Gertz

National Labor Relations Board - Board Decisions

Jun 19, 1972

197 N.L.R.B. 718 (N.L.R.B. 1972)

718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allied Stores of New York , Inc., d/b/a Gertz and
United Storeworkers, Retail Wholesale and De-
partment Store Union, AFL-CIO. Case
29-CA-2400
June 19, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On February 24, 1972, Trial Examiner Thomas A.
Ricci issued the attached Decision in this proceeding.
Thereafter, the General Counsel filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner, and orders that the
complaint herein be, and it hereby is, dismissed in its
entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: A hearing in the
above-entitled proceeding was held before the duly
designated Trial Examiner on October 12, 1971, and, after
a continuance, on January 13, 1972, on complaint of the
General Counsel against Allied Stores of New York, Inc.,
d/b/a Gertz, herein called the Respondent or the Compa-
ny. The complaint issued on July 22, 1971, based on a
charge filed May 24, 1971. The sole issue of the case is
whether the Respondent engaged in conduct which
restrained and coerced its employees within the meaning of
Section 8(a)(1) of the Act. Briefs were filed by the General
Counsel and the Respondent.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Respondent, a New York State corporation, is
engaged in the operation of retail department stores in
various counties of the State of New York, including the
County of Queens in the city of New York. During the past
year, a representative period, the Respondent derived gross
revenues in excess of $500,000 in the course of its business.
During the same period, it purchased and caused to be
transported and delivered to its Queens County places of
business clothes, furniture, and other goods and materials
valued in excess of $50,000, of which goods and materials
valued in excess of $50,000 were delivered to those
locations in interstate commerce directly from States other
than the State of New York. I find that the Respondent is
engaged in commerce within the meaning of the Act and
that it will effectuate the policies of the Act to exercise
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
I find that United Store Workers , Retail , Wholesale and
Department Store Union , AFL-CIO , herein called the
Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting of the Case
In the spring of 1971, the Union started an organization-
al campaign among the sales persons in the Respondent's
Jamaica department store. The total employee complement
there is about 1,500 and the Union sought to represent a
unit of 607 employees. It filed a petition requesting a
Board-conducted election on March 30, and on May 6 the
Regional Director issued a Direction of Election schedul-
ing the balloting for May 27. Over a 2-day period-May 12
and 13-Paul Dowd, the company president, read a
prepared speech to all the employees included in the
proposed bargaining unit, calling them in groups of about
30 or 40 into a conference room for that purpose. The
purpose of his talk was to convey the thought that they
should not vote for union representation. Dowd gave
similar talks, again reading from a prepared text, on May
24 and 25. The election was not held as scheduled because
the Union withdrew its petition and filed unfair labor
practice charges against the Respondent instead.
The major allegation of the complaint is that, in the
prepared statements Dowd read to the employees, he
unlawfully interfered with their freedom to engage in self-
organizational activities and thereby violated Section
8(a)(1) of the Act. There are also more detailed allegations
that Dowd departed from his prepared talks, adding
intimidating statements, and that in three instances minor
supervisors said things to individual employees which
tended to coerce them unlawfully in violation of the
statute. All the allegations of wrongdoing are denied by the
Respondent.
B. Formal Speeches by the President
Dowd testified he read precisely the same speech-writ-
ten in advance-six times on May 12 and six times on May
13; what he said he read was received in evidence as
Respondent's Exhibit 1. He also testified he did exactly the
same thing about 2 weeks later, again reading from a
prepared written document six times on May 24 and seven
197 NLRB No. 114
GERTZ
times on May 25; this talk was received in evidence as
Respondent's Exhibit 2. The exhibits read as follows:
May 12 and 13 Talk
Many of you have asked me when I would answer
some of the claims which the union has been making,
and when I would discuss the issues and facts
concerning this election. That time is now.
On Thursday, May 27th, you will be called upon to
make one of the most important decisions of your
working life. You must decide whether you will
continue to work in the free atmosphere of our Jamaica
store or whether you want to turn in your freedom-to
surrender to a union the present independence you
enjoy working directly with your Supervisors and
myself.
While the union would have you feel that everything
is very complicated, the question at hand is very simple.
You will be asked on a secret ballot, "Do you wish to
be represented by the United Storeworkers Union,"
YES or NO. An "X" in the "NO" box will say that you
do not need a union to speak for you.
During this election campaign I am going to ask you
to consider all the facts of the various issues . The facts
concerning your job and working relationships as they
now exist, contrasted to the very real disadvantages a
union can bring.
Let us consider some of these facts right at the
outset.
Consider the fact that the usual technique of paid
union organizers and their adherents is to make big
claims regarding pay, benefits and supposed job
security. During an election campaign, such claims are
very easy to make, but delivering on them after the
campaign is another matter.
Consider the fact that if a union represents you, they
still cannot guarantee anything. The union and our
store would be required to bargain in good faith, but
there is no requirement that the store agree to anything
which is not sound business management.
And also consider the fact that if the store in good
faith does not accede to the union's requests, the union
can only agree, reduce their demands or call you out on
strike.
I would also like you to consider that a union brings
with it a new set of bosses from outside out store,
whose primary interest is that of the entire union, not
that of you as a human being. Think about it-Do you
want people who are employees of the union to have
authority over you and your working life?
With union and union contracts you may be subject
to strike call and picket or demonstration duty, even
though you personally may not favor the purpose of the
strike or of the demonstration. You may be required to
do picketing or organizing work at companies where
you have no interest at all. How would you like that?
You must seriously consider why this group of paid
outside organizers has again chosen you as a target for
their organizing tactics. First, let's look at a little
history. This same union has been trying to organize
our store for more than 6 years. In November of 1967
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the Sales Associates of our store, and most of those
Associates are still here today, dramatically rejected
this union by an overwhelming majority. The results of
that election were 428 for the Company and only 119
for the Union.
Despite this resounding defeat, the paid union
organizers are back again haranguing all of us with
their endliss propaganda leaflets . Ask yourself why
they are here again, and why they have such great
interest in you?
The union organizers are primarily interested in
what you can do for them. A union has one primary
source of income-dues money. Your money for
special assessments , your money for union fines, your
money for union dues. That is what you can do for
them and that is what they want from you. The more
members a union has, the more dues it can collect, and
your dues are what it needs to pay its officers and
organizers, to pay for the rent on its offices, and to pay
the salaries of its own employees who do not even work
side by side with you.
This union is desperate for more dues money. Early
in 1969, the union lost 1,300 dues paying members
which represents lost income of about $75,000 a year
when the Stern's 42nd Street store was closed perma-
nently due to its unprofitability.
Over the past 10 years this union has been unable to
convince any overall group of department store Sales
Associates that it would be in their best interest to vote
for union representation. This union lost elections at
Stern Brothers, Paramus, in 1960 and again in 1965.
And just one month ago this union was once again
rejected by the Associates at Stern Brothers, Paramus,
in two separate elections. Both the Sales and Sales
Supporting Associates voted NO to the proposition of
union representation. You can see this union has an
unenviable record of lost elections and store closings
and now I trust you can better understand how
desperately they need dues money to keep them going.
A union thinks in terms of groups, not individuals,
because, and make no mistake about this, a union is big
business and must make a profit from you to continue
to exist.
I know there are some among you who feel that the
union will help you, and that you are sincere in'that
opinion. Yet, many of those who are speaking for the
union are people who have personal ambitions because
they want to be the shop stewards and represent the
union on the job. In this way, they become bosses
between you and your Supervisor.
Do you realize that under a union shop steward
system you would have to present your questions and
problems normally raised with your Supervisors to the
shop stewards first. They would be free to decide in
their own judgment if your problem or question should
be taken up with Management. Do you really want
another party to decide if your problems, whether job
related or of a highly personal nature, are worthy to be
presented to your Management? Just think if this were
the case, you in the Jamaica sales group would be alone
in this respect. Your Associates in Sales Supporting and
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Associates in all the other stores would have the
open door to Managment.
But to the union you are just another source of
monthly dues for their treasury . We strive to see that
each one of your Supervisors prides himself or herself
on the relationship they enjoy with each of you. With a
union on the scene your Supervisors will be restricted
from talking to you personally about the terms and
conditions of your employment . With a union , you will
lose your identity as a human being.
You all know that the economy has not been going
so well lately . The newspapers have been full of stories
of layoffs and unemployment statistics . You know that
Long Island has been especially hard hit by the
increased unemployment . In times such as these, the
retail business suffers greatly. But you really know that
because you have seen it in our business , day in and
day out for many months.
Our business has suffered . 1970 was the first time in
many years Gertz Long Island that the Company lost
money . We lost about Three Quarters of a Million
Dollars. Unfortunately , I must report that for the first
Quarter ending in April we are behind in sales in
Jamaica alone over $522,000 . Yet, in spite of what I just
told you , we have continued to grant substantial merit
increases and have improved your benefits . As I said in
my March letter to you , we felt we must face up to our
responsibility to all of you, and I believe we have.
Notwithstanding what the union would have you
believe , we have made many improvements since 1967.
You know I have personally written to all Gertz
Associates on three separate occasions announcing
benefit improvements.
Your merit increases over the past three years have
far exceeded any previously given by the store. This
year the amount of money granted in salary increases
to non-Supervisory Associates amounted to about
Three Quarters of a Million Dollars.
The union has been talking out of both sides of its
mouth . First, they would have you believe that we have
made no improvements in wages and benefits. When
confronted with the facts they turn around and try to
take credit for our past good relationship and improve-
ments we have made in wages and benefits over the
years . They infer that you are only getting attention
now because of them but you know you have always
been important to me and the Management of this
store . I know you will not be misled by such union
propaganda.
With expenses increasing as I have pointed out, we
need everyone of us pulling together as a team to serve
our customers and to fight for sales.
To bring a union in at a time like this can only be
disruptive for you , for our business, for all of us. A
union cannot bring customers into our store to buy. In
fact , with their disruptive tactics they can hurt our
business.
An example of such disruption is that the union
trying to divide up the store for their own purposes by
having an election for Sales Associates only. Why not
let all Jamaica Associates vote in the election. Just
think , how difficult it could be to operate the store with
only part of it unionized . We certainly ought to be all
one team working together to serve our customers.
Another example of disruption is the reports we have
received from Associates complaining about threats
made by union adherents . People have actually been
threatened with loss of their jobs if they don't sign
union cards now. This happened just last week. An
Associate is told-if you don't sign up with us now and
we win the election , we'll see that you lose your job.
This is immoral , it is unethical and it is illegal and as
President of this store , I personally assure you I would
never allow this to happen.
I am very disappointed to hear about some of the
people who are making threats.
This union claims that it will bung you job security.
They cannot ! You know that job security comes from
our customers purchases and from nothing else. Union
contracts , in fact, always contain clauses providing for
layoffs . No matter how many claims they make, no
union can guarantee you job security . Where was this
union's job security for the 1,300 dues paying employ-
ees at Stern's 42nd Street?
During the coming weeks , I will present many more
facts to you. I will be available as always for any of you
to talk with me, ask me questions , and discuss your
feelings.
I ask each of you to consider all the facts very
carefully-the facts of your job , of your job security, of
your wages , of your discount , of your vacations, of
your total benefits package, of the pleasant work
atmosphere and the working relationships you have
with your Supervisors who understand and are sympa-
thetic to your problems . You know it has always been
my policy for me to be available to talk with you and
listen to you. You know , too, that I give you answers,
that I make decisions with you , that I change things
which need changing, and that I am concerned about
you as a human being . With a union , that personal
relationship ends, it becomes mechanical and only the
union leadership, whom most of you have never met,
speaks for you.
I am sincere when I say that you must make your
decision based on what is best for you, your family and
our store. Best for you not yesterday , not today, not
just tomorrow , but best for you for as long as you are a
part of Gertz-Jamaica.
How you vote is entirely your personal choice. I do
urge every eligible Associate to vote as the outcome of
the election will be determined by the majority of those
who actually vote and not the majority of those eligible
to vote . So please vote.
I am completely convinced and feel very deeply that
after you have considered all the facts of your job as
compared to the problems the union can bring, you will
vote "NO"-that you do not want or need a union in
our store.
Thank you for your attention and have a pleasant
day.
GERTZ
May 24 and 25 Talk
This is my final opportunity to talk to you prior to
the election this Thursday. I know you all recognize the
importance of this election-the importance to your-
selves, to your family and to our store.
I have been working with you for almost 7 years and
I must say they have been the most interesting,
challenging and rewarding years of my entire career.
It has been a great experience working with you to
serve our customers better, to overcome problems, to
create a spirit of teamwork and mutual respect. This
has been deeply satisfying to me. Together, I feel we
have developed a unity of purpose, a oneness. I hope
you feel as I do.
This brings me to the issue facing all of us in this
election. As we have discussed, this union has been
trying to organize our store for some 6 years now. So
far, they have been unsuccessful and on Thursday, you
will again be faced with a decision, to vote for your
beliefs.
Please weigh carefully and decide whether this union
is trying in this store of ours, to create an air of
disunity, dissatisfaction, an atmosphere of divisiveness.
Gertz is a great store, well-respected in our commu-
nity, and has grown because of the combined efforts of
each person who has been a part of it from the days of
the Gertz family. Thursday you will be asked to decide
whether we will continue to work in close harmony
with one another in order to carry on the great job that
has been achieved here for many years or whether we
will now relinquish our independence to outsiders who
lack the proper concern for our ultimate welfare.
As I have walked about the store, some of you have
asked me some questions regarding this union. I have
been asked for example, how am I so well-acquainted
with the workings of the union. My answer to that
question is that just as in tackling any problem, I felt
obliged to be well-informed before expressing opinions
about this union. So, among other steps, I have studied
the terms of the constitution of this union. Here is a
copy.
Let me read to you several sections of this union's
constitution so that you may better understand how it
operates.
In 1967, when this union was overwhelmingly
rejected in an election in this store, their constitution
and by-laws contained the following language:
Every member is obliged to attend membership
meetings . . . Members absent from a meeting
shall be required to pay a fine of $1.00 for every
such absence.
Article C, Section 1.A of the present constitution
provides:
Every member is obliged to attend membership
meetings. Members attending such meetings shall
be credited with $1.00 towards monthly dues. [I
understand their dues went up in the interim.]
Whether they call it a fine or a credit-the effect is
still the same. You must attend union meetings or else
it costs you money.
To illustrate just how this union is interested in
721
collecting dues money from you, let me quote several
other sections of their constitution: Parenthetically
(Remember in a recent letter from the union you were
told that you had been hearing a lot of nonsense about
dues. Well here is where it came from-the Union's
Constitution.)
Article C, Section 2.B:
1. A member who is in arrears on Inspection
Day for more than one month shall not be
regarded as in good standing (apparently, that is
the day a dues book is inspected by the shop
steward). He or she shall be notified by mail and
within two weeks shall pay all dues owed and
$1.00 arrears fee.
2. A member who has lost good standing and
who, after written notice by registered mail to his
or her last known address, remains delinquent for
more than five(5) days after receipt of registered
mail shall stand automatically suspended and, if
employed in a Union or agency shop, shall be
obliged to leave thejob.
3. A member who has been suspended may be
re-instated after payment of all of his financial
obligations and a re-instatement fee of twenty
($20.00) dollars.
As a real life example of how this union has enforced
the collection of dues money without regard to the
individual, consider the case of a Stem's 42nd Street
employee. The following letter was written by this
union to the Management of Stern's 42nd Street:
Quote: "The contract between Stern's and Dis-
trict 65 provides that employees must be members
of the union in good standing. To date, Miss
Carter in the Addressograph Department has
failed tojoin the union and has stated she will not
belong to the union. Also, Barbara Rivera in the
office division has failed to put herself in good
standing. "Therefore, the union is requesting that
both be removed from the payroll." Unquote.
As a result of this union letter, Stern's was forced to
fire Miss Carter. No further comment is necessary.
Another section of this union's present constitution
reads:
Article C, Section 3.B
Every member is obliged to comply with strike
and strike support decisions of the Membership
and all terms of Union contracts.
Whether or not you personally voted against the
strike at your store, you could be forced to follow the
union leader's strike orders.
I have been asked how the election is conducted.
Agents from the Labor Board will supervise the
voting. At the polling booths, they will have a table and
paper ballots. You will be handed a blank ballot and
told to step into a closed voting booth. In the privacy of
this booth you will mark your ballot and fold it.
The ballot will ask, "Do you want to be represented
by the United Storeworkers Union?" If you put an "X"
in the box marked "NO", it means you do not want the
union.
Upon leaving the booth, you will place the ballot
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into a sealed ballot box. No one will ever know how
you voted.
Assisting the Labor Board Agents will be associates
designated as Company observers and associates
designated as Union observers.
Now let me re-emphasize:
This is a secret ballot election-NO ONE will ever
know HOW YOU VOTED. The majonty of those who
do vote will determine the outcome for all associates
eligible to vote. It is very important that you vote.
I emphasized this when I spoke to you last but it is
necessary to repeat it again. Don't let someone else
decide for you. Please make it your business to vote.
In this regard some of you have asked, "If I signed a
union card in the past, must' I vote for the union?"
Absolutely not! Signing of a union card is merely an
indication of temporary intent and can be cancelled at
any time. The signing of union cards does not bind
anyone to vote for the union in this election. You must
decide what is best for you-and use that secret ballot
to vote that way in the voting booth.
Another question asked: "If the umon wins the
election, must I join the union?"
We have never attempted to suggest to anybody at
Gertz that they would have to be a member of any
club, group, church or association in order to work
here. However, we are told that this question of
whether we would have to have a umon shop is one
that we would have to negotiate IF the umon should
win the election.
We assume that this umon would want to force you
to join in order that they right have your dues and
complete control of your working affairs. Even the
President of this union said in one of his letters to you:
"Of course, you will pay dues if the union wins."
Another question which has been asked of me is: "If
the umon loses the election, will the store fire all those
employees who have signed union cards?"
You know the answer. It is NO-of course not. We
had a union election in our store before. For example,
after the election of 1967, not one Gertz associate was
fired or penalized because of umon activity. Some are
still working in our store. The information about who
signed union cards is known only to the National
Labor Relations Board and to the umon. That is
confidential information and we have no knowledge of
it-nor are we interested.
It is not important who signed union cards because
we have always believed that if the majonty of the
associates have the facts, they will vote against the
union . Our past history affirms this.
This is the last time I will speak to you as a group. I
wish to express to you my appreciation for your
attentiveness and for your patience in listening to me. I
really enjoy being with you and rather feel that we
ought to get together like this more often but not on
this subject.
I'm sure you share my feelings of "Thank goodness
that Thursday is the election, and we can all get back to
business very soon."
In conclusion, I have three requests:
1. Consider carefully all that you have heard
and read.
2. Be sure that you do vote.
3. I ask you-to vote NO.
Thank you for your attention, and once the election
is behind us, have an enjoyable holiday weekend.
At the hearing Dowd explained that he interpolated four
times in the course of his first speech. He detailed them as
follows:
(1) At one point he had occasion to say "We strive to see
that each one of your Supervisors prides himself or herself
on the relationship they enjoy with each of you." He added
to this sentence the phrase: "We don't always bat 1,000."
(2) The written talk says employees had been threatened
with loss of their jobs, had been told by solicitors ". . . if
you don' t sign up with us now and we win the election,
we'll see that you lose your job." The speech went on to say
Dowd thought such conduct was unethical and illegal.
Dowd testified that one day, as he was going to the
meeting room in the store , an employee told him she had
been so threatened . He then told the employees waiting to
hear his talk and to the later groups, that an employee
-whom he did not name-had that very day complained
to him on the subject.
(3) At another point, the prepared speech says that
Dowd had always been available personally to hear
employee requests, and would remain so. He added, off the
prepared text, that he did what he did in such cases "if it is
within my power."
(4) Lastly, he added as an introductory comment to his
last talk , in the evening , because now he was talking to
part-time employees also: "You are a very important part
of the store."
As to the second speech, given on May 24 and 25, Dowd
had heard before starting that the Union had filed, or was
about to file, charges against the Respondent , and that
therefore the election scheduled for May 27 might not be
held. He therefore prefixed that speech with the comment
that although the election might be put off, he was going to
give the speech anyway.
With these sole changes, Dowd testified unequivocally
that he spoke to the employees the words as they appear on
the two exhibits, with no other variations. He was
convincingly corroborated by Kevin Tubridy, the vice
president for personnel , who was present at every one of
the many employee meetings. I credit Dowd. Four
employees were called by the General Counsel in support
of the complaint, and each of them conceded Dowd was
reading from a prepared text. Two of them-Francis
Tompkins and Ruth Barnes-put other words in the
president's mouth. Tompkins quoted Dowd as saying,
. . how the store cannot afford to have a umon come in
with the possibility of the store closing if the union did
come in," and that if "the union get [sic] in , that we'll be
starting from scratch...." According to Barnes, Dowd
said that the store would "disintegrate," and that the
Union would "force" the employees to strike. Barnes
admitted she was recalling the "gist" of the remarks, that
she did not really remember the "words" that were spoken,
that Dowd spoke as she remembered or "some words to
that effect ." Apart from an understandable interest these
GERTZ
witnesses must have , in the case , it is to be expected that
they would paraphrase what they heard. Against the
documents received in evidence, and their admission that
the president was reading whatever he uttered, I must
deem their recollection unreliable against Dbwd's direct
testimony.
I find unconvincing the General Counsel's contention
that apart from any other consideration, the text of Dowd's
written statements was per se coercive and violative of
Section 8(a)(1). The brief points to one, and only one,
thought expressed by Dowd and characterizes it as a threat
to deprive the employees of their statutory rights in
retaliation if they decided to be represented by the Union
in collective bargaining. Dowd explained how, when there
is a union in the picture, "problems normally raised with
your Supervisors" must be presented to the employer
through the union steward, and not by individual employ-
ees discussing their grievances directly with management.
He called this a concession by the workers of authority
over their "working life" to union agents. Dowd also
reminded the employees of his past practice of talking with
any one of them who brought his problems to him
personally, and then added "that personal relationship
ends" when replaced by collective bargaining under the
law.
The theory of illegality here urged is that because the
provisos to Section 9(a) of the Act say that employees have
a right to bring grievances to the employer so long as any
adjustments made are consistent with an existing union
contract , and so long as umon agents are permitted to be
present, Dowd was that day threatening to deprive his
employees of parties, viewed in the aggregate, do not
establish the principle as a rule of law in every case. Each
of the three cases cited by the General that statutory right.
The decisional precedents cited by the opposing Counsel in
support are divided decisions by Board panels, always with
a dissent on the point in question. Saticoy Meat Packing,
182 NLRB 713; Winn-Dixie Stores, 166 NLRB 227; and
Graber Manufacturing, 158 NLRB 244. And in each of
these cases, the statement about direct dealing with the
employer appeared in a context of other, more pervasive
unfair labor practices, outright discharges, interrogations,
threats of discharges, etc. And Henry I. Siegel, 172 NLRB
825, in which a three-member panel agreed, dealt with an
employer respondent whose history of unfair labor
practices was such as to reduce virtually every word he
uttered to an implied threat.
In contrast to the above, the Board found the following
statement a protected expression of opinion: ". . . if the
Union came in, the employees would have to go to a umon
man . . . for adjustment of their problems." Skirvin Hotel,
142 NLRB 761. There the Board characterized the
statement as "no more than a lawful prediction that if the
Union were selected as the representative of the employees,
the employees would have to work through their union
representative in resolving their grievances." Accord:
Worzalla Publishing Co., 171 NLRB 219, where the
statement was that "employees would no longer be able to
discuss gripes and troubles directly with management if the
union got into the plant," although the employer had in the
past "done everything possible to find jobs for employees
723
in other departments when work was slow , and had given
valuable advice and assistance to employees ." The Board
found nothing wrong with that statement . And finally,
there is Bostich Division of Textron, 176 NLRB 377, on
which the Respondent here relies in its brief . The statement
said to be illegal there read as follows:
Up until now, you had the right to speak for yourself
and settle with us personally any problems you have
had. But if this Union were to get in here , this freedom
and this right would be taken away from you and
placed in the hands of the Union. And, who would be
the stewards and committee people who would handle
your affairs? Look around you and see who is active in
pushing the Union. Are they individuals whom you
consider capable of handling your problems , and into
whose hands you would be willing to entrust your
business and your affairs.
The Board said these words did no more than state "a fact
of industrial life." The written talks read by Dowd were
obviously prepared by the Respondent's counsel, and on
this point they remarkably parallel the speech appraised in
Bostich . But if an employer may not look to a Board
decision itself for guidance as to what it may or may not
say to its employees , where can it look?
That the very purpose of union life is to replace
individual dealings between employees and management
with group collective negotiations through employee
spokesmen and the Company has been said too often to
require citation of authority now. Significantly, the Union,
which filed the charge , elected not to file a brief and argue
that the employees must be reassured of their right to
bypass an exclusive bargaining agent. There is no question
in my mind that Dowd was not threatening anyone, but
only reminding the employees of the substantive meaning
of collective bargaining, and this is how the employees
understood him.
Beyond this , Dowd made clear he thought collective
bargaining is not a desirable procedure and certainly urged
the employees to vote against the Union ; he has a right to
express these views . He read part of the Union 's constitu-
tion to them , on the subject of dues payments and
membership obligations in the event of strikes, at this or
any other location . There is no contention he misread the
document . Discourse on why the many pages and many
phrases appearing in the two speeches were not coercive
could be unending , but would serve no useful purpose
here. It is only when words spoken by management agents
to employees do illegally interfere with their protected
rights that analytical comment is justified, and indeed
required , for there is no presumption that when the boss
talks he of necessity coerces . I shall therefore recommend
dismissal of the complaint with respect to the speeches
given by Dowd.
C. Further Allegations
Two of the employee witnesses also testified about
conversations with certain supervisors ; they related three
incidents . One of these , of which Constance Velez spoke,
occurred before the store opened on the morning of May 3,
while six or seven employees were talking with Leslie
Nagel, the assistant buyer of a section in the basement. The
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
point Velez tried to make at the hearing is that Nagel told
them the store would close if the Union prevailed. Nagel
denied having said this and I credit his denial. The other
two incidents were related by the witness Tompkins and
involve two other low supervisors-Robert Keyes, also an
assistant buyer, and Margaret Szalay , an area manager also
in the basement. Keyes and Szalay, too, contradicted the
Government witnesses , and the question of credibility in
those two incidents is a closer issue . But, even assuming
Tompkins is to be believed, the so-called antiunion or
coercive statements attributed to such low supervisors must
be viewed, in the total context of this case, as too isolated
and minor in nature to warrant any unfair labor practice
finding or to justify issuance of any remedial order.
It is a general practice , almost every morning, for sales
employees to gather in small groups a few minutes before
the public arrives to discuss special situations of the day
with their immediate local supervisors. Velez testified that
at one such gathering Nagel said "he was told to talk to us
about the union, and he says that there was a rumor there
was a union trying to get in Gertz. If the union-if we got a
union in Gertz, the same thing happens in Gertz that
happens in Stem 's Department Store , they probably will
have to close the doors, they will not be able to meeting the
union demands, and we'll be out of a job."
It seems this Umon had been the collective-bargaining
agent for about 1,300 employees at a New York City
department store called Stem's, which had discontinued
business sometime before these events. The Union was also
at the time actively representing employees of other New
York City stores-including Gimbels and Macy's, and
another Stern Company store at Paramus, New Jersey.
There was talk about these other stores that morning, for
Nagel also recalled the fact. His version, however, is that it
was Velez who first mentioned the Umon, and that when.
the employee said the Union was established at certain
stores, he responded with the comment it had also recently
lost an election at Paramus. He denied having expressed
any opinion as to why the Stem store had been closed.
Between the two witnesses, I deem Nagel to be the more
reliable. Moreover, he had only recently been lectured by
higher management officials to keep his mouth shut during
the organizational campaign.
Tompkins testified about certain other conversations
that same week of May 4, with Keyes at one of the usual
morning gatherings in the department, and with Szalay one
evening when the two were alone. His first version of the
Keyes talk was that the assistant buyer "said that he told
the people upstairs that everything is satisfactory, and they
would have no problems." Asked had the word "union"
been spoken, he answered "I don't recall." Asked again to
repeat what he had heard, it came out this way: ". . . that
he [Keyes] had a meeting upstairs with the people, and
they said everybody was satisfied the way things were
down here, and that he said that I probably don't know
about all the store's benefits because I was new
there.... " The witness was then shown his earlier
affidavit, and now stated the buyer's words as follows:
"Mr. Keyes said he was upstairs and he told everybody
that everybody was satisfied with the way things are, and
that no one is supporting the Union, to his knowledge."
Keyes, called in defense, simply denied having made any
of these statements at all; he added he had no knowledge
of which employees favored the Union.
As to Szalay, Tompkins testified that one evening as she
entered the department she said to him: "I heard from
upstairs you happen to be a strong supporter for the
union." He implied "upstairs" meant the offices of the
Company, and then admitted it was an assumption on his
part that Szalay had been to a meeting of some kind, based
merely on the fact she had been absent for a while and
someone was substituting for Szalay in the basement at the
time . Szalay, like Keyes , simply denied having made the
statement Tompkins attributed to her.
The matter is of little moment. That there was talk about
the union campaign among the employees, and even by the
lower supervisors, is a very likely probability. After all,
Dowd's speeches were intended to provoke thought and,
presumably , even discussion among the people in the store.
That somebody would discuss benefits, past and prospec-
tive, was to be expected. Were it necessary to resolve
-precisely the credibility issue between Tompkins and the
two supervisors I would be inclined not to believe
Tompkins in this case. He had to be prodded to get the
word "union" out of his mouth. His memory is faulty at
best and he attributed phrases to Dowd which the man
never uttered. Tompkins' attempt to give credence to his
testimony by saying he took notes while the president was
speaking, only weakens his story, for he then admitted,
without logical explanation, that he threw the notes away
that very night.
The store is 7 stories high and about 1,500 people work
here. The Union was trying to organize 607 of them. It
would indeed be straining at a gnat to find that by these
minuscule passing remarks, even if they were made, by two
of the lowest supervisors in the place, the Respondent
violated the National Labor Relations Act. This is the
classic case that the Board has often referred to as isolated
incidents not warranting further action.
Accordingly, I shall recommend dismissal of the entire
complaint.
RECOMMENDED ORDER
On the basis of the record in its entirety, I hereby
recommend that the complaint be, and it hereby is,
dismissed.