Federated Department Stores, Inc.

National Labor Relations Board - Board Decisions

Dec 18, 1973

207 N.L.R.B. 1005 (N.L.R.B. 1973)

GOLD CIRCLE DEPARTMENT STORES 1005
Gold Circle Department Stores, a Division of Federat-
ed Department Stores , Inc. and Retail Store
Employees Union Local 880, Retail Clerks Interna-
tional Association, AFL-CIO. Cases 8-CA-6933
and 8-RC-8494
December 18, 1973
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On June 6, 1973, Administrative Law Judge
Thomas S. Wilson issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed an answering brief. The Charging Party
filed an answering brief as well as cross-exceptions,
and Respondent filed an answer to the cross-excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions, cross-
exceptions, and briefs and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge only to the extent consistent
herewith.
1. We find in agreement with the Administrative
Law Judge that the Respondent violated Section
8(a)(1) of the Act by the following conduct:
surveillance;' interrogation of individual employ-
ees; 2 grievance meetings held by Respondent's vice
president with groups of employees; and minor wage
increases to three employees who complained of
wage inequities at one of the grievance meetings.
2. We agree with the Administrative Law Judge
that Respondent further violated Section 8(a)(1)
when it withheld wage increases and benefit im-
provements from employees at its Store # 10 while
granting those increases at three of its other
Cleveland area stores 10 days before the representa-
tion election at Store # 10. Respondent asserts that it
had economic justification for granting the increases
when it did, and, further, that by withholding the
i The amended complaint alleges surveillance by Respondent's hardware
merchandising manager, Brenner. There was some confusion in the
testimony regarding the date of the union meeting at which Brenner was
detected by employees. We find it unnecessary to pass upon the
Administrative Law Judges finding that Brenner spied on two consecutive
meetings, and that at the second meeting Store Manager Deyerle was also
discovered watching the employees enter and leave. As the Administrative
Law Judge noted, such evidence is merely cumulative in terms of
Respondent's engaging in surveillance. The complaint did not allege any
surveillance by Deyerle.
increases from Store # 10 it was attempting to avoid
violating the Act. Respondent claims that the
increases were planned much earlier but were
delayed by the Phase II wage controls. The record
reveals, however, that the wage freeze had been lifted
for over . 3 months when Respondent granted the
increases at the other stores. Respondent's failure to
explain the timing satisfactorily, its handling of the
announcement of the increases and withholding to
the Store # 10 employees, and the other violations of
Section 8(a)(1) noted above lead us to conclude that
Respondent further violated Section 8(a)(1). Respon-
dent clearly implied to the employees in its commu-
nications with them that the increases being granted
at the other stores would have been extended to them
were it not for the union campaign. The withholding
was legally inconsistent with Respondent's position
that business reasons justified going ahead with the
increases at the other stores. And when the Union
requested that the increases be put into effect and
acquiesced in the legality of Respondent's doing so,
Respondent, instead of attempting in any way to
minimize the impact of the legal dilemma it claims to
have been in, chose to capitalize on the situation and
take a further opportunity, through letters it posted
in the plant, to connect the withholding with the
union campaign. This does not represent, in our
view, a sincere effort to avoid violating the Act.
3. On March 16, 1972, the representation election
was held resulting in 90 eligible votes cast, of which
33 were for and 55 against the Union. The next day,
Respondent announced the extension of the previ-
ously withheld wage and benefit increases to the
Store # 10 employees. The Administrative Law
Judge found this postelection grant of the increases
to be a violation of Section 8(a)(1) of the Act. We
cannot agree. The amended complaint did not allege
that the increase was given in violation of the Act,
and nothing that occurred at the hearing indicated
that its legality was at issue.3 In any event, we cannot
accept the Administrative Law Judge's conclusion
that: "No employee of Respondent could possibly
have considered those benefits conferred so promptly
after the election to be anything but a reward for the
results thereof and a request to do it again if
necessary." The Respondent's preelection letters to
Store #10 employees clearly promised that they
would be taken care of as well as the employees in
2 In his "Analysis and Concluding Findings " the Administrative Law
Judge inadvertently stated that these interrogations occurred on March 1
and 3, 1972, when they actually occurred in February 1 and 3 In finding
that questions concerning employee attendance of union meetings and the
signing of authorization cards violated Sec. 8(aXl), we need not pass on the
Administrative Law Judge 's finding that Respondent further violated ' that
section of the Act when its store manager, Deyerle, asked one employee,
"Why do the people want a Union?"
3 See Air Flow Sheet Metal, Inc., 160 NLRB 1653, 1655.
207 NLRB No. 147
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the other stores, "with or without a union," and that
(in one of the letters posted in the store) they would
receive their increases "at the appropriate time." In
the context of the avowed delaybecause of the union
campaign, it is reasonable for the employees to have
expected the increase- after the election, regardless of
the result ,' and the granting of it at that time did
nothing to add to the coerciveness of the previous
withholding. Indeed, the Administrative Law Judge
stated, in his discussion of the withholding, that
Respondent could legally have delayed granting the
increases to all the stores until after the election. We
agree with that statement, and therefore cannot see
the vice in Respondent's correcting the wagediscrep-
ancy immediately after the election. Any'such vice
would have been equally operative had the increase
been granted at any later date prior to the resolution
of the objections to the election and the holding of a
second election if necessary, as we find it to be here.
In the circumstances , Respondent's timing of the
increase was the least disruptive of employee rights
among the options Respondent then had before it.
4. The Administrative Law Judge concluded that,
in addition to more traditional remedies, an order
requiring Respondent to bargain with the Union was
necessary to effectuate the purposes of the Act. In his
view, the unfair labor practices which he found in
this case were so outrageous and pervasive as to
render virtually impossible the holding of a second
election in which the employees could freely express
their choice.
The amended complaint does not allege a violation
of Section 8(a)(5) of the Act, and the record reveals
that the Union did not demand recognition. Under
these circumstances, we apply the test described in
The Sinclair Company v. N.L.RB.,4 in order to
determine whether a bargaining order is necessary to
repair the unlawful effects of the violations - of
Section 8(a)(1) of the Act which we have identified
above.
In finding a bargaining order to be appropriate, the
Administrative Law Judge relied specifically on the
Respondent's conduct surrounding the preelection
withholding of wage-and benefit increases and on the
postelection grant of such increases. He had previ-
ously found that' the grievance meetings, the minor
wage adjustments, and the interrogations were rather
petty violations. He did not mention the surveillance
in finding that a bargaining order was necessary.5 In
4 395 US. 575, 613-615 (This is one of the cases subsumed under the
better-known caption NLRB, v. Gissel Packing Co.).
5 We note that the surveillance did not recur after the representation
petition was filed.
C. The Sinclair Company v. N.LRB., supra at 614. Since we have
concluded that the facts in this case do not warrant the issuance of a
bargaining order, we need not pass on the disputed question of whether the
Union had majority support before the election.
view of our finding that the grant of benefits after the
election was not unlawful, we conclude that the
remaining violations are not so coercive that they
preclude the holding of a fair and reliable second
election after the application of traditional remedies.
We simply do not find that the temporary withhold-
ing of the wage and benefit increases, together with
the earlier, relatively minor unfair labor practices,
makes this a case in which a bargaining order is "the
only effective remedy."6
We think the Administrative Law Judge was
justified in ordering retroactive reimbursement of the
increases temporarily withheld from the employees
in the affected store, inasmuch as Respondent itself
placed the onus of the withholding on the union
campaign. Having communicated this reason for the
unlawful withholding to the employees, Respondent
must redress this discrepancy if its future effects are
to be mitigated.7 Such a remedy, coupled with the
broad cease-and-desist order we adopt, should go a
long way toward clearing the air for a rerun election.
For these reasons we shall direct a second election
instead of adopting the bargaining order recom-
mended by the Administrative Law Judge.
AMENDED CONCLUSIONS OF LAW
Delete the words "as well as in any rerun election"
from the Administrative Law Judge's Conclusion of
Law 3.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Gold Circle Department Stores, A Division of
Federated Department Stores, Inc., Columbus, Ohio,
and Wickliffe, Ohio, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Keeping union meetings under surveillance and
interrogating employees concerning the exercise of
their rights guaranteed in Section 7 of the Acts
(b) Granting or promising benefits to, or withhold-
ing benefits from, employees to discourage member-
ship in or assistance to a labor organization, or
otherwise to interfere with the rights of the employ-
ees to select or reject representatives for collective
bargaining.
7 Such reimbursement shall include 6-percent interest. Hendel Manufac-
turing Company, Incorporated, 197 NLRB 1093.
8 The Administrative Law Judge found that Respondent unlawfully
interrogated employees, but inadvertently neglected to enjoin such conduct.
In addition, he made no finding that the Respondent threatened or warned
employees of harm or reprisals if they joined or assisted a labor
organization, or selected a representative for collective bargaining. We
therefore delete that paragraph of his recommended Order.
GOLD CIRCLE DEPARTMENT STORES
(c) Advising employees of Respondent's action or
intention to act in a manner set forth above.
(d) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which it
is found will effectuate the policies of the Act:
(a) Make all employees of Store # 10 whole for any
loss of pay they have sustained as a consequence of
the unlawful withholding of the wage and benefit
increase of March 6 by paying that wage increase
retroactively to March 6, 1972, to the employees of
Store # 10 from whom it was withheld, commencing
at the date the increase was given to the employees of
Stores # 8, 9, and 11 and continuing to the date it
was subsequently granted to the employees of Store
# 10, less the former wages already paid, plus
interest on the withheld increase at the rate of 6
percent per annum.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at Respondent's Store # 10, Wickliffe,
Ohio, copies of the attached notice marked "Appen-
dix."9 Copies of said notice, on forms provided by
the Regional,Director for Region 8, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that those allegations in the
amended complaint as to which no violations have
been found be, and they hereby are, dismissed.
IT IS FURTHER ORDERED that the election held on
March 16, 1972, in Case 8-RC-8494 be, and it
hereby is, set aside, and that Case 8-RC-8494 be,
and it hereby is, remanded to the Regional Director
for purposes of conducting a new election.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
9 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations , Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1007
APPENDIX
NOTICE To EMPLOYEES -
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency, of the United States Government
The Act gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a repre-
sentative they choose
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT keep your union activities under
surveillance or interrogate you concerning the
exercise of your rights guaranteed in Section 7 of
the Act.
WE WILL NOT grant or promise to you, or
withhold from you, any benefits in order to
discourage your membership in or assistance to
Retail Store Employees Union Local 880, Retail
Clerks International Association, AFL-CIO, or
any other labor organization, or otherwise inter-
fere with the rights of our employees to select or
reject representatives for collective bargaining.
WE WILL NOT tell you we are doing or intend to
do any of the above things.
WE WILL make whole all of the employees who
were working at Store # 10 between March 6 and
March 17 by paying to each of them a sum of
money equal to the amount of money each lost
during that period because we withheld from
those employees the benefits and increases
granted to employees of Stores # 8, 9, and 11 on
March 6, 1972, plus 6-percent interest.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of
Retail Store Employees Union Local 880, Retail
Clerks International Association, AFL-CIO, or any
other labor organization.
GOLD CIRCLE
DEPARTMENT STORES, A
DIVISION OF FEDERATED
DEPARTMENT STORES,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1695 Federal Office Building, 1240 E.
9th Street, Cleveland, Ohio 44199, Telephone
216-522-3715.
DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Administrative Law Judge: Upon a
charge duly filed on March 23, 1972 by Retail Store
Employees Union Local 880, Retail Clerks International
Association, AFL-CIO (Cases 8-CA-6933 and
8-RC-8494),1 herein after referred to as the Charging
Party or the Union, the General Counsel of the National
Labor Relations Labor Board, referred to herein as the
General Counsel2 and the Board respectively, the Regional
Director for Region 8 (Cleveland, Ohio), issued its
amended complaint on January 10, 1973, against Gold
Circle Department Stores, A Division of Federated
Department Stores, Inc., herein referred to as the Respon-
dent.
The complaint alleged that Respondent had engaged in,
and was engaging in, unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) of the Act.
The amended complaint also alleged that, after the Union
had secured authorization cards from a majority of the
employees in the appropriate unit on February 18, 1972,
Respondent's actions made the holding of a fair election
impossible.
Respondent duly filed its answer admitting certain
allegations of the complaint but denying the commission of
any unfair labor practices.
Pursuant to notice, a hearing thereon was held before me
in Cleveland, Ohio, on February 27 and 28 and March 1
and 2, 1973. All parties appeared at the hearing, were
represented by counsel, and were afforded full opportunity
to be heard, to produce and cross-examine witnesses, and
to introduce evidence material and pertinent to the issues .3
At the conclusion of the hearing oral argument was
waived. Briefs have been received from General Counsel,
Charging Party, and Respondent on April 12, 1973.
Upon the entire record in the case and upon my
observation of the witnesses, I make the following:
facility involved herein is Respondent's Store # 10, located
on Chardon Road in Wickliffe, Ohio. Gold Circle
Department Stores operate 11 discount stores within the
State of Ohio, where it is engaged in the operation of
general merchandise department stores and discount
stores. Annually, in the course and conduct of its business,
Respondent sells merchandise of a value in the excess of
$500,000 and annually receives goods valued in excess of
$50,000 at its Ohio store locations directly from points
located outside of the State of Ohio. Respondent, in the
course and conduct of its business at its Store # 10, in
Wickliffe, Ohio, has a gross volume of business in excess of
$500,000 per annum, and annually receives goods of a
value in excess of $50,000 directly from points outside the
State of Ohio.
Accordingly, I find that the Company is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Stores Employees Union Local 880,Retail Clerks
International Association, AFL-CIO, is a labor organiza-
tion admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
1. The skeletal facts
As noted, at all times pertinent herein Respondent
operated 11 stores in the State of Ohio. Four of these stores
# 8, 9, 10, and 11 are located within a distance of 15 to 50
miles one from the other in a rough circle around the City
of Cleveland. # 10, the only store involved herein, began
operations about August 1971 in Wickliffe, Ohio. As of the
date of the hearing none of Respondent's 11 stores had
been unionized.
At the suggestion of store employee Stepanek the Union
held an organizational meeting for the # 10 Store employ-
ees at the Sheraton Motel Lodge in Euclid, Ohio, on the
evening of January 25, 1972.
On February 7, 1972, the Union filed with the Board's
Regional Office in Cleveland, Ohio, a petition for certifica-
tion as the exclusive bargaining agent of the approximately
100 employees in the following admittedly appropriate
unit:
FINDINGS OF FACT
I. BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted, and I,
therefore, find that:
Gold Circle Department Stores, A Division of Federated
Department Stores, Inc., is now, and has been at all times
material herein, a corporation duly organized and existing
by virtue of the laws of the State of Delaware. The only
All selling, nonselling, full-time and part-time employ-
ees, including employees of leased departments, but
excluding all office clerical employees, head cashiers,
department managers, wig department employees and
professional employees, guards and supervisors as
defined in the Act.
On February 18 the Union and Respondent entered into
a consent election agreement covering the employees,in the
above-appropriate unit with an election scheduled on
1 These cases were consolidated by order of the Regional Director dated 3 On April 10, 1973, General Counsel filed a motion to amend -the
September 7, 1972. official transcript in three specified particulars. Specifications I and 3 are
2 This term specifically includes the attorneys appearing in behalf of hereby allowed without objection. Specification 2, to which objection was
General Counsel at the hearing. made, is hereby denied.
GOLD CIRCLE DEPARTMENT STORES 1009
March 16 which was approved by the Regional Director on
February 29.
On March 16 an election was held pursuant to this above
agreement which the Union lost.
On March 23 the Union duly filed objections to the
election and a charge of unfair labor practices which
resulted in the issuance of the complaint herein. In large
measure the allegations of the complaint regarding alleged
8(a)(l) violations and the objections to the elections are
identical, at least so far as matters occurring during the
critical period which began on February 7, 1972.
2. Events prior to February 7, 1972
As noted, the Union actually entered into the picture
here when it held a meeting for Respondent's employees at
the Sheraton Motel Lodge in Euclid, Ohio, on the evening
of January 25, 1972. The meeting was attended by some 30
of Respondent's employees.
Admittedly parked outside the motel lodge that evening
for a period of time until detected, engaging in a bit of
surveillance of those attending said union meeting, was
Respondent's hardware merchandising manager, Arthur
Brenner.
Respondent's answer to this allegation of surveillance is
both unique and unconvincing. It admits the allegations of
the complaint as follows:
-to the extent that on or about January 25, 1972, the
exact date being unknown to Respondent Arthur
Brenner, contrary to specific instructions given him by
Respondent, parked his automobile in the immediate
vicinity of an alleged union meeting site and, upon
detection within a very few minutes after his arrival, he
departed the area. Respondent specifically denies that
the ill-advised and abortive efforts of Mr. Brenner
constituted an unlawful surveillance for the reason that
Mr. Brenner was not in the vicinity of the union
meeting a sufficient length of time to accomplish a
surveillance and for the further reason that the incident
occurred 2 weeks before the filing of the Union's
petition for election on February 7, 1972.
If, perchance, this answer can be considered a denial,
rather than an admission, it must be noted that Respon-
dent failed to call Brenner as a witness or even to attempt
to establish that his actions were contrary to specific
instructions.
Brenner's admitted presence, detection, and departure
were sufficient to advise Respondent employees that their
union activities were under surveillance by Respondent
and constituted a clear attempt to intimidate, coerce, and
interfere with employee rights in violation of Section
8(a)(l) of the Act. The fact that the surveillance may have
been "aborted" by detection does not lessen the intimida-
tion, coercion, or interference with employee rights
guaranteed by the Act. Nor does the success or failure of
such surveillance exculpate Respondent as even the
impression of surveillance constitutes a violation of the
Act. Accordingly, I must find that by Brenner's "abortive"
attempt at surveillance Respondent engaged in coercion,
intimidation, and restraint of its employees in violation of
Section 8(a)(1) of the Act. Unfortunately this alleged
defense is rather typical of all Respondent's defenses here.
Following Brenner's detection and departure, the sched-
uled union meeting was held with about 30 employees in
attendance. At this meeting Organizer Addison Mills
explained to the assembled employees the necessity for
executing the Union's unambiguous authorization cards
which read as follows:
CONFIDENTIAL
Retail Store Employees Union Local 880
(Affiliated with the Retail Clerks International Asso-
ciation-AFL-CIO)
I, the undersigned, an employee of (Company Name)
hereby authorize Retail Store Employees Union Local
880 to represent me for the purpose of collective
bargaining.
Signature of Employee
Name of Employee (PLEASE PRINT)
Date
Home Address
City, Zone, State
Job Title, Dept., Dept. No., Home Phone No.
CONFIDENTIAL
Mills explained that 30 percent of the employees in the
appropriate unit must, under the Board's rules, execute
such authorization cards in order for the Union to secure
an election. He also explained the possibility of securing
recognition without an election in the event that 51 percent
of the employees should execute these authorization cards.
In addition he also gave the usual spiel as to the
advantages of union organization. At this meeting 27 of the
Respondent's employees signed these authorization cards.
Whether through Brenner's efforts or otherwise, Respon-
dent was promptly apprised of the Union's organizational
effort at # 10. So 2 days thereafter, on January 27, Charles
Corthell, Respondent's vice president of organizational
developments with total responsibility for the personnel
administration program, appeared at # 10 where he first
held a meeting with all supervisory personnel Corthell
informed them that the employees had a legal right to
organize under the law and that Respondent was going to
abide by that law. He then preceded to instruct them in the
"do's and don't's" for supervisory personnel during an
organizational campaign by the "TIP" system: "Don't
threaten, don't intimidate and don't promise."
That afternoon Corthell held four meetings with various
groups of employees. After introducing himself, Corthell
stated that it was obvious that there was a union organizing
campaign taking place and that he was there to give them
the company position and to allay any fears they might
have in regard thereto. He told them that they had a legal
right to organize and that Respondent would not interfere,
that there would be no discharges, no intimidation, and no
surveillance. He also told them frankly that Respondent
would not wish to have a union representing its associates
(employees), that Respondent's personnel policy was to
provide fair, decent, and honest treatment and that it was
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his feeling that, if Respondent were able to do that, then
the associates did not need outside representation. He also
stated that Respondent had 1.1 stores, all of Which had
been approached by a union but that none of the associates
had so far, at least, felt it necessary to organize. After
pointing out that "It's not the union per se who provides
wages, salaries and benefits, but the employer," Corthell
asked for any comments or questions the employees had.
As the first meeting lasted for a period of about 2 hours,
there were several comments and questions in response.
Some of these questions Corthell was able to answer. Some
Corthell instructed Store Manager Deyerle to investigate
and to secure an answer.
At these meetings naturally a number of complaints or
gripes were aired. For instance, employee Carol Erich
complained that, whereas the receiving department em-
ployees had been promised a 10-cent-per-hour raise which
the employees of that department working on the second
floor had received, she and two other receiving department
employees working on the first floor had only received a 5-
cent-per-hour increase. This was one of the complaints
which Corthell instructed Deyerle to investigate and find
an answer. Another employee complained that she had
been moved by Respondent from one store to another with
promises of increases in pay but that to date she had
received no such increase. Again Corthell instructed
Deyerle to investigate and find the answer. There were also
some complaints about Respondent's system of 30-, 60-,
and 90-day employee performance and wage reviews and
fears were expressed by employees that such reviews might
be unfair to the employee unless reviewed by higher
authorities than the immediate supervisor. Corthell ex-
plained that the wage freeze had affected such reviews but
instructed Deyerle to continue with such reviews. All four
meetings were similar.
On January 30, Deyerle notified Carol Erich and the two
other receiving department employees working on the first
floor that they would receive the other 5-cent-hour increase
in order to equalize them with the department employees
working on the second floor.
On or about February 1 Deyerle approached employee
Karla Mehle in the store restaurant where he inquired of
her, "Why do the people want a union," and if Mehle had
a union card and if she had signed it .4
On February 2 the Union held its second meeting at the
same Sheraton Motor Motel. There was two entrances to
the motel. Even on a bitterly cold night Brenner was again
parked in an auto in front of one entrance while Deyerle
was sitting in another parked car by the other entrance.
This is the uncontradicted testimony of General Counsel's
witnesses Darlene Fiorille and Carol Erich, as neither
4 This conversation stands undenied as Respondent did not call Deyerle
as a witness nor indicate his unavailability. He still works for Respondent in
Columbus. Accordingly, I must accept Mehle's undenied testimony.
5 In its brief Respondent would have me discredit the General Counsel's
witnesses on the grounds that the Fiorille affidavits, or investigatory reports,
mentioned only the Brenner surveillance on January 25. Actually Erich did
not attend the January 25 meeting. The fact that certain facts remained
unmentioned in an affidavit may give one pause but it hardly amounts to
impeachment of a witness for the simple reason that the perfect affidavit has
yet to be written. The omission may be that of the interrogator or it may be
that of the witness. However, at the worst, this incident of surveillance is
Brenner nor Deyerle was called by Respondent to
contradict the above testimony.5
At this second meeting Organizer Addison Mills again
explained the purpose of the signing of these unambiguous
authorization cards with the twin -possibilities of' an
election or recognition. More employees executed these
authorization cards at this meeting.6
On February 3 Fiorille went to Deyerle's office with a
complaint. At the conclusion of that discussion Deyerle
inquired if Fiorille had attended the union meeting the
night before, and asked' how many employees attended.
3. Events after February 7
On February 7 the Union filed a petition for certification
with the Regional Office in Cleveland.
Upon his return to Respondent's headquarters in
Columbus after his four meetings at # 1'0 on January 27,
Corthell had reported that the store was in "turmoil," that
communications had broken down between supervisory
personnel and the associates, and further recommended
that communications must be reestablished by replacing
Deyerle as store manager with a younger manager who
could better "relate" to the young staff' of associates there
employed.
So, also on February 7, 27-year old, personable, young
John Isaac replaced Deyerle as Store # 10 manager.
Brenner was also replaced at this time, in part, according to
Corthell, because of his known surveillance.?
In his efforts to create a better relationship and to
establish better communications Issac upon his transfer to
# 10 promptly established there a monthly "birthday
party" honoring all associates having birthdays that month
at which cake and coffee were served to all attending
associates before the opening of the store. These became
monthly affairs starting in February. In a further effort to
"relate better" Isaac also installed a ping pong table in the
associates' lounge. He then established a basketball team
playing games against teams from the other surrounding
stores and himself played on the # 10 team. Further Isaac
established a practice of serving coffee and cakes during
supervisory and other store group meetings. Other stores in
Respondent's chain had enjoyed similar privileges or
benefits but at # 10 these were first established by Issac on
and after his transfer on February 7.
In addition to these social amenities, and as part of the
program of better communication and "relating" to the
employees, Supervisor Tucker of the receiving department
began to hold departmental meetings weekly. Most of
these meetings related to work problems. But Tucker also
on occasion requested employee questions. Some of these
were in regard to benefits and related matters. On two
merely culmulative after Respondent's virtual admission of surveillance on
January 25. If important, Deyerle was still available to Respondent in
Columbus to deny the incident; if he could. The inference from
Respondent's failure to call him is that his testimony would have been
unfavorable to Respondent 's case. I draw that inference.
6 A very few employees testified that they executed these authorization
cards without reading them . However, despite this testimony, each of the
witnesses was able somehow to fill in the blank spaces in the card correctly.
7 Deyerle was reassigned to the corporate office and subsequently
thereto to the store managership at one of the Columbus stores of
Respondent.
GOLD CIRCLE DEPARTMENT STORES 1011
occasions such questions required the presence of the Store
# 10 personnel manager, and on another occasion, one
from the head office in Cleveland in order to give the
answers. At one or two of these meetings such questions
grew into debates between Tucker and particularly
employee Fiorille as to the relative merits of unionization
as compared to reliance upon the fairness of Respondent.
This gave Tucker the opportunity, which he took, to
further expound Respondent's position against unioniza-
tion.
The last of these weekly meetings occurred on March 17
when Tucker announced that Respondent had instituted
for the employees of # 10 the same wage and benefit
increases which had been withheld since March 6.
Subsequently to the date of the hearing only three or four
such departmental meetings were held, all dealing just with
work problems.
However the union campaign continued unabated. By
February 18 the Union had 61 authorization cards signed
by employees from the appropriate unit of some 95
employees.
Although the Union made no actual demand for
recognition, the Union and Respondent did agree to a
consent election which was approved by the Regional
Director on February 29 with the election scheduled for
March 16.
On March 6, 10 days prior to that scheduled election,
Respondent notified the associates at # 8, 9, and 11, by
letter, that they were being paid as of that date on a new
and increased wage schedule together with improvements
in their insurance coverage which went into effect that day
at those stores.
Corthell notified Isaac at # 10 by telephone of these
improvements at the other Cleveland area stores. Isaac
urged that these increased benefits be put into effect at the
same time at # 10. Corthell refused and ordered Isaac to
keep that information absolutely confidential. Despite this
admonition of secrecy, by night courier Corthell sent
copies of notification of these increases at #8, 9, and 11 to
each and every supervisor at # 10.
The morning the increases were announced Isaac held a
supervisor's meeting at which that news was discussed and
supervisors instructed that any associate who might
mention such, increases be sent to Isaac for an explanation-
Not unexpectedly, under these circumstances, a copy of
this notice of increases to stores # 8, 9, and 11 was
promptly found lying on a table in the associates' lounge
by an employee. Supervisor Tucker told the employee who
had found the letter not to say anything about the letter as
the matter was strictly confidential.
On March 7 # 10 associates were notified of the
increases at '# 8, 9, and 11 by Respondent's letter of that
same date over the signature of "Ken" Harris, vice
president of store operations, in the course of a letter
arguing from various points of view that "We [Respondent]
do not need is union, but we do need your support," in
pertinent part as follows:
One final, point requires our comment. The issue of
economic benefits is always a part of any union
campaign. Our benefits program for the entire Cleve-
land area has been under revision study since mid-
summer of last year. Our time table was completely
destroyed by the wage freeze. However, our other three
Cleveland area stores are now working under our latest
revised wage and benefits program. The law seems to say
that we may not raise your wages or improve your
fringe benefits during a union campaign. We can't even
promise we will, according to our understanding of the
law. However, one thing you can count on is that we
intend to keep store 10 associates every bit as well as
our other Cleveland area associates with or without a
union. We dare the Union to compare our Cleveland
wages and benefits to their Cleveland area contracts-
remember their Cleveland members actually take home
less pay because of union dues deductions.8 [Emphasis in
original.]
On March 9 David McDonald, president of Local 880,
by letter notified Harris as follows:
In your letter dated March 7, 1972 addressed to "Dear
Gold Circle Associates", you state that "the other three
Cleveland area stores are now working under our latest
revised wage and benefits program", which implies that
the other three stores have received a wage increase and
improved benefits.
Mr. Hams , you also state that due to the Union
campaign, you cannot give the employees at # 10 store
the same benefits as the other three stores because of
the law.
We feel that you are discriminating against the
employees at the # 10 store; therefore, we at this time
urge that you grant the employees at # 10 store the
same wage increase and other benefits as the other
stores.
If you are attempting to use the law as an excuse in this
case, we of the Retail Clerks Union Local 880 want to
assure you that we will not protest or file charges
against store #10 for putting these benefits into effect
at this time.
There is no excuse or reason now for you not to
immediately grant the employees at store # 10 the same
wage increases and benefits which you claim have been
granted to the employees at the other stores.
As previously stated, the Union will not protest or file
charges against store # 10 for improving wages and
other benefits at this time; however, we reserve the
right to negotiate further wage increases and improved
fringe benefits after March 16, 1972.
On March 10 Respondent posted by the timeclock at
# 10 a letter from Harris to McDonald9 which read as
follows:
s This letter is reproduced in full in Appendix A attached hereto.
9 Harris' letter to McDonald was dated March 10. The postmark on the
envelope in which the letter to the Union was received was dated March 13
It was received by the Union March 15.
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thank you for your letter of March 9, 1972. In spite of
your demand that we violate the National Labor
Relations Act, we choose to abide by the law. You
imply that the law was written for your convenience
and that it is yours to waive or enforce as you see fit.
Such is certainly not the case, but your obvious
contempt for the N.L.R.B. rules and regulations is
frightening when we think of our honest and sincere
associates whom you are attempting to influence and
mislead. We are certain that our Store # 10 associates
prefer that we continue to follow the law and that is
what we intend to do. -
Rest assured, Mr. McDonald, our wages and benefits
in our other three Cleveland stores are very real-not
claimed. You would do well to spend your time trying
to match them in the other contracts you claim to have
"won" in Cleveland for your members at Ontario,
Giant Tiger, Value City, and Claber Distributing Co.
We notice in your letter that you "reserve the right to
negotiate . . . after March 16, 1972." This prompts at
least two immediate comments. First of all, you have
no negotiating rights to reserve, and secondly, the
general wage and benefits increases you "urge" us to
make would be all that is permitted under the Phase II
Federal Wage Regulations. I take it you are inviting us
to violate those laws also, Mr. McDonald.
We are enclosing herein for your review a news item
describing a lawsuit filed by the U.S. Justice Depart-
ment against the Great Atlantic and Pacific Tea
Company and the Meat Cutters Union for violation of
the 5.5% payboard guidelines. The A&P appears to
have given in to the pressures of a strike in that case.
Gold Circle does not care to invite such a suit by the
Government, so I am sure you will understand that we
must respectfully decline your invitation to risk making
criminals of ourselves.
However, let me assure you that we have not and will not
discriminate against our Store #10 associates. Their
wage and benefits will be adjusted upward at the
appropriate time. Our other three Cleveland stores are
enjoying these higher wages and benefits without
paying your ever increasing dues. We think you are
attempting to discriminate against our Store 10
associates by charging dues. Think about it, Mr.
McDonald, in your heart you know we are right!
At the same time that the letter to McDonald was posted
by the timeclock, Respondent also posted the following
letter to Phillip Fusco, then Regional Director of Region 8,
National Labor Relations Board, which read as follows:
We are enclosing a letter addressed to Gold Circle Vice
President, Kenneth Harris, dated March 9, 1972 from
David McDonald, President of Retail Store Employees
Union Local 880. Copies of this letter were mailed by
the union to all Gold Circle employees at Store # 10
who are eligible to vote in the March 16, 1972 election.
The letter clearly challenges the employer to violate the
National Labor Relations Act. It purposely misleads
our employees into believing that the rules of the Labor
Board and the provisions of the National Labor Re-
lations Act can be waived at the conveniences of the
union. It further implies that the union can ignore wage
increases previously granted and negotiate higher
wages without regard to Phase II, Federal Wage
Regulations . This flagrant disregard for the law
demonstrated by the union has, in our opinion,
prejudiced the thinking of many who will vote in the
election next Thursday.
We respectfully request a full investigation of subject
letter and the institution of appropriate remedial
action.
Under such circumstances the election was held on
March 16 as, scheduled. The voting was done in the
associates' lounge. Voters waiting to cast their ballots were
lined up in the hallway outside the associates' lounge.
Ballots were cast between 3 and 4 p.m. and again between
6 and 7 p.m.
On two occasions, the first a little after 3 p.m. and the
second before 4 p.m., Supervisor Gary Eggleston was
observed standing and talking with employees in the line
for a period of time variously estimated from 5 to 10
minutes each while they awaited their turn to cast their
ballots. There was no evidence produced as to what, if
anything, Eggleston said to the waiting associates on either
occasion. However he was wearing a flamboyant kerchief
or tie on which were stuck or pinned three large antiunion
campaign buttons. The first button was the well-known
"smile" button around which were printed the words "no
dues is good news." The second button read "let John
[Issac] do it." The third read simply "vote no." 10 These
buttons had been supplied for distribution and worn by
supervisors and any others who wanted one or more for
about 2 weeks before the election.
Eggleston testified that he had on two occasions passed
through the line of waiting voters, once to go to his office
and once to go to the men's room. He denied having any
conversation with any of the employees or being in the
area any longer than was necessary to go through the
waiting line to get to his destination. He also testified that
he thought that he was wearing only the "smile" button.
When the votes were counted, the Union had lost the
election.
On the morning of March 17 the # 10 associates were
notified that they now were receiving the same new wages
and covered by the same improved insurance coverage' as
the other three Greater Cleveland stores had received on
March 6.
Respondent duly filed objections to the election which,
in addition to the allegations of 8(a)(1) violations of the
complaint included the activities of Supervisor Gary
Eggleston in and around the voting line on election day.
to Corthell credited Respondent's decreased attorney as being the author
of the words "no dues is good news" on the "smile" button
GOLD CIRCLE DEPARTMENT STORES 1013
B. Analysis and Concluding Findings
1. Prior to February 7
There can be no doubt but that Respondent's undenied
actions in keeping the union meetings of January 25 and
February 2 under surveillance were intended and tended to
inhibit Respondent's employees from enjoying their guar-
anteed right to engage in union activities which is a well-
recognized violation of Section 8(a)(1) of the Act. This is so
regardless of what the actual effect of these activities by
Respondent proved to be upon the employees. Nor did
Corthell's subsequent promise of no intimidation, no
discharges, or other discrimination on January 27 rectify
the previous violations-particularly after its repetition on
February 2.
On its face and standing alone the Corthell meetings with
the employees on January 27, 2 days after the first union
meeting, at first seem rather innocuous. Corthell appeared
for his first meetings with the employees at # 10 on this
occasion because of his knowledge of the incipient union
organizational drive and for the purpose of rectifying all
existing gripes and sources of discontent among the
employees whom he understood were in a "turmoil." There
is, of course, nothing wrong with an employer trying to
make working conditions for his employees as comfortable
and as pleasant as possible. However these gripes and
grievances had gone unnoticed until Respondent learned
of the union meeting. At,this meeting Corthell was honest
about the fact that he was there because of having heard
about the organizational efforts and that the Respondent
did not want a union representing the associates. He
reassured them that there would be "no discrimination, no
discharges, no intimidation" and that the Respondent
would abide by the law. He stressed the fact that
Respondent was a fair employer and the fact that this was
proved because none of the other 10 stores had found any
necessity for organizing despite the Union's attempts.
Following that reassuring statement Corthell asked for
comments or questions. In this Corthell was applying the
old formula of "Big Happy Family" based upon the well-
known industrial addage that contented employees don't
organize. He received enough of these gripes to keep the
meeting going for 2 hours. Some problems Corthell solved
at once but others he turned over to Deyerle for
investigation and answers.
On this point the Board recently said in Reliance Electric
Company, 191 NLRB 44:
Where, as here, an employer has not previously had
a practice of soliciting employee grievances and
complaints, adopts such a course when unions engage
in organizational campaigns seeking to represent
employees, we think there is a compelling inference
that he is impliciting promising to correct those
inequities he discovers as a result of his inquiries and
likewise urging on his employees that the combined
program of inquiry and the correction will make union
representation unnecessary.
In fact Corthell'made exactly that argument in his talks
to the employees that day.
As a result of Corthell's inquiries at one of these
meetings, on January 30 Respondent granted three 5-cent-
per-hour wage increases to Carol Erich and the two other
receiving department employees working on the first floor.
This 5-cent-per-hour differential was of the type likely to
cause discontent which well might cause the employees to
seek union assistance and, therefore, from Respondent's
standpoint, worthy of correction for the purpose of proving
Corthell's point that Respondent was a fair employer to all
its associates so that union assistance was unnecessary at
# 10. Such correction was likely to indicate to at least three
employees that union assistance was unnecessary. From
Respondent's point of view during a union drive it was
important to eliminate such grievances as well as all other
points of discontent.
Also the rather innocuous questions asked by Deyerle of
associates Mehle and Fiorille on March 1 and 3, respec-
tively, were questions which tend to coerce and intimidate
and thus violates Section 8(a)(1). However, these violations
appear more technical than anything else.
With the exception of the surveillance of January 25 and
February 2 the pre-February 7 violations by Respondent
standing alone and by themselves appear rather petty.
2. On and after February 8
Following this now established pattern of relating to, and
creating better communications with, the young associates
of Store 10 in order to improve Respondent's image,
Respondent on February 7 transferred young, personable
John Issac to manage that store. Issac's prompt introduc-
tion of monthly birthday parties, the ping pong table, plus
the basketball games with other Respondent stores, and the
coffee at associate meetings together with Issac's availabili-
ty at all times to take care of any complaints or grievances
was part and parcel of Corthell's effort to prove that
Respondent was a fair employer so that the Union was
unnecessary, a subtle, but effective, procedure. Standing
alone the transfer of Issac hardly constitutes an unfair
labor practice. Improving working conditions should be an
employer's aim. Here it was an integral part of Respon-
dent's antiunion campaign. All of Issac's innovations were
in effect at other of Respondent's stores but whether as a
result of previous union organizational attempts or not, we
do not know. However there is nothing wrong with an
employer's bonafide attempts at making its place of
business as pleasant a place to work as is possible for the
employees. It is often effective in removing the threat of
unionization among employees.
The sockdolager in Respondent's campaign arrived on
March 6, 10 days before ' the scheduled election. On this
day Respondent chose to announce to its Stores # 8, 9, and
11, Respondent's unorganized stores in the, greater Cleve-
land area, a wage increase and improved insurance
coverage . No such public announcement was made for the
fourth store, # 10, then undergoing a union organizational
campaign. In fact over the protest of John Issac, these
improvements were specifically denied by Corthell to # 10.
According to the testimony of Corthell, the fact that
these wage increases and insurance improvements had
been put into effect at Stores # 8, 9, and 11 was a "top
secret" matter at # 10. Despite this, however, Corthell
supplied each supervisor at #10 with copies of the
announcement made at the three unorganized stores. One
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of these announcements was promptly found by an
associate in the associates' lounge in # 10 so that the bona
fides of this attempt at secrecy becomes somewhat
doubtful. Whether such secrecy was in fact even possible in
light of the fact that the other stores were located only
from 15 to 50 miles from # 10 as well as the interchange of
information at basketball games, etc., is another question.
But regardless of Respondent's bona fides, the fact is that
this obvious discrimination against the organizing employ-
ees at # 10 was known among the # 10 associates almost
as soon as it was at the other unorganized, but affected,
stores in the area. Under the circumstances existing this
knowledge was almost inevitable even if the attempt at
secrecy had been bona fide.
Without losing any time Vice President Harris took
advantage of the situation so created by his letter to all
"Gold Circle Associates" dated March 7 and posted in
# 10 the same day in which Harris said:
One final point requires our comment. The issue of
economic benefits is always a part of any union
campaign. Our benefits program for the entire Cleve-
land area has been under revision study since mid-
summer of last year. Our time table was completely
destroyed by the wage freeze. However, our other three
Cleveland area stores are now working under our latest
revised wage and benefits program. The law seems
to say we may not raise your wages or improve
your fringe benefits during a union campaign. We can't
even promise we will, according to our understanding
of the law. However, one thing you can count on is that
we intend to treat Store 10 associates every bit as well
as our other Cleveland area associates, with or without
a union. We dare the union to compare our Cleveland
wages and benefits to their Cleveland area contracts-
remember their Cleveland members actually take home
less pay because of union dues deductions. [Emphasis in
original.]
Harris' statement is not the law. The law was well stated
in the Gates Rubber Company, 118 NLRB 95 (1970),
where the Board said:
In these circumstances, neutrality is not maintained by
an announced withholding of a wage increase because
of a pending Board-conducted election. It is well settled
that the employer's legal duty is to proceed as he would
have done had the union not been on the scene. Here the
Respondent withheld increases which normally would
have been granted but for the presence of the union
and pendency of the election, and advised employees
that their wage increases were being withheld for that
reason. By such conduct the Respondent violated
Section 8(a)(1) and interfered with the employees free
choice. [Emphasis added.]
However, thereafter by letter dated March 9, the Union
claimed discrimination against the # 10 associates by the
withholding of these benefits and requested Respondent to
institute the same increased wages and improvements for
the # 10 associates with the promise that the Union would
file no protest or charges against Respondent if that were
done.
Then, as though as to compound his errors, Harris
followed that Union letter with letters of his own both
dated and posted in #10 the next day, March 10: (1) In
the first to Union President McDonald Harris piously
protested that by its letter the Union was thereby
attempting to cause Respondent to violate the law of the
land which , of course, Respondent would not do, and (2)
the second posted letter was to the Board's Regional
Director in which Harris called on the Regional Director
to fully investigate "this flagrant disregard for the law
demonstrated by the Union" and to take "appropriate
remedial action" against the Union. In short Harris' posted
letters baldly blamed the Union for all the problems
created in connection with Respondent's withholding from
# 10 of the increased benefits theretofore given to the
associates at # 8, 9, and 11 and making the blatant
demand that the Regional Director of the Board in
Cleveland punish the Union for the Union's alleged
violations of the law. Obviously Harris had intentionally
made his bed and was- going to lie in it. This made
wonderful propaganda against the Union even though, or
perhaps, because, it was so dishonest.
Letter #I above to McDonald was mailed to him on
March 10. The facts show, however, that this letter was in
fact received by the Union on March 15, the day before the
election in an envelope postmarked March 13. No one was
able at the hearing to account for this 3-day mailing delay.
It is however consistent with the incorrect statements and
accusations made in the Harris letters. In short the Union
was given no opportunity to correct those egregious errors.
In his attempted explanation of this wage increase,
Corthell testified that the Respondent knew that its
Cleveland area wage rates were below the area standards
as early as August 1971 and that a proposal was made at
that time to correct the rates. That effort was stopped by
the Federal wage freeze . The idea was revised in November
when that freeze ended. From that time until March 6,
1972, Respondent had the matter under study and merely,
according to Corthell, awaiting the right time to announce
it. According to Respondent that "right" time came on
March 6 for Stores #8, 9, and 11-but not for #10 then
having a Board representation election scheduled 10 days
thereafter . Corthell failed or was unable to explain the
urgent necessity for announcing the new wage rates at the
nonunion Stores #8, 9, and 11-or the withholding of
these new benefits at # 10-on March 6 after the long wait
since December . Vice President Harris' letters dated from
March 7 through 10 appear to answer why Respondent
considered March 6 was the "right" time. I so find.
If Respondent had chosen to follow the well-established
law that "the employer's legal duty is to proceed as he
would have done had the union not been on the scene,"
Respondent had two simple choices: (I) It could have put
the increases into effect at all four Cleveland stores on
March 6 simultaneously, or (2) it could have delayed the
increases at all the stores until after the election of March
16 at # 10. It was as simple as that. Instead the course
Respondent did, in fact, choose was a flagrant violation of
the law. I so find.
It is clear from all the circumstances as well as the
timing, and I find, that Respondent deliberately, but
GOLD CIRCLE DEPARTMENT STORES 1015
without any business or other necessity, granted the
associates at its nonunion stores in the greater Cleveland
area # 8 , 9, and 11 wage and insurance benefits on March
6, 1972, but withheld such benefits from # 10 in order to
use the disparity so created to discourage union activities
among the associates at # 10 as well as to coerce those
associates to vote against union representation in the
representation election scheduled some 9 or 10 days
thereafter. Such activity by Respondent is a clear violation
of Section 8(a)(1) of the Act."
So the announcement on March 17, immediately after
the Union defeat in the election, that now # 10 would be
granted the same increases and benefits as had been
granted to the nonunion stores on March 6 only served to
make the lesson Harris had been expounding in his letters
of March 7 and 10 absolutely clear. No employee of
Respondent could possibly have considered those benefits
conferred so promptly after the election to be anything but
a reward for the result thereof and a request to do'it again
if necessary. As such it also violates Section 8(a)(1).
3. The objections
Enough has already been found herebefore to prove
beyond the peradventure of a doubt that Respondent by its
actions successfully eliminated the "laboratory conditions"
under which the Board insists that its elections be
conducted. Despite Corthell's promise that Respondent
would abide by the law, it is all too clear that throughout
this campaign from February 7 on, at least, Respondent
conducted a systematic campaign of interference, restraint,
and coercion designed to_ prevent the employees from
freely and honestly expressing their , own personal desires in
the election booth. Harris' propaganda campaign relating
to the wage and benefit increases from March 6 through
the election of March 16 alone suffices to require that the
election of March 16 be set aside. The granting of these
increases and benefits to # 10 the day following the
Union's election defeat may well require further action
here.
One other episode is of sufficient importance for
mention here. That is the Gary Eggleston violation of the
Board election procedures in his two visits to the line of
employees awaiting their turn in the election booth on
March 16. Eggleston admits that he went through the lines
of waiting voters on two separate occasions as charged. He
denies having stood around with the would be voters or
talking to them . So we know that Eggleston was, as
charged, at the voting line on two distinct occasions as
claimed. Too many witnesses observed him there for rather
lengthy periods of time for a finder of fact to accept his
version that all he did was to walk through the lines on
business. He had no business to b e there at all much less
for being there from 5 to 10, minutes on each occasion. It is
quite true that there is not one syllable of testimony as to
anything Eggleston had to say to the prospective voters on
either occasion. However with three antiunion campaign
buttons' prominently displayed on a flamboyantly notica-
ble tie, Eggleston need not have said a word to get his
campaign message across: "let John [Issac ] do it," "no
dues is good news," and "vote no." The old addage that
one picture is worth a thousand words is applicable here.
Without the necessity of saying a single word, Eggleston in
his sartorial excellence was illegally campaigning in the
election area . He was not so-accoutred for nothing in that
area. Just as Harris campaigned by letter; Eggleston
carried on his antiunion campaign by sartorial means.
Those might be called subtle. But both were equally
impossible to miss . Neither comport with the Board's
"laboratory conditions."
Even Eggleston's "subtle" campaigning in the election
area would require , under Board law, that the election be
set aside under the rule expressed by the Board in Michem,
Inc., 170 NLRB 362 (1968), where the Board said:
Careful consideration of the problem now convinces us
that the potential for distraction, last minute election-
mg or pressure, and unfair advantage from long
conversations between representatives of any party to
the election and voters waiting to cast ballots is of
sufficient concern to warrant a strict rule against such
conduct without inquiry into -the nature of the
conversations.
Accordingly I will also order the election of March 16,
1972, set aside on the basis of the Gary Eggleston conduct
in the voting area on that occasion.
4. The authorization card majority
General Counsel and the Charging Party here claim that
to remedy the Respondent's "outrageous" and "pervasive"
8(a)(1) violations in the instant case , an order should issue
requiring Respondent to bargain in good faith with the
Union according to the rules set forth by the Supreme
Court in its Gissel decision (395 U.S. 575).
Pursuant to the consent election procedure Respondent
prepared and presented an Excelsior list for the election,
carefully and laboriously prepared by its then counsel,
which contained the name of 95 employees in the
appropriate unit. This list contained the name of Carl H.
Lucy whom Respondent during the instant hearing
contended became a supervisor within a few days of the
cutoff date of February 18 and, therefore, became an
ineligible voter and should not be counted in the Union's
majority even though he signed a valid union authorization
card while still an employee. If that theory be accepted in
the_ case of Lucy, and under similar circumstances in the
cases of Theodore Kosir and Sandra Kearney who were
not on the Excelsior list but who also signed valid union
authorization cards , the eligible voters on Respondent's
Excelsior list should have contained only 94 names.
Prior to February 18, 53 'eligible voters named on this 94-
named list had also validly executed union authorization
cards, thus giving the Union a valid card majority.
This is so even though authorization cardsigners Gail
Gregory (who worked 6 hours on February 18 after having
giving previous notice that she was leaving Respondent's
employ on that day), John Himmelman, and Albert
Filidoro (each of whom bad been a part-time employee
who last worked for the Respondent during the 1971
11 Congdon Die Casting Co., 176 NLRB 482 (1969).
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Christmas season) be excluded from the unit as requested
by Respondent. None of the three was listed on the
Excelsior list-nor counted among the 53 signers.
Hence even accepting all of Respondent objections as
above noted, the Union enjoyed a valid card majority of 53
out of 94 eligible voters among Respondent 's employees in
the appropriate unit on February 18, 1972. If Respondent's
above objections were overruled, the union majority would
have been slightly greater.
During the instant hearing Respondent offered evidence
that a dozen or more part-time employees should have
been added to its Excelsior list, thus in effect impeaching
its own counsel's carefully prepared list. It would appear
that Respondent must be stopped from attempting to
impeach its own document at this late date. This is
particularly so as at least six similar part-time employees
not listed on Respondent 's Excelsior list were challenged
by both Respondent and the Union at the time of the
election and their votes were not counted by agreement.
Furthermore Respondent 's evidence in regard thereto
presented at the hearing was too vague and indefinite to
permit the submitted Excelsior list to be amended as
requested by Respondent at the hearing for these alleged
part-time employees.
The facts require finding here made that, as of February
18, 1972, 53 out of 94 employees in the appropriate unit at
Store #10, a majority thereof, had voluntarily expressed
their desire for the Union as their representative for
collective bargaining with Respondent.
While it is true that the Union never in words requested
recognition from, and bargaining with , Respondent prior
to, or indeed after, the filing of its petition for certification
with the Board on February 7, 1972, the sole purpose, aim,
and object of the Union's filing of its said petition on that
date was to secure such rights of recognition and
bargaining, as Respondent well knew. Promptly after such
filing Respondent began its aforefound campaign of
8(a)(1) violations of the Act for the purpose of thwarting
the attainment of such purpose by the Union.
It is my considered opinion that Respondent's unfair
labor practices were so extensive and pervasive-as well as
outrageous-as to have tended to undermine the Union's
majority and to have impeded the Board 's election process,
both past and future. It is also my opinion that the very
nature of the unfair labor practices engaged in during this
period by Respondent cannot be neutralized by the
conventional remedies so as to insure a future fair runoff
election . This is because of the lingering effects of those
unfair labor practices , particularly the tramatic experience
of having wage increases and insurance benefits deliberate-
ly withheld, affecting each and every employee, because of
the pendency of the representation election itself and
thereafter granted only as a reward for the antiunion result
of that election and as a reminder to vote the same way in
any rerun election thereafter. Accordingly I find that,
under the above conditions , employee sentiment previously
expressed through validly executed authorization cards,
would, on balance, be better protected by the issuance of a
bargaining order in the instant matter.
IV. THE EFFECT OF UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent, are set forth in section III,
above, occurring in connection with the operations
described in section I, above, have a close , intimate, and
substantial relationship to trade, traffic, and commerce
along the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it cease and
desist therefrom and take certain affirmative actions
designed to effectuate the policies of the Act.
Having found that on and after February 7, 1972, when
the Union filed its petition for certification at Store # 10
Respondent committed a series of acts violative of Section
8(a)(1) for the purpose of first inducing and coercing its
employees to abandon their rights to organize and bargain
collectively and thereafter, upon discovering the failure of
that tactic, on March 6 deliberately and illegally withhold-
ing from the employees of Store # 10 wage increases and
other benefits granted other nonunion area stores of
Respondent in order to coerce the employees of Store # 10
to vote against union representation in the election
scheduled for March 16, together with the false and
dishonest explanations contained in the Harris letters of
March 7 and 10 posted for the perusal of all employees and
designed to denigrate the Union, I will order that
Respondent cease and desist therefrom and take certain
action designed to effectuate the policies of the Act.
As the March 6 wage and benefit increase was withheld
from the employees of Store # 10 for a deliberately
discriminatory and illegal purpose, I will order Respondent
to pay each employee of Store # 10 a sum of money equal
to the difference of what each employee would have earned
if that wage increase of March 6 had been granted at that
time to the employees of Store # 10 over what that
employee actually earned until that wage increase was put
into effect at Store # 10.12
Also in view of the outrageous and pervasive nature of
Respondent's violations of Section 8(a)(1), particularly the
withholding of the wage and benefit increases which
directly affected each and every employee at Store # 10
together with the posting of the Harris letters of March 7
and 10 were also for the edification of all employees, this
fits the first category of cases -noted in the Gissel decision
requiring in such cases an order that Respondent bargain
with the Union in good faith as thereby Respondent itself
has made the holding of an election where the employees
can freely express their choice as to a bargaining
representative a virtual impossibility. Accordingly, I will
order Respondent to bargain collectively in good faith with
the Union as the exclusive representative of those employ-
ees of Store # 10 in the appropriate unit above found.
Because of the type of unfair labor practices and the
extent thereof engaged in by Respondent, I sense an
12 Congdon Die Casting Co, 176 NLRB 482.
GOLD CIRCLE DEPARTMENT STORES
opposition by Respondent to the policies of the Act in
general and I deem it necessary to order Respondent to
cease and desist from in any manner interfering with the
rights guaranteed its employees in Section 7 of the Act.
Also upon the basis of the foregoing findings of fact and
upon the entire record I make the following: I find and
conclude that Respondent's conduct occurring between
February 7 and March 17 which have previously been
found in violation of the Act interfered with the employees'
exercise of a free choice in the election, I further find that
the postelection grant of a wage and benefit increase was
made as a further inducement to vote against the Union if
another election were ordered thus making the expression
of a free choice in a future election impossible. According-
ly, it will be recommended that the election of March 16,
1972, be set aside, and, for the reasons set forth above, that
Respondent bargain with the Union as the exclusive
representative of the employees of Store # 10 in the
appropriate unit above found.
CONCLUSIONS OF LAW
1. Respondent 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. Respondent has engaged in and is engaging in unfair
labor practices in violation of Section 8(a)(1) of the Act,
and in conduct interfering with, restraining, and coercing
employees in their exercise of a free choice in the election
conducted by the Board as well as in any rerun election,
which unfair labor practices and conduct affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following:
[Recommended Order omitted from publication.]
APPENDIX A
Dear Gold Circle Associates:
March 7, 1972
It is not often that I have the occasion or opportunity to
write each of our associates. The last time I wrote many of
you was after our most successful opening in Wickliffe.
This letter states my personal feelings concerning the
Union and our Gold Circle associates.
We have no Union in any of our eleven stores throughout
Ohio and there is a good reason why! The Retail Clerks
have tried many, many times-and failed. They failed
because in all instances our associates believed that they
were not needed.
Why wasn't the Union needed? Gold Circle prides itself in
offering to its employees competitive wages and benefits,
fair treatment for each of you, and a solid opportunity for
promotion as far as you want and are capable of going.
This promotional opportunity is not a promise-it is an
established fact. In our short history, I personally have
seen many hundreds of "inside" promotions. We MUST
be competitive to get the best people working for us and we
will continue to be competitive. What has the Union
1017
promised you? Whatever it is, you probably noticed a
couple of items they left out, OPPORTUNITY and
PROMOTION.
Store # 10 has not been one of our smoothest starts. We
admit we have had some problems. Call it growing pains if
you will, but at least we have recognized the problems and
we will solve them-that too is a fact, not a promise! We
hardly had Store # 10 going when the wage and price
freeze hit. This development threw the entire business
community into a turmoil and for a while it consumed
entirely too much management time and energy. Time and
energy which should have been devoted to employee
problem solving. We are back on the track now, and
improving our employee relationship is our number one
priority. Will you give us a little time to prove it?
Let us assume that many of our associates and the Union
pointed out some problems we know we had. If we solved
all of the problems, would you be satisfied, would the
Union be satisfied? I think most of our associates would be
well satisfied, but I am pretty sure the union would not be.
You see, the Union needs mennbers for dues or they have a
serious problem. They make no product and they sell no
product. Their existence depends on the wages of others.
We have yet to see a church or P.T.A. force a person to
join, force an employer to deduct dues dollars from
employee paychecks, force a strike or try to stop our
customers from entering our store because we disagree
with them. We believe there is quite a big difference
between churches and unions. t8 Unions claim they exist
only to solve employee problems. They say that if you
don't need them or ask for them, they won't force
themselves on you. Let us examine the truth of those
claims . Gold Circle opened its first store in Columbus in
1968 . The Union started its drive even before we opened
the doors! Shortly after our grand opening, customers and
employees alike were harassed by pickets. Think about
that! Whose problem was the Union trying to solve? Many
of our employees were not given time to learn their jobs
before the Union passed out cards to help solve their
problems. Naturally, the Union never got to first base, they
were unable to obtain enough signed cards to force a vote,
because our people examined the facts and chose what was
best for them. Four non-union years later they still know
they were right.
One final point requires our comment. The issue of
economic benefits is always a part of any union campaign.
Our benefits program for the entire Cleveland area has
been under revision study since mid-summer of last year.
Our time table was completely destroyed by the wage
freeze . However, our other three Cleveland area stores are
now working under our latest revised wage and benefits
program. The law seems to say we may not raise your
wages or improve your fringe benefits during a union
campaign. We can't even promise we will, according to our
understanding of the law. However, one thing you can
count on is that we intend to treat Store # 10 associates
every bit as well as our other Cleveland area associates,
with or without a union. We dare the Union to compare
our Cleveland wages and benefits to their Cleveland area
1018 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
contracts-1 remember their Cleveland members actually
take home less pay because of union dues deductions.
Gold Circle is a Division of Federated Department Stores.
We started out with over a hundred years of past
experience in keeping employees happy without unions.
That isn't luck, it is simply a matter of doing what is right
by our employees . We can do it here if you will give us the
opportunity. We do not need a Union, but we do need your
support. Give us a chance to show you why the Union has
never been able to organize a Gold Circle Store. Be a smart
shopper. Tell the Union: "I don't need your product just
yet-I want to give the one I already have a fair trial." If it
doesn't work out, you can always call the Union back.