by
Section 7 of the Act. N.L. R.B. v. Entwistle Mfg. Co., 120 F.2d
532, 536 (C.A. 4, 1941); N.L.R.B. v. Bama Company, 353
F.2d 323-324 (C.A. 5, 1965); P.R. Mallory and Co. v.
N.L.R.B., 400 F.2d 956, 959-960 (C.A. 7, 1968), cert. denied
394 U.S. 918.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
there is hereby issued the following recommended:22
ORDER
Respondent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging employees or refusing to recall laid-off
employees or other reprisal against employees because of, or
to discourage, union activity, sympathy, or membership.
(b) Threatening eviction or arrest of, or denying regular
store service to, or keeping under surveillance employees off
duty, discharged employees, or union organizers properly in
Respondent's store and not engaged in improper union activi-
ties.
(c) Threatening employees that the store will be closed if
they choose the Union to represent them, or if the Union
makes demands for health and welfare benefits for employees.
(d) Coercively interrogating employees concerning their
union sympathies or membership.
" In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Order herein shall, as provided
in Section 102.48 of the Rules and Regulations, be adopted by the Board
and become its findings, conclusions, and order, and all objections thereto
shall be deemed waived for all purposes.
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Creating the impression that employees' union activities
are under employer surveillance.
(f) Upon request, refusing to bargain with the Union as the
collective bargaining representative of Respondent's em-
ployees at the Fairborn, Ohio store.
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed
under Section 7 of the Act:
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act.
(a) Offer to employees Evan Gregory, Edwin Shields, Con-
nie Stringer, Brenda Bates, Jewell Eversole, Gary Powers,
and Cathy Williams immediate and full reinstatement to his
or her former job or, if the job no longer exists, to a substan-
tially equivalent position without prejudice to his or her se-
niority or other rights and privileges; and make each of them
whole, in the manner set forth in the section of this decision
entitled "The Remedy," for any loss of earnings suffered as
a result of the discharge or failure to recall from layoff status.
Notify each, if serving in the Armed Forces of the United
States, of his or her right to full reinstatement upon applica-
tion after discharge from the Armed Forces.
(b) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
ascertain the backpay due under the terms of this Order.
(c) Upon request, bargain collectively (as that term is used
in Section 8(d) of the Act) with the Union as the collective-
bargaining representative of the unit of employees at Re-
spondent's Fairborn, Ohio location, comprisng all regular
full-time and part-time sales and nonsales employees, includ-
ing office clerical employees, but excluding guards, profes-
sional employees, and supervisors as defined in the Act.
(d) Post in its store in Fairborn, Ohio, copies of the at-
tached notice marked "Appendix."23 Immediately upon re-
ceipt of copies of said notice, on forms to be provided by the
Regional Director for Region 9 (Cincinnati, Ohio), the Re-
spondent shall cause the copies to be signed by one of its
authorized representatives and posted, the posted copies to be
maintained for a period of 60 consecutive days thereafter in
conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director of Region 9, in writing,
within twenty days from the date of the receipt of this deci-
sion, what steps the Respondent has taken to comply there-
with.24
" In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
30 In the event that the recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read: "Notify
the Regional Director of Region 9, in writing, within 20 days from the date
of this Order, what steps Respondent has taken to comply therewith."
IT IS FURTHER ORDERED that the results of the representa-
tion election of February 5, 1971, in Case 9-RC-8844, be set
aside.
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 having found, after a
trial, that we violated the National Labor Relations Act:
WE WILL recognize and bargain with Retail Clerks
Union, Local 1552, Retail Clerks International Associa-
tion, AFL-CIO, as the exclusive collective-bargaining
representation of our full-time and part-time sales and
non-sales employees, including office clerical employees,
at our Fairborn, Ohio, store; and, if an agreement is
reached, embody it in a written contract.
WE WILL NOT discharge you or, if you are in layoff
status, refuse to recall you or engage in other reprisal
against you, because of one to discourage your union
sympathy, activity, or membership.
Because the Board found that we unlawfully fired
employees Evan Gregory, Edwin Shields, Connie
Stringer, Brenda Bates, Jewell Eversole, and unlawfully
refused to recall from layoff status employees Gary Pow-
ers and Cathy Williams because they engaged in union
activity protected by the National Labor Relations Act.
WE WILL offer to each of them his or her former job and
give each backpay. If any of them are in the Armed
Forces of the United States , we will notify him or her of
the right to reinstatement upon application after dis-
charge from the Armed Forces.
WE WILL NOT threaten eviction or arrest of, or deny
regular store service to, or spy upon, employees off duty,
discharged employees, or union organizers properly in
our store and not engaging in improper union activities.
WE WILL NOT threaten that the store will be closed if
the employees choose the Union to represent them or if
the Union makes demands for health and welfare be-
nefits for employees.
WE WILL NOT coercively interrogate you concerning
your union sympathies or membership.
WE WILL NOT create the impression that we have the
union activities of the employees under observation.
WE WILL NOT in any other way interfere with your
rights to belong to or be active for a labor organization.
W. T. GRANT
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material . Any questions concerning this
notice or compliance with its provisions may be directed to
the Board's Office, Federal Office Building , Room 2407, 550
Main Street, Cincinnati, Ohio 45202, Telephone 513-684-
3686.