G. C. Murphy Co.

National Labor Relations Board - Board Decisions

Apr 2, 1976

223 N.L.R.B. 604 (N.L.R.B. 1976)

604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. C. Murphy Company and Retail Store Employees
Union, Local 400, a/w Retail Clerks International
Association, AFL-CIO. Cases 5-CA-7144, 5-CA-
7145, and 5-RC-9240
April 2, 1976
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
By MEMBERS FANNING, PENELLO, AND WALTHER
On December 5, 1975, Administrative Law Judge
Abraham H. Maller issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and Charging Party
filed a brief in opposition thereto.
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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, G. C. Murphy Compa-
ny, Rockville, Maryland, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
IT IS FURTHER ORDERED that the election in Case 5-
RC-9240, conducted on March 27, 1975, be, and it
hereby is, set aside, and that the case be remanded to
the Regional Director for Region 5 for the purpose of
conducting a new election in the appropriate unit at
such time as he deems the circumstances permit the
free choice of a bargaining representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
DECISION
ABRAHAM H. MALLER, Administrative Law Judge: On
February 13, 1975, Retail Store Employees Union, Local
400, affiliated with Retail Clerks International Association,
AFL-CIO, herein called the Union, filed charges against
G.C. Murphy Company, herein called Respondent. Upon
said charges, the Regional Director for Region 5 of the
National Labor Relations Board, herein called the Board,
on April 2, issued on behalf of the General Counsel an
order consolidating cases , complaint, and notice of hear-
ing. Briefly, the complaint alleged that the Respondent in-
terfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the National
Labor Relations Act, as amended (29 U.S.C. Sec. 151, et
seq. ), herein called the Act, by threatening employees with
loss of their jobs because of their membership in and activ-
ities on behalf of the Union, threatening that Respondent
may close its store should the employees engage in activi-
ties on behalf of the Union, creating the impression of sur-
veillance among the employees because of their activities
on behalf of the Union, and interrogating employees con-
cerning their membership in, and activities on behalf of,
the Union, in violation of Section 8(a)(1) of the Act. By
timely amendment, the General Counsel amplified the alle-
gation concerning interrogation, and added allegations
that Respondent promised benefits to employees to induce
them to vote against the Union; and withheld previously
established benefits from employees because the Union
filed a petition for representation. In its duly filed answer,
Respondent denied any violations of the Act.
On February 7, 1975, the Union filed a petition for rep-
resentation at Respondent's Rockville, Maryland, store,
and on March 27, the Regional Director conducted a se-
cret ballot election at Respondent's Rockville, Maryland,
store, resulting in 16 ballots being cast for and 16 ballots
being case against the Union, with 2 ballots challenged by
the Union. On April 2, the Union filed timely objections to
conduct affecting the results of the election. By letter dated
April 9, the Union agreed to withdraw its challenges for the
sole purpose of obtaining a determinative election result.
Thereafter, on April 11, the challenged ballots were opened
and counted, and a revised tally of ballots was served upon
the parties, indicating 16 votes for, and 18 votes against,
the Union. By letter of the same date, the Union, with the
approval of the Regional Director, withdrew certain objec-
tions to the conduct of the election. The remaining objec-
tions filed by the Union involved generally the same mat-
ters as were alleged in the complaint herein.
On April 22, the Regional Director issued a Report on
Challenges and Objections, Order Consolidating Cases and
Notice of Hearing, consolidating Case 5-RC-9240 with
Cases 5-CA-7144 and 5-CA-7145 for the purpose of hear-
ing. Thereafter the Respondent filed exceptions to the Re-
gional Director's Report on Challenges and Objections. On
May 20, the Board issued an Order adopting the Regional
Director's recommendations as contained in his Report. In
doing so, the Board did not pass on Respondent's excep-
tions, but left the issues presented therein for consideration
by the Administrative Law Judge, and remanded the pro-
ceeding to the Regional Director for the purpose of hold-
ing the hearing previously ordered by him.
Pursuant to notice, a hearing was held at Washington,
D.C., on May 22 and 23, 1975. All parties were represented
at the hearing and were afforded full opportunity to be
heard, to introduce relevant evidence, to present oral argu-
ment, and to file briefs. Briefs were filed by all parties.
Upon consideration of the entire record and the briefs and
upon my observation of each of the witnesses, I make the
following:
223 NLRB No. 86
G. C. MURPHY CO. 605
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Pennsylvania corporation, is engaged in
the operation of variety stores at 1683 East Montgomery
Avenue, Rockville, Maryland, and 1214 G. Street, N.W.,
Washington, D.C. During the 12 months preceding the fil-
ing of the complaint herein, a representative period, Re-
spondenthad gross sales in excess of $500,000 and received
in interstate commerce goods and materials valued in ex-
cess of $50,000 from points located outside the District of
Columbia and the State of Maryland. Accordingly, I find
and conclude that the Respondent is, and has been at all
times material herein, an "employer" as defined in Section
2(2) of the Act, engaged in "commerce" and in operations
"affecting commerce" as defined in Section 2(6) and (7) of
the Act, respectively, and that it will effectuate the policies
of the Board to assert jurisdiction here.
11. THE LABOR ORGANIZATION INVOLVED
Retail Store Employees Union , Local 400, affiliated with
Retail Clerks International Association , AFL-CIO, is, and
has been all times material herein , a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ISSUE
Whether Respondent interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act, in violation of Section 8(a)(1) of the
Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement
The complaint alleges that Respondent's violations oc-
curred at both Respondent's Rockville and Washington
stores . Most of the evidence presented at the hearing relat-
ed to events at the Rockville store. In his brief, the General
Counsel makes no reference to the events relating to the
Washington store, and the Charging Party-Petitioner in its
brief concedes that the evidence does not support the alle-
gation in paragraph 5(e) of the complaint, that Respondent
threatened to discharge employees of the Washington store
because of their activities on behalf of the Union. Accord-
ingly, I recommend that the complaint be dismissed insofar
as it alleges violations at the Washington, D.C., store, and
the ensuing discussion involves only events occurring at the
Rockville Store.
B. The Organizing Campaign
The Union's campaign to organize the Rockville store
began on January 27, 1975,1 some 60 days before the elec-
tion. Union organizers appeared at the store and spoke to
1 Unless otherwise indicated, all events detailed herein occurred in 1975.
employees both in the store and outside, and handed out
union cards. The Respondent became aware of the Union's
campaign immediately and began quickly to counter the
Union's efforts. The Respondent called meetings of its em-
ployees. A total of 12 meetings, with usually 2 per day to
cover the morning and evening shifts, were held on Janu-
ary 31, February 21 and 25, March 14, 20, 25 and 26. All
meetings were conducted by Store Manager Ronald G.
Reiser who spoke to the employees. In addition Vice Presi-
dent Philip W. Rogers addressed the employees at the
March 26 meeting. The Respondent also used posters and
written sheets of questions and answers were put on the
bulletin board. In addition, the complaint alleges, and the
Respondent denies, that the Respondent engaged in a ser-
ies of unfair labor practices. These will now be discussed.
C. Withholding Wage Increases
Respondent has a policy with regard to the review of
employees' wages. The policy calls for a yearly wage review
based upon the store manager's evaluation of the employ-
ees along with consideration for merit and longevity. In-
creases are not a matter of automatic progression, but rath-
er are granted at the discretion of the store manager. There
are normally no announcements when wage reviews are
being conducted. When an employee is reviewed, a written
requisition for an increase is prepared by the store manager
and forwarded to the district manager for approval. Man-
ager Reiser testified that all previous requisitions for wage
increases recommended by him had been approved by the
district manager. Manager Reiser was conducting such a
review at the onset of the organizational campaign. He had
prepared four requisitions for increases, when he became
aware of the organizational drive by the Union. He there-
upon consulted Respondent's legal department and was di-
rected to discontinue the review. The reason given him by
the legal department was that to grant wage increases at
that time could possibly influence the votes of the people in
the store. He thereupon admittedly tore up the four requisi-
tions that he had already prepared.
Employee Liz Bishop testified that, when she became a
buyer in October 1974, Manager Reiser had promised her a
wage increase. In the later part of January, she asked Man-
ager Reiser why she had not received it. He told her that he
could not give it to her "because the Union was coming in
and it would seem like a bribe." Manager Reiser, himself,
corroborated Bishop's testimony.
Employee Wilma Lockhart testified that while she was in
Manager Reiser's office on an unrelated personnel prob-
lem around the end of February or the beginning of
March, she asked him about a raise that he had promised
her in September. Manager Reiser replied that he was sorry
that he could not give her the raise, although he had pre-
pared a raise requisition to send to the district office, but
because the Union had come in, he had to "rip it up."
Manager Reiser admitted having a conversation in his of-
fice with Lockhart about a personnel problem, but denied
having any conversation about a wage increase. However,
on cross-examination, he testified that he did not remem-
ber telling Lockhart that he had torn up her wage increase
requisition. Personnel Director Downes testified that she
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occupies the office next to Reiser's; that she overheard the
conversation between Lockhart and Reiser through the pa-
per-thin walls and that there was no discussion of a raise in
that conversation . In resolving the credibility conflict, I
note the following : Lockhart impressed me as an honest
witness, and her testimony is consistent with that of Bishop
as to what Manager Reiser admittedly told her when she
raised the question of a wage increase . Significant in this
connection is the fact that Lockhart testified that when
they discussed her anticipated wage increase , Manager
Reiser told her that he had prepared a wage increase requi-
sition , but "he had to rip it up ." Manager Reiser admitted
that he had prepared four wage increase requisitions, but
they were "torn up." If Lockhart's testimony were fabricat-
ed, how would she know that Manager Reiser had torn up
her wage increase requisition? Accordingly, I credit the tes-
timony of Lockhart, and do not credit the denials of Man-
ager Reiser and Personnel Director Downes.
Under the date of March 18, the president of the Union
sent a letter to Manager Reiser , with a copy to the Board,
reading as follows:
This letter will serve to officially notify you that Retail
Store Employees Union, Local 400 will not file
charges with the National Labor Relations Board if
you wish to grant wage increases to the employees
working in your store.
Our primary goal is to improve wages, benefits and
working conditions for all employees working at the
G.C. Murphy's in Rockville. Therefore we would not
object to any wage increases which you may grant
during the organizing program.
Respondent did not accede to the Union's request. In-
stead , it put up a poster headed MORE UNION PROPAGANDA-
Then followed a photostatic copy of the Union's letter.
Below that the following legend appears:
The union is attempting to have the Murphy Compa-
ny break the law. Look on the NOTICE OF EMPLOYEES
posted in the store . It clearly states that it is unlawful
to interfere with the rights of employees by:
PROMISING OR GRANTING PROMOTIONS, PAY RAISES OR OTHER
BENEFITS, TO INFLUENCE AN EMPLOYEE'S VOTE BY A PARTY
CAPABLE OF CARRYING OUT SUCH PROMISES.
The union is asking your Company to do something
which it is not permitted under the law. The trick the
Union is playing is to make your Company look
wrong even while your Company is complying with
the law.
According to Manager Reiser, he read a prepared speech
to groups of employees on March 25 and 26. In that speech
he stated:
What about wages. What would happen if the Union
wins-then wages are the subject of bargaining which
can cover many months. What happens if there is a
"no" vote . I cannot promise you a wage increase in
order to influence your vote, and I'm not promising an
increase to you , but if there is no union in our store
after the vote the wage program that was in the store
and was interrupted can continue.
Mary Ann Campbell testified that at one of the meetings
Manager Reiser said that he had written raise requisitions
for six or seven employees, but because of the Union's
coming in, he could not give the increases. According to
Campbell, Manager Reiser made the foregoing remark
about increases on his own and did not read it from a
prepared speech. Both Bishop and employee Jeffrey Don-
aldson testified that at one of the meetings Manager Reiser
told employees that he would like to give increases to the
employees, but could not do so because of the Union. Re-
spondent relies upon the fact that Manager Reiser spoke at
each meeting from prepared texts which he read, and such
texts in evidence do not contain those statements. Howev-
er, it appears from the record that questions were asked by
employees at this meeting, after Manager Reiser finished
reading his statement . Manager Reiser , when asked wheth-
er questions were asked at these meetings, simply answered
that he did not remember. I credit the testimony of Camp-
bell, Bishop, and Donaldson.
"As the Board has held, an employer confronted with a
union organizing campaign should decide the question of
granting or withholding benefits as he would if a union
were not in the picture; if his course of action in granting
or withholding benefits is prompted by the Union's pres-
ence, he violates the Act" (The May Department Stores
Company d/b/a Famous-Barr Company, 174 NLRB 770
(1969) ). To the same effect: The Great A & P Tea Co., 166
NLRB 27, 29 (1967); Great Plains Steel Corp., 183 NLRB
968, 975 (1970); GAF Corporation, 196 NLRB 538, 544
(1972); Dorn's Transportation Co., 168 NLRB 457 (1967),
enforcement denied, 405 F.2d 706 (C.A. 2, 1969); J.J. New-
berry Co., Inc., 183 NLRB 602 (1970), enforcement denied,
442 F.2d 897 (C.A. 2, 1971); Jeffco Manufacturing Co., 211
NLRB 787, enforcement denied 512 F.2d 1248 (C.A. 4,
1975).
Pertinent in this connection is the dictum of the Second
Circuit in N.L.R.B. v. Hendel Manufacturing Company, Inc.,
483 F.2d 350 (C.A. 2, 1973). Despite its earlier refusal to
enforce the Board's Orders in Dorn's and Newberry, supra,
the court said at 353:
An employer who in good faith at a time when he did
not know of union activity had promised a raise, when
he learned of the union activity could have taken the
position publicly that whether or not the union activi-
ty succeeded the raise would go into effect. That
would have been a plain declaration of neutrality and
no one rightly could have criticized it adversely... .
Here, to cancel the raise was obviously susceptible of
being understood by employees as interference with
their union organizational efforts. And the Board was
warranted in so finding and concluding.
Respondent relies upon the court's reversal of the Board
in Newberry and Jeffco. Insofar as Newberry is concerned,
it was pointed out in the Board decision in Jeffco that "the
Second Circuit's position has not been accepted by the
Board , which has since those cases [Newberry and Dorn's]
continued to reiterate the principle that `during an organi-
zational campaign an employer must decide whether or not
to grant improvements in wages and benefits in the same
G. C. MURPHY CO. 607
manner as it would absent the presence of the Union."'
[Citations omitted.] I have been unable to find any Board
decisions on this subject since the reversal in Jeffco. How-
ever, as an Administrative Law Judge of the Board, it is my
duty to follow Board precedent in matters of policy and
not "to speculate as to what course the Board should fol-
low where a circuit court has expressed disagreement with
its views" (Insurance Agents' International Union, AFL_
CIO, 119 NLRB 768, 773 (1957)).
In passing, it may be noted that in one important aspect,
the court's decision in Jeffco is distinguishable. The court
relied upon the fact that the Union had by letter to the
Company suggested that "pending the outcome of these
proceedings that you make no changes in personnel , wages,
or working conditions." This was precisely the converse of
the situation in the instant case . Here, the Union wrote to
Respondent , stating that it "will not file charges with the
National Labor Relations Board if you wish to grant wage
increases to the employees working in your store." This
assurance, a copy of which was sent to the Board, plainly
relieved the Respondent of any fear that it might be violat-
ing the Act by proceeding with the merit reviews in accor-
dance with its established practice. However, the Union's
letter prompted an unexpected reaction by the Respon-
dent . In its zeal to defeat the Union 's organizational cam-
paign, the Respondent used the letter as a propaganda de-
vice by claiming that the Union was seeking to trick the
Respondent into a violation of the Act .2
Respondent also relies upon Glazers Wholesale Drug Co.,
209 NLRB 1152 (1974), and Great Atlantic & Pacific Tea
Co., 192 NLRB 645 (1971). Neither case is apposite. As
noted in Glazers, "[t]he increases were not promised or
planned prior to the advent of the Union...." (Id. at
1157), and in Great Atlantic & Pacific Tea Co., the Board
found that "Respondent had made no prior promise of a
wage increase" (Id. at 645). In the instant case , the practice
of periodic merit reviews was admittedly an established
policy of the Respondent, and both Bishop and Lockhart
had been promised increases.
Nor is the Respondent relieved of liability by virtue of
the fact that it acted pursuant to the advice of its counsel.
As the Second Circuit pointed out in Hendel, supra:
The legislative mandate prohibits interference whether
intentionally interfering or not , whether pursuant to
bona fide, competent advice of an expert or not. Con-
gress did not here give the protection available under
some other statutes to those who act in good faith
upon advice given by competent, honest lawyers, ac-
countants, or other experts (483 F.2d at 353).
To the same effect see: The Great A & P Tea Co., 166
NLRB 27, 28 (1967).
2 While the Union 's waiver would not have prevented employees from
filing charges individually, the charges would clearly have been baseless,
since it could hardly be said that an employer would be guilty of coercing
employees from supporting the Union by granting a wage increase which
the Union did not oppose . Nor could it be said that it would have unlawful-
ly encouraged employees to support the Union by so doing, since the
Respondent's entire campaign made clear the fact that Respondent opposed
the Union . Thus, the Union 's voluntary waiver effectively insured that the
Respondent's grant of wage increases would not have been found unlawful.
I, therefore, find and conclude that by stopping the merit
review program and refusing to process promised wage in-
crease requisitions, the Respondent violated Section 8(a)(1)
of the Act.
D. Threats To Close the Store if the Union Won the
Election
Employee Bishop testified that, in or around the end of
February, she entered into a conversation with Personnel
Director Downes and head cashier Dot Fulkersin in the
ladies lounge. According to Bishop, Personnel Director
Downes said "that Murphy's didn't have enough money to
keep the store running to pay our wages if the union did
come in because we will have to have higher wages; and
the store would close down because it didn't make enough
money." Bishop testified further that head cashier Fulker-
sin joined into the conversation and said, "She's right.
There isn't enough money for the store to stay open if the
Union does come in." There is no evidence that, at the
time, either Personnel Director Downes or head cashier
Fulkersin knew what the Union would demand in bargain-
ing, nor what would be agreed upon in the matter of wages.
Nor did they quote any economic figures or statistics to
support their assertions about the store's anticipated clos-
ing.
Bishop testified further that on another occasion while
she, Downes, and employee Ruth Ann Earp were waiting
outside the store one morning before the store opened,
Downes told her "that if the union came in , we would get
the raise but our hours would be cut down and it was
stupid for them to come in, and the store didn't have
enough money . . . and would probably close down."
Personnel Director Downes denied that she had a con-
versation with Bishop in the presence of head cashier Fulk-
ersin . Fulkersin was not called by the Respondent to cor-
roborate Downes. With regard to the conversation in front
of the store before the store opened, Downes admitted that
an incident did occur one morning when they were waiting
for the store to open, but denied telling Bishop that the
store would close down if the Union got in. All that
Downes could remember about that incident was that em-
ployee Earp said to Bishop that "Pat, probably has a stool
pigeon."
James Duffy, a porter at the Rockville store, testified
that after a mid-February sales meeting, he had a conver-
sation with Personnel Director Downes, in which he re-
ferred to the situation in Baltimore where the Union was
trying to get in and two stores had closed, and he asked
Downes, "Is there a chance that our store would close
down?" According to Duffy, Downes replied, "Well, it
could be a possibility of closing down because of the
Union." Personnel Manager Downes did not explicitly
contradict Duffy's testimony. She testified:
Mr. Duffy had asked me about the Baltimore stores,
which ones were on strike and which ones were closed.
And my remark was that I had thought that the Mon-
dawin Store was closed, but who was on strike, I had
no idea.
Robert Rice, a stock clerk, testified that a few days after
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the union campaign began, he asked Personnel Director
Downes what she thought about the Union. According to
Rice, Downes replied, among other things, that there was
no way the store could support a union because the wages
would be too high and that the store would close. Downes
testified that she had no conversation with Rice at all, ex-
cept about work .3
In appraising the credibility of the witnesses on this is-
sue, I am impressed by the fact that Bishop, Duffy, and
Rice testified to somewhat similar statements made to
them by Downes on four separate occasions. Against this,
we have only the uncorroborated denials of Downes. To
credit Downes, I would have to find that each of the three
witnesses for the General Counsel fabricated their testimo-
ny. This I am unable to do. Furthermore, I am impressed
by the fact that Bishop testified that head cashier Fulkersin
was present when Downes spoke to her in the lounge and
that Fulkersin also participated in the conversation. Yet,
Fulkersin was not called by the Respondent to corroborate
Downes' denial. No explanation was offered as to the
Respondent's failure to call Fulkersin. In these circum-
stances, it must be assumed that Fulkersin could not cor-
roborate Downes' denial. Satilla Rural Electric Membership
Corp., 129 NLRB 1084, 1091 (1960); Texas Coca-Cola Bot-
tling Company, 146 NLRB 420, 433, fn. 14 (1964), enfd. 365
F.2d 321 (C.A. 5, 1966).
Respondent argues that, in any event, the impact of the
discussion within the store about alleged threats to close
was substantially and materially blunted or diminished by
Vice President Rogers, who testified that after the. March
26 meeting:
There was a question raised by several people follow-
ing that meeting with regard to whether they would
lose their jobs if the union came into the store. My
answer was no. Whether the store would close if the
union came in and my answer to that was no.
There is no evidence that Vice President Rogers' state-
ments were given any widespread publicity among the em-
ployees. To the contrary, it appears that Vice President
Rogers' statements were heard only by the few employees
who remained to ask the questions after the meeting. And
such employees would be few in number, in view of the
fact that, as admitted by Vice President Rogers, the meet-
ing of March 26 ran late, and it was time for the store to
open. Consequently, it would appear that most of the em-
ployees left the meeting to go to their duty stations, and if
any remained after the meeting, there must had been very
few. In these circumstances, it must be concluded that the
harmful effect of Personnel Director Downes' several state-
ments over a period of time was not dissipated by the last
minute statement of Vice President Rogers made to a few
employees.
3 Respondent contends that Rice 's testimony , even if credited , should be
disregarded because the alleged conversation occurred before the Union
had filed its petition for representation . Respondent's position is correct
insofar as it concerns the consideration of Rice's testimony in support of the
Union 's objections to conduct affecting the results of the election . Goodyear
Tire and Rubber Company, 138 NLRB 453 , 454 (1962). However , this does
not preclude the consideration of Rice's testimony as establishing an unfair
labor practice.
The Supreme Court in N.L.R.B. v. Gissel Packing Co.,
395 U.S. 575, 617 (1969), recognized that any balancing of
the rights of employer and the employees "must take into
account the economic dependence of the employees on
their employers, and the necessary tendency of the former,
because of that relationship, to pick up intended implica-
tions of the latter that might be more readily dismissed by
a more disinterested ear." The Supreme Court recognized
that an employer "may even make a prediction as to the
precise effect he believes unionization will have on his
company. In such a case, however, the prediction must be
carefully phrased on the basis of objective fact to convey
an employer's belief as to demonstrably probable conse-
quences beyond his control . . . . We therefore agree with
the court that '[c]onveyance of the employer's belief, even
though sincere, that unionization will or may result in the
closing of the plant is not a statement of fact unless, which
is most improbable, the eventuality of closing is capable of
proof."' (pp. 618-619.) In the instant case, the Respondent
made no effort whatsoever to demonstrate to the employ-
ees that the prediction of store closure would be required
by economic necessity. As in Gissel, the Respondent "had
no support for its basic assumption that the union, which
had not yet even presented any demands, would have to
strike to be heard . . ." (Id. at 619). "Indeed, Respondent
presented no facts in regard to what kind of a wage or
other demand it considered reasonable or as to what eco-
nomic concessions it could afford to make" (Jimmy-Rich-
ard Co., 210 NLRB 802, 805 (1974) ).
I therefore find and conclude that, by such threats of
closure, the Respondent violated Section 8(a)(1) of the Act.
E. Interrogation
Employee Lockhart testified that upon returning to work
Monday, February 3, after a week's vacation, she was
asked by Manager Reiser, as he opened the door to let her
in, "Have you heard about everything that's been going
on?" As she replied, "Yes." He then asked her, "Well, how
do you feel about it?" Lockhart replied, "This is the first I
ever heard of a union; I don't know too much about it."
Manager Reiser admitted that such an incident had oc-
curred; that he asked Lockhart "if she was aware of an
organizational campaign being conducted in the store,"
but denied asking her how she felt about the Union.
As previously noted, Lockhart testified to another inci-
dent that occurred around the end of February or the be-
ginning of March, when she went to Manager Reiser's of-
fice with a personnel problem, and when Manager Reiser
told her that he had torn up the requisition for an increase
in her wage. After discussing the personnel problem, Lock-
hart was ready to leave, when Manager Reiser asked her,
"How do you feel about all this union business?" Accord-
ing to Lockhart, she was afraid to answer truthfully and
said evasively, "Well, I don't know. It's-you don't know
about this that sound too good." Manager Reiser rejoined,
"Well, it can't be too good, because anyone who is going to
making a lot of promises aren't true to their word." Lock-
hart said to him, "Well, its not the first promise that's been
made to me. There's been one promise made to me here
that has not been kept." It was at this point that the con-
G. C. MURPHY CO. 609
versation turned to Reiser's earlier promise of a raise and
the fact that he had torn up the requisition . He did not
deny that he asked Lockhart how she felt about the union
business.
Liz Bishop testified that Manager Reiser asked her sev-
eral times while she was working how she felt about the
Union . On one of these occasions , she told him that she
favored the Union . About a week before the election, Bish-
op was working the register on the lower level of the store
when Reiser walked up to her and asked her "how I
thought about the Union and if I was nervous because of
the election coming up next Thursday , and I told him no.
And he asked me now I felt about it . . . I told him that it
was up to me how I felt ." Manager Reiser asked her "if I
changed my mind or anything about how I felt ; and I told
him no ." Manager Reiser did not explicitly contradict
Bishop's testimony about this conversation . Instead, he re-
ferred to a different conversation between himself and
Bishop , Lockhart , and Earp in his office about a labor con-
tract at the Frostburg , Maryland , store and testified that
during that conversation he did not ask Bishop how she felt
about the Union.
Mary Ann Campbell testified that , 2 or 3 weeks before
the election , Manager Reiser approached her while she was
working and a conversation ensued. Campbell asked him
how he felt about the election coming up, and Manager
Reiser replied that it was getting pretty close to the time
and that he was a little worried about it. Manager Reiser
then asked Campbell how she was going to vote . Campbell
replied that it was none of his business . About a week later,
Manager Reiser approached her and asked her, "Are you
still with me?" Again Campbell replied that it was none of
his business . Manager Reiser admitted having several con-
versations with Campbell , but denied he asked Campbell
how she was going to vote.
Jeffrey Donaldson testified that when Manager Reiser
found out that there had been a union meeting the night
before, "he would ask how it went , and the number of
people that were there , who was present ." Manager Reiser
denied asking Donaldson "how anybody would vote."
However , Donaldson 's testimony that Reiser asked about
the union meeting and the number of people that attended
stands uncontradicted.
As between Bishop , Campbell , and Donaldson, on the
one hand, and Manager Reiser , on the other hand , I credit
the testimony of the former and do not credit Manager
Reiser's testimony in this regard.
Bishop also testified to conversations with Personnel Di-
rector Downes . According to Bishop , sometime late in Jan-
uary or early February , she was in the lounge when Person-
nel Director Downes asked if she had signed a card to join
the Union. Bishop replied in the affirmative , whereupon
Personnel Director Downes asked her what was on the
card. Bishop replied that "it was for me to know and for
her to find out." About 2 weeks before the election, ac-
cording to Bishop, Personnel Director Downes spoke with
her in the restaurant . Bishop had attended a union meeting
the night before , and Downes asked her what had occurred
at the meeting and whether there had been much talk
about the Respondent . Bishop replied that she could not
remember all that was said . Personnel Director Downes
also asked her whether Jeff Donaldson and Jim Duffy were
present at the meeting . Bishop replied that she could not
remember who was there . Personnel Director Downes de-
nied asking Bishop whether she had signed a union card
and denied having a conversation with Bishop concerning
who was attending the union meetings . I have not credited
Personnel Director Downes ' testimony in other respects,
and I likewise do not credit her testimony in this regard.
The foregoing discussion reveals several instances of in-
terrogation and, in some cases , repeated interrogation, de-
monstrating Respondent 's hostility towards the Union's
campaign . All such interrogation was carried out by the
highest ranking management in the store : the store manag-
er himself, and the director of personnel . There were no
assurances against reprisal . An employer 's asking an em-
ployee how he is going to vote subverts the Board's pro-
cesses of conducting a secret ballot election, and an
employer's asking an employee how he feels about the
Union is a not so thinly veiled attempt to discover how an
employee intends to vote . Clapper 's Manufacturing, 186
NLRB 324, 331 (1970); Sunbeam Plastics Corporation, 144
NLRB 1010, 1011 (1963). "Questioning selected employees
about their union sympathies without any legitimate rea-
son therefor and without any assurance against reprisal, by
its very nature tends to inhibit employees in the exercise of
their right to organize" (Engineered Steel Products, Inc., 188
NLRB 298 (1971 ) ). Asking an employee whether he has
signed a union authorization card is so clearly an interfer-
ence of the employee's rights, in violation of Section 8(a)(1)
of the Act as to make the citation of authorities unneces-
sary. The same is true of any interrogation of an employee
concerning the attendance and agenda of a union meeting
and, particularly, whether certain named employees had
attended the meeting . I therefore find and conclude that by
such interrogation the Respondent violated Section 8(a)(1)
of the Act.
F. Promise of Benefits
Jeffrey Donaldson , who had testified regarding other
conversations with Manager Reiser , testified that late in
the campaign he was approached by Manager Reiser who
told him that he wanted Donaldson 's vote , that every vote
counted , "and he said that if I did vote against the Union,
he would take care of me after the election . . . . He said I
would get a raise ; and if I would be off sick , I would still be
paid for it.- 4 Manager Reiser testified in contradiction. In
answer to the question, "Did you have any further discus-
sions with Mr. Donaldson on the sales floor concerning
any promise to help him out in regards to his vote?" Man-
ager Reiser answered , "In regard to his vote, no." I have
credited Donaldson 's testimony in other respects, and I do
so here. There is nothing in the record that would even
suggest that Donaldson had fabricated his testimony in this
regard, and, indeed , the Respondent has pointed to no rea-
son why Donaldson would do so.
It is well settled that employees' organizational rights,
guaranteed in Section 7 of the Act, are violated by induce-
4 At that time , employees were not paid sick leave.
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment as well as by threats. Manager Reiser's promise of
economic benefits to Donaldson was clearly a violation of
Section 8(aXl) of the Act, and I so find and conclude.
G. Fostering Impression of Surveillance
About 3 weeks before the election, Campbell was in the
Rockville store as a customer. She unexpectedly met Union
Representative Mike Tursky in the store. She did not feel
comfortable talking to the union representative in the store
and thereupon left, accompanied by Tursky. They went up
the street to Kresge's where they had a coke and talked.
When Campbell returned to work for the first time after
the foregoing incident, Manager Reiser told her that he
wanted to talk to her. Later, when she went on her break,
she went to Manager Reiser and said, "O.K. I'm going on
my break. What do you want to talk to me about?" Man-
ager Reiser answered, "I heard you went up the street with
a union guy." Campbell admitted that she had and stated
that she did not think that she did anything wrong.
Campbell's testimony in this regard is uncontradicted.
By the foregoing conduct, Manager Reiser clearly gave
Campbell the impression that she was under surveillance
for union activities. "An impression of surveillance might
well instill in the employee a fear of reprisal from the em-
ployer. Such conduct is violative of Section 8(a)(l) as it
could inhibit the right of employees to pursue their union
activities untrammeled by the fear of possible employer
economic coercion or other forms of retaliation."
(N.L.R.B. v. Ralph Printing and Lithographing Company,
379 F.2d 687, 691 (C.A. 8, 1967) ). See also Texas Coca-
Cola Bottling Company, 146 NLRB 420, 433-434 (1964),
enfd. 365 F.2d 321 (C.A. 5, 1966).
Accordingly, I find and conclude that Respondent by
such conduct violated Section 8(a)(l) of the Act.
H. Predictions of Strikes and Violence
Employee Rice testified that in his conversation with
Personnel Director Downes, wherein she predicted the
closing of the store if the Union came in, she also told him
that if the Union got in, "we would automatically go on
strike. We wouldn't have a vote on it, we would just be out
there striking, and the strike would end up in violence and
the people that wanted to work wouldn't be able to come
in, because we would be beating up on them outside." As
previously noted, Personnel Director Downes denied hav-
ing any conversations with Rice, except the ones pertaining
to work. I have heretofore credited Rice over Downes, and
do so here also.
Campbell testified that, at one of the meetings, Manager
Reiser said "that if the union got in, we would automatical-
ly go on strike." Bishop, likewise, testified that at a sales
meeting on Friday before the election, Manager Reiser
stated that "if the union came in, there would be physical
harm done to us . . . . If we did get the Union in, there
would be strikes and we would all be at each other's
throats." Manager Reiser denied making the foregoing
statements. His denial is not credited. "These statements
... unquestionably conveyed the impression to the em-
ployees present that a strike was inevitable if the employees
voted for the Union. The Board has consistently held that
similar comments which emphasize the inevitability of
strikes are violative of Section 8(a)(1) of the Act" (Clapper's
Manufacturing, 186 NLRB 324, 332 (1970) ).
Accordingly, I find and conclude that Personnel Direc-
tor Downes ' and Manager Reiser 's statements violated
Section 8(a)(l) of the Act.
Concluding Findings
In summary, the foregoing discussion demonstrates, and
I find and conclude, that the Respondent engaged in a
series of unfair labor practices in which it illegally withheld
promised wage increases , threatened to close the store if
the Union won the election, interrogated employees re-
garding their views and the views and activities of other
employees regarding the Union, promised benefits to an
employee if he voted against the Union, fostered the im-
pression that it was engaging in surveillance of employees'
union activities, and predicted strikes and violence if the
Union won the election, in violation of Section 8(a)(1) of
the Act. These violations also affected the result of the
election,5 requiring the election to be set aside and a new
election ordered.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section IV,
above, occurring in connection with the operations of the
Respondent set forth in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
VI. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act, I shall recommend that it cease and desist therefrom
and that it take certain affirmative action designed to ef-
fectuate the policies of the Act.
Having found that the Respondent unlawfully refused to
proceed with the wage increase requisitions due Wilma
Lockhart and Liz Bishop, I shall recommend that the Re-
spondent be required to proceed with the processing of
such requisitions and grant to each employee such im-
provement in wages as would have been granted in the
normal operation of its review plan, and make whole each
such employee for any loss of benefits suffered by reason
of Respondent's refusal to proceed with the processing of
the wage increase requisitions.
I shall further recommend that the Respondent be or-
dered to preserve and make available to the Board or its
agents , upon request, payroll and other records to facilitate
the computation of wage increases and of the backpay due.
5 As previously pointed out, one of Respondent's acts consisted of a con-
versation between employee Rice and Personnel Director Downes which
occurred before the petition for representation was filed and is, therefore,
not considered in this context.
G. C. MURPHY CO. 611
As the unfair labor practices committed by the Respon-
dent are of an extensive and varied character striking at the
root of employees ' rights safeguarded by the Act, I shall
recommend that it cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By canceling the wage increase requisitions for em-
ployees Bishop and Lockhart and by refusing to proceed
with the merit review procedure, because of the Union's
organizational campaign, the Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. By threatening to close the store if the Union won the
election, the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
5. By interrogating employees regarding their views, and
the views and activities of other employees, regarding the
Union, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
6. By promising economic benefits to employee Don-
aldson if he voted against the Union, the Respondent has
engaged in an unfair labor practice within the meaning of
Section 8(a)(1) of the Act.
7. By giving employee Campbell the impression that she
was under surveillance for union activities, the Respondent
has engaged in an unfair labor practice within the meaning
of Section 8(a)(1) of the Act.
8. By predicting strikes and violence if the Union won
the election, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) 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:
ORDER6
The Respondent G.C. Murphy Company, Rockville,
Maryland, its officers, agents, successors, and assign, shall:
1. Cease and desist from:
(a) Failing or refusing to implement its policy regarding
the periodic review of employees for wage increases.
(b) Threatening to close the store if Retail Store Em-
ployees Union, Local 400, affiliated with Retail Clerks In-
ternational Association, AFL-CIO, wins an election.
(c) Questioning employees concerning their sympathy,
or the sympathy and activities of other employees, for Re-
tail Store Employees Union, Local 400, affiliated with Re-
tail Clerks International Association, AFL-CIO, or any
6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
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.
other labor organization of its employees , in a manner con-
stituting interference , restraint, or coercion within the
meaning of Section 8 (a)(1) of the Act.
(d) Promising economic benefits to employees if they
vote against Retail Store Employees Union , Local 400, af-
filiated with Retail Clerks International Association, AFL-
CIO.
(e) Giving employees the impression that they are under
surveillance for union activities.
(f) Predicting strikes and/or violence if Retail Store Em-
ployees Union , Local 400, affiliated with Retail Clerks In-
ternational Association , AFL-CIO, wins an election.
(g) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their rights to self-
organization , to form , join , or assist any labor organiza-
tion , to bargain collectively through representatives of their
own choosing, and 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,
except to the extent that such rights are affected by the
proviso to Section 8 (a)(3) of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Proceed forthwith to implement its policy regarding
the periodic review of employees for wage increases.
(b) Make whole all employees for any loss of earnings
they may have suffered by reason of Respondent 's failure
since February 1975 to observe and continue in effect its
periodic review plan, in accordance with the section of this
Decision entitled "The Remedy."
(c) Preserve and make available to the Board or its
agents , upon request, for examination and copying , all rec-
ords necessary for the determination of A he amount of
backpay due.
(d) Post at its store in Rockville , Maryland , copies of the
attached notice marked "Appendix." 7 Copies of said no-
tice , on forms provided by the Regional Director for Re-
gion 5 , after being duly signed by an authorized represen-
tative of the Respondent , shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places , including all places where notices to em-
ployees are customarily posted . Reasonable steps shall be
taken by the Respondent to insure that said notices are not
altered , defaced , or covered by any other material.
(e) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order , what steps
the Respondent has taken to comply herewith.
REPORT ON OBJECTIONS TO CONDUCT AFFECTING THE RESULTS OF
THE ELECTION
Having found that the Respondent engaged in substan-
tial violations of Section 8(a)(1) of the Act during the peri-
od between the filing of the representation petition and the
election, it follows that the election held on March 27,
7 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an.Order of
the National Labor Relations Board"
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1975, in Case 5-RC-9240, must be set aside, and I so rec-
ommend . Accordingly, it is further recommended that
Case 5-RC-9240 be remanded to the Regional Director for
Region 5 for the holding of a new election at such time as
he deems the circumstances will permit the employees to
express freely their wishes with respect to a bargaining rep-
resentative.e
I The General Counsel makes no contention that under the Supreme
Court's holding in N.L.R . B. v. Gieset Packing Company, supra, Respondent's
unfair labor practices were of such pervasive character as to make it unlike-
ly that their coercive effect would be neutralized by conventional remedies
so as to insure a fair rerun election and, therefore , that a bargaining order is
necessary . Accordingly , I do not consider that question and recommend
that the case be remanded for the holding of a new election.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail or refuse to implement our policy
regarding the periodic review of employees for wages
increases.
WE WILL NOT threaten to close the store if Retail
Store Employees Union , Local 400, affiliated with Re-
tail Clerks International Association , AFL-CIO, wins
an election.
WE WILL NOT question our employees concerning
their sympathy , or the sympathy and activities of
other employees , for Retail Store Employees Union,
Local 400, affiliated with Retail Clerks International
Association , AFL-CIO, or any other labor organiza-
tion of our employees, in a manner constituting inter-
ference , restraint , or coercion within the meaning of
Section 8(a)(l) of the Act.
WE WILL NOT promise economic benefits to employ-
ees if they vote against Retail Store Employees Union,
Local 400, affiliated with Retail Clerks International
Association, AFL-CIO.
WE WILL NOT give our employees the impression that
they are under surveillance for union activities.
WE WILL NOT predict strikes and/or violence if Retail
Store Employees Union, Local 400, affiliated with Re-
tail Clerks International Association, AFL-CIO, wins
an election.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their rights to self-organization , to form , join, or assist
any labor organization, to bargain collectively through
representatives of their own choosing, and to engage
in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except to the
extent that such rights are affected by the proviso to
Section 8(a)(3) of the Act.
WE WILL proceed forthwith to implement our policy
requiring the periodic review of employees for wage
increases.
WE WILL make whole all employees for any loss of
earnings they may have suffered by reason of our fail-
ure since February 1975 to observe and continue in
effect our periodic review plan.
All of our employees are free to become and remain
members of the above-named union or any other labor
organization, or to refrain from doing so.
G.C. MURPHY COMPANY