S. E. Nichols Co.

National Labor Relations Board - Board Decisions

Feb 2, 1966

156 N.L.R.B. 1201 (N.L.R.B. 1966)

S. E. NICHOLS COMPANY, ETC. 1201
APPENDIX B
Card Signed
Name 1965
1. Marilyn Wheeler______ January 11
2. Patsy Wheeler__ ______ January 11
3. Ida Irene Joughin_____ January 12
4. Earl Joughin _________ January 12
5. Doris Layman________ January 12
6. Ola McNair__________ January 12
7. Betty Pace___________ January 12
8. Edith Reeser_________ January 12
9. Kay Ann Reiniche ____' January 12
10. Donald Rau_________ January 12
11. Lois Hinkley____ _____ January 12
12. Lavina Baker__ ______ January 12
13. Linda Brodbeck______ January 12
14. Leota Staats__ _______ January 13
15. Robert Weaver_______ January 13
16. Sherrell Patterson----- January 13
17. Dwight Peugeot_____ _ January 14
18. Patricia McCord ______ January 14
19. Mary Sue Sickmiller___ January 14
20. Carol Lloyd (Cox)___ January 14
21. Clela Headley___ _____ January 14
22. Marjorie Grant_______ January 14
23. Zelma Blakely____ ____ January 15
24. Ruby Reagle _________ January 15
25. Janet Altaffer________ January 15
26. Phyllis Spangler------ January 18
27. Jim Guerrero-------- January 18
28. Nancy Grime_______ = January 18
29. Ray Banks___________ January 19
30. Frank Cuellar________ January 20
Card Signed
Name 1965
31. Robert Mendez_______ January 20
32. Elsie Long___________ January 20
33. Hattie Brodbeck______ January 22
34. Shirley Knapp________ January 23
35. Marcelina Madrigal_ __ January 23
36. Judy Ann McCauley-- January 23
37. Susan Hausch________ January 25
38. Delores Bernath______ January 26
39. Jose Angel Martinez--- January 26
40. Beatrice Rose___ _____ January 26
41. Barbara Miller_______ January 26
42. Carol Clark__________ January 27
43. Maxine Hodson______ January 27
44. Mary Wheeler________ January 28
45. Manuel Madrigal----- January 29
46. Catherine Wagner_.._ January 30
47. Eileen Taylor________ January 30
48. Patricia Van Auken ___ January 30
49. Connie Miller________ January 30
50. Jean Baker__________ January 30
51. Jacob Carmean______ January 30
52. Ruby Cramer________ January 30
53. Leona Crisp (Gamble ) February 1
54. Margaret Osten______ February 7
55. Mary Malone___ _____ February 8
56. Dona Meyers_ ______ February 13
57. Lou Ann March _____ February 18
58. Vister Flory________ February 24
59. Elva Shirkey___ _______ March 1
S. E. Nichols Company; Nichols Discount City; Butlers' Shoe
Corporation ; The Richards Corporation ; Barbara Lynn Stores,
Inc.; P .H.S. of Elmira and Local 1687, Retail Clerks Interna-
tional Association , AFL-CIO. Case No. 3-CA-2519. Febru-
ary 0, 1966
DECISION AND ORDER
On October 26, 1965, Trial; Examiner William W. Kapell issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that allegations of an additional unfair labor
practice set forth in the complaint had not been sustained. Thereafter,
the Charging Party and the Respondent filed exceptions to the Trial
Examiner's Decision and the General Counsel filed exceptions and a
supporting brief.
156 NLRB No. 106.
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error. The rulings are hereby
affirmed.' The Board has considered the Trial Examiner's Decision,
the exceptions and brief, and the entire record in this case,
and hereby adopts the Trial Examiner's findings, conclusions, and
reconunendatl ons.
[The Board adopted the Trial Examiner's Recommended , Order.
[The Board dismissed paragraph XV(g) of the amended complaint
concerning the encouragement of employee espionage.]
1In its exception questioning the Trial Examiner 's majority finding, the Respondent
contends, that it was handicapped in its attempt to prove lack of majority by the ruling
of the rial Examiner that once having had the opportunity to cross-examine certain
witnesses who appeared for the General Counsel and identified their authorization cards
(which they testified they had read before signing ), the Respondent was not entitled to
question these three witnesses later in the hearing about what they were told when the
cards were solicited . We see no prejudice in the circumstances here and note that the
Respondent is now urging only that it sought to prove that the witnesses were told an
election was the "primary purpose" of signing , rather than the "sole" purpose. See
N L.R.B. v. Cumberland Shoe Corporation, 351 F. 2d 917 ( CA. 6), enfg. 144 NLRB 1268.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, as
amended , hereinafter referred to as the Act, was heard before Trial Examiner William
W. Kapell at Elmira, New York, on May 5, 6, and 7 and June 1, 2, and 3, 1965, pur-
suant to due notice. The complaint, ' issued on March 5, 1965, by the Regional Direc-
tor for Region 3, alleged in substance that S. E. Nichols Company, Nichols Discount
City, Butlers' Shoe Corporation, The Richards Corporation , Barbara Lynn Stores,
Inc., and P.H.S. of Elmira, hereinafter referred to collectively as Respondents , inter-
fered with, restrained , and coerced their employees in violation of Section 8(a) (1) of
the Act by: threatening to throw out of the store any employee seen talking to a union
organizer ; giving an impression of surveillance of employees with respect to their
union activities ; offering to and bargaining directly with employees regarding wages
and other terms and conditions of employment ; unilaterally increasing wages; paying
employees for unused sick leave time; advising employees that they would fight to keep
the Union out even though wanted by them; and installing a group hospitalization
plant for their employees ; and that Respondents failed and refused to bargain with
the Union as the exclusive bargaining representative of the employees in an appro-
priate unit for bargaining purposes , in violation of Section 8(a) (5) of the Act .2 The
complaint also alleged certain joint employer relationships among Respondents, which
are hereinafter set forth under the heading "The Businesses of Respondents."
1 Based on an original charge, a first amended charge , and a second amended charge
filed by Local 1687 , Retail Clerks International Association , AFL-CIO, hereinafter referred
to as the Union , on January 11, February 25, and March 1, 1965, respectively
2 By motions to amend granted at the hearing , certain dates appearing in the com-
plaint were changed, and additional violative conduct was alleged to include • offering and
granting of a rest period or "break" to employees on Saturday nights ; offering and
promising to supply new work uniforms or "smocks" to employees , and requesting and
encouraging certain employees to engage in espionage and to persuade other employees to
cease supporting or assisting the Union.
S. E. NICHOLS COMPANY, ETC. 1203
Respondents' answer denied the commission of the unfair labor practice and the joint
employer relationships.
All parties were represented at the hearing and afforded full opportunity to be
heard, to introduce relevant evidence, to present oral argument, and to file briefs.
General Counsel, Respondents, and the Charging Party submitted briefs which have
been duly considered
Upon consideration of the entire record,3 the briefs, and upon my observation of
the witnesses testifying, I make the following:
FINDINGS OF FACT
1. THE BUSINESSES OF RESPONDENTS
Respondent S. E. Nichols Company, hereinafter referred to as Nichols, is engaged
in the operation of discount and variety stores in the States of New York and New
Jersey and the Commonwealth of Pennsylvania. During the past 12 months, Nichols,
in the course and conduct of its business, sold and distributed products valued in excess
of $10 million. During the same period of time, at its operations in the State of New
York, it received goods valued in excess of $50,000 transported to it places of business
in the State of New York in interstate commerce directly from other States.
Respondent Nichols Discount City, hereinafter referred to as Discount City, a
wholly owned subsidiary of Nichols, at all times material herein, maintained and
operated a discount retail store in Elmira, New York, herein called the Store, for the
retail sale and distribution of various products, which is the only facility involved in
this proceeding.
At all times material herein, Nichols and/or Discount City leased departments in
the Store to the following licensees- (a) Respondent Butlers' Shoe Corporation, here-
inafter referred to as Butlers, a corporation with its principal office in Atlanta, Georgia,
for the retail sale of shoes, (b) Respondent The Richards Corporation, hereinafter
referred to as Richards, for the baking of pastries and the retail sale of said pastries
and other items of food at a facility commonly known as a snackbar; (c) Respondent
Barabara Lynn Stores, Inc., hereinafter referred to as Barbara Lynn, a corporation
maintaining its principal office in New York City, for the retail sale of women's and
children's apparel; and (d) Respondent P.H.S. of Elmira, hereinafter referred to as
P.H.S., a corporation with its principal office at Hawthorne, New Jersey, for the retail
sale of automotive parts and accessories.
During the last 12 months, which is representative of all times material herein,
Respondents, in the course and conduct of their respective businesses at the store,
sold merchandise valued in excess of $500,000, and during the same period caused to
be purchased and delivered to the store directly in interstate commerce from points
outside the State of New York goods valued in excess of $50,000.
The lease 4 to each of the four licensees contains, inter alia, identical provisions
that, although each licensee shall hire its own employees at its own expense, any
employee who is deemed objectionable to the licensor shall be dismissed upon request;
that if the licensee has any labor dispute of any kind which may interfere with or
affect the operation of the Store, then the licensor is authorized to settle and deter-
mine said dispute and if the licensee fails to settle such dispute in accordance with the
licensor's determination, the licensor may terminate the lease; and that the licensee
must adhere to the wages and fringe benefits and other rules and policies of the licen-
sor with respect to the operation of the Store. The record also shows that upon
employment at the Store each employee is furnished with a booklet entitled "Employee
Handbook-Nichols Discount City," which sets forth the manner of reporting for
work, how sales are made, and the benefits and privileges of employees, including
salary, holidays, vacations, sick leave, and purchases by employees; that basic skills
of the employees of each Respondent at the Store are substantially the same; that the
3 Pursuant to a joint stipulation entered into at the close of the hearing, an exhibit
to be identified as General Counsel's Exhibit No. 68 was thereafter submitted and is
hereby admitted in evidence. Unopposed motions made by General Counsel and the
Charging Party to correct the transcript are hereby granted, and the record is corrected
as requested therein.
* These are written leases except that Barbara Lynn has an oral agreement which corre-
sponds to the written leases.
217-919-66-vol. 156-77
1204 DECISIONS *OF NATIONAL LABOR RELATIONS BOARD
manager of Discount City has the authority to enforce the terms of the leases ; and that
employee meetings , hereinafter described , held at the Store were attended by the
employees of all the employers
The complaint alleges, and Respondents deny, that Nichols and Discount City are
the Joint employers of the latter's employees at the Store; and that Nichols, Dis-
count City, and each of the licensees are the joint employers of the employees of each
such licensee at the Store.
Conclusions as to the Joint Employer Relationships and Board Jurisdiction
The Board has consistently found that a joint employer relationship exists where
the record establishes that the licensor has the primary right of control over the
employment relationship or where there is joint control over the employment rela-
tionship . Frostco Super Save Stores, Inc., 138 NLRB 125; United Stores of America,
138 NLRB 383; Spartan Department Stores, 140 NLRB 608 . Cf. S.A.G.E., Inc. of
Houston, 146 NLRB 325. In view of the foregoing , I find that , at all times mentioned
herein, Nichols and/or Discount City and each licensee were the joint employers of
the employees in such licensee's department , and that all the joint employers are
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and at all times material herein has been, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The Union began to organize the employees at the Store in November 1964.5
About the beginning of December, employee Anne Anderson told Joseph R. Bam-
brick, manager of Discount City, that the night before a union organizer had left a
blank union authorization card with the names of a few employees on the back and
a union booklet entitled "IT PAYS TO BELONG" at her home in her absences
Bambrick requested her to bring the card, which she did within the week and prior
to December 10.7
Apparently , as the result of the union campaign, employee meetings were thereafter
held at the Store by Bambrick, Manfred Brecker,8 and/or Joseph C. Keller.9 General
Counsel claims that statements made at these meetings by the officials who conducted
them constitute interference with, restraint , or coercion of employees in violation of
Section 8(a)(1). Bambrick conducted three such meetings, the first of which took
place on December 12.10 At this meeting Bambrick told the employees that he heard
rumors to the effect that the Union was organizing the Store ; that he did not think they
needed a union; that their benefits, which he reviewed , '1 were as much as the Union
5 All dates hereinafter refer to the year 1964 unless indicated otherwise.
8 Union Organizer William Gilbert testified that he left the material at Anderson 's home,
and that the names appearing on the back of the card were the names of employees he
planned to visit and from whom he would solicit union cards.
7 Bambrick denied receiving the card from Anderson and claimed he found it on a
counter in the Store a few days before he held an employee meeting at the Store. His
testimony was unpersuasive and, based upon the demeanor of the witnesses , I credit the
testimony of Anderson as related above.
8 Personnel manager and vice president of Nichols, whose office is located in New York
City.
8 General supervisor of Nichols ' Discount stores , whose office is also located In New
York City.
10 Although the Store was opened In September 1962 , this was the first such meeting
to be held . Small groups of store employees , usually about six, attended this and sub-
sequent meetings held during working hours or starting shortly before work began.
n These benefits are set forth in the employee handbook, distributed by Discount City
to all Store employees , which provided , in part , that employees shall receive an auto-
matic wage increase of 10 cents an hour after 6 months' service, and that after 1 year's
service each employee shall be entitled to 6 days' sick leave per year, which, If unused,
shall be compensated for in cash or by commensurate time off at the choice of the em-
ployee and the discretion of the manager.
S. E. NICHOLS COMPANY, ETC. 1205
could get them; that if he found any union organizer in the Store talking to an
employee he would eject both of them from the Store; 12 and that he knew who the
employee was who would run to the telephone and call the Union to report what he
had said.13
On December 18 the Union sent a telegram to Discount City claiming that it
represented the majority of the store employees and demanding recognition. On
December 21, James Sterns, the Union's business agent, telephoned Bambrick and
requested bargaining for a contract.14 On December 22 Brecker appeared at the
Store and held employee meetings during that day and on the following day. At these
meetings Brecker described the benefits listed in the employee handbook, and asked
whether the union people had visited them at their homes. He also inquired whether
there were any complaints. Employee Krisck complained about not getting his auto-
matic pay raise after 6 months; employees Schossow and Lois Check complained
about not being paid or given time off for unused sick leave; and some employees
complained about the dirty condition of the toilet and the decrepit furniture in the
employees' room. Brecker advised them that their complaints would be taken care
of,15 and encouraged them to bring their complaints directly to management, includ-
ing himself if they obtained no satisfaction locally. In response to employee inquiries
about medical insurance coverage, Brecker advised them that such insurance could be
obtained but solely at their own expense, and that he would ask Blue Cross to contact
them about a group plan.'6 He also stated that the Company would see to it that
there would be an election to determine their desires about having a union.17
On January 2, 1965, Bambrick conducted another meeting 18 of employees at which
he again reviewed the benefits listed in the employee handbook, and stated that new
employee smocks and new furniture for the employees' room would be provided, that
raises would be paid to those entitled to them, and that a representative from Blue
Cross would contact them and explain the insurance benefits. Some of the part-time
employees who worked from 5 to 10 p.m. on Saturday nights requested that a 10-
minute "break" be given to them after 4 hours. They were advised that they could
have such a "break" beginning that night. Prior thereto none of these employees had
"'Employees Florence Fisher and Karen Schossow testified on behalf of General Coun-
sel that Bambrick stated he would either kick out or put out of the Store both the em-
ployee and the union organizer found talking . Bambrick testified that if he found any
union organizer in the Store talking to an employee during working hours he would ask
the organizer to leave. Employees Monica Matuszak , Rita Van Gordon , Carol Palladino,
Mitchell Masher, Phyllis Hague, and Esther Conklin testified on behalf of Respondents
that Bambrick said union organizers had no right to talk to employees , and that either
he did not say he would throw them out or did not recall hearing him say so From
my observation of the demeanor of the witnesses , I credit the testimony of Fisher and
Schossow as related above. Apropos Bambrick 's credibility , he admitted in his testi-
mony that his prehearing affidavit , given to the Board, incorrectly stated that he held
only one meeting which took place after the receipt of a telegram from the Union demand-
ing recognition , and that he made no reference to union organizers coming into the
Store. He affirmed that part of his affidavit which stated that he heard the Union
represented a majority of the Store employees.
13 Employee Schossow testified that Bambrick said that he knew the identity of the
employee telephoning the Union ; Employee Fisher testified that Bambrick said that some-
body would telephone the Union during the lunch hour ; Employee Virginia Marks testified
on behalf of Respondent that at one of the meetings Bambrick stated that he knew the
identity of the girl ; and Employee Conklin testified that Bambrick said he knew some-
one was going to the Union with everything that was said . Bambrick testified that some
employee would run to the telephone and report to the Union . Based on the demeanor of
the witnesses , I credit the testimony related above to the effect that Bambrick knew
the identity of the employee.
14 This aspect of the case is discussed infra.
15 Schossow subsequently received a cash payment for her unused sick leave, and
Krisck obtained an automatic wage rate increase.
13 Subsequently , the employees were contacted by a representative of Blue Cross, and
a group plan was instituted pursuant to which the entire premium was deducted from
their salaries.
17 The findings are based upon credited composite testimony of employees Cochrane,
Francisco , Fisher, Schossow , Cecce, Byrd , and also Brecker.
1B Bambrick also held a meeting on December 26 at which he stated that he and the
girl in the office were reviewing the records on pay raises and sick leave benefits, and
they would be received by those entitled to them.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received any "break ." In connection with Blue Cross insurance he stressed the fact
that it would be cheaper to obtain it in the form of a group plan through the Company
than individually.
Brecker returned to the Store on January 7 and held meetings that day which were
attended in part by Keller.19 He advised the employees that they had a right to have
a union but the Company wanted an election by secret ballot to determine their
desire. The employees were again assured that new smocks would be furnished, and
that they had a right to sign affidavits for the Union. Brecker also stated that he had
knowledge of the union meetings which had been held at the Eagle Club , and that the
union organizers had had their ears pinned back.20
The record shows (General Counsel's Exhibit No. 24) that 11 employees 21 were
compensated by cash payments for unused sick leave at the end of December. These
employees were hired during August, September, or November, 1962. Although
unused sick leave was compensable by cash payment or commensurate time off at the
choice of the employee and at the discretion of the manager , the employees were not
consulted as to their preference , nor were the payments made on the yearly anni-
versary of their employment in accordance with company policy.
The record also shows (General Counsel's Exhibit No. 68) that a substantial
number of employees received wage increases during December, which were neither
automatic increases or required by the New York State Minimum Wage Act.22 As a
result of the wage increases no employee was receiving less than $1.35 an hour, and
practically all who were listed in the exhibit were raised to $1.35, several of whom
had previously been increased to $1.25 an hour pursuant to the Minimum Wage Act.
Conclusions as to the Alleged 8 (a) (1) Violations
Respondents began holding employee meetings for the first time soon after they
became aware of the union organizational campaign , in an effort to counteract union
interests or sympathy . At these meetings, and at the invitation of management, the
employees expressed dissatisfaction on a number of issues , including the failure to
grant automatic wage increases or to pay for unused sick leave; and made demands
for new employee smocks, new furniture in the employees ' room , a medical insurance
plan, and a 10 - minute "break" on Saturday nights for certain night-time employees.
Pursuant to their complaints and demands , assurances were given that new employee
smocks and furniture in the employees ' room would be supplied ; a Blue Cross-Blue
Shield group insurance plan was put into effect, which they were told would be cheaper
than individual policies ; past due automatic wage increases were effected ; uncompen-
sated accumulated sick leave benefits were paid; and a 10-minute rest period or
"break" was granted to the part-time employees working on the 5 to 10 p.m. shift on
Saturdays.
Of even greater import were the wage increases effected by Respondents during
December . It was contended that these increases were given to adjust inequities
resulting from the application of the New York State Minimum Wage Act, which
caused a reduction in or complete elimination of the preexisting wage rate differentials
between the higher and lower paid employees This contention has no merit because
factually untrue. The wage rates effected in December not only did not preserve the
preexisting differentials but almost completely eliminated them because practically
all the employees listed in General Counsel's Exhibit No. 68 were given the same wage
rate of $1.35 an hour, which was more than that required by the Minimum Wage Act.
When questioned about this matter, Brecker was unable to furnish a logical or rational
explanation . Nor was he able to adequately explain the timing of the increases. At
first he attempted to justify granting the increases in December because it was more
propitious to effect them at the end of the year . However, he later admitted that the
fiscal year terminated at the end of January, and in order to bolster his contention that
it was desirable to effect such increases in December , he claimed that there was an
important relationship between the payroll percentage. and the total business , and that
1i Keller also conducted four meetings on his own . At his meetings the subject of new
smocks and furniture was also discussed and assurances were given that new smocks
would be furnished . He also stated that the Company would insist that an election be
held to determine whether the Union would come in
2O These findings are based upon the credited testimony of employees Cochrane, Fran-
cisco , Hubbard , Moon, Schossow , and Byrd , and, in part , on Brecker 's testimony
"Button , Conklin , Hague, Knox , Marks , 1\fatuszak, Northrup , Palladino, Rought,
Schossow , and Tinkham.
za That Act , insofar as pertinent , provides for a minimum wage of $1 on and after
October 1 , 1960 ; $1 15 on and after October '15 , 1962 ; and $1 .25 on and after Octo-
ber 15, 1964.
S. E. NICHOLS COMPANY, ETC. 1207
inasmuch as the greatest sales of the year oecur in December, it was, therefore,
preferable to effect the wage increases in that month. His explanation was not only
lacking in clarity but also appeared to be contrived Moreover, even though justified
by sound and realistic economic and business reasons, the effect of such increases
would weaken the union position and dampen the enthusiasm of the employees for
unionization. Furthermore, these increases and some of the other benefits were not
given in conformance with any established company policy. Although the granting
of the automatic wage increases and payments for unused sick leave were responsive
to employee demands, and were consistent with previously established company
policy, it cannot be persuasively maintained that their timing was governed by factors
other than the pending union campaign.
Under all the circumstances, the evidence preponderates in favor of a finding that
the solicitation of employee grievances and the adjustment of these grievances were
part of a unified plan of Respondents, which was reasonably calculated to influence
employees in the exercise of their statutory rights through the granting or promising of
economic benefits, and to undermine the Union in violation of Section 8(a)(1) of
the Act. N.L.R.B. v. Exchange Potts Company, 375 US. 405; N.L.R.B. v. Benne
Katz, etc., d/b/a Williamsburg Steel Products Co. 369 U.S. 736; N L R.B v. Philamon
Laboratories, Inc., 298 F. 2d 176 (C.A. 2), enfg. 131 NLRB 80, C. J. Glasgow Co,
148 NLRB 98.
I also find that the remarks by Bambrick at the employee meetings to the effect that
he knew the identity of the employee who was reporting to the Union, and the state-
ment by Brecker that he knew the Union had its ears pinned back at the meetings at
the Eagle's Club created an impression which was conveyed to the employees that
their union activities were being kept under surveillance, and constituted conduct
violative of Section 8(a)(1). Moore's Seafood Products, Inc., 152 NLRB 683.
I find further that Bambrick's statement to the employees that he would kick any
employee out of the Store who was found talking to a union organizer, was constru-
able as a threat of discharge in violation of Section 8(a)(1). The threat was not
limited to selling areas of the Store during working time of the employee, and, accord-
ingly, exceeded the privileged scope of no-solicitation rules permitted in retail stores,
with consequent infringement on the statutory rights guaranteed to employees.23
Moreover, the timing of that statement raised a strong inference of coercive motiva-
tion or interference with the organizing efforts of the employees.
Also, the request by Brecker that the employees deal directly with management
either locally in Elmira or by mail with him in New York, with respect to their griev-
ances and their adjustment, plainly interfered with the rights of employees to pursue
their interest in self-organization free from employer interference, and thereby vio-
lated Section 8(a) (1), especially since at that time, as appears infra, the Union repre-
sented a majority of the employees at the Store and had requested recognition and
bargaining.
I find, however, that General Counsel has failed to establish by a preponderance of
the evidence that Respondents solicited employees to engage in espionage of union
activities. The only credited evidence to support that claim consisted of requests to
employees to report grievances of other employees, which falls short of espionage.24
Accordingly, it is recommended that allegations of espionage in the complaint be
dismissed.
B. The alleged violation of Section 8(a) (5)
1. The alleged Union's majority status
The parties stipulated both as to the appropriateness of the bargaining unit claimed
by the Union and also to its composition of 93 employees as of December 18.25 In
support of General Counsel 's contention that the Union represented a majority of
these employees when it requested recognition, he submitted authorization cards
signed by 50 employees or 3 more than a majority. Respondents , however, dispute
the Union 's majority status, asserting that 23 of these cards were invalid and cannot
be counted for representation purposes . In objecting to these cards Respondents
raised no issue as to the authenticity of the signatures appearing thereon but attack
their validity on the following grounds.
21 Cf. Marshall Field & Company, 98 NLRB 88, enfd. as modified 200 F 2d 375 (C.A.
7) ; Montgomery Ward & Co., Inc ., 145 NLRB 846 , enfd. 339 F . 2d 889 (C.A. 6).
24 The only other evidence which might remotely relate to this issue was testimony by
employee Tinkham that she was told to go out and circulate and talk to the girls.
25 General Counsel ' s Exhibits Nos. 22 and 65 show that 70 employees of Discount City,
3 employees of Butlers , 6 employees of Barbara Lynn, 5 employees of P.1-I S., and 9 em-
ployees of Richards constituted the unit.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a. Eleven employees 26 who signed cards did not authorize the Union to
represent them with respect to their employers named herein
Respondents contend the evidence shows that the top of the cards 27 (the blank
space indicating the name of the employer) was filled in after these cards were signed,
and that there is evidence only with respect to Jeffers' card indicating that she approved
of the insertion of the employer's name after she signed the card.
The evidence, however, shows, and I find, that Ruthe Levey filled out her entire
card; that the insertions on the top four lines of the card signed by Glenice Slater
appear to be in her handwriting; and that the other nine cards were dated and signed
by the signatories in the presence of the union solicitor at his request, and although it
does not affirmatively appear whether the top four lines on these cards were filled in
before or after they were signed, these insertions were nevertheless made in the
presence of the signatories and are not invalidated for the reason advanced by
Respondents in determining the Union's majority status 28
b. The validity of 12 cards 29 is attacked on the ground that their signatories testified
"that they would have an opportunity to vote on the matter of union representation
even though they signed cards"
Taking Respondents' objection to the validity of these cards at its face value as
stated in their brief, it, nevertheless, would be insufficient to invalidate the cards in
determining the Union's majority status. These employees signed cards clearly desig-
nating the Union as their bargaining representative. Such designation would not be
inconsistent with representations made to them that they would also be afforded an
opportunity to vote on the matter of representation. Cf. Cumberland Shoe Corpora-
tion, 144 NLRB 1268.
If, however, Respondents intended, albeit inarticulately, to attack the validity of
these cards on the ground that they were signed only for the purpose of obtaining an
election, I find that the credible evidence fails to establish that contention. The evi-
dence concerning the signing of these cards is as follows:
Monica Matuszak testified that she filled out the entire card (dated December 1)
before signing it. Her testimony as to what was said to her by the union solicitor is
conflicting. She admitted that the union solicitor advised her that if a majority of the
° Ruth Levey, Beatrice Reid, Jack Townsend, Patricia Jeffers, Robert Tangore, Jerry
Henry (his card is also attacked on another ground, antra), Audrey Share, Gladys Somers,
Elizabeth Barrett, Joyce Baker, and Glenice Slater.
11 The cards are in the following form:
RETAIL CLERKS INTERNATIONAL ASSOCIATION
(Affiliated with the AFL-CIO)
Authorization for Representation
Desiring to enjoy the rights and benefits of collective bargaining I, the
undersigned , employee of the -----------------------------------------
(Firm Name)
Store Address------------------------------------------------------
Store No. ---------- Employed as-----------------------------------
(Job Title)
Dept. __-_-______ Home Address -------------------- Phone ----------
hereby authorize Retail Clerks International Association, AFL-CIO, or its
chartered Local Union to represent me for the purposes of collective bargain-
ing, respecting rates of pay, wages, hours of employment, or other conditions
of employment, in accordance with applicable law.
---------------- ----------------------------------------
(Dated) (Signature of Employee)
a
d
V
ca
a
0
U
a0
28 The record shows that the union solicitor discussed with each employee the purpose
of signing of these cards, and under such circumstances they would not be invalidated in
determining the Union's majority status even if signed in blank. Henry Spen & Com-
pany, Inc., 150 NLRB 138.
29 Signed by Monica Matuszak, Elaine Morgan, Virginia Marks, Esther Conklin, Ronald
Moore, Donna Northrup, Sharon Hollander, Robert Larkin, Lillian Larrison, Jerry Henry,
Elizabeth Frank, and Darlene Moore. As noted supra, the validity of the card signed by
Jerry Henry was also attacked on the ground that it did not contain the name of his
employer at the time he signed it.
S. E. NICHOLS COMPANY, ETC. 1209
employees signed cards, the employer would have to negotiate, and also asserted that
she was told "It would still have to be put to an election." The union solicitor (Gil-
bert) testified that he told her the cards would be used to establish the Union's
majority status for the purpose of demanding bargaining with the Company for the
employees. Based on the demeanor of the witnesses, and also in view of the fact that
Matuszak filled out the entire card before signing it, I credit the testimony of the
union solicitor. I accordingly conclude that her card is a valid designation of the
Union, which can be used in determining its majority status.
Elaine Morgan testified that she filled out and signed a card on November 30;
that the union solicitor told her the card alone did not mean the Union could come
in, there would have to be an election; and that if she wanted to change her mind
she could. The union solicitor testified that he explained to her that the purpose of
the card was to establish the Union's majority status for the purpose of demanding
recognition by and bargaining with the Union on behalf of the employees. Even
assuming that there was some conversation about an election, an authorization card
is not thereby rendered defective unless it is represented that the card will be used
solely to obtain an election. I find that the credible evidence does not establish
that she was told that the card was to be used solely for the purpose of obtaining
an election. Moreover, the conflicting testimony is insufficient to overcome the effect
of her overt action in having filled out and signed an authorization card, which
clearly designated the Union as her bargaining representative. Winn-Dixie Stores,
Inc., et al., 143 NLRB 848. Nor would statements by the union solicitor to the
effect that upon an election the card signer could vote as she pleased warrant invali-
dating an unequivocal bargaining authorization.
Virginia Marks filled out and signed a card on November 17. She testified that
according to her understanding, the union solicitor "informed her that he was solicit-
ing cards for the purpose of representing the union to petition the NLRB in Wash-
ington as representative of the employees at Nichols to investigate the labor condi-
tions in the store, and that if I signed this card I would not be joining the union ...
it was just authorizing them to represent me to investigate the labor conditions."
At another point in the testimony she admitted that something was said about what
would happen with regard to the Company bargaining with the Union if the Union
got a majority of the cards signed. In view of her confused and conflicting testi-
mony, and the fact that she testified as to what she understood to have been told
her, I conclude that her testimony is insufficient to overcome the effect of her overt
action in having filled out and signed the card designating the Union as her bargain-
ing representative, and that her card may be counted in determining the Union's
majority status. Winn-Dixie Stores, Inc., supra.
Esther Conklin filled out and signed her card on November 18. She testified that
the union solicitor told her he needed a certain percentage of signatures before he
could go to the Government for a vote to put the Union in, and that there would
be a secret ballot for voting. On cross-examination she admitted that if they (the
Union) got a certain percentage of cards, they could send a telegram to the Com-
pany, and that there was some discussion about union dues and how the Union
would improve working conditions and obtain better wages. I find that the evidence
is insufficient to establish that representations were made to her that the sole purpose
of signing the card was to obtain an election. Nor is the evidence sufficient to over-
come the effect of her overt action in having filled out and signed the card, even if
there was some reference to an election in her conversation with the union solicitor.
Her card, accordingly, is a valid designation of the Union as her bargaining
representative.
Robert Lee Moore testified that he read the card before he signed it on Decem-
ber 14; that he and the union solicitor discussed working conditions and talked about
an election to get the Union in. On cross-examination he admitted that the union
solicitor told him if the Union obtained a majority of signed cards, it could ask the
Company to negotiate for a contract. I find that the credible evidence is sufficient
to establish that he signed a card for the purpose of designating the Union to repre-
sent him.
Donna L. Northrup testified that she filled out and signed her card on Novem-
ber 17 at the request of the union solicitor; that they discussed working conditions;
and that she was told if the Union obtained a certain percentage of signed cards
(she thinks it was 50 percent) the Union could write to the Company and insist upon
bargaining for the contract. I find that her testimony clearly corroborates that the
card was signed for the purpose as printed thereon.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sharon Hollander testified that she signed a card at the request of the union
solicitor ; 30 that she was told they would have an election to determine whether they
wanted a union ; and that if enough employees signed union cards the Union could
write to the Company and demand bargaining for a contract . I find that the credi-
ble evidence shows that the representations made by the union solicitor clearly reflect
and corroborate the purpose of the card as printed thereon.
Robert Larkin testified that the union solicitors asked him to sign the card, which
would authorize the Union to bargain with the Company for the employees; that
he was told there would be a secret-ballot election after a majority of employees
signed cards ; and that if a majority signed cards , the Union could insist in a letter
that the Company bargain with it for a contract . I find that the testimony corrobo-
rates that the card was signed for the purpose which appears thereon.
Lillian Larrison testified that she signed her card after reading it ; 31 that she was
told the Union would represent her in any grievances or in anything that was unfair;
and that there was mention of a vote to be taken. I find that the testimony amply
establishes that she designated the Union as her bargaining agent and corroborates
the purpose of the card as printed thereon.
Jerry Henry testified that he signed the card (dated December 14) after reading
it; that he was told by the union solicitor that by signing a card he would become a
union member and would not have to pay an initiation fee; and that by signing up
a majority of the employees , the Union could get a contract with the Company.
I find that the testimony clearly corroborates that the card was signed for the pur-
pose stated thereon.
Elizabeth Frank testified that she signed a card after reading it; 32 that she was
told there would be negotiations with the Company after a majority of the employees
had signed cards; and that the only purpose of the card was to obtain an election.
The union solicitor testified that she asked whether there would be an election and
he replied that there would be one only if the Union did not achieve a majority
status, and if a majority of employees signed cards the Union could demand that
the Company negotiate for a contract . Frank's testimony was confusing and con-
tradictory , and based on my observation of the witnesses , I credit the testimony of
the union solicitor to the effect that she was not advised that the sole purpose of
signing the card was to obtain an election . Under these circumstances even if
representations were made to her that the card served a dual purpose-to designate
the Union as her bargaining agent, as appears thereon , and also to bring the matter
to a vote-it would not be invalidated for the purpose of determining the Union's
majority status.
Darlene Moore testified that she filled out and signed her card , dated Decem-
ber 11 ; that she was told by the union solicitor that they wanted her to authorize the
Union to represent her and the other girls who signed up; that if a majority of the
employees signed up , the Union would insist that the Company bargain with it for
a contract ; that if the Company refused to negotiate , the Government would inves-
tigate ; and that the girls would be able to vote whether they wanted the Union.
I find that the evidence is insufficient to establish that representations were made to
her that the sole purpose of signing the card was to obtain an election. Nor is the
evidence sufficient to overcome the effect of her overt action in filling out and signing
her card . Accordingly , her card may be counted in determining the Union 's major-
ity status.
Recapitulating , I find that the cards of the 12 employees discussed above were not
invalidated for the purpose of determining the Union 's majority status , as contended
by Respondents . The only evidence , which might possibly affect the validity of
some of these cards , indicated that a few of the employees were told that signing a
card could lead to an election, or that a purpose of signing cards was to obtain an
election . Even assuming that such representations were made , they would not be
inconsistent with the evidence to the effect that signing a card also authorized the
Union to represent them. Nor would such representations affect the validity of the
designation of the Union as their bargaining representative since the evidence fails to
establish that the employees were told that an election was the sole purpose of sign-
ing the cards. Peoples Service Drug Stores, Inc., 154 NLRB 1516.
"The card , dated December 13, appears to be filled out in her handwriting.
31 The card , dated December 3, is obviously filled out in her handwriting
82 The card , dated November 17, appears to be filled out in her handwriting
S. E. NICHOLS COMPANY, ETC. 1211
c. The cards of Virginia Bonham and Gladys Hourihan
It also appears, as stated in their brief, that Respondents may have intended to
attack the validity of the cards signed by Virginia Bonham and Gladys Hourihan.
(1) Virginia Bonham's card
Respondents contend that the union solicitor represented to Bonham at the time
he requested her to sign the cards that 75 percent of the employees had signed up.
She testified in response to General Counsel 's question as to what was said to her
at the time as follows:
Well, I said that if we signed the card that it should never be known ... I mean
the card would never be shown to anyone and the employer would never know
who did it and he had 75 percent of the girls sign. They were trying to get all
of them interested . And he gave me the impression that most of them were,
and that's why I signed the card.
General Counsel objected to her answer. Although not clearly indicated , the objec-
tion was sustained only to that part of her answer which states, "They were trying
to get all of them interested . And he gave me the impression that most of them
were." The rest of her answer stands. The union solicitor testified that he was
unable to recall that he told her 75 percent of the employees had signed up. The
testimony of Bonham is credited in view of the union solicitor 's failure to deny it.
In view of her reliance in signing her card upon the solicitor 's misrepresentation as
to the percentage of employees who had signed cards , I find that it was invalidated
and may not be counted in determining the Union 's majority status for representa-
tion purposes . N.L.R.B. v. H. Rohtstein & Co., Inc., 266 F. 2d 407 (C.A. 1).
(2) Gladys Hourihan's card
Gladys Hourihan testified that she signed her card on December 9 after being told
by the union solicitor that the cards were to be used to prove the Union's majority
status. The following day and on several subsequent occasions she requested the
return of her card because of her husband's objection to having her become involved,
in view of the fact that she was only a part-time employee. Her card was never
returned despite frequent assurances by union representatives that it would be.
Shortly after Christmas she was advised that her card had been turned in to the
Union, which caused her to become strongly opposed to the Union. Apparently,
Respondents contend that under these circumstances her card may not be counted
in determining the Union's majority status.
It is evident that Hourihan's request for the return of her card was wholly unre-
lated to Respondent's alleged violative conduct, and, in fact, was made prior to any
proven misconduct by Respondents. Furthermore, her request for the return of her
card was made prior to the date when the Union demanded recognition, and was
due entirely to her husband's opposition to having her become involved in the Union.
I conclude that her card may not be counted in determining the Union's majority
status because it was a valid revocation. T.M.T. Trailer Ferry, Inc., 152 NLRB
1495.33
Conclusions as to the Union's majority status
As related above, I find that the Union had obtained 48 valid authorization cards
prior to its request for recognition and bargaining, and, accordingly, had obtained
a majority status at that time.
ss The Charging Party in its brief cites Moore's Seafood Products Inc., 152 NLRB 683,
and Sullivan Surplus Sales Inc., 152 NLRB 132, in support of its contention that Houri-
han's card should be counted in determining the Union's majority status. These cases are
inapposite. In Moore's case, the critical date for determining the Union's majority status
was the day before the request for revocation was made, while in the Sullivan case the
Board found that there was a direct causal relation between the Employer's conduct and
the revocation request.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The request for recognition and its refusal
On December 18, the Union sent the following telegram to the Store manager:
This is to advise you that Retail Clerks Union, Local 1685, AFL-CIO, repre-
sents a majority of the employees working at the Nichol's Discount City store
located at 2075 Upper Lake Rd., Elmira Heights, N.Y., including all lease
departments, but excluding Store Manager, Assistant Store Manager, Watch-
men, Guards and Supervisors as defined in the National Labor Relations Act.
We hereby request that the employees signed union authorization cards be sub-
mitted to an impartial and disinterested person on December 22, 1964, for the
purpose of verifying the Union's majority status. Following the verification
of the Union's majority status, we hereby demand that you or a representative
of the Company, meet with the duly authorized representatives of the Union
on December 31, 1964, to commence negotiations on a union contract covering
rates of pay, hours, and conditions of employment for the above-mentioned
appropriate unit.34
No reply to its telegram was received by the Union, and on December 21 James
Sterns, its business agent, telephoned Bambrick at the Store and asked "can we sit
down and talk." Bambrick replied, "I do not have the power or the authority to
talk to you ... it is in the hands of our attorney." Sterns then asked who the
attorney was and was told that it was James Burke of Elmira. Thereafter, there was
no further communication or contact between the Union and Respondents.35 In
their brief, Respondents state that they did not refuse to bargain, and that "the
Union's agent was referred to Respondent's attorney, and made no request for bar-
gaining or recognition."
Although not clearly stated in their brief, it is reasonable to presume that Respond-
ents intended to deny that a proper demand for bargaining was made by the Union
because the latter made no demand for bargaining after being referred to Respond-
ent's counsel. I find no merit in that contention. The Union made an unequivocal
demand for recognition on December 18 and, in effect, reiterated that demand on
December 21. The Union was not required to follow up its demand by contacting
Respondents' counsel after being referred to him. Thus, in Model Mill Company,
Inc., 103 NLRB 1527, 1528, enfd. 210 F. 2d 829 (C.A. 6), the Respondent, in reply
to the Union's letter demanding recognition, suggested that "You direct your corre-
spondence in the future to [Respondent's attorney]", adding that the Union's letter
had been forwarded to him. The Union thereafter received no further reply to its
request. The Board there construed Respondent's referral to its attorney, followed,
as it was, by the absence of any further communication from the attorney, to be
evidence of a refusal to bargain.
Furthermore, at no time after the demand for bargaining was made did Respond-
ents convey to the Union that it doubted its majority status. They simply ignored
or disregarded the request. It was only at the hearing, some 5 months later, that
Respondents attacked the validity of some of the authorization cards, as an after-
thought, to justify its unwarranted refusal to recognize the employees' chosen repre-
sentative . When an employer fails without good reason , as, here, to respond to the
bargaining requests of the Union or to avail itself of any of the proposals to prove
the Union's majority status, and instead embarks on a course of conduct which is
either calculated to or tends to destroy that majority, he does not demonstrate the
good-faith bargaining required to satisfy his refusal to bargain. Cactus Petroleum,
Inc., 134 NLRB 1254, 1258. If Respondents entertained a good-faith doubt of the
Union's majority status, they should have immediately responded to the Union's
demand and stated their position.36 Their silence could justifiably be considered
as a refusal of union recognition, because the burden was squarely placed upon them
to take the next step in the face of a bargaining demand which had not been with-
drawn.37 Moreover, the "adequate proof [of majority status] tendered by the claim-
31 The appropriateness of the unit was conceded at the hearing and consisted of all em-
ployees of the Respondent Employers at the Elmira store, excluding store manager, assist-
ant store managers , watchmen , guards, professional employees, and supervisors as defined
in the Act.
85 These findings were either conceded or not contradicted by Respondents.
-" A' L.R B. v. Phslamon Laboratories, Inc , 298 F. 2d 176. 180 (CA .2), cert denied 370
U.S. 919; N.L.R B. v. The Howe Scale Company, 311 F. 2d 502, 505 (CA. 7).
37 Irving Air Chute Co. v. N.L.R.B., 350 F. 2d 176 (C.A. 2).
S. E. NICHOLS COMPANY, ETC. 1213
ant could not in good faith be ignored ," and as Respondents "made no effort to
learn the facts [they] took the chance of what they might be." N.L.R.B. V. Dahl-
strom Metallic Door Company, 112 F. 2d 756, 757 (C.A.. 2). Or as the court stated
in International Ladies Garment Workers' Union (Bernhard-Altman Texas Corp.) V.
N.L.R.B., 280 F. 2d 616, 622 (C.A.D.C.), affd. 366 U.S. 731, "It is difficult to estab-
lish ground for believing or disbelieving the existence of majority status for a union
in the face of a failure to take any steps to determine that status [citations omitted]."
Conclusions
The law applicable to the present case was clearly stated in N.L R B. v. Philamon
Laboratories, Inc., 298 F. 2d 176-179 (C.A. 2), cert. denied 370 U.S. 919, as follows:
The Act imposes a duty to bargain in good faith upon request whenever a labor
organization has been designated by a majority of employees in an appropriate
bargaining unit. The employer must recognize and bargain with such an orga-
nization whether or not it has been certified by the Labor Board [citations
omitted]."
"The fact as to whether an employer entertains a genuine doubt that a union
represented a majority of the employees is to be determined as of the time the
time the employer refused to recognize the Union. Once it is shown that the
employer entertained no genuine doubt of this kind at the time it refused to bargain,
an unfair labor practice has been established. The fact that, as it later developed,
there were grounds which might have created a genuine doubt at that time is imma-
terial." Fred Snow, et a!., d/b/a Snow & Sons v. N.L.R.B., 308 F. 2d 687, 694
(C.A. 9), enfg. 134 NLRB 709. See also N.L.R.B. v. Kellogg's Inc., 347 F. 2d 219
(C.A. 9), enfg. 147 NLRB 342.
Respondents ' refusal to bargain and their insistence upon an election were not
motivated by any good-faith doubt of the Union's majority status but "by a rejection
of the principle of collective bargaining and by a desire to gain time in which to
undermine the Union." N.L.R.B. V. Austin Powder Company, 350 F. 2d 973
(C.A. 6), enfg. 141 NLRB 183. Or, as the Board stated in the Joy Silk Mills Inc.
case: 38
We have previously held that an employer may in good faith insist on a board
election as proof of the Union's majority but that it "unlawfully refused to bar-
gain if its insistence on such an election is motivated, not by any bona fide doubt
as to the Union's majority, but rather by a rejection of the collective bargaining
principle or by a desire to gain time within which to undermine the Union."
In cases of this type the question of whether an employer is acting in good faith
or bad faith at the time of the refusal is, of course, one which of necessity must
be determined in the light of all relevant facts in the case, including all lawful
conduct of the employer, the sequence of events, and the time lapse between
the refusal and the unlawful conduct.
I find that whatever evidence there is which might otherwise support Respondent's
claim of good faith is effectively nullified by Respondents Section 8(a)(1) viola-
tions, related supra, especially the wage increases or increases allegedly granted in
order to preserve the preexisting wage rate differentials between new and old employ-
ees. I accordingly find that the evidence in its totality establishes that Respondents
violated Section 8(a)(5) and (1) by their failure to honor the Union's request for
recognition.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in connec-
tion with the operation of Respondents described in section I, above, have a close, inti-
mate, 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 Respondents violated Section 8(a)(1) and (5) of the Act, I
will recommend that they cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
3885 NLRB 1263, 1264, enfd. 185 F. 2d 732 (CAD C.), cert. denied 341 US 914.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that Respondents refused to bargain with the Union which repre-
sented a majority of the employees in an appropriate unit, I will recommend that,
upon request, Respondents be ordered to bargain with the Union as the exclusive
representative of the employees in the appropriate unit.
In view of the foregoing findings of fact, and upon the entire record in this case,
I make the followmg:
CONCLUSIONS OF LAW
1. At all times material herein, the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
2. At all times material herein, Respondents were employers engaged in businesses
affecting commerce within the meaning of Section 2(6) and (7) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, to the extent hereinabove set forth and
found, Respondents have engaged in unfair labor practices proscribed by Section 8(a)
(1) of the Act.
4. All employees of Respondent employers at the Store, excluding store manager,
assistant store managers, watchmen, guards, professional employees, and supervisors
as defined in the Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
5. The Union was on December 18, and at all times relevant thereafter has been,
the exclusive bargaining representative of all the employees in the above-described
appropriate unit for the purpose of collective bargaining within the meaning of Sec-
tion 9(a) of the Act.
6. By refusing to bargain with the Union since December 18 as the exclusive repre-
sentative of the employees in the above unit, Respondents have engaged in and are
engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1)
of the Act.
7. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case and the foregoing findings of fact and conclu-
sions of law, and pursuant to Section 10(c) of the National Labor Relations Act, as
amended, I recommend that Respondents, S. E. Nichols Company; Nichols Discount
City; Butlers' Shoe Corporation; The Richards Corporation; Barbara Lynn Stores,
Inc.; P.H.S. of Elmira, their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing their employees in the exercise of
their statutory rights by:
(1) Unilaterally granting or promising wage increases or other economic benefits
to their employees for the purpose of influencing their union activities or sympathies.
However, nothing herein shall be construed to require Respondents to withdraw any
such benefits heretofore granted.
(2) Threatening economic reprisals against their employees found talking to union
organizers during nonworking time and nonselling areas of the store.
(3) Dealing directly with their employees with respect to their grievances or con-
ditions of employment.
(4) Creating an impression of surveillance of employees' union activities.
(b) In any like or related manner interfering with, restraining, or coercing their
employees in the exercise of their right to self-organization, to form, join, or assist
Local 1687, Retail Clerks International Association, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such activities, except to
the extent that such right is affected by the provisions of Section 8(a)(3) of the Act,
as amended.
(c) Refusing, upon request, to bargain collectively with Local 1687, Retail Clerks
International Association, AFL-CIO, as the exclusive representative of their employ-
ees in the following appropriate unit, with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment:
All employees of Respondent Employers at their store in Elmira, New York,
excluding the store manager, assistant store managers, watchmen, guards, professional
employees, and supervisors as defined in the Act.
S. E. NICHOLS COMPANY, ETC. 1215
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Upon request, bargain collectively with Local 1687, Retail Clerks International
Association, AFL-CIO, as the collective-bargaining representative of all their employ-
ees in the above-described appropriate unit with respect to rates of pay, wages, hours
of employment, or other conditions of employment, and, if an understanding is
reached, embody such understanding in a signed statement.
(b) Post at their store in Elmira, New York, copies of the attached notice marked
"Appendix." 39 Copies of said notice, to be furnished by the Regional Director for
Region 3, shall, after being duly signed by Respondents' representatives, be posted
by Respondents 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 the Respond-
ent to insure that such notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 3, in writing, within 20 days from
the date of the receipt of this Recommended Order, what steps Respondents have
taken to comply herewith 40
11 In the event that this Recommended Order Is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
"If this Recommended Order Is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 3, in writing, within 10 days from
the date of this Order, what steps the Respondents have taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise
of the rights guaranteed in Section 7 of the Act by:
(1) Unilaterally granting or promising wage increases or other eco-
nomic benefits to our employees for the purpose of influencing their union
activities or sympathies.
(2) Threatening economic reprisals against employees found talking to
union organizers during nonworking time and in nonselling areas of the
store.
(3) Dealing directly with our employees with respect to their grievances
or conditions of employment.
(4) Creating an impression of surveillance of employees' union activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to form, join,
or assist Local 1687, Retail Clerks International Association, AFL-CIO, or
any other labor organization, to bargain collectively through representatives for
the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such right is
affected by the provisions of Section 8(3) of the Act, as amended.
WE WILL NOT refuse to bargain with the aforedescribed Union as the exclusive
bargaining representative of our employees in the appropriate unit noted below
with respect to wages, hours of employment, and other terms and conditions
of employment.
WE WILL bargain, upon request, with the above-named labor organization as
the exclusive bargaining representative of all employees in the bargaining unit
described below with respect to wages, rates of pay, hours of employment, or
other conditions of employment, and, if an understanding is reached, embody
such understanding in a signed agreement. The bargaining unit is:
All employees at the Elmira, New York, store, excluding store manager,
assistant store managers, watchmen, guards, professional employees, and
supervisors as defined in the Act.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of any labor organization.
S. E. NICHOLS COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NICHOLS DISCOUNT CITY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
BUTLERS' SHOE CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
THE RICHARDS CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
BARBARA LYNN STORES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
P.H.S. OF ELMIRA,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Fourth
Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York, Telephone No.
842-3112.
American Bridge Division, United States Steel Corporation and
S. L. Parker, Petitioner and United Steelworkers of America,
AFL-CIO. Case No. 20-RD-428. February 2, 1966
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
Patricia J. Kenny. The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed. Thereafter,
the Employer, the Petitioner, Carpenters' Union Local 1418, United
Brotherhood of Carpenters & Joiners of America, AFL-CIO, and the
United Steelworkers of America, AFL-CIO, filed briefs in support
of their positions.'
1 The request of United Steelworkers of America, AFL-CIO, herein called Steelworkers
Union, for oral argument is hereby denied because the record and briefs adequately
present the issues and positions of the parties.
156 NLRB No. 108.