Buckeye Mart

National Labor Relations Board - Board Decisions

Mar 1, 1968

170 N.L.R.B. 1 (N.L.R.B. 1968)

Cussins & Fearn Co ., Inc., d/b/a Buckeye Mart;
Gray Corporation of Fremont ; Morton's Shoe
Stores, Inc., and Retail Store Employees Union
No. 954, Retail Clerks International Association,
AFL-CIO. Cases 8-CA-4466 and 8-RC-6533
March 1, 1968
DECISION, ORDER, AND CERTIFICATION OF
RESULTS OF ELECTION
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On September 11, 1967, Trial Examiner John H.
Eadie issued his Decision in the above-entitled
proceeding, finding that in one respect the Respon-
dent had violated Section 8(a)(1 ), but recommend-
ing, in view of his findings that the Respondent had
not engaged in any other of the unfair labor prac-
tices alleged in the complaint, that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. The Trial Examiner
further recommended that the objections to the
election be overruled Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, the Respondent
filed a reply brief, and the Charging Party filed
cross-exceptions with a supporting brief.
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, cross-ex-
ceptior}s, briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint herein be, and it hereby
is, dismissed in its entirety.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
votes cast in the election has not been cast for
170 NLRB No. 2
Retail Store Employees Union No. 954, Retail
Clerks International Association, AFL-CIO, and
that said labor organization is not the exclusive bar-
gaining representative of the employees in the unit
found appropriate within the meaning of Section
9(a) of the National Labor Relations Act, as
amended.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN H. EADIE, Trial Examiner: This proceeding
was held before me in Fremont, Ohio, on March 28
to 30, 1967, on the complaint of the General Coun-
sel and the answer of Cussins & Fearn Co., Inc.,
d/b/a Buckeye Mart, Gray Corporation of Fremont,
and Morton's Shoe Stores, Inc., herein called the
Respondent.' The complaint alleges violation of
Section 8(a)(1) and (5) of the National Labor
Relations Act, as amended. The Respondent's
answer admits the jurisdictional allegations of the
complaint, but denies the commission of any unfair
labor practices. All parties filed briefs with the Trial
Examiner after, the conclusion of the hearing.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is an Ohio corporation. It is en-
gaged in the operation of a discount retail depart-
ment store in Fremont, Ohio. The Respondent an-
nually receives gross revenues in excess of
$500,000 from retail sales, and receives goods
valued in excess of $50,000 directly from points
located outside the State of Ohio.
The complaint alleges, the Respondent's answer
admits, and I find that the Respondent is engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Store Employees Union No. 954, Retail
Clerks International Association, AFL-CIO, herein
called the Union , is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
At all times material herein, Tex Frey was the
manager of the Respondent's store. By letter dated
' In Case 8-CA-4466, the charge was filed on January 12, 1967, and the
complaint issued on February 17, 1967 By order dated February 23, 1967,
the Regional Director for Region 8 consolidated Case 8-RC-6533 with
Case 8-CA-4466
350-999 0 - 71 - 2
2 DECISIONS OF NATIONAL
October 13, 1966, the Union advised Frey that it
represented a majority of the employees, requested
a meeting to negotiate a contract, and suggested a
card check by the Toledo Labor Management
Citizens Committee in order to prove its claim of
majority. The Respondent replied by letter dated
October 14, 1966, as follows:
Receipt is acknowledged of a copy of your
letter dated October 13, 1966 to Mr. Tex Frey.
Manager of the Buckeye Mart Store in Fre-
mont, Ohio.
I sincerely doubt that you represent the
majority of our employees in any appropriate
unit . If you demonstrated, in a secret ballot
election, that the majority of our employees
desire representation by your union, of course,
we would recognize and bargain with you.
However, we are not interested in seeing
membership cards. We believe the only way to
settle this is by a secret ballot election. That is
the American Way. We hope that you ask the
NLRB to conduct such an election. If you do
not ask the NLRB to do so, we will consider
filing a petition for an election.
People sign cards for many reasons other
than to indicate a desire for union representa-
tion. Membership cards are just unreliable for
any purpose.
The Union sent another letter to Frey, dated Oc-
tober 28, 1966. This letter was identical to the
earlier letter excepting that a postscript was added
which stated, "This represents the second and con-
stitutes a continuing demand to bargain." The
Respondent did not answer this letter.
The Union filed a petition for an election on
November 4, 1966. Because of a dispute as to the
appropriate unit , a hearing in Case 8-RC-6533 was
held on November 25, 1966. On November 25 and
26 Respondent's Vice President Edward Anderson
made a speech to the employees as follows:
This meeting has been called because of a
matter that is of extreme importance to the
Company and to our employees. We are very
concerned with the prospect of a union in this
store. We fully intend to resist this union just
as we have every other time they have tried to
come in . The union will not do either of us any
good.
Today the union required us to attend a
Hearing . You are entitled to know what went
on and why. We were willing to consent to an
election of our employees and have it right
away. The only thing the union would agree to
was to let the employees of the leased depart-
ment vote. We did not have the legal authority
to committ our Lessees to an election. They
are not our employees. We do not hire them,
set their wages , pay them, nor do they have the
same benefits that you have such as
Hospitalization Insurance , Life Insurance,
Profit Sharing, our Company Credit Union,
etc.
LABOR RELATIONS BOARD
We are darn sorry that you have to be sub-
jected to being bothered by these union or-
ganizers for another month, with them sneak-
ing in and around the store and at your homes.
No doubt, these union organizers are going
to say that Buckeye is stalling on this. If they
say this, then it is just about as truthful as the
other things they have been saying around
here. I know what they have been doing, mak-
ing fantastic promises for wage increases.
What can the union do if they win? They can
make demands. We do not have to agree. In
fact, we could not agree to anything that would
put us in a position where we would not be
competitive. If the store does not make a
profit, it cannot stay in business.
Unlike the union, I cannot make promises.
The only thing I or Tex can say is that we are
going to be fair with you. The Company has a
record of increasing benefits whenever it can
and as long as I have anything to do with it, it
will continue to be that way.
After the close of the representation hearing on
November 25, the Respondent promulgated and
posted in all of its stores, including the one involved
herein, the following rules:
Employees may not solicit membership in any
organization on Company time.
Employees may not distribute pamphlets,
notices or any kind of literature in any sales
area of the store.
Anderson sent the following letter, dated
December 29, 1966, to all employees:
This letter is being sent to you at your home
because we believe your vote on Thursday,
January 5th vitally affects your family, as well
as your own personal future and is a matter
which you should discuss with your family.
We do not propose to tell you anything about
this union which seeks your vote next
Thursday. It is just another AFL-CIO union.
Its dues are from four ($4.00) to five ($5.00)
per month and its initiation fees are from ten
($10.00) up. We do not know how much it
would charge you here in Fremont if it should
win the election.
We know that the union organizers have made
many promises to you, they have tried to make
you believe that increased wages and benefits
are automatic if you just vote them in.
We are legally prevented from making
promises. Even if we could, we would not try
to out-promise these union organizers for they
are experts on promises. They make a good liv-
ing out of making promises.
There is one thing you should know about their
promises. If they should win, everything
becomes a matter for bargaining . There is
nothing automatic about it. The union would
demand a "union shop" that everyone has to
join within thirty days. The union would de-
mand a "check off" that your company take
BUCKEYE MART 3
the dues out of your pay and turn it over to the
union . Of course , the union would demand
higher wages and more benefits , but these are
matters for bargaining . Your company would
probably agree to some things and not to
others and could make demands of its own. If
the union could not get agreement with the
company on its demands , it could call you out
on strike.
Various unions have tried to organize the em-
ployees of the company at different times and
in different locations , and each time the em-
ployees have rejected union representation.
This is enough about the union . It is not going
to win the election. This letter is more for the
purpose of asking you to look at the record and
consider some facts before casting your vote
on Thursday.
Fact One: Cussins & Fearn is an old Ohio
Company . Buckeye Mart is still an infant but it
is the fastest growing retail organization in our
state. There are now twelve Buckeye Marts
and some five new ones on the drawing boards.
What does this mean to you ? It means great
opportunities for better jobs. Department
Managers soon become store managers and
your company promotes from within. You
have an excellent chance for a better job.
Fact Two: Your fringe benefits are as good or
better than those of the employees of any
stores of our type in the state, union or non-
union . Many of you are new with the company.
We take this opportunity to just list some of
your fringe benefits: ( 1) Hospitalization Pro-
gram; (2) Life Insurance Program ; (3) Sick
Leave Program ; (4) Ten Per Cent Discount on
Purchases ; (5) Six Paid Holidays; (6) One
Week Paid Vacation After One Year, Two
Weeks After Two Years; (7) Profit Sharing
Program , which means a lot of money in the
bank for you as the years go by, and (8) A
Credit Union when you need money.
Fact Three: We constantly check the pay paid
by other retailers because we want to stay the
same or above that of our competitors. We
want to keep our employees . A satisfied em-
ployee sells more merchandise . Of course, we
can't compete with the grocery chains. They
are all unionized and just pass on the increased
costs to their customers.
Fact Four: The union promises security. What
security is there anywhere other than the
security of working for a growing successful
company such as ours? Unionized stores lay off
people they do not need.
Fact Five: The union promises more money.
Unions always promise this, but more money
can come only out of increased profits . Unions
do nothing to increase business or increase
profits. Only good management and good em-
ployees can increase profits and thereby in-
crease wages. We have been demonstrating
that every year since we started in business.
We admit we make mistakes . We are human.
When we make a mistake , we try to correct it.
All we ask is that between now and Thursday
afternoon , you think about what your job here
has meant to you. Make your decision on the
basis of the facts and not on union ' promises.
We are confident that you will vote NO!
Anderson sent another letter , dated December 30,
1966, to the employees. It reads as follows:
As the time draws near for the election in
which you will decide whether or not you need
union representation at Buckeye Mart, many
of you have asked questions . We repeat some
of them here together with our answers.
Q. Does the fact that I have signed a union
card require me to vote for the union?
A. No! The election is by secret ballot and
no one will ever know how you have voted.
Q. If the union wins , will I have to join and
pay dues?
A. If the company agrees to a union shop in
bargaining , you will have to join and pay dues
or be discharged . This is a bargaining demand
for which unions fight hard . Many strikes have
resulted from employers refusal to grant a
union shop.
Q. Are most workers in the United States
covered by union contracts?
A. No! Only a small percentage of Amer-
ican workers are unionized . While the number
of people working increases annually, the
union membership has remained almost con-
stant . The AFL-CIO membership remains
below 15 million.
Q. Do I need a union for my own security?
A. No, unions cannot guarantee your job,
your benefits, increases in pay when you
deserve it, better wages, longer vacations or
more paid holidays. All of these things can
come only out of company profits.
Q. Why is the union trying to get in at
Buckeye Mart?
A. The union wants your money for dues,
for initiation fees. The union organizers must
organize new stores to keep their jobs
Q. Why does Buckeye Mart oppose a
union?
A. It takes a lot of time to bargain with a
union to settle petty grievances , time which
could be better spent increasing business so
that we may all profit . It is not a question of
wages and benefits . Buckeye Mart already pays
the going rate . Unions create dissension among
employees . They cause employees to fight each
other . They create distrust and suspicion.
These things are not the right atmosphere for a
prosperous business . Your future and our fu-
ture depends on a prosperous business.
Q. Do I need a union to secure my promo-
tion within the company?
A. No! Every department head in the store
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has risen from the ranks . Unions try to base
promotion on seniority , length of service.
Buckeye Mart considers that also but ability,
incentive , conscientious effort , and hard work
are more important than just length of service.
Q. Would the union pay my wages if I am
out of work due to the strike?
A. No! Don 't take our word for it. Ask the
few employees who are promoting the union.
Q. I have signed a card and gone to union
meeting . Will the company discharge me if the
union losses?
A. Of course not. That is your business and
right . It would not be good business for the
company to get rid of good employees.
Q. If the union loses the election , can it try
again?
A. Yes, it can ask for another election in
one year.
Q: I am a part-time employee and also work
at another job . Would I have to pay the same
initiation fee and dues as full-time employees?
A. Yes, if the company agreed to a union
shop, everyone would have to join and pay the
same dues and initiation fees no matter how lit-
tle they worked.
Q. Why hasn 't anyone received a merit in-
crease during the last few months?
A. We are advised by our lawyer that it
might be held illegal to grant any wage in-
creases during a union campaign.
If you have any questions , ask your supervisor.
If he does not have the answer he can get it
from top management . You are entitled to the
answers to your questions.
An election was conducted by the Board among
the Respondent's employees on January 5, 1967.
There were 55 ballots cast , of which 9 were for and
32 were against the Union . There were 14 chal-
lenged ballots . On January 12, 1967, the Union
filed objections to conduct affecting the results of
the election.
During mid-January the Respondent granted
wage increases to all of its employees . The in-
creases were made retroactive to January 2, 1967.
All employees were raised to the New Federal
Minimum wage . In addition , a number of em-
ployees received merit increases.'-'
In a Supplemental Decision , dated February 23,
1967, the Regional Director overruled the Union's
Objections 4, 5, 6, 7, and 8 in their entirety and
Objections 1, 2, and 3 in part. He ordered that a
hearing be held on "the issues raised by Objection
No. 1, insofar as it relates to promises of wage in-
creases; No. 2, as it relates to threats of layoffs; No.
3, as it relates to the promulgation and legality of
the rule against solicitation ; and No . 9, as it relates
to interrogation of employees."
B. The Rule Against Solicitation
The General Counsel contends that "the peremp-
tory promulgation of 'a no-solicitation rule
evidences Section 8(a)(1) violation, even though
the rule itself under other circumstances might be
valid." He also urges that "a broad rule against sol-
icitation `on company time"' is violative of the Act.
In this connection Anderson testified credibly
and without contradiction that prior to November
25, 1966, the Respondent had an identical no-sol-
icitation rule in all of its stores; that Frey'h'ad com-
plained to him that union talk was disrupting" busi-
ness in the store; that on November 25 ' Thomas
Shroyer, the Respondent's attorney, told him that
he had "some reservations" about the Respondent's
old rule and that he wanted " a uniform rulewhich
conforms with the existing Board decisions"; that at
Shroyer's suggestion the Respondent's no-solicita-
tion rule was `changed; and that the new rule ap-
plied to all of the Respondent's stores. The ,parties
stipulated that Shroyer prepared the no-solicitation
rule under consideration on November'25 after the
hearing in the representation matter. Other than
the above, there is no evidence concerning the
Respondent's old no-solicitation rule.
Under all of the circumstances, and in view of
the nature of the Respondent's' business, I do not
find any violation of the Act with respect to the no-
solicitation rule that was posted in the' Respon-
dent's store on November 25, 1966.
C. Anderson's Letter of December, 29,1966
The complaint alleges and the General Counsel
contends that Anderson's letter threatened em-
ployees with layoff if they adhered to the Union. In
his brief the General Counsel states, "In its letter of
December 29, Respondent assured' the employees
of continued job security, but then added in a not
overly subtle fashion that, `Unionized stores lay off
people they don't need.' This -is a clear manifesta-
tion of a `get tough policy.' General Counsel con-
tends that it constitutes a clear threat of layoff
should the store be unionized. "-
I do not believe or -find that the complained of
part of the letter, especially when considered
together with the letter as a whole, is violative of
the Act. In my opinion, the letter was nothing more
than permissable preelection propaganda.
D. Conduct of Respondent's 'Supervisors
Anna Markley worked in the Respondent's credit
department. She signed a union card on August 29,
1966. At sometime during September 1966,
Markley asked Frey for a wage increase. He replied
that he would "take it up" with Mills. During about
the early part of October 1966, Mills came to the
credit office and spoke to, Markley. He said, "Did
z At least eight of the merit increases were recommended by Frey on Oc-
tober 6, 1966 They were approved by Fred Mills, the Respondent 's district
manager The record is not clear as to when Mills approved all of the raises,
but indicates that those for employees Lenora Level and Elsie Evans were
approved on October 14 and 15, respectively
BUCKEYE MART 5
Mr. Frey tell you that your raise went through? ...
We can't do anything about it now because of what
is going on." Markley answered , " If the raises had
went through I wouldn 't have signed the card."
Mills did not make any comment in reply to her
statement.
As related above, Frey recommended merit in-
creases for eight employees on October 6, 1966.
Markley was one of the employees involved. Mills,
in answer to her request to Frey, merely informed
Markley of the facts . His statement could not
possibly be construed as a promise of a wage in-
crease if she renounced the Union, as alleged in the
complaint . Accordingly, I find that the above state-
ment of Mills was not violative' of the Act.
During about the middle of December 1966,
Charles Williams, a part -time employee , had a con-
versation with his supervisor , Forest May. Concern-
ing this conversation , Williams was questioned and
testified without contradiction as follows:
Q. Would you tell us please what the con..
versation was or in other words, what did he
say to you and what did you say to him?
A. Well, he asked me, "If I had any
problems at work?" I told him, "No." He
asked me, "How things were going ?" I said,
"Pretty good ." He asked me , "How I felt the
election was going to go?" I told him , " I really
didn't have any idea." I said , "As far as I was
concerned it was up to the permanent em-
ployees , those that were full time, to make up
their mind to vote. It wasn 't my big concern
because I had my full time job. It was their pri-
mary job and it was up to them to make a deci-
sion on it.
0. Did he ask you anything concerning your
personal views on Unions or on this particular
Union?
A. Well, somehow we got into the conversa-
tion about Jimmy Hoffa. It was quite a big deal
going on then-
Q. Did he mention that-I am sorry , did you
finish with your answer? What was his conver-
sation about what you just talked about?
A. Oh, the power that Jimmy Hoffa has and
it was kind of a shame that one man had all of
this power. That is about it.
Q. Was there anything else about this con-
versation that you can recall?
A- He told me, "He couldn't see why the
girls would want a Union because they were
getting a raise in February anyways under the
Federal Minimum Wage Law."
* *
Q. Now, the next question , the same
question I asked you before, was there any
conversation between you and Mr . May deal-
ing specifically with how you felt about the
Union?
A. No, he didn't come out and ask me how I
personally felt about the Union.
0. What is it-
A. He wanted to know, how I felt about the
election, the movement about the Union. Not
my personal feeling towards it but how the
movement of the Union was-
Q. In other words, how the Union was doing
in the store?
A. Right.
Q. What if anything did you reply to this?
A. I told him, that I had no idea how the
election was going to go or what the Union was
doing.
It is clear from Williams' testimony that May did
not question him about his personal feelings toward
the Union . May merely asked for his opinion as to
the probable outcome of the election. I do not find
that such interrogation was objectionable or viola-
tive of Section 8(a)(1) of the Act.
Employee Arlene DeHoag worked in the credit
office. About 2 days before the election, she had a
conversation with Frey . He said that he wanted "to
get around to talk to all of the employees before
the election;" that there were raises for all em-
ployees "on the desk;" that he was not able "to
give them out" because of the union campaign "but
they were there;" and that if the employees would
give him a year to prove himself,3 he "could do" as
much for them "as the Union could. "4
One or two days before the election Markley
went to Frey's office. After they had discussed
some business, he told her that after the election
she would get a wage increase, but that he could
not tell her how much it would be.
The above evidence does not disclose that Frey
promised wage increases to employees if they re-
jected the Union or if the Union lost the election.
On the contrary, he told Markley unequivocally
that she would get an increase after the election.
With DeHoag , he stated the reason why there was a
delay in the increases being ' made effective. The
clear implication of his statements was to the effect
that the employees would get the increases re-
gardless of the outcome of the election . As for his
statement about the employees giving him a year to
prove himself, this was in the same tenor as the
Respondent 's letters and , in my opinion , was not
objectionable. Accordingly, I find that the above
statements of Frey were not violative of the Act.
E. The Wage Increases
The facts concerning the wage increases have
been related and, found above. Although the in-
3 Frey became manager of the store on September 14, 1966. He also testified to the effect that before the election he may have spoken to
' DeHoag testified credibly to the above conversation Frey did not deny some other employees , probably those for whom merit increases had been
the statements attnbuted to him by DeHoag . He testified that he was recommended . about the wage increases
"sure" that he told DeHoag that the employees should give him "a year."
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
creases were made effective retroactively to Janu-
ary 2, 1967, it is undisputed that they were granted
after the election at sometime during about mid-
January.
In his Supplemental Decision , dated February 23,
1967, the Regional Director found:
Investigation reveals that in late summer and
early fall of 1966, the Employer embarked on
a program throughout its 13 stores of review-
ing and upgrading wage rates . Upon the filing
of they instant petition , its policy of granting
selected increases was temporarily suspended
at the Fremont store. Immediately after the
election, some employees were given merit in-
creases and the wages of all employees were
raised to at least the level of the soon-to-be-ef-
fective Federal Minimum Wage.
In the instant proceeding the evidence indicates
that the employees were concerned about the delay
in the granting of merit raises and about the
minimum wage . Under the circumstances it would
not appear that the Respondent was motivated il-
legally in the granting of the wage increases.
Nevertheless, at the time such raises were granted a
question concerning representation was still pend-
ing since the Union had filed timely objections to
the conduct of the election. Accordingly, I find a
violation of Section 8(a)(1) of the Act in this con-
nection.-' Since this is a technical violation of the
Act and the only violation found herein, I shall not
recommend any remedial order.
F. The Refusal to Bargain
The complaint alleges the following unit to be ap-
propriate for the purposes of collective bargaining:
All full-time and regular part-time employees
employed at the Buckeye Mart store in Fre-
mont , Ohio, including employees of Buckeye
Mart's wholly-owned and leased departments,
but excluding the gas station employees, the
beauty shop employees, the store manager, the
assistant store managers, the drug department
manager, the assistant drug department
manager, the shoe department manager, the
head cashier, the furniture department
manager , the appliance department manager,
confidential employees, professional em-
ployees, guards and supervisors as defined in
the Act.
The above unit is identical to that found ap-
propriate by the Regional Director in his Decision
and Direction of Election, dated December 12,
1966.
In its answer to the complaint the Respondent
denies "that the employees of Gray Corporation, of
Fremont and the employees of Morton Shoe Stores,
Inc., should be included in any appropriate unit
with the employees of Cussins & Fearn Co., Inc.,
d/b/a Buckeye Mart."
As related above, a formal hearing, in Case
8-RC-6533 was held -on November 25, 1966. Ex-
amination of the transcript of that proceeding
reveals that the issues raised herein by the Respon-
dent were exhaustively litigated. The Regional
Director's Decision is confined almost exclusively
to a detailed analysis of the question of inclusion or
exclusion of the leased departments. The Respon-
dent never sought review of the unit determination
by the Regional Director.
Except in one instance at the hearing herein no
evidence was presented' concerning employees of
the leased departments. The Respondent did not
contend that it had any newly discovered evidence
or that circumstances had changed so as to permit
relitigation of the question . Accordingly, I find the
above unit to be appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
The complaint, as amended at the hearing, al-
leges that the Union attained majority status on
three dates, namely, October 14 and 28 and
December 16, 1966; and that such status continued
at all times thereafter. The Respondent 's answer, as
amended , denies these allegations of the complaint.
The evidence discloses that there were 59 em-
ployees on the payroll as of October 14, 60 em-
ployees as of October 28, and 62 employees as of
December 16. The Union contends that,.one other
employee should be added to'all three payrolls.
The General Counsel presented in evidence 45
signed authorization cards. Of these the General
Counsel concedes that the cards of two employees
should not be counted since both terminated their
employment with the Respondent before Sep-
tember 30, 1966. The Respondent contends that
the cards of 17 other employees may not be
counted , either because they were not within the
appropriate unit or because they were told by sol-
icitors for the Union that the purpose of the cards
was to obtain an election.
Much of the evidence in the case relates to the
above issues. I find it unnecessary to determine
whether or not the Union represented a majority of
employees on the dates involved on the ' basis of
authorization cards. The Respondent in its letter of
October 14, 1966, stated that it questioned the
Union's claimed majority, and refused to agree to a
card check. It further stated that it would recognize
and bargain with the Union if a majority of its em-
ployees at a Board election demonstrated their
desire to be represented by the Union. There is no
substantial evidence in this case from which it
could be inferred that the Respondent's refusal to
bargain was not motivated by a good-faith doubt of
the Union's majority. In fact, the evidence discloses
' Ralph Printing & Lithographing Co 158 NLRB 1353, V L R B v
Lrthange Parts Compam, 375 U S 405, 409
BUCKEYE MART 7
that the Respondent had cause to question the
majority. It has not been found that the Respondent
engaged in any conduct violative of the Act prior to
the election. Under the circumstances, the best
evidence of the employees' intentions on the
question of representation was their vote in the
election.' The results of the election show that the
Union did not represent a majority of employees in
the appropriate unit. Accordingly, I find that the
Respondent's refusal to bargain was not violative of
the Act.
IV. THE OBJECTIONS TO THE ELECTION
The objections of the Union which were not
overruled by the Regional Director are as follows:
1. Prior to the election the Employers made
promises of economic benefit to numerous em-
ployees, including promises of wage increases
to be given just after the election and promo-
tions.
2. The Employers threatened the employees
with layoffs .. if the store were unionized
and/or because of the employees' activities on
behalf of or in support of the Petitioner.
3. The Employers promulgated an illegal
"no solicitation" rule shortly after the hearing
held in this case.
*
9. Other objectionable conduct affecting
the results of the election will be developed in
more detail during the investigation.
The evidence which covers the objections has
been related and found above in connection with
the allegations of unfair labor practices in the com-
plaint Accordingly, it is recommended that the ob-
jections of the Union be overruled.
RECOMMENDED ORDER
It is recommended that the complaint be
dismissed in its entirety.
"Aaron Rrothers Conrpani of Cahlorma 158 NLRB 1 077