Franklin Park Mall, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1974

212 N.L.R.B. 21 (N.L.R.B. 1974)

FRANKLIN PARK MALL, INC. 21
Franklin Park Mall, Inc . and Service Employees, Local
No. 3 affiliated with Service Employees Internation-
al Union, AFL-CIO-CLC. Cases 8-CA-7469 and
8-RC-8874
June 26, 1974
DECISION, ORDER AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS KENNEDY
AND PENELLO
On March 29, 1974, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and the Respondent
filed cross-exceptions and a supporting brief, and a
brief in answer to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
charge filed on February 1, 1973, by Service Employees
International Union, AFL-CIO, Local No. 3, herein called
the Union, a complaint issued on March 16, 1973, against
Franklin Park Mall, Inc., herein called the Respondent or
the Company. In the representation case a petition for an
election was filed by the Union and a Board-conducted
election was held on January 25, 1973; the Board thereafter
ordered a hearing upon the Union's objections to the
Company's conduct affecting the results of the election.'
The two cases were joined for single hearing, which was held
on January 30 and 31, and February 1 and 19, 1973, at
Toledo, Ohio. The issues are whether the Respondent vio-
lated Section 8(a)(1) and (5) of the Act, and whether it
improperly interfered with the conduct of the election.
Upon the entire record, and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Respondent is a Maryland corporation engaged in
Toledo, Ohio, in the operation of a shopping center, which
includes the rental of its facilities to corporations engaged
in interstate commerce. Annually, in the course of its busi-
ness, the Respondent receives in excess of $100,000 in gross
revenues from the rental of such facilities, of which in excess
of $25,000 is received from tenants who annually ship goods
valued in excess of $50,000 from Ohio locations directly to
points located outside the state. I find that the Respondent
is engaged in commerce within the meaning of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Franklin Park Mall, Inc., Toledo, Ohio, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
IT IS FURTHER ORDERED that the election conducted
herein on January 25, 1973, be, and it hereby is, set
aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
i Inasmuch as we agree with the Administrative Law Judge's finding that
the unfair labor practices committed by the Respondent were not so serious
and-pervasive as to preclude the holding of a fair second election, we find
it unnecessary to pass upon his findmg that the Union possessed a majority
of authorization cards from the employees in the unit at the time of its
demand for recognition and bargaining.
DECISION
THOMAS A. Ricci, Administrative Law Judge: This is a
consolidated proceeding, joining a complaint case, 8-
CA-7469, with a representation case, 8-RC-8874. Upon a
II THE LABOR ORGANIZATION INVOLVED
I find that Service Employees , Local No. 3, affiliated with
Service Employees International Union, AFL-CIO-CLC,
is a labor organization within the meaning of Section 2(5)
of the Act.
III THE UNFAIR LABOR PRACTICES
A. A Picture of the Case
In December of 1972 the Union obtained authorization
cards from some of the employees of the Respondent, a
maintenance and cleanup group, and took steps to become
their collective-bargaining agent. It demanded recognition
as exclusive representative, which was refused, and filed an
election petition with the Board. It lost the election and then
filed objections and a refusal to bargain charge. According
to the complaint, and the objections, between the time of the
demand-about December 13, 1972-and the date of the
election-January 25, 1973, and thereafter, the Respondent
restrained and coerced the employees in violation of Section
8(a)(1) of the Act; part of this conduct, as charged in the
Union's objections, also improperly interfered with the elec-
tion. The complaint also alleges that the unfair labor prac-
tices committed by agents of the Respondent were so
1 The name of the Union was changed after issuance of the complaint and
is now as set out in the caption to this Decision.
212 NLRB No. 13
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pervasive and substantial as to make it impossible to hold
a fair new election now, that any expressions of attitude that
might be voiced in secret ballot by the employees now
would be unreliable in consequence of the threats and the
coercive conduct to which they have been subjected. For
these reasons the theory of complaint is that the Respondent
must be found to have unlawfully refused to bargain, in
violation of Section 8(a)(5), and must therefore be ordered
to bargain now without any further processing of the repre-
sentation proceeding.
It seems clear on the total record that the principal issue
involved, if not the only question of true import, is whether
what unfair labor practices may have been committed were
of such a nature as to justify an immediate affirmative bar-
gaining order. A representative of the Union entered a for-
mal appearance on the first day of the hearing, but the
Union did not otherwise participate in the consolidated
hearing. The General Counsel called an agent of the Union
as one of his witnesses, but he only testified to the fact he
wrote a letter of demand to the Company. No witnesses
were called by anyone in support of the objections. Under
the scheme of the statute as a whole the General Counsel,
as the representative of the Regional Director, stays neutral
as to the merits of objections filed in representation cases.
Whether or not a second election should be held in any
representation case, therefore, is no concern of his. This
means that in this case, the Union has very little, if any,
interest in a new election, if only because it ignored the
opportunity afforded by the Regional Director's decision to
hold a hearing on its objections. It is also strong indication
that even assuming there were violations of Section 8(a)(1)
requiring the posting of notices by the Company, the Union
cares little about going to a new election now. And perhaps
its apparent indifference to anything short of an out-and-
out order to bargain is explained by other objective consid-
erations. In a unit of 17 employees-2 of the original 19
were guards and therefore to be excluded from the count-9
signed authorization cards in favor of the Union before the
Company's refusal to bargain and insistence upon an elec-
tion. All nine of these voluntarily quit the Respondent's
employ shortly thereafter.
B. Format
The grouping of employees which the Union sought to
represent was a maintenance department, in which the men
worked at cleaning the mall, making minor repairs on such
things as light switches, or on damages to the physical prop-
erty, grounds-keeping outside the building, and performing
security functions Most of the men worked at night, when
the mall is closed to the public, and a few during the day.
On December 13, 1972, the Union delivered a letter to the
Company asserting it represented a majority of these em-
ployees, demanding recognition and collective-bargaining
rights, and offering to submit its cards to a card check. The
letter described the unit as "janitorial, maintenance, and
yard maintenance, excluding officers, office help, guards
and supervisors." The Company responded by letter dated
December 15, denying recognition and suggesting that the
Union establish its asserted majority status via a Board
election. The Union filed its petition on December 18, and
on January 4 the parties met in the Board's Regional Office,
where they agreed to a consent election. I find, as the parties
then agreed, that the following unit is appropriate for pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act.
All maintenance employees, porters and janitorial em-
ployees but excluding all office clerical employees and
professional employees, guards and supervisors as de-
fined in the Act.
I also find that on December 15, 1972, and thereafter, the
Respondent refused to bargain with the Union.
The parties stipulated that at the time of demand and
refusal there were 19 persons at work within the mainte-
nance group. At the hearing the General Counsel argued
that of these, three must be excluded from the test of majori-
ty; Carrico and Granger because they were guards, and
Stacey on the ground he was a supervisor. The Respondent
would include all three. I find that Carrico and Granger
were guards and therefore properly not includable within
the unit of essentially nonguard employees. Their duties
were to look after security, they expelled from the mall any
member of the public whose activities were adverse to the
Company's proper activities, they were expected to call the
police whenever a situation seemed aggravated, they pa-
trolled to check on locked doors at night, and they protected
the property from damage by the public. They wore regular
guard uniforms, with a suit patch reading "Security, Frank-
lin Park Mall," and a badge reading "Special Police, State
of Ohio." Their status as guards is not extinguished by the
fact they were also expected to pick up litter as they pa-
trolled, do some regular maintenance work when time per-
mitted, and even paint, repair walls, or shovel snow in the
unusual situations when such help was needed.
Exclusion of Carrico and Granger reduces the total num-
ber of employees in the unit to 17. Of these, nine signed
union membership cards. The cards, all received in evi-
dence, are clear and unequivocal applications for member-
ship and authorization for immediate and regular
representation in collective bargaining. There is no evidence
worthy of comment casting any doubt upon the intention
of any of these nine employees to authorize the Union to act
as their bargaining agent. Four of the cards are dated De-
cember 7, three December 8, one December 10, and one
December 13. I find that on December 15, 1972, when the
Respondent rejected the Union's demand for recognition,
the Union represented a majority of the employees in the
appropriate bargaining unit.
The status of Stacey, whose alleged supervisory standing
was disputed, is therefore now a mooted question. When an
assistant manager named Barry left the Company early in
September of 1972, Stacey was put in charge of mainte-
nance. A notice was posted to that effect. Exactly what was
written there is not quite clear. One witness said it called
him "their maintenance supervisor"; another recalled the
words as saying "Stacey was taking over as supervisor"; a
third testified the notice said "Stacey would be responsible
for. . . . Ordering any special assignments that had to be
done or working overtime or something like that"; and a
fourth witness that it said Stacey "would be taking over
FRANKLIN PARK MALL, INC. 23
maintenance." Stacey had been a daytime security guard. In
September he went to nights, working from 11 p.m. to 7
a.m., normally. He went from hourly pay to salary, and
stopped punching the timeclock; he was no longer paid for
overtime. At night he used to check the doors to see that
they remained locked, but essentially he did the same work
on a full-time regular basis as the other night shift mainte-
nance men-cleaning, including the toilets, repairing what-
ever needed attention, and even shoveling snow.'
The test of a man's supervisory status turns on what he
does while at work, the level of authority he exercises on
behalf of the employer over the rank-and-file. Several wit-
nesses said they deemed themselves "responsible" to Sta-
cey; one said he felt responsible to Manager Duffy, and not
Stacey. When Stacey arrived for work at night he found a
schedule of work hours for the men on the night shift al-
ready made out, and a note from Manager Duffy listing any
special chores that had to be looked after. All the witnesses
agreed that they normally did their assigned work without
direction by Stacey, and that he only told them what to do
when there were unusual or special things that had to be
done. Stacey checked their timecards after the shift and
noted they had worked as scheduled; whenever any man
did work not appearing on the schedule, he noted the fact
on the card and left the matter for Duffy to approve or not.
If a man wanted to leave early because he was not well, or
had an illness in the family, he let the man go; he said at
the hearing that if he did not approve and they left anyway,
there was nothing he could do about it. He had no authority
to discipline anyone, and he never did that. If a man did
anything wrong, like drinking on the job, he only made a
note to advise Duffy of the fact. He had nothing to do with
the pay of the men., One man testified that when looking for
work in September he spoke to Stacey, that Stacey ex-
plained to him what the work was all about and checked
what hours the man could work-the applicant being a
student, and that he started to work that very night without
speaking to anyone else in management . Stacey recalled he
did speak to the new man, but added he then told Duffy
about the applicant, adding what he thought of him, and
that it was only after Duffy considered the matter and di-
rected him to put the man to work, that he told him to report
for duty.
The fact Stacey was salaried and not hourly paid, the fact
some employees thought he was a supervisor, the fact he
checked their timecards, and the fact he was a conduit of
management passing some special instructions to them, are
indicia of supervisory status. Alone, and without regard to
other record facts, they were not sufficient to fit a man into
the statutory definition. He really had nothing to do with
hiring and firing, he had nothing to do with setting wage
rates or changing them, and his instructions about work
were routine in nature. But the statute speaks of "responsi-
ble" direction, and "effective" recommendations. As stated,
Stacey's status is now moot in this case . Were it necessary
to decide, I would find he was not a supervisor as defined
in the Act.
C. Violations of Section 8(a)(1)
The acts listed in the complaint and said to have coercive-
ly restrained the employees in their exercise of the statutory
freedom of choice in the matter of choosing or rejecting the
Union as collective-bargaining agent, substantially fall into
two categories: (1) grants by the Company of valuable
things to the employees-Christmas bonuses of $8, $10, and
$11 to a number of men, a raise in hourly rate to one man,
promises of future raises, and quicker availability of equip-
ment necessary to do the jobs-new or better mops and
brooms, cleaning soap, repair of the floor buffing machine,
replacement of waste receptacles, painting supplies, etc.; (2)
statements by the manager that the Company could not, or
would not, appraise the employees' merits for periodic rais-
es because of the pendency of the question concerning rep-
resentation raised by the Union's representation petition.
Manager Duffy was the sole spokesman for the Respon-
dent, the man whose words are said to have constituted the
unfair labor practices which now make it impossible to hold
a fair election. Before deciding, on the total record, just
what it is he said that had such a permanently debilitating
effect upon the employees, and just what it is he did that he
should not have done, some observations upon the nature
of violations of Section 8(a)(1) of the Act are in order.
Indeed, such comments are necessary here because the
heart question of the case turns upon how pervasive, how
seriously substantial, were the unlawful acts committed by
the Respondent. The determining rule of law is that enunci-
ated by the Supreme Court in N.L.R.B. v. Gissel Packing
Co., 395 U.S. 575 (1969). It says that when an employer
refuses to bargain and then proceeds to commit unfair labor
practices, you order an election, or a new election, when the
unfair labor practices are minor, but you order immediate
bargaining, without an election, when they were major. The
line of demarcation does not separate those cases where no
unfair labor practices are committed from those where vio-
lations of the Act are found. Rather, it deals only with cases
where unfair labor practices have occurred, placing the mi-
nor violations cases in one class and the major violations
cases in the other. Apart from the fact Duffy ordered new
mops, brooms, and soap for the employees so that their lives
while at work at night might be a little easier, all of the
remaining unfair labor practices touch upon a single princi-
ple of Board law.
An employer faced with a petition for representation sta-
tus filed by a union, or a Board election in the offing, is
nevertheless privileged to continue his business as usual, to
give whatever periodic raises he always gave, to evaluate
employees for merit increases-and give them-in accor-
dance with established practice, or to keep giving Christmas
bonuses as of old. The Board has repeatedly dismissed com-
plaints charging illegal granting of benefits during the crit-
ical period on the very grounds that the employer was doing
what he had always done. Thrift Drug Co., 167 NLRB 426.
The other side of this coin then holds that when an employer
has an established practice of giving periodic raises, or eval-
uating employees at fixed intervals for possible merit raises,
he must adhere to his practice-petition or no petition,
pending election or no pending election, and if he departs
from his custom because of the question concerning repre-
sentation then in the air, he violates the statute by his refusal
to grant the raise , or by his refusal to consider requests for
raises, as though there were no union organization cam-
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paign in the picture. Dodson 's Food Market, Inc., d/b/a
Dodson IGA Foodliner, 194 NLRB 192 (1971).
Experience has shown that in the practical application of
these two interrelated rules of law the employer very often
finds himself in a difficult if not impossible position. A raise
given during the very period when the Company is cam-
paigning against the Union-as is its right and indeed as
this very Respondent was doing via a letter to its employ-
ees-immediately is viewed asprima facie proof of an intent
to bribe, and an unfair labor practice charge is filed. The
employer is then put on the defensive; if in fact he had only
implemented an old practice , sometimes he convinces the
Board investigator and the charge against him is dismissed
without further ado, and sometimes he must go to teal to
prove his point and win final vindication before the Board.
If he hesitates,2 and chooses to avoid even the risk of a
possible litigation, his statement to his employees that de-
spite past practice they must now await resolution of the
question concerning representation, or the "union ques-
tion," or "this union business," is understandable. Of course
the test of what is coercive upon the employees, what there-
fore constitutes a violation of Section 8(a)(1) of the statute,
does not depend upon the good or bad faith of the employ-
er, but rather upon the Board's expert conclusion of what
the necessary effect of management's conduct is upon the
employees.,The point is emphasized here nevertheless, be-
cause this rational explanation of an employer's election to
hold his hand in such a situation is as likely to arise in the
employee's mind, as well as in mine and in that of the Board.
When management conveys the thought it is fear of unjusti-
fied prosecution that motivates his deferment of periodic
raises, the sense of punishment for union activities is less-
ened in the minds of the employees. Query: Should such an
unfair labor practice be placed in the minor category-
those which do not warrant an order to bargain without an
election under the rule of Gissel-or in the major category
of the "aggravated" kind of misconduct by the doubting
company which refuses to bargain without a Board ballot-
ing?
John Sheldon, vice president and general manager, said
it is this Company's established policy to review every em-
ployee 6 months after hiring for possible merit wage in-
crease, to review each one again after 6 more months, and
then to do the same at 12-month intervals. A number of
employees at work between the Union's demand for recog-
nition on December 13 and the time of the election on
January 25, and who had been at work over 6 months, or
who had not been considered for merit raises although the
policy period had passed, testified that they asked Manager
Duffy for a raise during that period. Duffy refused every
man's request. Some of the witnesses were precise in their
testimony as to what the manager stated to be the reason for
his then position, some vacillated, and some simply were not
clear. The collective testimony of the former employees who
2 The Hobson's choice is illustrated in this very case. Manager Duffy
several times told employee Heaton he could not consider him for a raise
"because if I gave you a raise during all of this election thing, that they could
come back and say to him that he bribed me ' ." The complaint calls this
an unfair labor practice. After a while Duffy yielded to Heaton's importun-
mgs, and gave hun a raise The complaint calls this too an unfair labor
practice'
spoke on this subject at the hearing clearly indicates Duffy
in many of the conversations did base his refusal to act on
danger of possible litigation at that moment. In some in-
stances, however, at least as recalled by certain witnesses at
precise points in their testimony, he did not bother to spec-
ify his such concern, but simply gave assurance they would
get the raises once the union was out of the way. The possi-
bility that some employees formed the impression future
raises were being conditioned upon rejection of the Union
is very positive one on this record. Duffy was present
throughout the hearing but did not testify in defense. The
Respondent chose to rest at the conclusion of the General
Counsel's case-in-chief.
Thus, Sczavanicki quoted Duffy as saying "there was
nothing he could do with the raises right now until the union
matter was cleared up." As Groosman recalled it: "he said
his hands were tied until the union situation was settled and
that he would be unable to do anything in the way of raises,
not only to myself but all of the employees." According to
Heaton: "his reply to me was, `Lyle, I can't give you a raise
or anybody else a raise, because if I gave you a raise during
all of this election thing,' that they could come back and say
to him that he bribed me...." From the witness Szyman-
ski: "he said that he couldn't do anything about it until the
union matter was settled." Granger testified: "Mr. Duffy
just explained to me that I would have to wait until the
union thing was cleared up and I would have my raise."
finally, Blair's recollection: "Mr. Duffy told us that he
would give us our raise retroactively to when the union
problem was over with...." On the authority of the
Board's decision in Dodson IGA Foodliner, supra, I find that
by the above statement of Duffy to these six employees
the Respondent violated Section 8(a)(1) of the Act. Cf.
N.L.R.B. v. Dorn's Transportation Co., 405 F.2d 706 (C.A.
2, 1969).
Between the idea of automatic, neutral deferment of rais-
es pending proper resolution of a union question, and an
implied promise of future reward for abandoning a union
campaign, the line is very thin. If the message conveyed by
management, however obliquely phrased, is that the union,
as distinguished from the question concerning representa-
tion, must first be eliminated, the coercive intent, as well as
the inevitable effect upon the employees, is unquestionable.
It may be that Duffy meant to say the same thing to all the
people with whom he talked about raises, but as he did not
choose to give his own version of the conversation, it is only
fair to take the testimony of the witnesses at face value, as
they remembered things. Combs was one of the three men
who received a Christmas bonus gift. He testified that after
giving him the money, Duffy also told him, in the office,
"that I would receive a raise, retroactive to October, after
this Union thing was settled." Tigges expressed his concern
to the manager over a rumor that the Company might not
be able to retain part-time employees in the event the Union
became the bargaining agent. Duffy assured him this was
not so, and in the conversation found occasion to ask Tigges
"why was I behind the union and for it and what were my
grievances." When Tigges answered he was angry about not
having received any raise, the manager said "raises would
come after the union business was over." Recker testified
Duffy asked him how he felt about the Union, and that he,
FRANKLIN PARK MALL, INC.
Recker, may have mentioned raises. Duffy then said "after
the union blows over there would be a general wage in-
crease." To Karlet s request for a raise Duffy said he "could
not give me a raise because of this union business."
I find that with these four statements to Combs, Tigges,
Recker, and Karlet, Manager Duffy came too close to
promising outright raises in return for the employees' rejec-
tion of the Union, and therefore violated Section 8(a)(1) of
the Act. I also find that his questioning of Tigges and Reck-
er as to why they wanted a union, or what they sought
thereby to accomplish, Duffy unlawfully interrogated them
on the subject as to which his statutory duty was to remain
neutral, and thereby also violated Section 8(a)(1).
Duffy, with another company agent, had occasion to visit
the Mall during the night shift on January 5, when he spoke
with four or five employees. He asked them, in the general
talk, about the Union, why they thought they needed a
union, and what their complaints were; this according to the
testimony, of course uncontradicted, of Sczavanicki and
Combs. Solicitation of grievances from employees carrying
on an organizational campaign and awaiting an election has
been held to be both improper interference with a free elec-
tion and coercive conduct in violation of Section 8(1) of the
statute, and I so find here too.3
D. A Raise, Gifts, and Other Concessions
Karlet once asked for a raise but was refused; he had only
been at work 2 months. Shortly thereafter he was made a
guard, and received a 25-cents-per-hour increase in pay. His
change of status adequately justified his raise. Heaton, who
had been at work since 1971, several times asked to be
evaluated for merit increase but was refused. Shortly after
the election, on about February 1, he was given 35 cents
more per hour. Contrary to the language of the complaint,
and contrary to the contention of the General Counsel, I
cannot find that the granting of this raise to Heaton was an
unfair labor practice. I am forced to this holding if only
because I could not coherently order the Respondent to
simultaneously stop giving raises and stop withholding rais-
es. From the court's language in Dorn's Transportation, su-
pra; "damned if you do, damned if you don't."
,The Respondent gave bonus checks in amounts varying
between $8 and $11 shortly before Christmas but after
learning of the demand for recognition. The gifts were also
made to employees who had not signed union cards. To one
man Duffy said the cash was "more handy than the turkey,"
and to another that "this wasn't to be construed as a Union
bribe or whatever, but it was an annual thing they did
' An indication there is, but proof positive that the
Christmas gift in this case was no more than continuance of
an established practice, there is not on this record. There-
fore, technical though it may be, I must also find that the
Respondent gave something of value to the employees dur-
ing the critical period of union organization, and the pen-
dency of a representation petition, and thereby violated
3 Ring Metals Co., 198 NLRB No. 143, "where .. an employer who has
not previously had a practice of soliciting employee complaints, institutes
such a practice to coincide with an organizational campaign , the employer
has engaged in improper interference with his employees ' freedom of choice
in violation of Section 8(a)(1)."
25
Section 8(a)(1) of the Act . Cf. N.L.R. B. v. Exchange Parts
Co., 375 U.S. 405 (1964).
There is indication in the testimony of one of the General
Counsel's witnesses that when Duffy went to the Mall on
the night of January 5 it was because of some difficulty or
other unrelated to union activities. In fact the witness said
he may have called the manager to come help resolve an
apparent problem of personal misconduct by an employee.
The manager's talk with a group of employees turned to the
Union , and he did ask them what were the complaints which
caused them to try to organize . They mentioned raises, but
the employees also told him they were inconvenienced by
the fact cleaning equipment and materials needed in their
work were not available at the proper time , or were insuffi-
cient, or were shabby . The Respondent had been supplying
these necessary things in an irregular way, by purchasing
what was needed out of the office whenever the men report-
ed their needs. Now Duffy said he would help matters by
putting some petty cash money in the hands of a few men
so they could quickly obtain what they needed from time to
time. He gave each of three men about $20 in cash, to be
accounted for to the penny, for purchases of such things as
cleaning materials , new mops and brooms , and repair of the
floor buffing machines . The men thereafter used this money
in such manner.
It cannot be gainsaid that in a literal sense Duffy by this
largesse satisfied one of the demands of the employees
which underlay their desire to be represented by the Union.
After all , he did associate this one desire of theirs with the
prounion penchant of the moment, they did tell him it ex-
plained one of their impulses toward the Union, and he did,
by satisfying that need , to some extent be it trivial or
substantial-lesson their determination to vote in favor of
the union later. I therefore must and do find, as the com-
plaint alleges, that by making this petty cash arrangement
as a concession to the employees , the Respondent also vio-
lated Section 8(a)(1) of the Act.
E. Section 8(a)(5)
Were the unfair labor practices here found to have been
committed so "disruptive of the election process" as to pre-
clude "a fair election," under the rule of Gissel, supra? I
think not. When some employees on January 5 told Duffy
one of their grievances was' over the poor quality of the
brooms and mops they had to work with, and the inade-
quate ready supply of soap and cleaning liquids, the manag-
er called this "nickle and dime stuff." He was right, of
course, and they did not take issue with him; in fact at the
hearing the phrase was referred to rather lightheartedly by
the witnesses. This is hardly the time of history for com-
menting that it would take more than facilitating the capaci-
ty of employees to operate more productively in their paid
work to wean them away from prounion tendencies. As to
the $8 or $10 each man got for Christmas, today it probably
could not even buy the traditional turkey. And the with-
holding of raises-which the company was free to defer
anyway on the ground the employees were not yet techni-
cally of sufficient merit-it was at best a borderline unfair
labor practice.
There is a house-of-cards air about the whole case.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Duffy's position that he was afraid he might be charged with
bribery under Board law is built up into multiple acts of
interference because he said the same thing to six or seven
employees. As originally issued on March 16, 1973, the
complaint said nothing about the cleaning equipment made
more easily available to the employees before the election.
An amendment dated December 20 adds the allegation it
was unlawful of the company to have "granted ... money
to purchase work equipment and supplies to its employees."
(Emphasis supplied.) At the hearing the General Counsel
amended the amended complaint by adding that the Re-
spondent also granted "new equipment and supplies." (Again
emphasis supplied.) These were the same "equipment and
supplies" for which Duffy gave the people money to make
purchases. Words without substance add nothing, either to
the complaint or the facts of record. The basic intendment
of the statute is to hold elections before employers are obli-
gated to recognize an exclusive bargaining agent, and the
Board has times without number ordered new elections de-
spite interference, and even unfair labor practices commit-
ted by an employer. The election process is only bypassed
where the illegal conduct precludes a fair election. And
finally, there is nothing in this record to warrant an infer-
ence that this Respondent will not post notices as required,
and repeat whatever violations of Section 8(a)(1) have been
found to have been committed in the past.
Accordingly, I shall recommend dismissal of the refusal
to bargain allegation of the complaint.
The Objections
I find the evidence is sufficient to support the objections
of the Union to the January 25, 1973, election. I therefore
recommend that the election be set aside and that a new one
be held when the Regional Director thinks proper.
CONCLUSIONS OF LAW
1. By informing employees that despite an established
practice no wage increases could be granted while a union
matter is pending, by promising raises conditioned upon
rejection of a collective-bargaining agent, by coercively in-
terrogating employees concerning their reasons for union
activities, by soliciting grievances from employees during a
union organizational campaign, and by giving bonuses and
improved working tools during the pendency of a represen-
tation petition, the Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices 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 and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER4
The Respondent, Franklin Park Mall, Inc., Toledo, Ohio,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Informing employees that despite an established
practice no wage increases could be granted while a union
matter is pending, promising raises conditioned upon rejec-
tion of a collective-bargaining agent, coercively interrogat-
ing employees concerning their reasons for union activities,
soliciting grievances from employees during a union organi-
zational campaign, or giving bonuses and improved work-
ing tools during the pendency of a representation
proceeding.
(b) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of their
right to self-organization, to form, loin, or assist any labor
organization, to engage in other concerted activities for the
purpose of-collective bargaining, or other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Post at its place of business in Toledo, Ohio, copies
of the notice attached hereto marked "Appendix." S Copies
of said notice, on forms provided by the Regional Director
for Region 8, after being duly signed by an authorized repre-
sentative of the Respondent, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not 'altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for Region 8, in writing,
within 20 days from the receipt of this decision, what steps
the Respondent has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint be, and
it hereby is dismissed, insofar as it alleges a violation of
Section 8(a)(5) of the Act.
4 In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Section
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
5 In the event that the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all parties had the opportunity to
present their evidence the National Labor Relations Board
has found that we violated the National Labor Relations
Act, and has ordered us to post this notice and we intend
to carry out the order.
The Act gives all employees these rights:
FRANKLIN PARK MALL, INC.
To engage self-organization
To form, join, or help unions
To bargain co tively through a representative
of their own choosi
To act together for collective bargaining or
other mutual aid or pr tection
To refrain from any and all of these things.
WE WILL respect your rights to self-organization, to
form, join or assist any labor organization , to bargain
collectively in respect to terms or conditions of employ-
ment through Service Employees Local No. 3, affiliat-
ed with Service Employees International Union,
AFL-CIO-CLC, or any representative of your choice,
or to refrain from such activity, and WE WILL NOT inter-
fere with , restrain , or coerce our employees in the exer-
cise of these rights.
WE WILL NOT inform our employees that despite an
established practice no wage increase can be granted
while a union matter is pending , promise raises condi-
tioned upon rejection of a collective -bargaining agent,
coercively interrogate our employees concerning their
27
reasons for union activity, solicit grievances from em-
ployees during a union organizational campaign, or
give bonuses and improved working tools during the
pendency of a representation petition before the Labor
Board.
Dated By
FRANKLIN PARK MALL, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Suite 1695, Anthony J. Celebrezze
Federal Building, 1240 E. 9th Street, Cleveland, Ohio 44199,
Telephone 216-522-3715.