J. J. Newberry Co.

National Labor Relations Board - Board Decisions

Mar 15, 1973

202 N.L.R.B. 420 (N.L.R.B. 1973)

420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. J. Newberry Company and Retail Clerks Union
Local No. 991 , chartered by Retail Clerks Interna-
tional Association , AFL-CIO. Cases 19-CA-5546
and 19-RC-5986
March 15, 1973
DECISION AND ORDER
On July 19, 1972, Administrative Law Judge' E.
Don Wilson issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief. The Respondent
filed a brief in support of the Decision and also
cross-exceptions and a brief in support of the cross-
exceptions.
The Board has considered the record and the
attached 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.2
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 Administrative Law Judge and
hereby orders that Respondent, J. J. Newberry
Company, Missoula, Montana, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
IT IS FURTHER ORDERED that the allegation in the
complaint as to which no violation has been found is
hereby dismissed.
IT IS ALSO FURTHER ORDERED that the election held
on November 18, 1971, Case 19-RC-5986 be, and it
hereby is, set aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
MEMBERS FANNING AND JENKINS, dissenting in part:
We agree with the Administrative Law Judge that
the Respondent violated Section 8(a)(1) of the Act
when (1) Store Manager Orlin Olson told employee
Sherwood on October 1 that he had a tape recording
of a union meeting; (2) Olson told Sherwood on
October 20 that he had heard Sherwood's voice on a
tape recording of a union meeting; (3) Olson told
employee Solum on October 20 that he knew that a
union meeting had occurred the night before; (4)
Respondent Attorney Sykes asked employee Hershey
to leave the November 16 employee meeting; (5)
1 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 In adopting the Administrative Law Judge's recommendation that we
not issue a bargaining order , we do not rely on his conclusion regarding
alleged supervisory taint
Rather , we find that the Board 's conventional remedies are sufficient to
threatening that a certain employee who had re-
ceived money from the Union would not be allowed
to attend employee meetings; and (6) Olson interro-
gated Christensen as to her feelings about the Union
on November 28. However, we would find merit in
the General Counsel's exceptions to the Administra-
tive Law Judge's conclusions that Olson's November
17 campaign speech was not a threat that Respon-
dent's store would be closed or moved if the Union
won the November 18 election, that Respondent did
not convey the impression of surveillance by saying
that Hershey said many slanderous things about him
at the union meeting, and that the Union's majority
status was tainted by Supervisor Helen Angle's
prounion activities; and to his refusal in view of the
Union's majority status to recommend the issuance
of a bargaining order based on Respondent's serious
unfair labor practices, including Olson's November
17 threat to move the store or close it down.
1. On November 17, the day before the election,
Respondent closed its doors to customers, and Store
Manager Olson read his campaign speech to 28 or 29
unit employees. Olson stated in his speech that his
comments would relate to the Thursday election and
said that election could have an adverse effect on
everyone. Olson stated:
... No union has or ever will tell Newberry's
how or where it is going to operate its business. In
fact as we told you yesterday the largest unit we
had was located in New York City which was
organized by the Teamsters-was closed for
economic reasons and moved to Harrisburg,
Pennsylvania-the union struck to stop us about
this time last year-the strike frizzled and the
facility was moved. Now let's talk about several
of our stores-Cheyenne, Wyoming, wife's home
town, A was organized and it was closed for
economic reasons, the Springfield store election
case has been in litigation for 16 months and will
probably be in litigation for a couple of more
years. Now let's talk about one of the Washington
stores which the union has referred to-Belle-
vue! !-the Bellevue store is being closed for
economic reasons only! because we have lost a
great deal of money there. The union talks about
job security and this and that-well only a
successful store which is partly the result of
everyone working together can provide job
security. The union certainly didn't provide job
security at Bellevue-economics dictate and
neutralize the effects of the only unfair labor practices found herein;
namely, creating the impression of and engaging in surveillance , interrogat-
ing one employee, and discrimuiatonly refusing to permit one employee to
attend employees ' meetings. Hence, a bargaining order is unwarranted
under the tests enunciated in N LR B v Gissel Packing Co, Inc, 395 U.S.
575
202 NLRB No. 53
J. J. NEWBERRY COMPANY 421
required that the store be closed-the same thing
has happened in nonunion stores.
The Administrative Law Judge noted that Olson
made many references in his speech to the closing or
moving of other stores of Respondent which had
been organized by a union, pointing out that such
closings or moving were for economic reasons and
that Olson pointed out that the same thing had
happened in nonunion stores. He found that Olson
made it clear to the employees that some of the
chain's stores were closed for economic reasons
whether union or nonunion. He recognized that these
statements were made as part of an antiunion speech,
but the employees were plainly told that the stores,
union or nonunion, were closed for "economic
reasons," and found no violation of Section 8(a)(1) in
this part of Olson's speech. We disagree.
While it is well settled that an employer is free to
communicate to its employees any of its general
views about unionism or any of its specific views
about a particular union, N.L.R.B. v. Gissel Packing
Co., Inc., 395 U.S. 575, 618, it is equally well
established that its communications must not contain
a threat of coercion or reprisal, express or implied.
Gissel, supra at 618. If the employer expresses his
views on the effect that unionization may have in the
future economic health of the company, his projec-
tions must be very carefully phrased on the basis of
objective fact. Textile Workers v. Darlington Mfg.
Co., 380 U.S. 263, 274, fn. 20. If there is any
implication that the employer may or may not take
action solely on his own initiative for reasons
unrelated to economic necessity and known only to
him, the statement is no longer a reasonable
prediction based on available facts but is a threat of
retaliation based on misrepresentation and coercion
and, as such, is without the protection of the First
Amendment, Gissel, supra at 618. Any balancing of
the rights of the employees under Section 7, as
protected by Section 8(a)(1) and the proviso in
Section 8(c), must take into account the economic
dependence of the employees on the employers and
the necessary tendency of the former, because of that
relationship, to be alerted to intended implications of
the latter that might be more promptly dismissed by
one who was entirely disinterested. Beyond question,
employees are particularly sensitive to rumors of
plant closing and view such rumors as coercive
threats rather than honest forecasts.
We note that Olson prefaced this section of his
speech with the statement "No union has or ever will
tell Newberry's how or where it is going to operate its
business." The only "economic" consideration cited
by Olson to the employees as a reason for the closing
or moving of the several installations of Respondent
referred to was in each case the advent of the Union.
We think this section of Olson's speech made it clear
to the employees that the success of the Union in the
election to be held the next day could, without more,
cause Respondent to close its store or to move it to a
new location. We would find that the Respondent
thereby violated Section 8(a)(1) of the Act.
2. We would find that the Administrative Law
Judge also erred in concluding that Olson did not
violate Section 8(a)(1) of the Act when admittedly he
told employee Hershey in early November that he
had heard that Hershey had said many slanderous
things about him at the union meeting. We think
Olson's statement could only lead Hershey to believe
that Olson was making an effort through his sources
to inquire into what was happening at union
meetings. Olson had no legitimate interest in internal
union affairs, especially union meetings during the
organizational campaign. We do not agree that
Olson did not create the impression of surveillance
by his remark because Hershey denied slandering
Olson and knew that Olson's accusation was false. If
Olson's remark to Hershey caused, or tended to
cause, Hershey to believe that Olson was spying on
union meetings, but receiving false information,
Olson would nonetheless have violated Section
8(a)(1). We would find the effect of Olson's remark
was to create the impression of surveillance of the
union meetings and, whether or not he actually spied
on union meetings, he violated Section 8(a)(1) of the
Act.
3. The Administrative Law Judge found that the
Respondent did not violate Section 8(a)(5) of the Act
and that a bargaining order was not warranted. We
do not agree that Supervisor Helen Angle's minimal
prounion activities tainted the Union's otherwise
valid and uncoerced majority status. Angle did
engage in prounion activities in August and Septem-
ber, but these activities appear minimal. She attend-
ed only one union meeting where she spoke favora-
bly about the Union and she delivered a union
contract to employee Mary Lou Swann at Swann's
request, placing the contract in Swann's mailbox at
her home.
Angle ceased her prounion activities in September,
when Store Manager Olson directed her to remain
neutral. Thereafter, except for writing a list of
questions to be asked at a union meeting which she
did not attend, Angle maintained her neutrality until
the November 18 election. Throughout this period
and until the Regional Director's Decision and
Direction of Election on October 18, the Union was
contending that Angle was not a supervisor and the
success of that contention was in doubt. Angle told
other employees that Olson had directed her to stay
out of the union campaign because she was part of
management. Thereafter, when employees asked her
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
how they should vote, she told them that she was
neutral and how they should vote was up to them.
On these facts, we cannot find that Angle's activities
tainted the Union's majority status. The employees
could not conclude that Angle spoke for the
Respondent. She did not solicit authorization cards
from other employees and there is no evidence that
Angle's supervisory powers otherwise influenced any
employee to sign a card.3 Therefore, contrary to the
Administrative Law Judge, and the majority, we
would find that the Union represented an uncoerced
majority of the employees when it requested recogni-
tion and bargaining.
After the advent of the Union and particularly
after it had attained majority status and requested
bargaining, the Respondent committed serious unfair
labor practices, including Store Manager Olson's
threat to the entire complement of employees in his
November 17 campaign speech that the Respondent
might shut down the store if the Union won the
election. In our opinion, the Respondent's unfair
labor practices were so extensive that they had the
tendency to undermine the Union's majority strength
and impede the election process. We find it unlikely
that the lingering effects of the Respondent's
unlawful conduct would be neutralized by resort to
conventional remedies which would insure a fair
rerun election. We believe that the employees'
sentiment, once expressed through the authorization
cards, would on balance, be better protected by the
issuance of a bargaining order.4 Accordingly, we
would find that the Respondent violated Section
8(a)(5) of the Act and would order it to bargain with
the Union.
3 See WKRG-TV, The, 190 NLRB No 34.
4 N L R B v Gissel Packing Company, Inc, supra, see also WKRG-TV,
Inc, supra
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
E. DON WILSON, Trial Examiner: The charge in this case
was filed by Retail Clerks Umon Local No. 991, chartered
by Retail Clerks International Association, AFL-CIO,
herein the Union, on November 24, 1971, and the Union
filed objections to election on November 24, 1971. Based
thereon, the General Counsel of the National Labor
Relations Board, herein the Board, issued an order
consolidating cases and a notice of consolidated hearing on
objections to election and complaint on February 24, 1972,
the complaint being issued the same date. The complaint I
alleged that by various acts and conduct, J. J. Newberry
Company, herein Respondent, violated Section 8(a)(1) and
(5) of the Act, and even if no violation of Section 8(a)(5)
were found, the complaint seeks an order that Respondent
bargain with the Union. Respondent timely answered all
allegations of the complaint, as amended.
Pursuant to due notice, a heanng was held before me in
Missoula, Montana, on March 28, 29, and 30. The parties
fully participated. General Counsel and Respondent filed
briefs on May 30, 1972, and they have been fully
considered.
Upon the entire record2 in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent is a Delaware corporation which operates a
retail store in Missoula, Montana, the only location here
involved, and elsewhere. During the past year it purchased
at least $50,000 worth of goods and services directly across
State lines, and its gross receipts exceeded $500,000. At all
times material, it has been an employer engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, the Umon has been a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges and the answer denies that
Respondent, through Store Manager Olson, through a
teacher named Luft, and through its attorney, Charles
Sykes, comnutted a variety of violations of Section 8(a)(1)
of the Act. The alleged violations included surveillance,
interrogation about union activities, threats of discharge or
that Olson would lose his job if the Union were voted in,
the giving of a speech by Olson immediately prior to the
election in which he allegedly made a variety of threats and
promises and a statement that an employee allegedly in the
employ of the Umon would not be allowed to participate
in store meetings of employees, and the "ejection" of an
employee from an employee meeting in the store, conduct-
ed by the store, by the store's attorney, Sykes. The
complaint, in paragraph 15, as is not unusual in complaints
from this Region, pleading law, alleges also that a
bargaining order is required under the so-called Gissel
doctrine. It is separately alleged that Respondent violated
Section 8(a)(5) of the Act in that it unlawfully refused to
bargain with the Umon.
B. Some Observations
Numerous violations of Section 8(a)(1) of the Act are set
forth in the complaint and it was amended in this regard at
the hearing, without objections. Numerous witnesses
testified in greater or lesser detail. Amost at the end of a
rather long hearing, I reminded counsel for General
Counsel that the complaint as amended had many
allegations, and that I did not intend to search the record
i Amended at the heanng
2 General Counsel's unopposed motion to correct the transcript is
granted I have marked it TX Exh I
J. J. NEWBERRY COMPANY
to find out whether other matters, not alleged in the
complaint as amended at the hearing, might be unfair
labor practices. He was advised as I am sure he well knew,
that it was up to him to move further to amend his
complaint, although I might find such motion came too
late in the hearing. General Counsel forthrightly observed
that he was thinking "really it is too late.' 13 Herein I am
confining myself to the issues raised by the pleadings as
amended.
C. Background
In August 1971,4 Union Representatives Viola Hill and
Lonny Mayer, in particular, began organization efforts at
Respondent's Missoula store and obtained a majority of
authorization cards from Respondent's employees by
August 27,5 at which time they asked the store manager,
Olson, an agent and supervisor of Respondent, to
recognize and bargain with the Union as the exclusive
representative of the store's employees. For various
reasons , Olson refused to do so. On August 30, the Union
renewed its demand in writing, and filed a petition for an
election in Case 19-RC-5986. After a hearing, the
Regional Director issued his Decision and Direction of
Election on October 18, in which, among other things, he
determined that Helen Angle was a supervisor within the
meaning of the Act. The election was held on November
18. Respondent and the Union each received 16 votes,
there being no challenges. Timely objections were filed by
the Union on November 24.
D. The Facts
423
of great interest to the employees, and the fact that there is
no probative evidence that discussing pro or con union
matters was forbidden, I infer as simply natural that
employees in the store, as occasion prompted or permitted,
discussed the merits or demerits of the Union's drive and
the upcoming election . There is some testimony to this
general effect . I think it most probable that the times and
dates of union meetings were common knowledge among
all employees, including those who were unfavorable to the
Union. With about 30 employees and at least 5 supervisors,
I cannot find Olson was kept in the dark about union
activities and did not have a good guess as to the
sympathies of most of the employees for or against the
Union. Thus, I find it most probable that he knew, in most,
if not all , instances when union meetings took place. On
the stand, Olson appeared to be an outgoing and friendly
type of person. There is not inconsiderable evidence that
he spoke to the employees in a friendly manner. Such leads
me to infer that at least some employees , not sympathetic
to the Union, volunteered to him information about union
activities. I would not consider such to be "stool pigeons."
I have no doubt that some union supporters did likewise,
even though they may not have disclosed anything they
might have considered confidential. It is in the light of this
entire picture that I must look at some of the acts of Olson,
alleged to be violative of Section 8(a)(1) of the Act. Union
activity was not surreptitious or deviously concealed. For
the most part the record discloses union meetings open ,to
any employee, the open wearing of union buttons by
perhaps one-half of the employees, and I must conclude
that there were some and perhaps many discussions in the
store about union activities in the past and to come by the
employees.
Many of the findings made herein depend upon
resolutions of credibility. It is not unusual for a finder of
facts to credit part of a witness' testimony and reject
another part as not deserving of credit. That such is
permissible and proper is too well-established to require
citation.
The most central figure involved in most of the alleged
violations of Section 8(a)(1) is Olson. It must be noted that
the store was comparatively small, with about 30 employ-
ees, some of them being regular part time. Many of the
union supporters wore union buttons on the outside of
their clothing during working hours before the election. At
least some of the union meetings were announced by the
sending of letters to all store employees and other meetings
were arranged by word of mouth. While there is testimony
that the Union was not a subject of discussion among the
employees at the store prior to the election, I find the
contrary to be true. I do not mean that it was constantly
discussed, but from the very nature of human beings as
social animals and from the fact that at least there appears
to have been a vigorous campaign to win the support of the
employees, and the fact, as previously noted, that this was
a small store, and the fact that having or not having a
union as exclusive representative must have been a matter
9 Tr., 665-666.
4 Hereinafter all dates are 1971, unless otherwise specified.
5 It is important to note that one of the earliest signers was Helen Angle,
an area manager , alleged in the complaint to have been an agent and
supervisor of Respondent "at all times material herein ." Her rather
1. Alleged unlawful interrogation of Mary Mace
by Olson
Olson affirmatively answered a question as to whether he
had ever asked employees if they attended union meetings.
General Counsel offered testimony of employee Mary
Mace that on September 3, in the store's freight room
where she worked, she volunteered to Olson that it was her
mother'se birthday and said, "That is nice, a union meeting
and my mother's birthday." Olson laughed and asked
which she planned to attend. Mace naturally replied, "The
birthday party."7 From time to time thereafter Olson
asked her if she had attended a union meeting. Usually she
had not made up her mind because, as noted above, she
spent most of her nights with her mother. When asked, her
mind was never really made up. The only date of an
inquiry by Olson which she could specifically remember
was September 3. Sometimes she initiated the conversa-
tions about attendance at union meetings. Usually she
would say to Olson, in substance, "Gosh, there is going to
be a union meeting tonight and I really don't know how
my mother is. I think I will go there and see how she is. I
don't know whether I will go to the union meeting if I am
widespread, though not too lengthy, prounion activities will be discussed
later herein , particularly in connection with the Union's majority.
6 Her mother had been ill for some time , and was in a resthome, Mace
spending most of her nights with her mother.
7 The whole family attended.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
staying with her all night." Sometimes, Olson would
initiate the conversation by saying in substance that there
was another union meeting scheduled that night and was
she going to the meeting or would she stay with her
mother. Most of the times it was she who volunteered and
initiated these conversations. She was worried about her
mother's condition and, as she testified, "You only have
one mom."
General Counsel contends that by testimony, abpve
substantially summarized, he proved that Olson violated
Section 8(a)(1) of the Act by asking Mace on September 3,
if she were going to attend the umon meeting that night. I
find he has failed to prove interference, restraint, or
coercion, in the circumstances existing at the store,
particularly with respect to Mace, by substantial evidence.
This was an innocuous inquiry prompted by Mace's
volunteered statement of her dilemma. I believe Olson
would have perhaps been rude 8 had he ignored or brushed
off her obviously friendly comment. If he had asked her
whether she intended to visit her mother on her birthday
and received a reply, he would have had the same
information. I have carefully reviewed General Counsel's
arguments in his well-composed brief but I remain
convinced that Olson did no more than make a polite
noncoercive inquiry of a lady who initiated conversation
with him. Note that Olson merely inquired as to how she
herself had resolved the problem she presented. I do not
find in this record that General Counsel has proved by a
preponderance of the probative and substantial evidence
that prior to the election union meetings were a matter of
secrecy from Respondent or that employees, in general,
were reluctant to discuss normal and routine union
activities. I find he has failed to prove Olson violated
Section 8(a)(1) of the Act in this instance.
2. The alleged unlawful threat to employee Don
Weber by Roger Luft, Weber's teacher, under a
program known as DECA
Don Weber was a part-time employee of Respondent
who was enrolled in the DECA program at the city high
school. Under the program, work was part of his study
program. Obviously, as an employee he was under the
supervision of the store's supervisors. As a student, Luft
was his teacher. As a teacher, it was part of Luft's job to
attempt to locate his students in jobs in the community.
Luft located him at Respondent. It could have been any of
a wide range of employers. Luft was not subject to the
direction or supervision of Respondent. His relationship
with Weber was that of teacher and pupil, having located a
job for Weber with Respondent and having regularly
followed his work progress, such being a factor in any
grade Weber would receive as a student.
Weber's demeanor did not make a favorable impression
on me. Although under subpena by General Counsel and
available, Luft was not called to testify by General
Counsels Weber testified that about September 9, Luft,
not an employee of Respondent, said he heard the Union
was trying to organize the store. Weber allegedly said he
guessed that was so and asked Luft what he should do.
Luft allegedly said it wouldn't be wise for Weber to get
involved with the Union because the DECA program
could be jeopardized and Weber could lose his job.
General Counsel makes much of the fact that Luft refers
students to employers for employment and discusses such
students with management, and Olson relies on Luft's
recommendation when he takes on a student for employ-
ment under the program. It is obvious that an employer
would be reluctant to hire a student Luft described as a
"dumb ox or possessed of criminal or violent tendencies,
and might be eager to employ and try out a student whom
Luft described as a "paragon of virtue, fidelity, zeal and
all-around ability." That Olson would give heed to the
representative of a high school, a teacher working under
the DECA program, or that Olson would rely on such
person's good recommendations in deciding to help a
student under such program is a far cry from proving that
Luft was either a supervisor or agent of Respondent. The
record abounds with testimony as to a meeting between
umon officials and school representatives.10 Testimony of
Hill and Mayer, officers of the Charging Party, may well
be compared with the testimony of Pearl Downing, an
officer of another umon, and J. Jeffrey Dietz, an official of
the city's high school district. I find Hill and Mayer tended
to gild the lily in behalf of General Counsel's case. I find
the record barren of probative and substantial evidence
that Luft, in any way, shape, or form was a supervisor or
agent of Respondent or that Respondent was under any
obligation to disavow anything Luft might have said to
anyone about anything. Luft and Respondent simply had
interests in the same person, one as an employer and the
other as a teacher. Olson wanted a good employee for
Respondent's interest. Luft wanted a good student whose
learning and education partly came from working for some
employer, and this for the high school's interest. Their
interests were not communal but coincidental. Luft's
recommendations to an employer differed not at all from
those of an employment agency or the Department of
Human Resources Development or a similar source of
referral. That Luft constantly checked on Weber's or any
other student's performance on the job, merely demon-
strates Luft's proper interest in his students, as a teacher,
and not as an agent of Respondent. It is only natural that
Luft would check with Respondent as to the availability of
employment for his students. I am sure he did so with
many employers. It was part of his job as a teacher. It is no
indication he was an agent of Respondent. So, too, it was
part of his job to cooperate with an employer in evaluating
and improving, if possible, a student's job performance. He
would not be much of a teacher under such program if he
failed to do so with any employer or student. That he
would relay to one of his students the employer's criticism
of the student's work is what I should expect the teacher to
do and it would be no indication to me that he became an
employer's agent. He would be acting as a teacher under
the program. Again, that a teacher involved in such a
program would rely to some extent on an employer's
appraisal of a student's job performance would be
8 Contrary to his nature as he appeared to me on the stand wished or deemed it necessary
9 Of course, Respondent could have called Luft as a witness if it had 10 Including Luft
J. J. NEWBERRY COMPANY 425
expected of any teacher involved in such a program. In no
way is it an indicium that the teacher is an agent of the
employer. I permitted much blatant hearsay testimony
from General Counsel's witnesses, having the mistaken
belief that it would all have some semblance of competen-
cy with the production of Luft himself, who was present
and about the hearing room to the knowledge of General
Counsel for many hours, presumably in response to
General Counsel's subpena. I find that General Counsel
has failed to establish by a preponderance of the probative
and substantial evidence that Luft was in any way an agent
of Respondent or that the latter had a responsibility to
disavow anything Luft may have said. Indeed, I find no
substantial evidence that Respondent knew what Luft
might have said to Weber.
Without respect to the above, I observe that Weber
testified regarding Luft's alleged threat, that Luft told him
that all he was saying to Weber was Luft's "own personal
opinion. "
It should be noted further that with respect to Luft's
alleged threat, Weber swore he was "pretty sure" that Luft
told him he had never talked to Olson about the subject
matter of the alleged threat. He added that he didn't
remember what Luft said about Olson.
I find General Counsel has failed to prove by a
preponderance of the probative and substantial evidence
that Respondent violated Section 8(a)(1) of the Act by
anything Luft may have said to Weber."
3. The alleged unlawful threat by Olson to
discharge Weber on about September 9, and
Mace's testimony allegedly in corroboration thereof
Weber testified that about September 9, in the store's
freight room, Mary Mace being some distance from him,
while a machine was in operation, Olson mentioned to him
that if the Union would get into Newberry's, the DECA
program could possibly be dropped and the students who
were working for Respondent could lose their jobs.12
Two other of Respondent's employees were in the
DECA program.13
Weber gave counsel for General Counsel a statement on
December 6. Counsel for General Counsel impressed me as
very able and zealous. If Weber had been so threatened
with possible loss of his job in the event of a union success
at the store, I have no doubt it would have deeply
impressed Weber. I cannot believe he would not have told
counsel for G%neral Counsel about it. The latter would
certainly have incorporated such threat in Weber's affidav-
it. The affidavit is a void in this respect. I genuinely suspect
and find, not on suspicion alone, but on the probative
evidence, in spite of Mace's so-called corroboration, later
discussed, that Weber's testimony as to Olson's alleged
threat of September 9 was nothing but a recent concoction
by him, made out of whole cloth. In short, I do not credit
11 Counsel for General Counsel conducted himself, as did Respondent's
counsel, in an able manner. I think it so unfortunate that so many witnesses
were called to give so many pages of testimony , much pure hearsay and self-
serving , as to some, when the available Luft was not called at least in an
effort to simplify the entire matter. General Counsel had an affidavit of Luft
which he courteously made available to counsel for Respondent . If Luft had
earlier testified , there at least would not have been so much concern about
the observance of Seder and Good Friday services . I have not the slightest
it. While its not in his affidavit he allegedly told the
Union's chief representatives about it before December 6.
If such were true I am sure they or he would have told
counsel for General Counsel about it by December 6. If
they had, or one of them had, counsel for General Counsel
would have seen to it that it was contained in Weber's
affidavit. We have the picture of Weber not telling counsel
for General Counsel about it on December 6, and yet
testify that a threat to have him fined would not be
forgotten by him. He testified the alleged threat of
discharge made an impression on him, as one would
expect, yet he did not tell counsel for General Counsel
about it when the latter was investigating Respondent's
alleged misdeeds.
Weber testified he told Mary Mace about the alleged
threat about 5 minutes after it was made. He testified the
first time a representative of the Board learned from him
about the threat was December 6. He immediately swore
he told counsel for General Counsel. Then, afier being
reminded of contradictory testimony, he swore that it was
not until the day before he testified that he told this story to
counsel for General Counsel. I pointed out to him that the
February 24 complaint herein, refers to such an incident as
he described. The witness then repeated that he told
counsel for General Counsel about the alleged threat the
day before he testified, when they went over his affidavit
which made no reference to the threat. He then testified he
may have told counsel for General Counsel about it earlier
than the day before he testified. He then testified he at one
time put into a statement, which he read afterwards and
signed, facts about the alleged conversation with Olson in
September. He testified it was in the December 6 affidavit.
It was stipulated such was not in the December 6 affidavit.
Weber admitted he was pretty well confused. Believing he
was more than that, I declared a short recess for him to get
a drink of water and relax. After the recess he repeated that
he gave a statement to someone about the alleged threat of
September 9. He couldn't remember to whom he gave it.
He thought it was probably "in January or February
maybe." He then thought he gave it to counsel for General
Counsel. He wasn't real sure if he told him the threat
occurred in September.14
When shown Respondent's Exhibit 1 for identification,
he, testified it was a statement he gave to counsel for
General Counsel on January 13, 1972. He testified he said
nothing in there about the alleged threat of September 9.
He swore he told "someone" that the incident supposedly
occurred in September. He was with counsel for General
Counsel in the latter's motel room for about 15 minutes on
January 13, 1972, and counsel gave us indication of being
in a hurry. He was not in a rush to get anywhere, nor,
apparently, was counsel for General Counsel. He then
testified that January 13, 1972, was probably the first time
he mentioned the September 9 incident to anyone. He then
doubt that counsel for General Counsel was attempting to try his case in the
manner most favorable to General Counsel. In my view, as noted, he did
not here prevail.
12 Weber started to work for Respondent before he became a part of the
DECA program.
13 There is no evidence that Olson discussed cessation of the DECA
program with these employees.
14 Note his prior unhesitatingly fixing the date as September 9.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified he "could" have told other people before that. He
then testified counsel for the General Counsel was the first
person he told about the incident. He saw him on January
13, 1972, he swore, because he hadn't included the
September 9 incident in his December 6 affidavit. He
guessed it was Mary Mace who caused him to remember
the September 9 incident because he was talking with her
about it one day and then he remembered the September 9
conversation. He again swore that Olson's statements of
September 9 made "much of an impression" on him. Yet
he swore he didn't remember ever telling the Union about
the alleged conversation. He repeatedly swore the conver-
sation with Olson was on September 9. He ended up
swearing he was not sure of the date. Early in his testimony
he fixed the date of his alleged conversation with Luft as
September 9. He later testified the conversation with Olson
was after the one with Luft.
Bearing Weber's insubstantial testimony about Olson's
alleged September 9 threat in mind, it is noteworthy that
Kelly Kammerer,15 General Counsel 's witness and a
DECA employee of Respondent, testified that on the
evening prior to the election Olson told her that if the
Union won the election "it wouldn't affect the employees
at all."16 When counsel for General Counsel took her on
redirect examination she said she was "certain of that." She
added she "was very certain."
I have remarked on Weber's demeanor. The nature of his
testimony, in light of the entire record, permits me to credit
it not at all. He was much more than confused. I shall now
consider the so-called "corroboration" of his testimony by
Mary Mace.
She said she saw Weber in a conversation with Olson.17
She didn't know the date. Some of these occasions, she
testified, in response to a leading question, were in
September.18 In answer to a leading question she testified
one of the occasions was when the "pin ticket machine was
running." 19 She testified she did not hear what was said by
Olson and Weber. "All" she knows is that they were
talking about the DECA program. Counsel for General
Counsel tried to get Mace to "date that conversation in
September." 20 All she could tell him was that it was "just
after school." I elicited testimony from her that it was a
few days after her mother's birthday party.21 I find this to
be worthless corroboration of Weber's testimony, which, I
find to be unworthy of any belief. I would not be surprised
to learn or know that Olson and Weber ,had many
conversations about the DECA program. Such in no way
corroborates Weber's incredible testimony. It does not
appear from the record that Weber reported the alleged
conversation to Mace though just the two worked in the
same area , and appear to have been on quite good terms,
Weber taking his troubles to her and acting towards her as
if she were his mother.
I find counsel for General Counsel has failed to establish
by a preponderance of the probative and substantial
15 A union adherent.
16 This, of course, would include DECA students.
17 1 am sure there was nothing unusual about that.
18 There were, not doubt, such conversations in every month
19 I would assume that's what it's for and what it does when in operation,
probably everyday
20 She was his witness
evidence that Respondent, through Olson, in a conversa-
tion with Weber, about September 9, violated Section
8(a)(1) of the Act.
4. Olson's alleged threat to Mary Mace that if
the Union won the election he would be let go or
fired or discharged
Olson admittedly told Mary Mace he might be trans-
ferred if the Union came in. He testified he did not tell her
that in such event he might be fired or let go or let out.
Mace, after having read her affidavit, testified that about
September 9, in the freight room, Olson said to her that if
the Union went in, Olson would be the first one to leave,
he would either be transferred or "let out" of Respon-
dent.22 Although a lot of the girls wore union buttons at
work and she had one, she never wore it. She received it
from James Hershey, the leading employee union protago-
nist.
General Counsel offered General Counsel's Exhibit 31, a
statement of Mary Mace, into evidence for the purpose of
impeaching his own witness, at least with respect to part of
her testimony. It was received for such purpose. I would
understand that he was at least, in part, challenging her
honesty.
Olson appeared to me to be very frank in admitting that
he told her he might be transferred if the Union won, since
such was consistent with the big Company's past practices,
as he had known them. He very definitely did not want to
leave Missoula, which he loved and where he owned a
home. I credit Olson's testimony that he told Mace he
might be transferred if the Union came in. There is no
evidence as to whether he gave her the reasons he had in
his mind for having such an opinion. That he should have
such an opinion, in light of his testimony, appears
reasonable to me.23 I find counsel did not prove by a
preponderance of the probative and substantial evidence,
in the circumstances above stated and found, that Olson
violated Section 8(a)(1) by stating his "opinion" that he
might be transferred if the Union won. Kelly Krammerer,
a DECA employee, who signed a union card on August 17,
testified for counsel for General Counsel that on the night
before the election, Olson told her that if the Union came
in, New York would take over and "he would be out of a
job." Such, in many circumstances, could be coercive
because it might well cause employees to believe that if the
Union should be successful, their jobs might be in danger.
However, Kammerer specifically asked him if "that would
mean that employees could lose their jobs and he said, no,
it wouldn't affect the employees at all."24
Mace and Olson frequently had conversations during the
course of her employment. I have read General Counsel's
Exhibit 31 which counsel for General Counsel had Mace
read and identify as one principally in her own handwrit-
ing and written by her at the Union's request right after the
21 September 3.
22 Mace testified they were always having union discussions at the store.
Questions would be asked by fellow employees if they intended to attend
particular meetings.
23 1 find no need to set forth such testimony here.
24 See par 11(a) of complaint.
J. J. NEWBERRY COMPANY
Union lost the election. Many employees wrote their
statements at the Union's request at or about this time so
that the Union could support its objections or substantiate
a charge of unfair labor practices by Respondent. I find
that Mary Mace made no mention of any kind in this, her
own handwritten statement, that Olson told her at any time
that he might be either transferred or let out orfired if the
Union won the election. Had she understood Olson to have
told her that his own job would be in danger should the
Union win the election, I am certain she would have
written this in her own handwritten statement of Novem-
ber 18 or 19, particularly since such would have been
helpful to the Union. I have no doubt that at such time as
she wrote her statement she was endeavoring to fully help
the Union in its efforts.25
In an effort to invigorate Mace's testimony, counsel for
General Counsel had her read her affidavit of January 12,
1971, General Counsel's Exhibit 32, for identification. (It is
not in evidence). I do not find that her testimony that
Olson told her he would be "let go" if the Union got in,
especially in light of her testimony as a whole, preponder-
ates over Olson's denial. I find his statement that he might
be transferred was a permissible statement of his opinion,
based upon his past experiences and knowledge of the
Company's practices. It was in no way coercive. General
Counsel's Exhibit 31 for identification was written by her
at the Union's request in an attempt to support forthcom-
ing objections by the Union to its loss of the election. Had
this conversation taken place, I am convinced she would
have narrated it in her statement.
5. Olson's alleged threat to Mary Mace on
September 9 that if the Union got in the DECA
program would be discontinued at Respondent's
store
After reading General Counsel's Exhibit 31 for identifi-
cation, Mace testified that in the freight room, about
September 9, she recalled having a conversation with Olson
about the DECA program. Before she read the statement
at the request of counsel for General Counsel she testified
she didn't remember any conversation with Olson about
the DECA program. She testified Olson "could" have
talked to her about it. After reading her handwritten
statement, when asked for the date of the conversation
with Olson, she replied only that General Counsel's Exhibit
31 for identification didn't have a date of the conversation.
I helped her lix a date of about September 10. She
continued and testified Olson said "if the union went in the
DECA program would be discontinued." She testified that
was all that was said. She added such was said by Olson.
On cross-examination, she testified Olson could have said
the "program could be discontinued." She testified Olson
said the program might be or could be discontinued. She
was sure Olson did not say it would be discontinued. She
then testified Olson and not she brought the subject up
first, because she didn't have anything to say about it. She
then remembered Weber had said his teacher had talked to
him. She then testified she could have initiated the subject
25 Note that her statement is witnessed by Viola G. Hill, Secretary-
Treasurer, Retail Clerks Local 991.
427
with Olson. She testified, "I could have because of Don's
[Weber's] reaction after he came back from DECA
everyday he had a problem with his teacher and it was
always that he came to me to ask if things could really be
done that way, that had been said at school." She then
testified she could have brought the DECA situation up
with Olson, she wasn't sure . She then took her time and
testified she was `possibly confusing what he [Olson] had to
say with something that Mr. Weber said" to her. She
explained that Weber was given to much worrying and was
sure he would "lose his job, flunk out of DECA." He was
upset. She then testified that in light of the fact that Weber
talked to her about his problems with the DECA program
and what effect that might have on his job and as a result
of having talked so much to Weber, she did not recall
whether it was she or Olson who initiated a conversation
about the DECA program. She then testified that as of the
time of her testimony she really could not recall just what
Olson said to her as compared with what Weber may have
said. For a period of about 2 weeks, Weber was upset and
not doing his job. Olson talked to him, " Because Don just
wasn't doing his job. He was, well, worried, he was just
sure that he was going to lose everything. Weber would
say, 'Oh, I just know I am going to get a bad grade' or he
flunked the test because he hadn't, he didn't know why."
I find Mace's testimony to be too confused, fluctuating,
and contradictory to permit me to find that General
Counsel has proved with a preponderance of the probative
and substantial evidence that Olson threatened her on or
about September 9 or any other date.
I note that having read to her from her November 18 or
19 statement, she was sure it was she who brought up to
Olson the DECA program after Weber's coming to work
upset. I later asked her when she first stated in any manner
the statement she at least originally attributed to Olson.
She replied, "It was after Don and I had the conversation
he was so upset about, when he talked to his teacher and he
came, and then for two or three days he talked about it,
that he was sure he was going to flunk out of DECA, and then
he would lose his job and his credits26 and that is when I
went and talked to Mr. Olson about it and after I talked to
Mr. Olson I talked to Don."
Counsel for General Counsel was satisfied that at least
part of Mace's testimony under oath should not be
credited. I realize that part of a witness' testimony may be
rejected and part properly accepted. The vacillating nature
of Mace's testimony is such that I cannot select a part
which preponderates toward the truth. She certainly was
not sure on the stand, in her own mind, what if anything
Olson said or she said or just what happened, when and
where and with whom. I find General Counsel failed to
establish by a preponderance of the probative and
substantial evidence that Respondent violated Section
8(a)(1) of the Act with respect to Mace.
6. Olson created the impression of surveillance
with Judy Sherwood
I was particularly and most favorably impressed by the
26 Compare this with Weber's rejected testimony.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demeanor of Judy Sherwood. She would not testify as to
events which she did not remember, even though she read
her affidavit as to those events while on the stand. She
could most easily have said her recollection was then
refreshed but she would not do so. On the other hand,
where her present recollection was clear she unhesitatingly
testified contrary to Respondent' s interests . I am certain
that she was a truthful witness, indeed a refreshingly
truthful one. She was frank. She was honest.
She credibly testified that on one occasion Olson
approached her and said she had been to a union meeting
and she told him she hadn't. Olson told her he heard a tape
(recording) and she repeated that she was sorry but she
wasn't there, it was not she. The conversation took place at
the jewelry counter in Respondent's store in the middle of
October. The conversation with Olson was friendly. I have
considered Olson's testimony in considerable detail and
observed him most closely when he testified. I credit
Sherwood's testimony in this regard without hesitation. She
was 19 and attended the University of Montana. She
recalled, on the stand, no other conversation with Olson
about the Union. She obviously was not in fear of
testifying against Respondent' s interests , although in the
employ of Respondent when she testified.
She also testified she had a conversation about unions
and her family with Olson about October 1. She teed, but
could not recall on the stand what was said by her or
Olson. Her affidavit, General Counsel's Exhibit 28 was
read by her. It did not refresh her recollection as to the
contents of this conversation. She was certain there was
one. She testified she swore to the truth of the contents of
her affidavit and that it was true when she gave it and
signed it. After carefully reading it while she was on the
stand, she credibly testified its contents were true and
cor' ct when she signed it and were still true. She testified
credibly that as to one conversation with Olson, the facts
as contained in the affidavit were true, but she still could
not remember them.
The part of the affidavit she swore was true, even though
she could not then remember the facts, reads, "On one
occasion, Mr. Olson said he understood I had been to a
union meeting. I said that I had been at the union meeting.
Olson said there had been quite a lot of discussion. I said
there had been quite a lot of discussions and I thought
everyone felt better after the meeting. Olson said he had
heard a tape of the meeting. This conversation took place
in the store while I was working. The date would be around
the time my brother set his wedding date. No one else
heard the conversation. The approximate date is sometime
in October."
Having read the above and having had it read to her, she
still couldn't remember the events. I am certain she was not
afraid so to testify especially in light of similar testimony
with respect to another conversation with Olson. The
conversation she couldn't remember occurred in the store's
hardware section. The one concerning which she gave
testimony occurred in the jewelry section. Her affidavit is
in evidence as past recollection recorded. I credit the part
quoted above, having carefully considered all of Olson's
testimony, much of which I credit. She swore she could
have made no mistakes in her affidavit, because then she
wouldn't have signed it and swore it was true. I find the
witness was meticulously careful and determined to tell
only the truth. I credit the testimony and sworn past
recollection recorded. General Counsel has proved by a
preponderance of the probative and substantial evidence
that Respondent, through Olson, twice created an impres-
sion with Sherwood that he had union activities including
union meetings under surveillance.
7. Respondent created an impression of
surveillance in a conversation between Olson and
Donna Solum (maiden name Kammerer)
Solum, an employee of Respondent when she testified,
credibly testified, in spite of any of Olson's testimony to
the contrary, that about the middle of October, Olson
came by her check out and asked her "if I had stayed out
late with the rest of them, and I said `No' and he said `Then
you must have been one of the ones that went home
early.' " She credibly testified there was a meeting at the
umon hall the preceding evening. After the union meeting
they went to a pizza parlor. The meeting was 9 or 9:15 p.m.
It ended at 10 or 10:30. They left the pizza place about
11:30 or 12.27
Even though union activities were not a matter of
complete secrecy at the store, I find counsel for General
Counsel by Olson's questions and conversations with
Solum as herein found proved that Respondent created an
impression of surveillance in violation of Section 8(a)(1) of
the Act.
8. Olson allegedly created an impression of
surveillance by telling Hershey on a day after the
union meeting that Hershey had said many
slanderous things about Olson at the meeting
Olson admitted the above statement. Although I have
failed to credit Olson's testimony in some instances, I was
singularly unimpressed by Hershey's demeanor and find
some of his testimony was knowingly false . He was the
prime employee union leader. Hershey admittedly initiated
this conversation by telling Olson he was not the one who
brought the Union in or told them to organize the store.
This was not long before the union election, and I have no
doubt that at least some employees, perhaps antiunion
employees, gossiped about current union activities. Olson
asked Hershey why Olson should believe him. Hershey
said he could see why Olson wouldn't but he just wanted to
explain. It was then that Olson said Hershey had said
many slanderous things about him at the previous night's
union meeting, which Hershey denied. Olson stated he
believed Hershey was trying to personally destroy Olson,
but he loved him, as a Christian he loved Hershey.
I do not find that this conversation between the chief
protagonists in the store in the developing union drama,
amounts to interference, restraint, and coercion. I do not
doubt that at least by this time Olson had his at least
voluntary sources of information, accurate or not, as to
union activities and that a union zealot such as Hershey
had good reasons to believe this to be a fact. It is quite
27 Par li(d) of the complaint was here amended without objection
J. J. NEWBERRY COMPANY
reasonable to find that Olson's statements to him were the
result of sources of information readily available to
anyone, whether true or false. I find they would not tend to
interfere with, restrain, or coerce Hershey in any of his
union activities or anyone else to whom Hershey might see
fit to repeat them. By this time, from whatever source,
accurate or not, reports of union activities must have been
coming to Olson's attention daily, and I have no doubt that
Hershey knew this and that every employee had good
reason, at least, to suspect such was so. I do not ignore that
this was a small store. The conversation here found to have
taken place between Olson and Hershey did not create an
impression of surveillance. Particularly in light of the fact
that Hershey denied the truth of the report given by Olson,
I conclude that Hershey may well have reasonably
concluded that Olson had been the recipient of false
information, with no reason for Hershey to believe that
Olson solicited it, even though Olson might have believed
it. There is no basis for my concluding that Hershey, or
anyone else, would have concluded that the information
Olson reported was obtained by illegal means. It was part
of a conversation about the Union initiated by Hershey. It
appears to have developed naturally. I find counsel for
General Counsel has failed to establish by this conversa-
tion that Olson violated Section 8(a)(1) of the Act by
creating an impression of surveillance. Hershey may have
believed throughout the union campaign that Respondent
was keeping union activities under surveillance,28 but this
conversation did not convey to Hershey an impression of
surveillance, rather, that Olson had information as to what
happened at a union meeting the night before which
Hershey knew to be incorrect. Indeed, surveillance,
according to Hershey, would have revealed that Olson was
in error. I cannot find Hershey was left with an impression
that Respondent had the union meeting under surveillance
and found nonfacts rather than facts. Hershey would have
concluded that Olson had been misinformed rather than
that he engaged in surveillance.
9. Respondent unlawfully removed Hershey from
a meeting of Respondent's employees
Respondent through Olson and its attorney , Sykes, held
a small meeting of Respondent's employees in the ladies'
lounge on the store 's second floor on the evening of
November 16, 2 days before the election.
Hershey and Weber went to the store in the evening, and
were told by a supervisor , Burke , of the meeting, and he
suggested they attend it. They went into the lounge and
seated themselves at Olson 's suggestion. There were at least
five other employees there .29 Olson and Sykes left the room
and shortly returned . Sykes patted Hershey on the back
and said, "Hey bud , I don't think you're interested in what
we have to say. Why don't you leave ?" I realize the first
statement was an expression of opinion and it was followed
only by a question . This was in the presence of the
employees . Hershey and Weber left . I find Sykes made it
plain to them that as union adherents they were not
welcome . He discriminated against them , or at least
28 In fact, illegal surveillance, including use of tape recordings by
Respondent, was reported at union meetings.
429
Hershey, solely because of the latter's widespread and well-
known union activities. Especially in light of Burke's
invitation and Olson's greeting, Hershey and Weber had a
right to remain at the meeting even if it were intended to be
an antiunion meeting. Hershey had a right, as an employee
to attend such a meeting even if it were only his interest to
find out what, if any, antiunion activities Respondent
might be engaging in. The subject of the meeting was the
Respondent and the Union. There is no suggestion that
Hershey disrupted this meeting. I find General Counsel has
established by a preponderance of the probative and
substantial evidence that Respondent violated Section
8(a)(1) of the Act by Sykes singling out the Union's
foremost union adherent and causing him to leave a
meeting of employees with Respondent where the Union
and Respondent were to be the subject of discussion.
Hershey's well-advertised union proclivities were the only
reasons for his exclusion. At least in his brief, Respondent's
attorney moves for the dismissal of that portion of the
complaint which deals with this matter. He argues
forcefully but I find not persuasively in this regard. I think
it immaterial whether Hershey was interested in what took
place at the meeting or whether Sykes could have changed
his strong prounion views or whether he wanted to attend
the meeting to see if he could learn anything which might
help the Union in possible objections. That Sykes didn't
yell or was in no way upset, has no relevance to this matter.
Politely or not, he caused the exclusion of Hershey, and
with him Weber, because Hershey was the known
employee leader of the Union. This was outright discrimi-
nation against Hershey because of his union activities. It is
with deep reluctance that I find an able, cooperative, and
gentlemanly lawyer, like Sykes, violated the Act.
10. Olson allegedly threatened Hershey with
discharge on November 17
Hershey testified that about noon on November 17,
Olson asked him why he had told everyone that he was
bodily thrown out of the company meeting at the previous
meeting. Hershey testified he denied that he had done so
and that then Olson said he knew Hershey worked for
Respondent and that he worked for the Union. Allegedly
Olson added that as store manager he could not attend
union meetings and Hershey should not be allowed to
attend company meetings. Hershey said he worked for the
Company and not for the Union. Olson allegedly said,
"We will see, we will see how long." Thus Olson allegedly
threatened Hershey's discharge. Allegedly, at the same
time, Hershey, just threatened with prospective discharge,
saw the union leader, Lonny Mayer, walking into the store.
Counsel for General Counsel would have me believe that
on this, the afternoon before the election, Hershey who
apparently worked like a beaver to discover anything
which might help the Union in possible exceptions or in
possible unfair labor practice charge, did not go to Mayer
and report to him what had just happened. Hershey,
allegedly, just drove off from Respondent's premises. Thus,
too, late in the trial, Mayer testified that he saw Hershey
29 Some had signed union cards.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Olson in conversation about noon and that he
remembered this particular occasion even though he visited
Respondent's premises about 10 times that day.
Olson testified that he had a similar conversation with
Hershey sometime after the election but not about seeing
whether Hershey would continue to work for Respondent.
I am aware that in some instances I have credited the
testimony of some of General Counsel's witnesses in
preference to that of Olson. Such is not the situation here.
Hershey's demeanor impressed me unfavorably. His
testimony was often vague, inconsistent, and unreliable. I
am convinced that Mayer's testimony as to seeing Hershey
and Olson in conversation on November 17 about noon
near Respondent's premises was an imaginative improvisa-
tion devised to bolster Hershey's very sagging story. I do
not credit Mayer's testimony as to the events here
concerned.
I am convinced that Olson gave a detailed straightfor-
ward account of where he was from about nearly 10 a.m. to
3 p.m. on November 17. He was with or near Sykes at these
times, not near Respondent's store. He could not have had
the conversation where and when Hershey placed it. Olson,
at these times, was either at a bank or motel near or with
Sykes. Aside from observing the demeanor of Olson when
he gave this testimony and being very favorably impressed
by it, I am conscious that Sykes meticulously elicited this
testimony establishing that Olson and Sykes were substan-
tially together preparing the speech given by Olson on the
afternoon of November 17. If Olson testified falsely in
these regards then I would find Sykes to be particeps
crimmis. I am convinced that, although I have found Sykes
violated Section 8(a)(1) of the Act, he was an honest,
ethical, truthful lawyer. He impressed me, in spite of his
slip, as an honorable member of the Bar who would not for
a moment be a knowing party to the presentation of
evidence before the Board which he had reason to believe
and particularly know was false. Olson's testimony as to
his whereabouts for hours before and after noon on
November 17, intimately involved Sykes' actions at the
same time, and was elicited by Sykes. I have no doubt that
in so doing, Sykes vouched for the truth of Olson's
testimony in this regard. Either that, or I must find Sykes
was a knowing, deliberate shyster, who connived at the
presentation of much testimony by Olson which was
outright perjury. Having tried this case with Sykes for 3
days, I unhesitatingly find and state that the latter is
ridiculous and unworthy of consideration. Not considering
Sykes, per se, in this regard, I credit Olson's testimony as to
his activities on November 17, and do not credit the
testimony of Hershey or Mayer, to the contrary, in any
detail. But I have and I do consider the fact that Olson's
testimony as to his dealings with Sykes on this day was
elicited by Sykes himself. Counsel for General Counsel
contends that Sykes should have testified as to Olson's
activities on November 17, and that Sykes' failure so to do
gives General Counsel "the benefit of an inference that
Sykes testimony would not corroborate Olson." I reject
such an inference in this case. His merely eliciting the
testimony from Olson as to where and when he acted in
concert or in the the company of Sykes is, to me,
corroboration of Olson's testimony. If counsel for General
Counsel thinks or believes that Sykes would have know-
ingly and intentionally elicited perjurious testimony from
Olson as to the latter's dealings with Sykes on November
17, let him say so and argue it. I reject it out of hand. I am
completely satisfied neither counsel would engage in such
abhorrent misconduct.
Counsel for General Counsel contends in his able brief,
"It would have been incredible had Hershey run to the
store to discuss with Mayer on Respondent's territory the
fact that Olson just threatened him." I find the contrary to
be true. Hershey testified he was a college student. His
father had been an International representative of the
Retail Clerks' Union. Hershey was the Union's foremost
and most active employee advocate. I find it completely
incredible that such a person, just as he is being threatened
by Olson with future illegal discharge, did not run to
Union Leader Mayer, who conveniently and coincidentally
was allegedly in view of Hershey, and report the threat to
Mayer.30 It may be noted that at that very moment
Hershey described himself as being mad and afraid. It
would have been the most natural act to seek out Mayer
and report. Not to do so is not in keeping with the image of
Hershey, as spelled out in this record.
11. Olson's unlawful interrogation of Karen
Christensen
Shortly after the election, according to the credited
testimony of Christensen, Supervisor Mary Williams called
her into the office.31 While Williams was explaining store
procedures to her, Olson asked Christensen what she
thought of unions. She told him she didn't like them or
have much respect for them because of union trouble when
previously employed. Olson told her what her rate of pay
would be and to keep it quiet because things in the store
were touchy at that time.32 He told her he was starting her
out at a higher rate than other girls were getting. He said
their conversation was to be kept confidential. I find
Respondent violated Section 8(a)(1) of the Act by Olson's
interrogation of Christensen. His activity had no effect on
the election which had already been held.
12. Olson's antiunion speech on the afternoon
prior to the election
Olson's speech is in the record as General Counsel's
Exhibit 4. Various markings on it are explained in the
record and are here immaterial.
General Counsel contends that in the speech Olson
unlawfully told employees that a certain employee (obvi-
ously Hershey) had received money from the Union and
would not be allowed to attend company meetings;
threatened that the store could be closed by Respondent
for economic reasons if the Union won the election;
promised that things would get better if the employees
stuck with the store manager; and told them that if the
Union won the election it would be forced to strike and
other employers could lawfully refuse to hire the strikers.
30 Hershey was regularly on the lookout for evidence which might 31 Williams did not testify.
support objections on a charge in Mayer's behalf. 32 Right after the election
J. J. NEWBERRY COMPANY
Olson stated in his speech that one employee (obviously
Hershey, though not named) had received money from the
Union during the campaign and it could be proved. One33
check was for expenses and while it didn't measure up to
the alleged very high salary and expenses of the Interna-
tional's president , it was a start . Olson then said that just as
Respondent's officers didn't attend union meetings, "no
one paid by the Union is going to attend ours"-obviously
referring to Hershey.
In fact, all the money Hershey received from the Union
was a check for $4.68, as reimbursement for two long-
distance calls to Helena on union business over his
mother's phone. Hershey cashed this check at Respon-
dent's store and thus it came to Olson's attention. Olson
knew of no other money Hershey received from the Union.
Olson may, in good faith, have had the erroneous opinion
that Hershey received more money from the Union and
was in the Union's employ. He was not. Olson never asked
him or the Union. It was a long, long jump that Olson
made from the fact that Hershey received a check for $4.68
as reimbursement for expenses, to a conclusion that
Hershey received anything else. It appears reckless to me.
I find Olson violated Section 8(a)(1) of the Act by telling
the assembled employees that Hershey, because of his
union activities could not attend company meetings of his
fellow employees. This was clearly an announcement
discriminating against Hershey.
Olson made many references, in his speech, to the
closing or moving of other stores of Respondent which had
been organized by a union, pointing out that such closings
or moving were for economic reasons. Olson pointed out
that the same things happened in nonunion stores. General
Counsel contends that Olson told the employees that if the
Union won the election, the store would be closed for this
reason, and only ostensibly or pretextually for economic
reasons. This is a close question, but having carefully read
and reread the speech as a whole and in pertinent parts, I
make no such finding. I find Olson made it clear to the
employees that some of the chain's stores were closed for
economic reasons whether union or nonunion. I recognize
that these statements were made as part of an antiunion
speech. But the employees were plainly told that the stores,
union or nonunion , were closed for "economic reasons." I
find no violation of Section 8(axl) in this part of Olson's
speech.
Olson told the employees that "with the wage price
freeze only allowing increases of 5 1/2 percent for wages
and benefits together I think you can be assured that you
will get that much, if the Union is rejected." Such
prediction of future benefits appears to have been
substantially consonant with past practices of Respondent.
I do not read into the speech a threat to withhold such
benefits should the Union be successful. Olson stated in
substance that the employees would be satisfied if they
stuck with him for 12 months. I find this was a legitimate
prediction or statement of his opinion, and not a promise.
Olson couldn't promise that the employees would be
satisfied with anything he would do in the next 12 months.34
General Counsel claims Olson violated the Act by telling
33 Implying there was more than one.
31 There 's always someone to complain about something.
431
the employees that if they were to strike, "another
company could lawfully refuse to hire them based on their
status as strikers." In fact, Olson said, "Now if there is a
strike here some of you have said you plan to go to work
somewhere else-well the law gives another company the
right to refuse to hire a striker who plans to return to her
old job after the strike-if the company has such a policy
[G.E. Kresge ] [sic ]." I find nothing violative of the Act in
this statement . If a company , is looking for permanent
employees it may lawfully refuse to hire strikers who plan
to leave the company at the end of the strike at their prior
employer. I do not believe the employees could or should
have understood more than this from the statement. It was
not violative of the Act. I do not believe the employees
would understand it as a prediction that some employers
would violate the Act. Note that Olson referred only to
practices of employers with respect to strikers who planned
to return to their old jobs at the end of thr strike.
Companies may lawfully refuse to hire temporary as
distinct from permanent employees, strikers or not.
13. The Union's majority-Helen Angle's
prounion activity-the 8(a)(5) issue- Gissel
There is no question but that a majority of Respondent's
employees signed authorization cards by the time the
Union sought recognition and bargaining. General Coun-
sel contends in his complaint that Respondent's unfair
labor practices were so extensive and persuasive as to
require the issuance of a bargaining order even in the
absence of an 8(a)(5) violation.35 He also alleges that the
Respondent violated Section 8(aX5) of the Act in refusing
to bargain with the Union as it demanded.
In his able brief, General Counsel ignores Helen Angle's
activities in the obtaining of a majority by the Union. She
was a supervisor within the meaning of the Act as found by
the Regional Director in his Decision and Direction of
Election. She signed a union authorization card and was
"very much for the Union." She told at least eight
employees why they should vote for the Union. She told
employees what benefits the Union would obtain for them.
At a union meeting (early in the campaign) she told the
assembled employees that the Union was a "good thing"
and the employees should "go Union." She wore a union
button at work. She, at another employee's request,
provided her with a copy of a contract Newberry's had
with the Retail Clerks at another store. She told other
employees of Olson's direction to her to stay out of the
union campaign because she was part of management and
told them that Olson had taped his conversation with her.
After Olson directed her to refrain from union activities,
she prepared a list of questions to be asked at a union
meeting.36 At least several of the employees to whom
Angle spoke favorably about the Union signed union
cards. The record abounds with credible evidence of her
many prounion activities. At no time did she commit any
unfair labor practices in behalf of Respondent. She did not
recant her prounion feelings and beliefs . I find and
35 I find this not to be so.
36 This happened.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclude "that the Union's majority showing was tainted
by [Angle's] prounion activities. " 37 Only two other
employees including Hershey and Baugher signed cards
earlier than Angle. She engaged in union activities
throughout the period when all the authorization cards
were signed. The unit in this case was substantially the
same size as in the case above cited. Unlike the supervisor
in the cited case , Angle's union activities were far reaching.
The supervisor in the cited case engaged in minimal union
activities and in many serious unfair labor practices
thereafter, thus renouncing the union. I find the Union's
majority in this case was tainted by supervisor Angle's
prounion activities. Counsel for General Counsel has failed
to prove that Respondent violated Section 8(a)(5) of the
Act because the Union did not have a valid and uncoerced
majority. I have found above that Respondent violated
Section 8(a)(1) of the Act, but I conclude that, based on the
entire record, the issuing of a bargaining order would not
be proper or salutary herein.
I find, in light of Respondent's unfair labor practices as
found above, that there is a reasonable basis for conclud-
ing that the freedom of choice of the employees in the
election previously held herein was destroyed and that
Respondent interfered with the laboratory conditions
which the Board seeks to maintain during an election
campaign. A rerun election should be directed and
conducted by the Regional Director for Region 19.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices, I shall recom-
mend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act. In light of the ample grounds existing therefore, it is
recommended that the prior election be set aside and that a
new electior!<.be directed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. By conveying to its employees that their union
37 Welding & Industrial Products Ltd. & Carbonic Products Corp., 167
NLRB 881. (House joke-a burned child dreads the fire.)
38 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, recommendations, and recommended Order herein shall, as
provided in Sec . 102.48 of the Rules and Regulations , be adopted by the
said Board and become its findings, conclusions , and Order, and all
activities were under surveillance; by telling a meeting of
its employees that a most active member of the Union
would not be allowed to attend meetings of the employees
in the store because of his union activities; by causing an
employee and his friend, who was also a union member, to
leave an employee meeting on company premises where
Respondent and the Union were to be the subject of
discussion because the first employee was a leading
employee protagonist of the Union; and by interrogating
employees as to their union activities, Respondent inter-
fered with, restrained, and coerced employees in the
exercise of their statutory rights within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
5. By engaging in the aforesaid unfair labor practices,
Respondent has interfered with the results of the represent-
ation election previously conducted herein.
Upon the above findings of fact, conclusions of law, and
the entire record herein, I hereby issue the following
recommended:
ORDER 38
Respondent, J. J. Newberry Company, Missoula, Mon-
tana, its officers, agents , successors, and assigns , shall:
1. Cease and desist from:
(a) Conveying to its employees the impression that it has
been keeping its employees' union activities under surveil-
lance.
(b) Telling its employees that an employee active in the
Union cannot attend company-employee meetings because
of his union activities.
(c) Causing employees to leave a meeting which
Respondent conducts with its employees about the Union,
because the employees in question, or one of them, is
active in behalf of the Union.
(d) Interrogating any of its employees with respect to
their union activities or preferences.
(e) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at all its places of business in Missoula,
Montana, copies of the attached notice marked "Appen-
dix."39 Copies of said notice, on forms provided by the
Regional Director for Region 19, after being duly signed
by Respondent's authorized representative, shall be posted
by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
objections thereto shall be deemed waived for all purposes.
39 In the event the Board's Order is enforced by a Judgment of the
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."
J. J. NEWBERRY COMPANY
(b) Notify the Regional Director for Region 19, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith?a
IT IS ALSO RECOMMENDED that the election previously
held in Case 19-RC-5986, be set aside, and that a new
election be directed.
40 In the event this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read : "Notify
the Regional Director for Region 16, in writing , within 20 days from the
date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives all our employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they freely choose
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT convey or indicate to our employees
that their union activities are under surveillance by us
or our agents.
433
WE WILL NOT tell our employees that a most active,
member of the Union will not be allowed to attend
employee meetings conducted by us because of his
activities in behalf of the Union.
WE WILL NOT cause any employees to leave an
employee meeting we conduct because they have
engaged in union activities.
WE WILL NOT interrogate any of our employees as to
their union activities or proclivities or sentiments.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise
of their rights guaranteed in Section 7 of the Act.
Dated By
J. J. NEWBERRY COMPANY
(Employer)
(Representative) . (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board 's Office, 10th Floor, Republic
Building , 1511 Third Avenue, Seattle, Washington 98101,
Telephone 206-442-5692.