Diana Shops of Washington State, Inc.

National Labor Relations Board - Board Decisions

Mar 25, 1968

170 N.L.R.B. 698 (N.L.R.B. 1968)

698 DECISIONS OF NATIONAL
Diana Shops of Washington State, Inc. and Retail
Clerks Local 1439, Retail Clerks International
Association, AFL-CIO. Case 19-CA-3491
March 25, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On June 9, 1967, Trial Examiner James R.
Hemingway issued his Decision in the above-enti-
tied proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. He also found that the Respondent had not
engaged in other unfair labor practices alleged in
the complaint. Thereafter, the Respondent, the
General Counsel and the Charging Party filed ex-
ceptions to the Trial Examiner's Decision, and the
Respondent and the General Counsel filed support-
ing briefs.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent con-
sistent herewith
1. The Trial Examiner found that Credit
Manager Kjack was a minor supervisor, and thus
concluded that her knowledge concerning union
activities of various employees and her attitude
towards such activities reveal both Respondent's
knowledge and attitude. We disagree because we
find insufficient evidence to support the conclusion
that Kjack had any supervisory authority. Basically
her duties are the same as those of the credit clerk
with whom she works. She is, however, paid more
than the clerk and handles the more difficult collec-
tion cases. To be sure, Kjack once notified a credit
' See Walker Manufacturing Company, 161 NLRB 722
LABOR RELATIONS BOARD
clerk that she was laid off and has called in to work
two mailers when Respondent has had credit
promotions. But in these cases it does not appear
that Kjack is doing any more than relaying deci-
sions made by management. Also on one occasion
Kjack interviewed and recommended hiring an ap-
plicant for the credit clerk's job. However, the store
manager reviewed the individual's application and
made the decision to hire before instructing Kjack
to notify the applicant she was hired. We are una-
ble to infer from this single instance that Kjack had
the power effectively to recommend the hiring of
employees. In view of the foregoing, we find that
the General Counsel has failed to prove that Kjack
is a supervisor, and therefore we further find that
Kjack's knowledge of union activities and animus
against such activities reveal neither Respondent's
knowledge of, nor attitude toward, such activity.
Finally, as there is insufficient basis for finding
Kjack a supervisor, we agree with the Trial Ex-
aminer's conclusion that the Respondent is not
responsible for Kjack's threats to employees con-
cerning their union activities and that the Respon-
dent did not through such threats violate Section
8(a)(1) of the Act.
2. The Trial Examiner found that, in July 1966,
the Respondent transferred employees Barnes and
Romans from cashier to sales jobs in violation of
Section 8(a)(3) and (1) of the Act. We disagree. In
view of our findings with respect to Kjack, there is
no substantial evidence that the Respondent knew
of the union activity of either Barnes or Romans.
But even assuming it had such knowledge, there is
insufficient evidence to show that the transfers
were intended to punish the two for their union ac-
tivities or were otherwise motivated by antiunion
considerations. Thus, there is no showing that the
transfers adversely affected Barnes' and Romans'
wages, hours, or other working conditions. Rather
as sales girls, unlike cashiers, they could earn com-
missions in addition to their regular pay. Also, it is
unlikely that the transfers were intended to dis-
sipate the Union's strength, for sales girls as well as
cashiers were in the unit the Union sought to
represent. In these circumstances, we find that the
record does not establish that the transfers of
Barnes and Romans were unlawful.'
3. The Trial Examiner found that the September
6 discharge of Hann, a managerial trainee, did not
violate Section 8(a)(3) or (1) of the Act. We
agree, because we find no basis in the record for
concluding that Hann was discharged for a reason
other than that given by the Respondent: i.e., that
she lacked managerial ability. Hann was told at the
170 NLRB No. 54
DIANA SHOPS OF WASH. STATE, INC.
time of her discharge that that was the reason she
was being let go, and it was the reason the Respon-
dent advanced for the discharge in this proceeding.
Furthermore, in view of our findings above, there is
no evidence of any union animus on the Respon-
dent's part, much less that it had any proclivity for
discriminating against employees for engaging in
union -activity. Accordingly, in our view, the
General Counsel has failed to establish by a pre-
ponderance of the evidence that Hann's discharge
was discriminatory in nature and thus unlawful.
4. The Trial Examiner found that the Respon-
dent violated Section 8(a)(5) and (1) of the Act by
refusing to bargain with the Union. We do not
agree.
On June 30, 1966, the Union submitted a list of
the employees in the unit together with the signed
authorization cards which it had obtained to a labor
mediator for the State of Washington, and sent a
letter to Respondent's New York office requesting
bargaining. The Respondent referred the request to
its attorney, whose secretary, by letter dated July 6,
replied that the matter would be referred to the at-
torney who handled the Respondent's affairs; when
he returned from his vacation in the first week in
August. On July 21, the Respondent's vice pre-
sident wrote the Union, questioning the card check
procedure, which took place without the consent or
the participation of the Respondent, and informed
the Union that the Respondent would file a
representation petition. The petition was filed on
July 25. Shortly thereafter, the parties entered into
a'consent-election agreement which was approved
by the Regional Director on August 9.
On these facts, we cannot accept the Trial Ex-
aminer 's finding that the Respondent's conduct was
intended to delay recognition and to erode the
Union's, majority. First, as we have found above,
the Respondent did not engage in any conduct un-
lawful under Section 8(a)(1) or (3) which would
tend to dissipate the Union 's majority . Second, we
do not believe the record supports a conclusion
that Respondent engaged in any improper delay.
Only about 3 weeks elapsed from the Union's de-
mand until Respondent filed a petition and but 2
more weeks before the parties had entered into,
and secured the Regional Director 's approval for, a
consent-electioi agreement . 2 That matters might
have moved more swiftly in other circumstances is
no basis for concluding here that there was
deliberate delay Eby the Respondent for some ulteri-
or,i antiunion purposes., Consequently, we find that
in the circumstances the Respondent did not violate
Section 8 (a)(5) and ( 1) of the Act by refusing to
recognize the Union.3
In view of our findings above, we shall dismiss
the complaint in its entirety.
ORDER
699
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
' On August 22 the Respondent filed a charge against the Union which as
we have been administratively advised, was withdrawn on September 30
Respondent was, of course , entitled under the Act to file a charge if it saw
fit to do so, and there is no evidence it did so in bad faith for the purpose of
blocking an election
`See Mace Food Stores, Inc, 162 NLRB 1605, Aaron Brothers Company
of California, 158 NLRB 1077
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. HEMINGWAY, Trial Examiner: This is a
proceeding under Section 10(b) of the Act,' in-
itiated by a charge of violation of Section 8( a)(1),
(3), and (5) of the Act, filed on September 12,
1966, by Retail Clerks Local 1439, herein called
the Union , against Diana Shops of Washington
State, Inc., herein called the Respondent. Upon the
foregoing charge and an amended charge, filed on
November 14, 1966, a complaint was issued on
November 28, 1966, alleging violations of -the
aforesaid sections of the Act. Respondent's answer,
filed on December 27, 1966, in substance denied
the gravamen of the complaint. The hearing on the
issues was held before me at Spokane, Washington,
on March 21, 22, and 23; 1966.2 At the conclusion
of the hearing, time was fixed within which to file
briefs with me. A brief was received from the
Respondent only.
From my observation of the witnesses and upon
the entire record in the case, I make the following:
FINDINGS OF FACT
1. THE RESPONDENT'S BUSINESS
The complaint alleges, the answer admits, and I
find, that Respondent has been at all times material
herein a corporation duly organized under, and ex-
isting by virture of, the laws of the State of
Washington. Respondent is engaged, in Spokane,
Washington, and other cities throughout the State
of Washington, in The retail sale of women's ap-
parel3 The store located in Spokane, Washington,
is the only store of the Respondent here involved.
During the fiscal year preceding the issuance of
the complaint, the Respondent, in the course and
conduct of its business operations in the State of
Washington, had gross sales exceeding $500,000.
i29USC Sec 151,etseq
1 Certain errors having been made by the official reporter in the trans-
cript of the proceedings; the transcript is corrected.
3 The Respondent was stipulated to be owned and controlled by Diana
Stores Corporation, headquartered in North Bergen, New Jersey, which
owns and controls more than 200 retail stores throughout the United
States
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the same period, Respondent purchased and
received, for its Washington stores, goods and
materials and supplies valued in excess of $50,000
directly from outside the State of Washington.
There is no issue on jurisdiction. I find that the
Board has jurisdiction and that it will effectuate the
policies of the Act to assert jurisdiction in this case.
II. THE LABOR ORGANIZATION INVOLVED
The Union , affiliated with Retail Clerks Interna-
tional Association , AFL-CIO, is a labor organiza-
tion which organizes and represents employees
working for employers in the retail business.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The principal issues are whether or not the
Respondent refused to bargain with the Union, as
requested, before proof of majority by a Board-con-
ducted election, whether the Respondent dis-
criminated against two cashiers by reassigning them
to duties as salesgirls, and whether or not the
Respondent discriminated against a management
trainee by terminating her services for union activi-
ty. Also involved is the question of whether or not
the Respondent's credit manager at the Spokane
store is a supervisor within the meaning of the Act
so as to make the Respondent responsible for her
interrogation of certain employees about the Union
and for coercive statements.
B. Background
The Union commenced its organizational cam-
paign in May 1966 when John Brack, its organizer,
visited the homes of employees of the Respondent
and asked them to sign authorization cards. The
first card signed, on May 18, was that of Lois
Barnes, and the second, signed a few days later, was
that of Mary Romans. Both were cashiers. They
supplied Brack with the names of other employees,
whose homes he visited and whose authorizations
he procured. At a meeting held on the evening of
June 28, 1966, the Union procured the final
number of cards considered necessary before it
requested recognition. As will be more fully set
forth hereinafter, under the heading, "The Refusal
To Bargain," the Union, on June 30, 1966, wrote to
the Respondent, requesting recognition.
C. Interference, Restraint, and Coercion
The complaint alleges violations of Section
8(a)(1) of the Act by the Respondent by state-
' See Diana Shop of Spokane, Inc, 118 NLRB 743
.,The Union had petitioned for an election at Respondent in 1957 and
one was held in 1958 See Diana Shop of Spokane, Inc , supra Kuck was
not in the Respondent's employ in 1957 or 1958 She was hired as a
ments of Gladys Kjack, Respondent's credit
manager for the Spokane store. Respondent's
answer denied that Kuck was a supervisor within
the meaning of the Act.
On about June 29, 1966, after the Union's first
organizational meeting, Kjack asked Patricia Wil-
liams , a credit clerk who worked with her, if she
had been to the meeting. Williams answered affirm-
atively. Kjack then began to ask if certain other
named employees had attended. Williams replied
affirmatively to the first two women that Kuck
asked about before she told Kjack to ask the others
herself instead of getting the answers from her. Wil-
liams , who had signed a union authorization card,
quoted Kjack as saying that it was "pretty bad that I
had signed the card because if it got to a vote and if
we failed that I probably wouldn't be able to get a
job as a credit clerk in the Spokane area," and that
signing the card was bad enough but "if we voted
and failed ... we would be systematically fired."
Williams testified that she asked Kjack how she
knew, and that Kjack had replied that "it happened
last time."5 Williams testified, "I don't know much
about the Union and she (Kjack) was just trying to
tell me what could happen." Williams also testified
that she and Kjack would engage in "woman talk"
at times . Brack testified that, during the organiza-
tional campaign, he had solicited Kjack's authoriza-
tion card. He testified that he had had Kjack sign a
card a few years earlier. On this occasion in 1966
Kjack refused to sign one.
Mary Romans, a cashier at the time of the events
herein related, testified that, after the aforesaid
union meeting , she was helping Kjack in the credit
department and that Kjack had said "something
about Mrs. Atwood had said if she found out who
had been to the Union that she would either make
their life so miserable they would have to quit, or
she would fire them." Kuck denied that she had
ever used Atwood's name to Romans but she did
not deny the remainder of Romans' testimony, and
to the extent that she did not deny Romans'
testimony, I find that Kjack made a statement such
as that testified to by Romans.
On June 29, the day following the union meeting,
Lois Barnes another cashier who had attended the
meeting , although on vacation, went to the store
and invited Kjack out for a cup of coffee, and
Kjack accepted the invitation. While having coffee
and conversing, according to Barnes, Kjack asked
Barnes if she knew anything about the union meet-
ing of the night before. Barnes said she did, and
Kjack then asked if Barnes had gone. Barnes said
she had, and Kjack asked why. When Barnes said
she went to find out what the Union had to offer,
Kjack, according to Barnes, commented that she
thought it was a dirty trick. Barnes said she did not
salesgirl in 1961, but left Respondent's employ for a time because of illness,
returned later as a credit clerk, and in about 1963 or 1964 became credit
manager Her reference to the "last time" would not have referred to a
time before her employ, I infer
DIANA SHOPS OF WASH. STATE, INC. 701
agree and that, she wanted to find out why they
could not have better hours, "better. wages, and
better benefits. Kjack asked why Barnes had not
gone to Atwood. Barnes replied that it would not
have done any good and testified that Kjack had
then said that the Union would not get in and that it
would not do her any good; and, according to
Barnes, Kjack also said Atwood had told her that
"any girl that signed a union card she would system-
atically let go and hire new help and would have
the new help sign cards stating they would have no
union affiliations." Kjack asked Barnes if she was
looking for another job. Barnes testified that she
had replied that she was always looking for
something better and that Kjack had said, "Well,
that is just what . . . Atwood wants you to do, she is
going to make your life so unbearable that you will
want to look for another job." Kjack, asked by
Respondent's counsel if she had said to Barnes that
Atwood would - systematically eliminate all em-
ployees who signed cards, denied making the state-
ment but was not asked about the rest of the con-
versation. Therefore, --the rest stands undenied. I
credit it.
Kay Hodges, ' a saleswoman, testified that soon
after the union meeting of June 28, 1966, Kjack
came to her in the children's department of the
store and asked her if she had gone to the union
meeting. Hodges did not reply. Kjack then called
Hodges an unprintable name and asked her why she
had not gone to Atwood first .6 Hodges told Kjack
that Kjack was making better wages and that other
girls wanted better wages. Some days or weeks
later, Hodges spoke to Kjack about needing repairs
on her refrigerator. Kjack asked Hodges what she
was going to use for money if she did not have a job
(presumably intimating that Hodges would be
discharged because of her signing a union card).
Hodges' testimony is undenied and is credited.
If Kjack's statements, hereinabove found to have
been made, were attributable to the Respondent,
the Respondent would thereby have interfered
with, restrained, and coerced, its employees in the
exercise of the rights guaranteed in Section 7 of the
Act. A considerable amount of evidence was taken
with respect to Kjack's status. Most of the questions
asked of witnesses dealt with Kjack's authority to
hire, discharge, give time off, or supervise, and rela-
tively- little was asked about how Kjack spent the
bulk of her time. However, there was some about
her duties in general . I find that, as credit manager,
Kjack's principal functions were to take applica-
tions for credit, to bureau them (which apparently
means getting credit ratings from a bureau dealing
in, such information), to send out bills, collect pay-
ments, send out dunning letters, and take care of
layaways (sales for future delivery after payment).
The main difference between her work and that of
the credit clerk was that, as credit manager, she
handled the more difficult cases of collection.
Kjack's supervisors were the store manager and the
district credit supervisor.'
With respect to supervisory aspects of Kjack's
job, I gather that Manager Atwood delegated to
Kjack the preliminary steps of hiring help for the
credit department. The only help needed there was
one full-time credit clerk (or two half-time clerks)
and two occasional employees who would be called
in at infrequent instances to address notices of sales
to credit customers. Kjack would call these occa-
sional employees (called mailers) in at the proper
time (about four times a year) and give them the
materials to be mailed and the list of addresses of
customers, and the girls would then do the ad-
dressing.
The full-time credit clerk employed at the time of
the events here involved was obtained through an
employment agency. There is no evidence as to
who placed the request for help with that agency,
but the agency sent the girl, Patricia Williams, with
a referral slip to Kjack. Kjack gave her an applica-
tion to fill out, interviewed her, and then told Wil-
liams she had others to interview and to telephone
in a few days to learn the results. There is no
evidence as to whether or not Kjack did interview
others. However, she turned Williams' application
over to Manager Atwood with a recommendation
that she be hired. Atwood approved. When Wil-
liams called back later, Kjack informed her that she
was hired. Kjack showed Williams what she was
to do. Williams required little or no supervision
once she learned the routine.
When Williams was on the witness stand, the
General Counsel elicited answers describing Kjack
as Williams' supervisor and tending to show that
Kjack determined Williams' day off and the time of
her lunch period. Counsel for the Respondent put
his questions to Williams in a way to get answers to
the effect that Williams and Kjack were coworkers
who would check with each other as to who would
go to lunch or take a break in order to have
someone always in the credit department. Asked by
me for what actually occurred, Williams testified
that on her first day at work, Kjack told her, "You
can go to lunch now," and that when she returned
from lunch, Kjack went, but that, later, Kjack
would go first and Williams would go when Kjack
returned. Asked how this change came about, Wil-
liams testified: "we just did it. She was real nice to
work for."
Williams testified that she had been told at Acme
that she would get $1.25 an hour. Williams verfied
this with Kjack,8 who told Williams that, after 6
weeks, Williams would receive a raise. However,
Williams was not raised at the end of that time, and
she asked Kjack why she had not received it. Kjack
& This is probably one of the statements alluded to by Hann in her raised there The decision in that case does not show a practice of clearing
testimony, hereinafter related. credit through a bureau Diana Shop of Spokane, Inc , supra, at 745
7 In a representation case in 1957 , the Board had held that the credit s Since this was then the minimum wage rate , Kjack does not appear to
manager was a managerial employee No issue of supervisory status was have exercised any judgment in fixing it
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replied that she did not know. Williams pursued the
matter no further, and she never did get a raise be-
fore she quit 7 months after the date of her hire.
Williams testified that she had understood that the
raise in 6 weeks was an automatic one. I deduce
that Kjack had no authority to fix Williams' wage
rate and that she did not consider it her function to
investigate Williams' failure to get a raise.
With respect to the mailers, the evidence shows
that Kjack calls two high school girls to do this
work and sets them to work when they arrive,
letting them go when they are finished. This is also
alleged to constitute an exercise of supervisory
authority by Kjack. These two employees work in
the credit department because that is where the list
of customers is kept. When Kjack was not present,
Williams would answer their questions or show
them how to proceed. I received the impression
that the calling of the mailers was a routine func-
tion that had been delegated to Kjack by Atwood.
The General Counsel called as a rebuttal witness,
to bolster his contention that Kjack was a super-
visor, a young woman (then named Kathy King)
who had worked part time as a credit clerk starting
in about February 1965. Asked whom she first re-
ported to, she answered "Mrs. Atwood." After that
she testified that she just punched in and went to
work, and that Kjack told her what her duties
would be. After about 3 months' employment, At-
wood spoke to King one day as she was leaving for
the day. Atwood asked King if Kjack had told her
she was to have the next day off. King said Kjack
had not told her. Atwood then told her to take the
next day off. When King returned on the second
day and asked Kjack if she was supposed to work,
Kjack replied no that "the other girl was going to
come back to work," that they needed someone full
time. Kjack suggested that King call back during
the summer when King was not going to school to
see if the Respondent needed help.
This evidence shows that Kjack was the one to
break the news to King that she was being laid off,
but it does not prove that Kjack made the decision
to lay her off. So far as appears, Kjack may just
have been relaying information she had already
received from Atwood. I find that this testimony
adds little to the other evidence of Kjack's status.
Aside from her work in the credit department,
Kjack occasionally assisted the cashiers or waited
on customers. She was on an hourly rate of pay, al-
beit a higher rate than the salesgirls, $1.80 as com-
pared to $1.35, and she punched the timeclock as
did the rest of the employees. At least before late
August 1966, when Kjack received a raise in her
hourly rate which brought her gross pay to $100 a
week, Kjack also received overtime pay at the rate
of time and a half for hours worked in excess of 40
" It does not appear that Kuck exercises any discretion in this regard,
however, since she goes on the basis of a credit rating procured through a
bureau
hours. After that date, the Respondent often
t,rnitted overtime pay for Kjack, but on at least one
occasion in late 1966, Kjack received overtime pay.
Sometimes when Kjack did not put in a full 40
hours in a week, she would receive payment for a
full week nevertheless. Kjack's rate of pay was also
higher than that of the assistant manager.
The evidence warrants the conclusion that Kjack
has very minor supervisorial duties, has higher pay
and greater privileges than other employees, and is
arguably a managerial employee because of her
authority to extend her employer's credit.9 As a
managerial employee, Kjack would be excluded
from the appropriate unit.10 But the question of the
moment is not whether Kjack should be excluded
from the appropriate unit; rather it is whether or
not the Respondent is responsible under the doc-
trine of respondent superior for Kjack's coercive
questioning and statements. Evidently, the Union
did not, as of June 30, 1966 (when it wrote to the
mediator for the Department of Labor and Industry
of the State of Washington for certification), be-
lieve that Kjack was a supervisor, because the
Union included Kjack's name on the list of em-
ployees in the appropriate unit which it supplied.ti
Other than perhaps Williams, the employees ap-
parently did not look upon Kjack as a supervisor,
and Kjack was sociable with the saleswomen and
the cashiers. Barnes testified that she and Kjack
had gone to lunch together many times and had
discussed the Union and, although she and Kjack
always disagreed, Barnes respected Kjack's opinion
(apparently as Kjack's own). There is no doubt that
Kjack's conversation with Hodges on the selling
floor took place as Hodges related, but there is no
evidence that Hodges took Kjack' s statements at
that time to be those of the Respondent. After
Kjack had called Hodges by a demeaning epithet,
Hodges wept and Kjack then apologized. Later
Hodges went to the credit department and told
Kjack, "Gladys, the girls all have to like you real
well and I will do everything I can to get credit ac-
counts for you but when you call me names like
that, I do not like it." Hodges testified that she was
friendly with Kjack, whom she described as "a
fabulous girl" whom she liked "real well."
Romans ' testimony likewise suggests that she did
not think of Kjack's statement to her as a threat so
much as merely Kjack's calculation of what might
happen, because Romans testified that Kjack had
told her that Brack had gotten in touch with Kjack
about the Union (i.e., about signing an authoriza-
tion card) but that Kjack would have nothing to do
with it. Romans also testified that Kjack did not say
that Atwood, herself, had said that if she ever found
out who had signed the cards for the Union that she
would make their life so miserable that they would
"Southern Minnesota Supply Company, 116 NLRB 968, 970, Diana
Shop of Spokane, Inc, 118 NLRB 743, 745
" In this list, the Union showed as excluded only the store manager,
assistant manager, the district supervisor, and the district credit supervisor.
DIANA SHOPS OF WASH . STATE, INC.
quit or she would fire them. Romans testified, in
response to a question by the Union's counsel in
which the latter, used the word "report," that she
had "reported" Kjack's statement to the Union
because she just wanted to see "if it was true that
you could be fired by going and joining the union."
To me this suggests that Romans took Kjack's state-
ment not as a threat by one in authority but as a
statement of opinion by an antiunion employee.
Furthermore, it was not shown that this "report"
was made before Romans had quit her employment
at Respondent's store and taken other employment.
The date of her written statement given to the
Union shows that it followed the date of her leaving
the Respondent's employ.
Although Williams may have looked upon Kjack
as having some kind of minor supervisory authority,
I cannot infer on the evidence presented that Wil-
liams regarded Kjack as speaking for the Respon-
dent. She knew that Kjack punched the timeclock.
She called Kjack by her first name. And she and
Kjack apparently gossiped or indulged in small talk
together. Her testimony leads me to conclude that
she interpreted Kjack's statements about the con-
sequences of organizing a union to be based upon
Kjack's experience rather than on her authority.
Not only did the Union take the position that
Kjack was within the appropriate unit, and was
therefore not a supervisor within the meaning of
the Act, but, the Respondent had never expressly
contended that the credit manager was a super-
visor. At the hearing herein, the Respondent ex-
pressly contended that she was not, although I
judge that the Respondent might have chosen to ex-
clude the credit manager on some other ground. 12
Even if Kjack were found to be a minor supervisor,
since the Union would have included her in the
unit, Kjack's utterances would not be attributable
to the Respondent. As the Board said in Mont-
gomery Ward & Co., Incorporated, 115 NLRB 645,
647:
Statements made by a supervisor violate Sec-
tion 8(a)(1) of the Act when they reasonably
tend to restrain or coerce employees. When a
supervisor is included in the unit by agreement
of the Union and the Employer and is per-
mitted to vote in the election, the employees
obviously regard him as one of themselves.
Statements made by such a supervisor are not
considered by employees to be the representa-
12 In the Respondent 's stipulation for consent election signed by Respon-
dent on August 3, 1966, and approved by the Regional Director on August
9, 1966, the unit was described as including all regular sales employees and
as excluding the store manager, guards , watchmen, confidential employees
and supervisors as defined in the Act It did not identify the "confidential
employees ," but I assume it would not have used the term if it did not be-
lieve that it had one or more I infer that Respondent thought of Kuck, at
least , as a confidential employee
13 See also Mississippi Valley Structural Steel Company, 64 NLRB 78, 79,
Nassau and Suffolk Contractors ' Association , Inc, 118 NLRB 174, 181,
Breckenridge Gasoline Co , 127 NLRB 1462, Hy Plains Dressed Beef, Inc,
146 NLRB 1253, 1254, M &A Electric Power Cooperative, Inc., 154 NLRB
540,544
703
tions of management, but of a fellow em-
ployee. Thus they do not tend to intimidate
employees. For that reason, the Board has
generally refused to hold an employer respon-
sible for antiunion conduct of a supervisor in-
cluded in the unit, in the absence of evidence
that the employer encouraged, authorized, or
ratified the supervisor's activities or acted in
such a manner as to lead employees reasonably
to believe that the supervisor, was acting for
and on behalf of management. [Citing Indi-
anapolis Newspapers, Inc., 103 NLRB 1750,
1751.113
Kjack's remarks to Barnes while they were having
coffee is not attributable to the Respondent for
another reason also. They were made in a social at-
mosphere in open discussion of individual opinions
and were not taken by Barnes as a statement of
management.14 In fact, I find that the evidence, as a
whole, demonstrated that Hodges, Romans, and
even Williams regarded Kjack as "one of the girls."
In such a setting I find that Kjack's utterances were
not attributable to the Respondent under the doc-
trine of respondent superior. This does not mean
that Kjack, as a supervisor, or even as a managerial
employee, was not in a position to know what
management knew of the union organization and
what Respondent's attitude was toward union
representation.15 I find, therefore, that Kjack's con-
duct and statements can be considered as proving
Respondent's knowledge of the identity of union
supporters and as bearing on the Respondent's
disposition toward those who signed authorization
cards.
D. Discrimination
1. Transfer of Barnes and Romans
Lois Barnes was hired, in May 1963 and Mary
Romans was hired in March 1965, both as cashiers.
Barnes was the first employee of Respondent to
sign a union authorization card on May 18, 1966.
Brack checked with her regarding other employees,
as to whether they were still employed, before he
called on them, and Barnes was a leading advocate
of the Union. Romans signed her authorization card
on May 24, 1966, the second to sign a card. The
extend of her support of the Union does not ap-
pear, but it can be inferred that she had more than
a casual curiosity about it.
14 Colecraft Mfg Co, Inc, 162 NLRB 680
1 i Montgomery Ward & Company, Incorporated, 115 NLRB 645, 647,
where the Board said "To the extent, therefore, that an employer's ac-
countability for the conduct of a supervisor does not depend on employee
reaction, the employer's responsibility for the supervisor's action is not af-
fected by the fact of inclusion in the unit . Hence, an employer is chargeable
with knowledge of union activities acquired by such a supervisor And the
supervisor 's statements are admissible as evidence of his employer's
motivation in discharging individuals " This language was approved by the
Court of Appeals for the Second Circuit in its decision enforcing the
Board's Order 242 F 2d 497, 501, cert denied 355 U S 829
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manager Atwood left on her vacation on June 13
and returned on June 27, one day before the union
meeting of June 28. Barnes took her vacation
between June 27 and July 12, 1966.16 She attended
the union meeting of June 28 while on her vaca-
tion. The evidence justifies an inference that At-
wood learned of the meeting and of how the em-
ployees felt about the Union.
In early July 1966, Atwood hired a new cashier
and told Romans that she wanted Romans to train
the new cashier." Atwood told Romans on July 1
that Barnes was going to be replaced. Romans
asked Atwood why, and Atwood replied that she
had had complaints that Barnes had been rude to
customers.
When Barnes returned from her vacation on July
12, she reported for work at 9 a.m. and was about
to punch in when Atwood told her she was not to
check in until 9:30 a.m., that Barnes was going on
the floor as a salesgirl, that Barnes was being re-
lieved of the cashier's desk. Barnes asked why, and
Atwood told her it was because she had had too
many complaints about Barnes. According to
Barnes, she asked why Atwood had never told her
about the complaints18 and that Atwood had said
that District Manager McNamara had made the
decision. Barnes protested that she did not like to
sell and did not know how. She asked Atwood if
her lunchtime, her day off, and her hours during
the week would be the same. Atwood said they
would. However, a couple of days later, Atwood
changed Barnes ' lunch period to an early one. No
other changes were made in Barnes ' conditions of
employment.
Three days after Barnes had been transferred to
the sales floor, on Friday, July 15, another new
cashier, Donna Littlefield, who also had been hired
early in July, told Romans that Atwood had said for
Romans to go on the sales floor, too, that she was
to take Romans' place on the desk. Romans, assum-
ing correctly that the order came from Atwood, did
as she was told. However, on July 18 (her day off)
she found a new job, which she preferred, and she
began on it on July 19. Barnes continued with the
Respondent as a saleswoman until August 8, when
she also quit to take other employment.
Atwood testified that, following a trip which
Barnes had taken in March 1966, Barnes had been
irritable and short with customers and that two em-
ployees, Romans and Kjack, had mentioned that
Barnes had become "snippy." From customers, At-
wood testified she had received one complaint over
the telephone, after her return from her vacation,
about an incident which had occurred while At-
wood was on her own vacation. She began to relate
'" Because of the holiday on July 4 Barnes got I extra day Barnes'
memory of the dates was weak, and no effort was made to fix the dates of
her vacation by the payroll records, except incidentally But I fix the time
of her vacation by Barnes' latest testimony of the date and all the relative
evidence
"The date of hire was July 1, but the new cashier did not commence
work until July 5, because she was not shown on the payroll for the period
fin incident involving an argument between a
customer and a salesgirl in front of the desk when
she was interrupted by counsel for Respondent and
was limited to only those complaints that had come
to her before she had left on her vacation. Atwood
could not be specific about any that came to her
before she left on her vacation "other than Mrs.
McNamara (district manager) not liking the opera-
tion of my desk." But Atwood testified that the
decision to move Barnes to the sales floor was
made by her or by McNamara before Atwood had
gone on her vacation. She testified: "Mrs. Mc-
Namara thought I should move her off the desk
right away. I asked Mrs. McNamara if it wouldn't
be permissible to wait until I returned from vaca-
tion because I didn't want to break in a new cashier
while I was off." McNamara was not asked about
this. Atwood did not seem to recognize the fact that
Romans was the one who trained the new cashier
or the fact that Romans could have been training
her during Atwood's vacation so that she could
have been given Barnes' job as soon as Atwood had
returned from her vacation. In view of Atwood's
testimony which suggested that McNamara was the
cause for her moving Barnes, I am less inclined to
give weight to Atwood's testimony of complaints
she had about Barnes' treatment of customers-
testimony which had to be directed by, and elicited
by, leading questions of Respondent 's counsel. At-
wood 's testimony that Barnes had become irritable
after she had returned from a trip in March 1966,
and that she had learned that Barnes had a personal
problem was credible, but if Barnes was irritable
and disagreeable to customers all the time from
March to July, as Respondent suggests , I find it in-
credible that Atwood would do nothing about cor-
recting the situation until she returned from her va-
cation in late June and then, coincidentally, at a
time when she must be presumed to have learned of
the organization of the Union. Furthermore, if
Barnes was disagreeable to customers , Atwood
would have placed Barnes in a position to offend
customers as a saleswoman, where she would be in
even closer touch with them in making sales. Under
guidance of Respondent's counsel, Atwood testified
that, by her own observation, she had seen Barnes
being sharp with the customers. "In other words, z
customer would come in and if she [ Barnes] was
working with her detail work, why, she seemed to
be irritable when she would have to lay it down to
wait on a customer , and the customer sensed this.
In fact, customers complained about it." Counsel
for Respondent asked a leading question to place
the time of this as before Atwood's vacation, but
did not otherwise attempt to fix the date thereof by
ending July 2 Actually, Atwood hired two new cashiers in early July-
Dorothy Nesbitt and Donna Littlefield The record does not show which
was first, but from other evidence, I conclude that Nesbitt was the first
hired
" Atwood testified that she had told Barnes I find, however, that if she
spoke to Barnes about her work , she did not talk about customers' com-
plaints
DIANA SHOPS OF WASH. STATE, INC.
Atwood's testimony.19 Asked what Barnes would be
doing at the time when she was irritable, Atwood
answered: "She was doing a number of things. She
would either be clicking off tickets, [or] working
down daily cash reports that should have been done
before but they weren't. I think when a girl doesn't
get her work done on time, why, she is naturally
under pressure and hurrying and, therefore, she is
irritable, she doesn't want to be disturbed." It was
at such times, Atwood testified, that she would see
customers complaining to Barnes. Atwood did not,
apparently, hear what was said to Barnes by the
customers. There is no proof, therefore, that the
customers were complaining of Barnes rather than
to Barnes about someone else. If it was "natural"
for a girl, working under pressure to get out a re-
port, to be irritable, this was something that would
be just as likely to occur with a replacement, also.
The solution would seem to rest less in a change of
personnel than in removing the detail work to
someone not required simultaneously to be dealing
with customers.
Detail work, which involved balancing the cash
from the previous day's receipts with the sales
tickets, returns and refunds, and other transac-
tiions,s° was started first thing in the morning-by
Barnes, who would arrive about an hour before
opening time to do this work, but she would not al-
ways finish.it- before the store opened, and then her
detail work might be interrupted by customers. If
she had too many customers , Barnes would have to
set the work aside until her relief arrived. Barnes
testified that Atwood wanted the report by noon so
that she could send it to the home office.
I deduce that there were many times when
Barnes would be the only cashier on duty. This
would be -true when Romans had her day off or was
on a late shift on Mondays and Fridays, when the
store was open until 9 p.m. and when Romans
would start work at noon. When the cashier was
unable to handle all the customers alone, others, in-
cluding the credit manager , the assistant manager,
or even the manager, were supposed to help out. I
judge, however, that they did not hasten to Barnes'
assistance merely because Barnes was busy with her
detail work but would only help if the line of
customers became long. There is no evidence as to
who did the detail work when Barnes was on her
day off, or on the late shift, or on vacation. And
there is no evidence that anyone ever took over the
detail work from Barnes when she had been unable
to complete it before the customers took too much
of her time. Romans testified that she did very little
detail work, as there was much about it that she did
" Respondent's counsel asked Brack if it was not true that early in June
Barnes had told hum that Atwood had been criticizing her and Brack an-
swered that Barnes had given him that information . I do not find this as fix-
ing the date of the criticism. It fixes the date of the conversation between
Brack and Barnes . The criticism could have been much earlier Further-
more, counsel astutely omitted to ask the nature of the criticism, which
could have been that Barnes did not finish her detail work before the store
opened, rather than being rude to customers.
705
not know. Barnes testified that she would also be
held up on her work, at times, by the credit depart-
ment's failure to have its report (which had to be
included in Barnes' report) ready.
There is no evidence that Respondent's business
had changed in volume during the time Barnes was
with the Respondent as cashier, and there is no
evidence with regard to what conditions had existed
in years past with regard to getting the detail work
done. I assume that customers had interfered, with
detail work throughout the period of Barnes' em-
ployment. Although Atwood testified that .Barnes
had become more irritable since March 1966, and
that two employees had complained of this, the em-
ployees named as the complainers were not asked
to confirm this, although they were on the witness
stand. One of them, Romans, testified that she had
worked alongside Barnes and had never heard
Barnes be rude to any customers, but she was not
asked if she had told Atwood that Barnes was
"snippy." The other one, Kjack, was not ques-
tioned about this at all, and was not asked about
Barnes' attitude toward customers. Roberta Hann,
the management trainee, testified that she had never
seen Barnes be rude to a customer, although she
had seen such conduct by Barnes' replacement. I
was not convinced that Atwood gave the real
reason for transferring Barnes to the sales floor. At-
wood's testimony, I find, was not entitled to full
credit.
Before reaching any conclusion regarding the
question of discrimination against Barnes, Romans'
transfer should also be considered. Romans spoke
Spanish fluently, as well as English. When Atwood
hired Romans as a cashier, Atwood thought
Romans would be an asset because the store -had
many Spanish-speaking customers, and "in fact
Mary Romans was the only one really that was able
to, I would say, intelligently wait on them," Atwood
testified. Her opinion changed, however, she
testified, "because she would start talking in
Spanish to these Spanish customers and it would tie
up my [cashier's] desk, customers would have to
wait, and I am certain that they were not interested
in their personal problems, it would take too long
to service." There is no evidence that Atwood had
ever spoken to Romans about this or told Romans
not to indulge in any talk in Spanish except about
the transaction at hand. And Romans' transfer,
likewise, came coincidentally, soon after the ru-
mors of union activity and after the Union's claim
to recognition. Transferring the cashiers to sales
work is economically not easily explained, either.
Respondent at no time contended that it was
zo The store had no cash registers It merely had cash drawers Not only
the cashiers but several other employees would,from time to time, make
change from cash drawers for customers when one of the cashiers was not
available In making refunds for merchandise returned, they were supposed
to replace the cash removed from the drawer with a refund slip. Failure to
do so could throw the cash out of balance. In addition to the cashiers, the
manager, assistant manager, credit manager, and the management trainee
helped at the desk at times and used the cash drawer.
350-999 0 - 71 - 46
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shorthanded on salespersons. July is normally not a
rush time of the year. This thought would hardly
suggest a need for more salespeople, and there is no
evidence of terminations of sales employees which
necessitated replacement.
On the foregoing evidence, and from the manner
in which it was presented, I find the Respondent's
reasons for the transfer of Barnes and Romans,
both in the same week, from their jobs as cashiers
to jobs as saleswomen to be unconvincing. Obvi-
ously, the decision to remove Barnes and Romans
from the cashier's desk was made early in July,
because their replacements were hired then. I find
insufficient corroborative evidence, however, that
the decision to transfer Barnes or Romans was
made before Atwood's vacation, and I do not ac-
cept Atwood's unsupported testimony that it was.
Even McNamara failed to give any corroboration
for Atwood's testimony about reaching a decision
to transfer Barnes before Atwood's vacation. The
timing of the transfers, soon after the Union's meet-
ing of June 28, the weakness of Atwood's explana-
tion, and all the pertinent evidence lead me to the
conclusion that Barnes and Romans would not have
been transferred from their jobs as cashiers except
for their backing of the Union. There is ample
evidence that a grapevine carried news about the
shop in fairly prompt order, and it was testified
that, unless one whispered, he or she could be
heard in almost any area of the store. Furthermore,
Kjack's questioning of Williams and, Barnes
revealed the Respondent's knowledge of Barnes' at-
titude -toward the Union, and her opinion of the
consequences reflects the Respondent's attitude. I
conclude that Atwood had information about the
union meeting of June 28, who attended- it, and
who most strongly favored it as early as July 29 and
in any event before Barnes and Romans were trans-
ferred.
Although Atwood testified that Barnes had
shown irritability after her return from a trip in
March 1966 it is also evident that, if-Barnes had, as
Atwood testified, continued to be irritable ever
since, Atwood had not found it so intolerable dur-
ing the months of April, May, and June to require
correction; but, when she gained knowledge of Bar-
nes' activity toward getting union representation,
Atwood acted with undue haste while Barnes was
on her vacation and, upon Barnes' return, abruptly
notified Barnes of her transfer to selling. When
Barnes protested that she did not like selling, At-
wood must have anticipated that Barnes would quit
as soon as she could find other work.21
Atwood's motivation in transferring Romans at
pratically the same time, I deduce, was the same as
for Barnes. Kjack's mention to Romans that At-
wood had the names of everyone who had gone to
2' Although Barnes testified that, in response to Kjack's questions, on
June 29, 1966, as to whether or not Barnes was looking for another fob, she
had replied that she was always looking for a better one, I interpret this not
as meaning that she was actively searching for work elsewhere but that she
the union meeting on June 28 shows Respondent's
knowledge of Romans' attendance. Atwood's
failure -to speak to Romans about the latter's al-
leged fault of visiting with Spanish-speaking
customers and so. holding up -the line at the
cashier's desk shows a disinterest in correcting such
fault, if it existed, and this derogates from the credi-
bility of Atwood's testimony.
What actually influenced Atwood, to transfer
Barnes and Romans at the time she did-whether
as punishment for their union activities, to put them
in a place where they, could be watched by the
assistant manager and would not be in a position to
solicit signatures on authorization cards, or to get
the union-minded employees in one group with a
view of dropping some of them in time to influence
the results of a possible election-is relatively
unimportant, because I am convinced that the
reason that Atwood gave was not the true reason
and that the real reason was Barnes' and Romans'
union activity, and that the Respondent expected
them to quit as a result of the transfer.
The Respondent argues that -no discrimination
occurred because Barnes and Romans suffered no
reduction in pay and no longer hours and that the
job of selling was no more arduous than that -of
cashiering. These considerations alone do not make
the jobs equally attractive, however. The job of a
cashier is more unique. Because of this and because
the job requires a certain facility with figures that
not all people possess, the job can, be considered as
carrying more prestige than a job, of selling. From
the point of view of the cashier, therefore, transfer
to the job of selling would appear to be a demotion
to a less desirable form of work. Furthermore, per-
sonality as well as experience fit some people for
selling but not others. Barnes considered herself un-
suited to selling. Atwood knew this and could well
have expected Barnes to be so unhappy- in selling
that she would find other employment. Although
evidence of Romans' actual feelings in the matter
was not expressed by her to Atwood, I find that At-
wood had good reason to believe that ' Romans
would seek other employment, as she did. I con-
clude and find, therefore, that, by transferring
Barnes and Romans from their jobs as cashiers to
sales work, the Respondent discriminated in regard
to their terms and conditions of employment .2-2
2. The discharge of Roberta Hann
Roberta Hann was hired, in May 1966 by
Manager Atwood as a management trainee. Before
Hann could be put on the payroll as a management
trainee, however, it was necessary that she be ap-
proved by District Supervisor McNamara and by
Vice President Helen Lee, of the main office. In
was always ready to consider changing if she heard of a better job
elsewhere,
22 See Des Moines Foods, Inc, 129 NLRB 890, American Auto-Felt Cor-
poration, 158 NLRB 1628, White Superior Division, White Motor Corpora-
tion, 162 NLRB 1496, Macy's Missouri-Kansas Division, 162 NLRB 754
DIANA SHOPS OF WASH. STATE, INC.
due course, this approval was given. As a manage-
ment trainee, Hann was paid $70 a week, more
than. the sales employees but a little less than the
assistant manager. Hann's salary was not charged to
the store budget, but was carried on the New York
payroll. Hann had worked in stores before, having
had 15 years' experience, with 8 years' experience
on display work, which, with selling, Hann con-
sidered her strong point.
As a trainee, Hann was given a period of work in
the credit department, on the service desk,
trimming windows, and selling. There were a
number of details that had to be learned also. At-
wood told Hann when she started as a trainee that
she would have to learn to substitute for people in
any department because that was the reason for
having an assistant manager.
The training period for management trainees was
4 to 6 months, depending on prior experience,
progress made, and availability of managerial posts.
If no position as an assistant manager was available
at the time that the trainee was ready to be
promoted, the Respondent would keep them on
until they had an opening. If a trainee did not prove
satisfactory, the Respondent would terminate his
services and would not keep him in any other
capacity.
Hann signed an authorization card for the Union
on June 13, 1966. No point was made concerning
the fact that this date coincided with the beginning
of Atwood's vacation. During the 2 weeks that At-
wood was on her vacation, Hann was supplied with
a key to open the doors of the store on the morning
of the days when Assistant Manager Torkelson
began work at noon, Mondays and Fridays, when
the store was open until 9 p.m. and Torkelson
would close the store.
On June 29, the day after the Union's first meet-
ing, someone in the store gave Edgar Hotchkiss,
employed as a porter, a union authorization card to
sign and mail to the Union. Counsel for the
Respondent cross-examined Brack to determine to
-whom he had given authorization cards. The thrust
of his questions suggested that he believed Brack
had given authorization cards to Hann, because he
specifically asked about her but did not ask about
others. Brack denied that he had given any blank
cards to Hann. When Hotchkiss was on the witness
stand to identify his authorization card, counsel for
Respondent, on cross-examination, asked when
Hotchkiss had gotten the card and from whom.
Hotchkiss testified that he got it from the front desk
(cashier's desk) and then identified Hann as the
one who had given it to him. From questions asked,
I judge that there was some reason for the Respon-
dent to believe that authorization cards might have
been kept in the cashier's drawer. Other details of
Hann had some difficulty in fixing the time when she was assigned to
working on the sales floor by Atwood At one point she placed it as a month
before her termination, which would have placed the incident as in early
August At another pornt she put it about 2 weeks after she had signed her
card, which would have placed it as in late June or early July But she
finally placed it as about 2 weeks after the Union had sent its letter to
707
the way in which. Hotchkiss obtained that card were
foreclosed, because he broke down on the witness
stand and further questions were impossible. Hann,.
asked by Respondent's counsel if she had ever
asked anyone to sign a card, denied that she had.
Counsel then asked if she ever carried any blank
cards with her and she denied it. I infer that counsel
was asking this question with Hotchkiss' card in
mind. I do not find the testimony of Hotchkiss and
Hann to be irreconcilable or to affect the credibility
of either. I consider it not improbable that Barnes
had brought the blank authorization card for
Hotchkiss when she came to the store on the day
after the union meeting to invite Kjack out for cof-
fee, that she left the card at the front desk for
Hotchkiss and so informed him, and then that
Hotchkiss had gone there to get it and that Hann,
perhaps being at the desk when he came for it, had
found the card and let him have it.
As previously related, Atwood hired a new cash-
ier while Barnes was on her vacation and, when
Barnes returned on July 11, transferred Barnes to
selling. When Hann learned that Barnes had been
transferred to selling, she went to Atwood and
asked why Barnes had been transferred. When At-
wood told Hann that she had transferred Barnes
because Barnes had been -reported to be rude to
customers, Hann said that in all the time she, her-
self, had spent behind the desk she had never seen
Barnes be rude to customers but that in 3 days she
had seen Dorothy Nesbitt (the substitute for
Barnes) be so rude to customers that at one point
she had apologized to the customers for Nesbitt's
rudeness. Hann said that she had had three
customers just about walk out because of Nesbitt's
rudeness. In the same conversation Hann told At-
wood that she wished Atwood would correct
Kjack's vocabulary while she was working at the
credit desk, because what she said there floated
over to the dressing rooms where Hann had had
some "little old ladies turn mighty pink," because
of Kjack's crude language.
It was apparently not long after the foregoing
conversation between Hann and Atwood that At-
wood, who was responsible for seeing that Hann
was transferred from one place to the other for the
purpose of getting training in all phases of the
operation, told Hann to get on the selling floor and
to stay there from then on.
McNamara apparently did not know of Atwood's
instructions to Hann to remain on the selling floor,
because when she would come in, during her
weekly visit, she would frequently take Hann to
assist in some other type of work, commenting that
Hann should get broader experience in matters in
which she had not yet had an opportunity to be
trained.'
Respondent requesting recognition This would place the date of Hann's
limitation to the selling floor as about the middle of July
24 Examples were recalls, markdowns, preparations for a sale where un-
sold merchandise from other stores came in with different prices on identi-
cal merchandise and all had to be unpacked, sorted, and tagged with
uniform marked-down price
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After the Respondent had filed an RM petition
on July 25, the Union set up a meeting for August 2
to discuss the effect of the -petition . At this meeting,
Hann made a statement favorable to the Union.
Among other things ; she said that employment rela-
tions "was a two way street ," and "I figure that a
good contract in a good union could assure a
manager 's position , that she could be specific about
what each job entailed , and if each employee did, it,
it could benefit both ways." Approximately half of
the employees ' of the store heard Hann make this
statement at. the meeting.
During the succeeding weeks, Brack occasionally
conversed with Hann on the sidewalk outside the
store . There is little evidence as to what , specifi-
cally they spoke about , or whether or not they were
overheard , but I infer that their conversations were
seen by employees in the store. -
On Friday, August 19, 1966, Manager Atwood
signed an unfair labor practice charge, which was
filed with the Regional Office of the Board on Au-
gust 22 , 1966, in Case 19-CB-1150, in which the
Union was charged with having obtained authoriza-
tion cards through "collusion with a supervisor"'
and that the authorization cards ( in the charge
called designation cards ) were obtained through
the -"influence , pressure and restraint of a super-
visor of the Employer who, acting as an agent of
the Union , deprived employees of the rights
guaranteed to. them by Section .7 of the Act." The
Respondent conceded at the hearing that the super-
visor referred to in the aforementioned charge was
Hann . There is no evidence to show that Atwood
was instructed by the home office to file -this
charge . District Manager McNamara apparently
was not consulted by Atwood before the filing of
the charge because McNamara testified that she
learned of the filing of the charge only through the
New York office. The evidence further justifies the
conclusion that McNamara did not , at that time,
share Atwood 's attitude toward Hann , because
when she would be in the store , she would ask
Hann -what she was doing on the selling floor, that
she should be.doing^ other things like learning mark-
downs and recalls . At some time in late August or
early September , McNamara told Hann that a-store
was reopening in Richland , Washington , and asked
Hann if she would be interested in going there with
McNamara to see the opening . Although Mc-
Namara did not say anything about transferring
Hann to the Richland office as an assistant
manager, I assume that this was considered as a
possible result of the visit. The store was not- to
open -until October 10, however . McNamara
testified that several trainees did attend the-open-
ing. This fact suggests that ( 1) there were more
trainees than there were vacancies for assistant
managers , and (2) that McNamara may have had in
mind giving the manager of the newly opened store
a choice of assistant ' managers. Hann placed the
date of McNamara 's invitation as- September 3,
1966, but McNamara denied that she had had- a
conversation with Hann " shortly before - Labor
Day". in which she had asked Hann to come to the
opening of the Richland store . Asked whether or
not McNamara 's denial was - based on lack-of
memory or on knowing that she did not make the
statement , McNamara replied , " I just don't re-
member ever saying anything ' like that :" Since Mc-
Namara had other management trainees , I~find that
she might readily forget what she said to one of
them . There are other indications in the record that
McNamara 's attitude toward Hann was still quite
different from what it was on-the day after Labor
Day.
Hann was permitted by me to testify to a
telephone call on Sunday , September 4, from, an
employee by the name of Jean Lee, a stockgirl,
who, Hann testified, told Hann of - a compliment
that McNamara had paid to Lee for organizing the
work and preparing for a "moonlite sale," and that
Lee had told McNamara that the credit belonged to
Hann . In this conversation, Hann testified, she told
Lee of her attitude toward the Union. Although this
testimony obviously was heresay as to what Mc-
Namara and Lee said to each other, the testimony
was permitted by me to be taken for the purpose of
pointing a way to further investigation . Neither
side , however, chose to call Lee as a witness, and
neither questioned McNamara- about a conversa-
tion she might have had with Lee on September 3.
Although Hann portrayed Lee as --a direct line of
communication to the front office , neither,side
asked Atwood if Lee -had,spoken to her of such a
telephone conversation between Lee and Hann. I
have, therefore , not relied upon, this testimony in
reaching conclusions regarding Hann 's discharge.
About 2 p .m. on Tuesday , September 6 (the day
after Labor Day), Atwood came to Hann on the
selling floor, and told Hann that McNamara wanted
to speak . with her. Hann went into the office and
there McNamara , in Atwood 's presence, told Hann
that it, was part of her duties as,a supervisor to be
constantly - on the lookout for people who had
management potential ,- that she had tried to help
Hann ,- but that she could see, that Hann ' had no
potential and there was no place-.else for her and
there was nothing else she could do but dismiss
Hann . McNamara gave Hann two .checks, one her
regular paycheck which was due that day and a
second one which paid her to the, end of the week.
There is -no- evidence as to where the checks were
prepared, whether in Spokane or at the New York
office. Since Hann was on the payroll in New York,
it is possible that the checks were prepared =there,
but it is also possible that McNamara or Atwood
was authorized to draw checks which were charged
to the New York budget . In view of the uncertainty
of the evidence, I am unable to find-that Hann's ter-
mination had, earlier than September 6, been de-
DIANA SHOPS OF WASH . STATE, INC. 709
cided upon at the home office and her checks
prepared there in advance.
McNamara testified that -she had received a
telephone call from Vice President Helen Lee -on
the morning of September 6 in which Lee had
asked her how McNamara's management trainee
was doing, and that it was in this conversation that
she had reached the conclusion that Hann was not
management material and had decided to terminate
Hann. Although McNamara testified that Lee had
periodically asked her about her management
trainees, this was .the first time, she testified, that
Lee had asked about Hann. McNamara sought to
give the impression that she had, several weeks
earlier, almost, reached the decision to discharge
Hann but had not done so, letting the matter slide.
She conceded that she had heard rumors about
Hann's interest in the Union during the summer
months, and she testified that Atwood had said she
thought Hann would not make a manager, but she
could not place the date of this, and she testified
that Atwood "never did give me anything outstand-
ing on her at all. "25 Since McNamara was not at the
store much of the time, she was obliged to leave
Hann's training largely in Atwood's hands and
would, presumably, have been obliged to rely on
Atwood's evaluation of Hann, but McNamara was
astute enough to have suspected that Atwood's
evaluation of Hann was biased and to have been
disinclined to act on it. McNamara testified that,
during the telephone conversation with Vice Pre-
sident- Lee, Lee had asked if Hann was good
enough to transfer to another store as a trainee,
possibly a union' store. (The Respondent, at that
time, had three union stores under McNamara's su-
pervision.) McNamara testified that she had replied
that she did not think Hann was a strong enough
trainee to bother to transfer away.26 In view of Mc-
Namara's testimony that she had reached the deci-
sion to terminate Hann in this telephone call, I
deduce that her statement to Lee concerning
Hann 's ability was influenced by something that
either Lee or Atwood had told her on that day. I
further deduce that Lee had expressed herself as
inclined to recommend Hann's termination unless
McNamara was willing to give Hann a superlative
rating, a rating that McNamara was unwilling to
give because of.lac$ of sufficient personal contact
with Hann,and because she had to rely on Atwood's
evaluation, of Hann, and Atwood, being prejudiced
against-Hann, was not likely to give Hann a high
rating.
The evidence is cogent enough to convince me
that Hann was terminated not for lack of manageri-
al ability but because of her union activity.27 Such
lack of ability, I am convinced, would have become
obvious-in less time than Hann had been on the job,
and anyone' as capable as McNamara should have
recognized the fact much earlier than September 6,
1966. McNamara did not impress me as a woman
who would procrastinate in making decisions. Had
she seen any evidence of Hann's lack of ability
earlier, she would not, in my estimation, have let
the matter go. Because of McNamara's testimony
that she had learned of the filing of the CB charge
from the New York office, rather than from At-
wood, but did not mention the date of such ap-
prisal, and because of her testimony -that Vice Pre-
sident Lee had not spoken with her about Hann be-
fore September 6, 1966, I deduce that Lee men-
tioned the CB charge in the September 6 conversa-
tion. Atwood's signing of that charge, without Mc-
Namara's knowledge, demonstrates, without more,
that Atwood believed that Hann was working for
the Union, and she may have believed, also, that
Hann was doing this to embarrass her because of
Hann's dispute with her about removing Barnes
from her position as cashier.28 The abruptness of
the decision to terminate Hann on September 6,
1966; in the middle of the day, after the telephone
call from Vice President Lee, leads me to believe
that McNamara was influenced to discharge Hann
by Lee and Atwood, and the sum of the evidence
convinces me that the Respondent terminated
Hann because it believed, not merely that -Hann
was favorable to the Union (McNamara conceded
that she had heard rumors during the summer
months that Hann was interested in the Union), but
that Hann had aided and abetted the Union.
-Although I find that Hann was terminated
because of her union activities, a question remains
as to whether or not Hann's termination was a
violation of Section 8(a)(3) of the Act in view of
her status as a management trainee. As such, her
position was somewhat anomalous. She had not yet
become a supervisor, and yet her position was not
that of an ordinary nonsupervisory employee. Had
she already assumed a supervisorial position, her
discharge would not have been a violation of Sec-
tion 8(a)(3) of the Act.29 But as yet Hann was still
2' From my observation of McNamara and Atwood and from all the
evidence in the case, including Atwood 's signing of a charge against the
Union on the ground that Hann had assisted the Union, I am inclined to be-
lieve that Atwood had "several weeks earlier" told McNamara of Hann's
attitude toward the Union and had urged Hann's discharge then, but that
McNamara was reluctant at that time to terminate Hann on Atwood's
recommendation.
26 Although 1 believe that McNamara was honest in her testimony as far
as she was willing to go with it, I received the impression that she restricted
her testimony to omit evidence that she believed might have embarrased
her employer. I am inclined to believe, therefore, that this remark to Lee
was not given in its full context
2' I make no pretention to rate Hann 's managerial ability, but I find that
the reason given was not the real reason for her discharge
26 Hann, at one point , used the word " feud" in relating her conversation
with Atwood about Barnes' transfer to the selling floor
zs Heck's, inc., 156 NLRB 760, 764, 765 Although the discharges in the
Heck's case had not yet become permanent supervisors, they were already
acting as department heads with full expectation that the title of depart-
ment heads would soon be forthcoming.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a nonsupervisorial employee.30 As a nonsupervisori-
al employee she might appear to be entitled to the
rights guaranteed to employees by Section 7 of the
Act.31 If the Respondent had had a practice of
retaining unpromotable management trainees in
nonsupervisorial positions, the Respondent would
not, in my opinion, have been justified in terminat-
ing Hann altogether, although it might have beeil
justified in assigning Hann to a nonsupervisorial'
position where her lack of neutrality would not em-
barrass it as it would if she were to have been
promoted to a supervisorial position. But the
Respondent did not have such a policy. Its policy
with respect to management trainees was summed
up in the expression "up or out."
Although Hann was already employed, her posi-
tion was otherwise analogous to that of an applicant
for a supervisorial position. If an employer has
reason to believe that an applicant for a super-
visorial position will not be neutral respecting the
Union, that employer certainly would not be guilty
of unlawful discrimination in rejecting the appli-
cant. Because I have found that Hann's termination
was based on Respondent's determination that
Hann would not likely be neutral as a supervisor, I
find that, by discharging her, the Respondent did
not violate Section 8(a)(3) of the Act.
Whether or not the Respondent violated Section
8(a)(1) of the Act by Hann's discharge depends on
the effect thereof on its nonsupervisory employees.
There is no evidence that Respondent informed the
employees that Hann was discharged because of
her advocacy of and aid to the Union, something it
did not even tell Hann. And although Hann testified
that, before leaving the store following her termina-
tion, she told some of the employees that she had
been discharged, there is no evidence that she gave
them to understand that she had been discharged in
order to discourage union organization or union ac-
tivity. I find, therefore, that the Respondent did not
interfere with, restrain, or coerce its employees in
the exercise of the rights guaranteed in Section 7 of
the Act by terminating Hann's employment.
E. The Refusal To Bargain
1. The appropriate unit
The complaint alleges, and the answer denies,
that "all sales clerks, sales trainees , cashiers, win-
dow trimmers , receiving clerks , stock boys and
credit department employees , excluding profes-
sional employees , guards, store manager , assistant
store manager , credit manager , and other super-
visors as defined by the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act."
The Respondent offered no evidence to show a
more appropriate unit. The unit alleged in the com-
plaint differs in only one respect from the unit
claimed by the Union to be appropriate in its letter
to the Respondent claiming recognition. In this
letter the Union would have excluded, in addition
to the store manager and assistant store manager,
district supervisors and credit supervisors.
Credit manager. The unit described as ap-
propriate in the complaint excludes the "credit
manager ." The Respondent has a district credit su-
pervisor who is above the credit manager. From the
list of names which the Union supplied to a state
mediator, it is apparent that the Union intended to
exclude the district credit supervisor but not the
credit manager. The difference in the description of
the unit is, however, a minor one, and is not suffi-
cient to affect the validity of the Union's claim to
recognition. Although the Respondent argues that
Kjack, the credit manager, was not a supervisor, it
makes no contention as to whether or not the credit
manager should be in the unit. The only position
taken by the Respondent was that shown in its of-
fered consent election agreement, where the
Respondent described the unit as all sales em-
ployees but did not mention the credit manager
among the exclusions it listed , unless it was con-
tending that the credit manager was a confidential
employee, which Respondent would have excluded.
I exclude the credit manager as a managerial em-
ployee for the reasons heretofore given.
Management trainee. One other type of employee
is not mentioned either in the inclusions or in the
exclusions stated in the complaint-the "manage-
ment trainee." The Respondent has a training
period of 4-6 months for management trainees'32 it
either promotes them or drops them at the end of
the training period, and three out of every four
management trainees are promoted to such a posi-
tion . Under the circumstances , the management
trainee would be excluded from the unit.33 But
since the management trainee is not included in the
categories described in the complaint as in the unit,
that description need not be altered to exclude the
category of management trainee.
Sales trainees. This is a description not used by
the Respondent. Just whom the Union and the
General Counsel had in mind as covered by this
description is not clear. I doubt that it was intended
to cover the management trainee. There is no
evidence that the Respondent has a trial period for
newly hired salesclerks or that it used the descrip-
tion of sales trainees to cover students who work
'0 The nearest she had come to being a part of management was when
Atwood was on her vacation and Hann had a key to open the store 2 days a
week There is no evidence that she had been given any authority to super-
vise any employees, however
" As a management trainee, Hann would be excluded from the ap-
propriate unit Diana Shop of Spokane, Inc , 118 NLRB 743, WTOP, Inc,
115 NLRB 758 But exclusion from the appropriate unit would not, alone,
deprive her of the protection of the Act American Auto-Felt Corporation,
158 NLRB 1628
'Z In Diana Shop of Spokane, Inc , infra, the training period was described
as from 3 to 6 months
' Diana Shop of Spokane, Inc, 118 NLRB 743, 745, WTOP, Inc, 115
NLRB 758
DIANA SHOPS OF WASH. STATE, INC. 711
temporarily to earn money for educational expen-
ses. I see no reason for including this description
among the inclusions. A sales trainee, if there is
such a thing, can be included or excluded by apply-
ing the Board's customary reasoning to determine
whether or not she is a full- or part-time regular
employee. Accordingly, I shall not use the term "-
sales trainee" in the description of the appropriate
unit.
Hence, I find that all regular full- and part-time
salesclerks, cashiers, window trimmers, receiving
clerks, stock clerks,34 and credit clerks'35 excluding
management trainees, professional _ employees,
guards, store manager, credit manager, and all
other supervisors as defined in the Act constitute a
unit appropriate for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
2. The Union's majority
On July 2, 1966, the Respondent had in its em-
ploy 18 nonsupervisory employees, excluding the
management trainee. The Union, on that date, had
authorization cards of 12 of the 18. The Respon-
dent attacks the validity of a number of them, some
on the ground of eligibility (that is, that they were
not within the appropriate unit) and others on-the
ground that the employees who signed the cards
were coerced.
CARDS OF THOSE ALLEGEDLY NOT IN THE UNIT
Frances Tonhofer. The Respondent claims that
Tonhofer's card should not be counted because she
was a pensioner working to earn the maximum
amount permitted under the Social Security Act
without loss of pension. The Board, in Hoosier Desk
Company, 65 NLRB 785, excluded from the ap-
propriate unit an employee who was a pensioner
under the Social Security Act "who works not more
than the first three Fridays of each month to earn
the maximum of $15.00 allowed under the Act
without a consequent loss of pension," on the
ground that he had not a- sufficient interest in the
selection of a collective-bargaining representative
to entitle him to vote in the election. Since the date
of that case (1946), the Board has excluded em-
ployees from the unit who worked part time to sup-
plement their Social Security pensions on the
ground that they "do not have sufficient interest in
common with" other employees in the unit because
they are temporary, intending to work only until
they have earned the amount allowed by the Social
Security Act without losing their pensions.36 In
cases after the Hoosie>t Desk decision, the Board has
not alluded to the fact that, as the amount per-
mitted to be earned under the Social Security Act
without loss of payments has increased, pensioners
have been able to work more steadily and for a
longer portion of the year.
Tonhofer was hired in January 1966 as a part-
time saleswoman at a rate of $1.30 an hour. In June
and July ,1966 she was earning $1.35 an hour. She
is now paid $1.40 an hour. She testified that she
worked every week, although she did not intend to
exceed the amount of earnings exempted under the
Social Security Act. About the same time that she
was hired, the Social Security Act was amended so
as to raise the maximum amount a pensioner could
earn from $1,200 to $1,500 a year and to provide
that even beyond $1,500 and up to $2,700,,a pen-
sioner would lose no more than a dollar for each
dollar over $1,500 of what he earned in a year, so
that even over $1,500 he would not lose his entire
social security payment. At the time the Hoosier
Desk case was decided the Social Security Act
limited pensioners to earnings of $50 a month
without loss of benefits. In 1952, the amount was
raised to $75 a month, and during the period
between January 1955 and January 1966, the ex-
emption was $1,200 a year. In view of the latest
raise in the amount of earnings permitted without
deduction, Tonhofer, even at the $1.40 an hour
wage, which she is earning in 1967, could work
regularly for half a day (20 hours a week) through
every week of the year, without exceeding the
$1,500 figure. Because she works side by side with
other sales girls, both full time and part time, she
does not lack any community of interest with the
other employees. If Tonhofer's card would affect
the Union's majority, I would not be inclined to fol-
low the precedent of the Hoosier Desk decision, but
omission of Tonhofer's card, I find, will not affect
the results in any event; so for the purposes of this
case, I shall not count it.
Roberta Hann. Hann was the management trainee
and is not in the unit found appropriate. I did not
count her as 1 of the 18 nonsupervisory employees.
Molly Holmquist. Holmquist was a student who
took employment with the Respondent to earn
money to defray expenses on entering college in, the
fall of 1966. In the fall, she did quit to attend col-
lege. As a temporary employee, she would not
come within the appropriate unit and therefore her
card will not be counted.37
The Respondent contends that the cards of Clara
Guffin, Kay Hodges, Ernestine Holley, Judy Merrill,
Shirl Olmsted, and Marilyn Schmidt should not be
counted because they were obtained at the June 28
meeting of the Union and were "tainted because of
the supervisory participation by Hann." I have al-
ready found that Hann was not a supervisory em-
ployee and I have no reason to suppose that Hann's
34 The unit described in the complaint calls this category "stock boys" automatically excludes mailers, who are casual employees
but the Respondent might well have stock girls, so I use the epicene " Ex gr, Taunton Supply Corp, 137 NLRB 221, The Horn & Hardart
designation Company, 147 NLRB 654, 659, Lane Drug Co, 160 NLRB 1147.
"This description is chosen over "credit department employees" as "Brown-Forman Distillers Corporation, 118 NLRB 454
used in the complaint because credit clerks is Respondent's own title and it
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
views were -those of the management or that the
employees who attended that .meeting thought they
were. There is also no evidence that Hann, at the
June 28 meeting, spoke in favor of the Union.
Although she did so at the meeting in August, what
she said there would have no retroactive: effect on
the authorization cards signed at the June meeting.
Although I have excluded Hann as a management
trainee from the,unit, this.was not because she was
a supervisor but because her position at the
Spokane store was of temporary duration. At the
Union's meeting on June 28 the employees listened
to Brack's explanation of the purpose of the
authorization cards; then they asked questions and
received answers before they signed their cards. It
is apparent that those who signed authorization
cards at that union meeting were deciding for them-
selves whether or not to sign their authorization
cards. In fact, one employee who attended the
meeting, Elisa (Libby) Morrow, signed neither the
registration of attendance nor an authorization
card.
At the hearing, counsel for the Respondent cross-
examined witnesses who had signed authorization
cards, apparently with a view of showing that they
were misled by Brack's statements or representa-
tions. However, this argument was not made in the
brief, and I assume that.it was abandoned. In any
event, I find that the employees were not deceived
by anything that Brack said. The authorization
cards contained no application for membership,
and Brack told those who signed that they were
under no obligation (meaning , I deduce, to join the
Union or to make any kind of money payment). I
find that Brack did not mention the possibility of a
Board-conducted election at anytime before the
Respondent filed an RM petition and that before
that time the only voting that he mentioned con-
cerned the voting by the employees on terms
desired in a contract or on whether or not to accept
an agreement which might have been negotiated.
All the signers of authorization cards testified that
they read their cards before they signed, and all ap-
peared capable of understanding what they read.
Schmidt was a distributive education student who
worked as a part-time salesgirl in order to get credit
in a course in marketing that she was taking. She
was hired in the fall of 1965, finished her school
course in the fall of 1966, and testified that she
ceased working after she had worked the "week
after Christmas." It does not appear whether she
had worked continuously after finishing her school
work or whether she returned to work for only the
week of Christmas. I find it unnecessary to decide
whether or not Schmidt was a temporary employee
whose card should be excluded, because even if it
were not counted, the Union's majority would not
be affected.
The Respondent, in its -brief, -treats Donna, Lit-
tlefield as an employee in the unit as of the payroll
ending July 2, 1966. The evidence indicates that
Littlefield might have made arrangements for em-
ployment as early as July 1, because, Manager At-
wood told Romans on that date that she had hired a
new cashier and wanted Romans to train her. How-
ever, the payroll for the, week ending July 2 did not
contain Lrttlefield's name. I deduce that she did not
commence working until the following week. In
determining the number, of employees on the date
of the Union's request to bargain, I have not, there-
fore, included Littlefield.38 If Tonhofer and Schmidt
were to be excluded from the appropriate unit for
the -purpose of determining the number of ^em-
ployees in the unit on July 2, 1966, 15 would
remain in the unit. Of the 15, the Union had, on
that date, authorization cards of 9 employees 39
I find therefore that on June 28, 1966, and at all
times material thereafter, the Union was the exclu-
sive representative of all Respondent's employees
in the appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of
the Act.
3. The request and refusal to bargain
On June 20, 1966, the Union delivered by hand a
letter to William Samish, a labor mediator, for-the
Department of Labor and Industries of the State of
Washington, together with a list of the Respon-
dent's employees, and the authorization- cards
which it had procured to that date. In the letter to
Samish, the Union described the bargaining unit
and asked Samish to compare the authorization
cards with the list of employees and that he certify
whether the Union "does or does not represent a
majority of the employees." As previously stated,
the list of employees in the appropriate unit, in-
cluded the name of Gladys Kjack and others whom
I have excluded from the unit. On the same date,
June 20, the Union wrote to Robert Greenberg, the
executive vice president of the Respondent,- stating
that the Union had a majority of employees in the
appropriate bargaining-unit, described therein, and
demanding recognition as the exclusive collective-,
bargaining representative of such employees. This
letter proposed that one of the union representa-
tives would call upon Greenberg or his representa-
tive at the Spokane store on Tuesday, July 19, at 2
p.m., for the purpose of negotiating' a collective-
bargaining agreement. The letter also -informed the
Respondent that the appropriate unit had been sent
to Samish, and it enclosed a copy of the Union's
letter to Samish.
On July 1, 1966, Samish 'wrote to the Union stat-
ing that he had carefully checked the cards
furnished by the Union against a list of employees
" Littlefield signed an authorization card for the Union on July 16, 1966.
39 Barnes , Brisbois, Hodges, Holley, Hotchkiss, Merrill, Olmsted,
Romans, and Williams
DIANA SHOPS OF WASH. STATE, INC. 713
in the appropriate bargaining unit , and he certified
that a substantial majority of the employees so
listed had authorized the Union to represent them
for the purposes of collective bargaining.
Because the Union afforded neither the Respon-
dent nor the labor mediator an opportunity to
authenticate the signatures on the authorization
cards , I find that the Respondent was not required
to accept such certification as proof of the Union's
majority. If, then, the Respondent acted in good
faith in questioning the Union 's procedure and in
effect , refusing to bargain unless the Union should
win a Board-conducted election , it would not have
violated Section 8(a)(5) of the Act. But if the
Respondent was seeking to use the intervening
period prior to an election for the purpose of delay
or to undermine the Union , the Respondent's good
faith would be impunged and it could not insist
upon an election to prove the Union' s existing
majority.40
Since return receipts in evidence indicate that
mail from - the Seattle Regional Office was received
by Respondent's home office at North Bergen, New
Jersey, in 2 days, I infer that the Union's letter
requesting bargaining was received on July 2, 1966.
Instead of replying to this letter, himself, Vice Pre-
sident Greenberg apparently referred the matter to
the Respondent's attorney, because the first
response was written on July 6 by the attorney's
secretary, who replied to the Union that the attor-
ney who handled Respondent's matters, Sidney
Wolchok , was on his vacation and would not return
until the first week in August and that the Union's
letter would be brought to his attention upon his
return. I note from the letterhead of that letter that
Wolchok is a member of the firm of Katz &
Wolchok and that the names of six other lawyers
are listed as associated with the firm besides
Wolchok. In such circumstances, I see the first indi-
cations of stalling because I cannot conceive that a
member of a law firm would leave on a month's va-
cation without referring the handling of his clients'
business to another attorney in the firm, at least for
temporary action; yet the reply is written by
Wolchok's secretary rather than by a lawyer who
would have recognized the urgency of the business.
No further communication from the Respondent
was forthcoming until July 21, 1966, when Green-
berg, himself, not waiting any longer for the return
of Wolchok, signed a letter addressed to the Union
(which letter has the appearance of having been
drafted by a lawyer), not directly questioning the
Union's majority, but calling into question the
procedure used by the Union to establish its majori-
ty and stating that Respondent (I observe without
waiting for Wolchok to return from his vacation)
was going to file a petition for an election , and, in-
cidentially, throwing out the suggestion ( in a nega-
tive form-"we do not mean to foreclose you from
films for a secret ballot election also,") that the
Union file a petition for an election with the Board.
The Respondent's RM petition was actually filed
on July 25, 1966. There is no evidence that a hear-
ing date was ever fixed. On August 3, 1966, Vice
President Greenberg signed a consent-election
agreement. When this proposed agreement might
have been first seen by a Board agent does not ap-
pear, but it is dated as approved on August 9, 1966,
by the Regional Director. I assume that the effect
of this proposed agreement would be to suspend
any further action on Respondent's RM petition for
an election pending tender of the proposed con-
sent-election agreement to .the Union for approval.
It is interesting to note the difference between the
description of the unit stated in the RM petition
and that stated in the consent-election agreement.
The RM petition described the unit as "all regular
employees " excluding store manager , guards,
watchmen, confidential employees and supervisors
as defined in the Act. The consent-election agree-
ment proposed by the Respondent described the
unit as "all regular sales employees" at the store,
with the same exclusions. Under the latter descrip-
tion, the stock clerk, window trimmer, credit clerk,
and maintenance employees would have been ex-
cluded from the unit. Had the Union accepted the
offer, it would have found its majority impaired. I
deduce that the difference in language was in-
tended to result in either a rejection by the Union
of the proposed consent -election agreement or of a
reasonably good chance that, with payroll 'changes
that had taken place by that time, the Union would
lose the election. Either way, the Respondent could
delay a vote and the more chances there would be
that changes in payroll would have taken place- and
the fewer votes the Union could count on. There is
no evidence concerning the Union's reaction to the
proposed consent-election agreement, but I infer
that it was rejected by the Union.
The next step taken by the Respondent was
designed further to defer the holding of an election.
It filed a charge against the Union on August 22,
1966, alleging collusion with a supervisor (the
management trainee ) to coerce employees to
deprive them of their right under Section 7 of the
Act "to freely choose whether or not to join or
assist, or to refrain from joining or assisting any
labor organization." It will be remembered that the
Union-already had its majority before Hann (the so-
called supervisor ) had expressed favor for the
Union. Also, as previously noted, the effect of such
a charge under the Board's practices would be to
defer any election pending investigation and
disposition of the charge either by dismissal or by
decision on the issues raised herein. There is no
evidence as to how long the investigation took.
From certain testimony herein , I deduce that it con-
tinued until after the Union had filed its charge, on
'" Hoskins Ready-Mix Concrete, Inc, 161 NLRB 1492, Crown Imports
Co, Inc, 163 NLRB 24.
714 DECISIONS OF NATIONAL
September 12, 1966 , of alleged violations of Sec-
tion 8(a)(1), (3), and (5) of the Act. If the Union's
charge also - would have the effect of deferring an
election, the Union cannot be accused of engaging
in the same dilatory tactics as the Respondent
because the Union had cause , by the time it filed its
charge , to despair of getting an early election.
Delay would mean a gradual erosion of the Union's
majority by changes effected in personnel, and I
have no doubt that the Respondent realized this.
Since the Respondent did not question the
Union's majority ( although refusing to bargain
without an election ) and since the Respondent had
every reason to know that the Union had already
secured authorization cards of a majority of
Respondent 's employees in an appropriate unit, I
am impelled to the conclusion that Respondent's
entire course of conduct was one designed , to delay
recognition and to erode the Union 's majority.
Evidence of intent to alter the Union 's majority is
most apparent in the Respondent 's action, hard
upon notice of the Union 's claim , of hiring two, new
cashiers and transferring the old ones to selling jobs
in the expectation that it would result in their
quitting , thus demonstrating a disposition to dis-
criminate and to discourage union organization.
This action also tended to reduce the Union's
majority = percentagewise . It is not intended here to
give the Impression that the filing by an employer
of an RM petition , or the using of the Board's
processes in some other way , is to be regarded as a
delaying action in all cases, but I find that the
manner in which the Respondent proceeded in this
case shows a definite design to delay the determina-
tion of the Union's majority, with the obvious ex-
pected result.
On all the evidence, I conclude and find that the
Respondent refused to bargain with the Union from
the time it received the Union 's request to bargain,
which I have found was on July 2, 1966. I also find
that the refusal to bargain was not because of a
good-faith doubt of the Union's majority but was to
gain time in which to undermine the Union, in
violation of Section 8 (a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III , above, occurring in connection with its
operations described in section I, above, have a
close, , intimate , and substantial relationship to
trade , traffic , and commerce among the several
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
A question arises with respect to the proper
remedy for the discrimination against Barnes and
Romans . The complaint does not allege that their
LABOR RELATIONS BOARD
transfers effected a constructive discharge. Both
terminated their employment to take other employ-
ment. An order that they be reinstated would,
therefore, be inappropriate . Accordingly, I shall
recommend merely that the Respondent
-
cease and
desist from such discrimination as has herein been
found . I shall also recommend that it cease and de-
sist from the .commission of other unfair labor prac-
tices found to have been committed. -
I have found that Respondent has violated three
of the five subsections of Section 8(a) of the;Act. A
broad cease -and-desist order would include possi-
ble violations of Section 8(a)(2) ,and_(4) also. Sub-
section (4) is designed to protect employees against
discrimination in specific types of cases . Since the
Respondent has shown a , disposition to dis-
criminate, I believe -an order to cease and desist
from all other forms of discrimination is not inap-
porpriate. I have found that the Respondent has
refused to bargain with the Union by resorting to
dilatory tactics and actions designed to affect the
Union's majority. The Respondent's disposition to
evade its duty to bargain with the employee's
chosen representative warrants anticipation of a
danger that Respondent will resort to other devices
to forestall the statutory rights of employees, in-
cluding a possible violation of Section 8(a)(2) of
the Act, the provisions of which strikes at a not un-
common device used by employers to avoid bar-
gaining with employees' chosen collective-bargain-
ing representatives . In sum , I find that commission
by the Respondent of the unfair labor -practices
herein found leads to the anticipation of the com-
mission of other unfair labor practices generally.
Accordingly, I shall recommend a broad cease-and-
desist order.
I shall also recommend that the Respondent take
affirmative action such as is customary in-cases of
violation of Section 8(a)(5), and I shall recommend
the posting of appropriate notices.-
Upon the basis of the foregoing findings of fact
and upon the entire record in this proceeding, I
make the following:
CONCLUSIONS OF LAW
1. Respondent, Diana Shops of Washington
State, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By' discriminating in regard to the terms and
conditions of employment of Lois Barnes and Mary
Romans to discourage union membership, the
Respondent has engaged in and is engaging in, un-
fair labor practices within the meaning of Section
8(a)(3) of the Act.
4. All regular full- and part-time salesclerks,
cashiers, window trimmers, receiving clerks, stock
clerks, and credit clerks, excluding professional em-
ployees, guards, store manager, assistant store
DIANA SHOPS OF
manager, credit manager, and other supervisors as
defined in the Act constitute a unit appropriate for
the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
5. At all times material hereto the Union has
been, and now is, the exclusive representative of all
the employees- in the aforesaid appropriate unit for
purposes of collective bargaining within the mean-
ing of Section 9(a) of the Act.
- 6. By refusing on and after July 2, 1966, to bar-
gain collectively with the Union as the exclusive
representative of the employees in the aforesaid ap-
propriate unit, the Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
WASH. STATE, INC. 715
7. By the aforesaid unfair labor practices, the
Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section
8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
9. Respondent's management trainee is not an
employee within the meaning of Section 2(3) of the
Act, and Respondent did not engage in unfair labor
practices within the meaning of Section 8(a)(3) of
the Act by terminating Hann's employment.
[Recommended Order omitted from publica-
tion. ]