Saxon Paint Stores, Inc.

National Labor Relations Board - Board Decisions

Oct 10, 1966

160 N.L.R.B. 1757 (N.L.R.B. 1966)

SAXON PAINT STORES, INC. 1757
Saxon Paint Stores , Inc., Saxon Central Corp ., Saxon Roseland
Corp ., Nixon Laboratories, Inc., Nixon Harlem Corp ., Nixon
32nd Corp ., Nixon Clark Corp ., Nixon Halsted Corp ., Nixon 87th
Corp ., Nixon Streator Corp., Nixon 95th Corp ., Nixon Villa
Corp., Nixon Racine Corp ., Nixon Kenosha Corp ., and Nixon
Hales Corp. and Retail Department Store Sales Employees
Union Local 300, Retail Clerks International Association, AFL-
CIO and Retail Store Employees Union Local 300, Retail Clerks
International Association , AFL-CIO
Sax-On Paint Stores , Inc., and Retail Store Employees Union,
Local 300, AFL-CIO , Petitioner . Cases 13-CA-6805, 6978, and
13-IBC-10514. October 10, 1966
. DECISION AND ORDER
On January 18, 1966, Trial Examiner Boyd Leedom issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent 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 the Respondent had not engaged in other
unfair labor practices and recommended that the complaint be dis-
missed as to them.' He further recommended that the National Labor
Relations Board sustain the Petitioner's objections to the election,
set aside the election, and dismiss the petition in the representation
proceeding. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision insofar as it finds that Respondent violated
Section 8( a) (3) and (5) of the National Labor Relations Act, as
amended, together with a supporting brief; the General Counsel filed
cross-exceptions and a supporting brief; and the Respondent filed a
brief in answer to the General Counsel's cross-exceptions.
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 [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner to the extent consistent
with this Decision and Order.
'We deem it unnecessary to decide whether , as the General Counsel maintains in his
exceptions, Respondent in fact engaged in certain additional 8(a) (1) violations.
160 NLRB No. 140.
1758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner found a violation of Section 8(a) (3) and (1)
of the Act arising out of Respondent's discharge of six employees at
one of its 15 retail paint and hardware stores in November 1965, at a
time when the Union was attempting to organize the chain of stores.
He concluded that the reasons for the discharges advanced by Re-
spondent were pretexts designed to cloak Respondent's actual reason,
which was the union adherence of the employees. In so concluding,
the Trial Examiner found that Respondent had knowledge of the
dischargees' union adherence or activity. We do not find adequate
support for that conclusion in the record.
The Trial Examiner himself noted in his Decision that direct evi-
dence of company knowledge of union activity of complainants is
fragmentary and unpersuasive. Nor does the evidence justify an in-
ference of company knowledge such as was- -made by the Trial
Examiner. There was no union activity at the store involved which
could be inferred to have come to the attention of Respondent. Such
activity' as -affected: this store appears to have occurred outside the
store, at homes of individuals,z' or in the laundromat across the street
from the store. But the activity away from the store area was not
shown to be known by Respondent and the laundromat was patron-
ized by all Respondent's employees. Although Respondent became
aware of organizational activity at the laundromat, it is not shown
that it became aware of the identity of the individuals who may have
participated in it. One of the complainants, Federlin, engaged in no
union activity and, so far as appears from the record, was not a
union sympathizer.
We also disagree with the Trial Examiner's' evaluation of the rea-
sons given by 'Respondent for the discharges. The pretextual reason
he found in the Birdwell discharge of November'6 influenced his find-
ing that' a discriminatory motivation existed in the cases of the other
five complainants who were discharged on November 11 and 14. But
we are not persuaded that the reason given for Birdwell's discharge
should be rejected when all the relevant circumstances are considered,
such as; the record points to no more plausible reason for the
discharge,3 and the complainant's shortcomings assigned for the dis-
charge were mentioned- at the time of the discharge and had pre-
viously been of concern to Respondent. Nor can we reject as unper-
suasive Respondent's explanation for the discharge of the other com-
plainants on the ground that they pilfered merchandise. The pilfering
was uncovered by a security officer who had been hired because of the
9 Shierhorn and Stoga signed union cards at their homes on June 26 and November 9,
respectively.
8 There is no evidence of company knowledge of Birdwell's union adherence (she signed
a card in July ) and she was absent from work during the week immediately preceding her
discharge when the Union became active at the laundromat.
SAXON PAINT STORES, INC. 1759
extent of the practice. Upon investigation of the matter, and the
discharges were made only after thorough investigation, these five
complainants were identified as pilferers. When confronted, four of
them admitted the fact, and it is the policy of Respondent to dis-
charge for stealing. The Trial Examiner finds considerable reason to
question the-assigned reason for the discharges in the fact that dis-
charges; were made despite Respondent's promise to protect them if
their thefts were of items of small value. Respondent explains, how-
ever, that its promise was to the effect that it would protect the
employees by not reporting the thefts or otherwise blemishing their
record, and it did keep this promise, even to the extent of recording
the reason for the discharges on company records as "Did not meet
the company standards." We believe that Respondent' s explanation
is sufficient to preclude the adverse inferences drawn by the Trial
Examiner.
Upon consideration of all the foregoing, and the additional circum-
stances that no employees are alleged to have been discharged for
union activity at Respondent's other stores where union activity was
taking place, and that all the 8(a) (1) violations occurred several
months after the discharges, and none of it by the management at the
store involved herein, we conclude that the General Counsel has
failed to establish that the discharges in question were unlawfully
motivated, and shall dismiss the 8(a) (3) allegations of the complaint.
Inasmuch as the Trial Examiner's finding of an 8(a ) (5) violation
is based upon a, demonstration of union majority which presupposes
the inclusion of the union designations signed by the dischargees
herein, we shall also dismiss the 8(a) (5) allegations of the complaint'
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Delete paragraphs 2(a) (b), (c), and (d) of the Trial Exam-
iner's Recommended Order and-reletter paragraphs 2(e) and (f)
paragraphs (a) and (b) respectively.
[2. Delete the fifth and sixth indexlted paragraphs of the Appendix
to the Trial Examiner's Decision and the "NOTE" appearing at the
end thereof.]
[The Board dismissed the complaint insofar as it alleges violations
of the Act not found herein.]
[The Board set aside the election held on April 2, 1965.]
* It is noted that Van Noy was employed within the bargaining unit on the date bargain-
ing was requested . No exceptions were filed to the Trial Examiner 's rejection of Borgaard's
card.
1760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This consolidated case was tried before Trial Examiner Boyd Leedom at Chicago,
Illinois , August 9 through 13, 1965.
The complaint in Case 13-CA-6805 is dated January 29, 1965. It issued on a
charge and an amended charge dated respectively November 23, 1964, and Janu-
ary 26, 1965. This complaint alleges that all of the corporations named in the cap-
tion constitute a single enterprise (referred to in the complaint and here also as the
Respondent), and that Respondent unlawfully discharged six named employees
because of their union activity, thereby violating Section 8(a)(3) and (1) of the
National Labor Relations Act.
Following the issuance of the above-mentioned complaint, an additional charge
and first amended charge were issued in Case 13-CA-6978, dated April 6, and May 17,
1965, respectively. On May 20, 1965, an order consolidating the two cases, num-
bered above, was entered as a part of a consolidated amended complaint, incorpo-
rating the original complaint in Case 13-CA-6805, and alleging pursuant to the
charge and amended charge in Case 13-CA-6978, that Respondent had restrained,
coerced, and interfered with its employees in the exercise of Section 7 rights of the
Act by interrogation, threats, promises, and vilification, all related to their union
activity, and by such means on and after March 16, 1965 (a majority of Respond-
ent's employees, in an appropriate unit, having designated the Union named above
as their representative for the purpose of collective bargaining), not only refused to
bargain with the Union, but undermined it and destroyed its majority representa-
tive status. Thus, in the consolidated complaint the Respondent is charged with vio-
lation of Section 8(a)(1), (3), and (5) of the Act.
In the representation proceeding designated above as Case 13-RC-10514, initi-
ated by the Union's petition filed February 25, 1965, a secret ballot of Respondent's
employees was conducted on April 2, 1965, pursuant to stipulation for certification
upon consent election . Out of 70 eligible voters, 13 votes were cast for the Peti-
tioner, 44 were cast against, and 12 ballots were challenged. On April 6, 1965,
timely objections to conduct affecting the results of the election were filed by the
Union. Because the objection raised substantially the same issues involved in
certain conduct alleged in Case 13-CA-6978, the representation case by order dated
June 14, 1965, was consolidated with the two complaint cases numbered above for
disposition in this proceeding.
The questions presented are (1) whether Respondent engaged in conduct which
warrants setting aside the election; (2) whether Respondent, in violation of Section
8 (a) (1) of the Act, interfered with, restrained, and coerced employees in the exer-
cise of their Section 7 rights; and (3) if Respondent did, whether the Union repre-
sented a majority of Respondent's employees in an appropriate unit at a time when
it requested bargaining, so that Respondent' s refusal to bargain violated Section
8(a) (5) of the Act, notwithstanding the results of the election.
Upon the entire record as corrected( General Counsel's motion to correct tran-
script being hereby granted), upon my observation of the witnesses, and after due
consideration of the brief filed by the General Counsel, the Respondent and the
Charging Party, I make the findings of fact and conclusions of law hereinafter set
out in detail, and decide that the Respondent did violate Section 8(a)(1), in the
particulars hereinafter set out, and Section 8(a)(3) and(s) of the Act, as alleged
in the complaint.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I find as facts the allegations of the complaint (all admitted by Respondent's
Answer) as to the nature, locations, and volume of business carried on by Respond-
ent and that all the corporations named in the caption hereof constitute a single
enterprise, and conclude from such findings that all of such corporations constitute
a single employer engaged in commerce within the meaning of the Act.
I also find that the Union is, as Respondent admits, a labor organization within
the meaning of Section 2(5) of the Act.
The Violations of Section 8(a)(1)
This proceeding arose out of the Union's effort to organize certain of Respond-
ent's retail paint stores. This campaign began about April 1964 and followed by
some months an earlier effort carried on by the Union among certain of Respond-
ent's employees.
SAXON PAINT STORES, INC . 1761
It is clear from the record, and Respondent does not deny, that it opposed the
Union's effort to acquire representative status among the employees involved. As
the union campaign developed and after a petition had been filed and an order
had been entered directing an election, a meeting attended by certain management
personnel was held at which store managers were instructed in considerable detail
as to methods they could lawfully use in contacting employees to resist the
Union. Between the time of this management meeting and the representation
election held on April 2, 1965, Respondent, through certain corporate officers,
store managers, and assistant store managers, made numerous contacts with employ-
ees in the unit involved in the election. Respondent contends, and sought to estab-
lish, that in these contacts nothing was said by management personnel that was not
lawful. On the other hand employee witnesses testified as to. statements made
to them by persons of Respondent's managerial staff about the Union, which quite
clearly, under Board precedent, are violative of the Act. As to some of the state-
ments concerning which the employees testified, there are no denials. As, to others,
the testimony offered by the opposing side reveals different interpretations on what
was said, and as to still others there are sharp conflicts in the testimony.
The witness Donna Daniels was a part-time employee of Respondent during the
time of the Union's organizational campaign, and also at the time of the election,
and was still an employee at the time of the hearing. Al Goldstein was the man-
ager of the store (admittedly a supervisor) where Donna worked, at the time
of and prior to the election. Her demeanor on the stand, the content of her
testimony, her high degree of perceptivity and accuracy of memory as revealed by
her testimony, plus a quality of sincerity and forthrightness, all gave credibility to
her recital of relevant events. She, along with most of the witnesses called by the
General Counsel, was youthful, ranging in age from 16 to 20 years.
While her testimony, in the main , supported General Counsel's case and the
position of the Union, a rather unusual development in the course of the trial,
lent credence to Daniel's testimony.
On cross-examination by counsel for the Respondent, Daniels was asked if she
had talked with the union representative concerning her testimony before testify-
ing, or if anyone had reminded her that the card she had signed was for the pur-
pose of giving the Union the right to represent her. She replied that she already
knew that; and was asked further whether in addition to her own knowledge, had
anyone reminded her of it prior to taking the stand. She responded, "I think some-
one mentioned it." By question and answer it was then developed that no one
had spoken to her directly concerning this subject but that outside the hearing
room, the previous day, "somebody was talking to somebody else and I overheard."
Asked again what she heard this person say she replied, "That the cards were
for authorization and they should remember that." This testimony was generally
accepted as a reference to an effort on the part of someone to coach witnesses. It
caused some consternation. Counsel all disclaimed any part in the incident and
were expressly cleared of any participation in it by the witness Daniels.
The incident establishes the witness' willingness to reveal a matter that could
easily have remained submerged and which, contrary to the balance of her testi-
mony, was not in support of the General Counsel's case or the Union's position.
It also tends to emphasize the tremendous difficulty involved in ascertaining with
any real accuracy just which representations, out of a welter of conversation lasting
for hours, induce employees to sign cards which by their wording constitute the
Union as the representative of the signer for bargaining purposes.
Daniels testified, and I credit her testimony, that about a week before the elec-
tion, her Store Manager Al Goldstein, took her home after the store closed. He
asked her if there had been a union meeting and where, and she informed him;
also how many people were there and she replied that everyone had attended
excepting one employee, naming him. Goldstein then said , "I hope to be with
Saxon a long time and you are a good cashier and I hope you will be there, too."
He spoke to her again the next day in the store: "I'm sure you have been con-
tacted by union organizers ," and added, "I can't promise you anything definite
but I can say there are good things in the future, in the very near future for
you . . . do you understand?" And later that same evening he told her, "If I
can get 100 percent" (referring to the employees' votes in the coming election)
"Saxon will think I'm a good manager, and as a good manager I can do things
for you. Do you understand?" He asked her, "How do you feel?" and she replied,
"Okay, okay, I'll vote no, I'll vote no."
257-551-67-vol. 160-112
1762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Goldstein did not testify in this proceeding. There is nothing in the evidence
to refute this testimony of Daniels. I find and conclude that Goldstein made the
foregoing remarks and that they were violative of Section 8(a)(1).
The questions set forth above, asked of this employee by her supervisor, Gold-
stein , concerning the union meeting, who attended, and the employee's own
position, quite clearly are not privileged under any exception of the Board's rules;
and it is equally clear that his comments constituted promises of benefits to the
employee if she would oppose the Union, notwithstanding an apparent effort to
veil the promise.
I find that Goldstein made still another remark to the employee Donna Daniels
and conclude that it constitutes a harsher violation of the Act than the inquiries
and comments noted above. When arrangements were being made by a Board agent
for the balloting the morning of the election, the question was asked of the few
people present who would be the observer for the Union. Goldstein indicated that he
thought no one in the store would serve as observer, whereupon Donna Daniels
announced that she would do it.•In exhaustive testimony concerning the exact situa-
tion of the parties, who was present and just what was said , I credit the testimony of
Daniels and find that Al Goldstein said to her shortly after her announcement that
she would be observer, "You fixed it for yourself, kid."
Inasmuch as Goldstein did not testify 'in, the case, there could be no direct
refutation that he made this remark. While Edward Baker, manager of one of
Respondent's stores, called by Respondent, testified that he had been present at
the polling place just before the election started and did not hear Goldstein make
any such remark to Donna -Daniels, I find his testimony of little probative value
as against the positive and credited testimony of Daniels, in that it is entirely
possible, as revealed by the record, that Baker was not actually in the room when
the Goldstein statement was made, or that if in the room, he was not so situated
that he would have heard the remark which was made in a low voice. This state-
ment of Goldstein's is of course clearly a threat and not condoned under the Act.
The employee Patricia Fale testified that about a week before the union election
the manager of the store where she was employed, Glen Sheeley, came to her
and spoke to her about the Union. Sheeley did not testify in the case and so
there is no denial in the record that he made the remarks concerning which Patricia
testified. I credit her testimony and find that at the time of this conversation,
among other things, Sheeley told her that if the Union should be selected as the
bargaining representative of the employees, and managed to get an increase in
the hourly rate of pay, the employees still would be getting no more money
because the employer would have to cut the hours to compensate for the increase
in pay per hour, and that with the union dues taken out, employees would be
getting less per week. I conclude that this is a violation of the Act in that it was
a threat that Respondent would create less favorable working conditions if the
Union won-that is, a shorter workweek.
I also find and conclude that Sheeley told this employee that if she would find
her receipted bill for medical expense in connection with an old injury incurred
on the job, and which had no previous attention from the employer, the Respond-
ent would reimburse her for her outlay. I conclude that this violated the Act in
that it was a benefit offered to her, designed to gain favor with her and coerce
her into a position against the Union.
Notwithstanding that the employee Norma Borgaard was somewhat excitable
on the stand, she was an impressive witness and I credit her testimony. She testi-
fied that during the period just prior to the election when Respondent's manage-
ment personnel were campaigning against the Union, Joe Saks, president of
several of the corporations involved herein and the principal figure in Respond-
ent's whole enterprise, visited with her more than once and on one occasion said,
"Norma, I have a great future for you but I can't tell you what it is now because
that would be considered a bribe." I find that this statement was made essentially
as set forth, at about the time and place the witness Borgaard said it was made,
and conclude that it violates the Act. Notwithstanding a kind of reverse English
put on the statement by Saks, it is as clearly a promise of benefit for opposing the
Union, in the context of conversation in which it was made, as if Saks had
clearly told the witness that if she would oppose the Union, he would see to it
that she would benefit through a bright future with the Company.
The opposition of Joe Saks to the Union, and the reasons therefore, are fairly
disclosed in his testimony. He testified at some length. In his testimony there is
no direct refutation of the statement to the witness Borgaard , set out above, and
SAXON PAINT STORES, INC. 1763
there is no direct refutation either of various other statements attributed to him
by Borgaard and other witnesses . He was anxious to let the employees know
that Respondent's present business, now one of substantial proportions, had started
from a very small beginning, and had grown to its present state through the efforts
of three generations of the Saks family, his father, himself, and his son; that it
had always been a kind of family affair that included the employees in the family,
and that if the Union came in , this family relationship would be destroyed.
He, and any employer , is entitled to some latitude in thus expressing himself
concerning the nature of past operations and the effect of unionism on them, but
I find and conclude that he exceeded lawful bounds when he advised certain
employees that his past custom of always helping out his employees who might
be in difficulty, by lending them money and, otherwise, would have to come to an
end if the Union should be selected as the bargaining representative. This, in the
context of his conversations where he openly opposed the Union must be regarded
as a threat of worsening conditions if the Union should be selected.
Employee James Ewell testified that Morton Kalin , manager of one of Respond-
ent's stores , talked to Ewell just prior to the election about the Union. In,a rather
long conversation Kalin advised Ewell , that Kalin would change Ewell 's working
hours (1 until 9 p.m.) according to. Ewell 's preference, from sometime in the
morning unit 5 p.m. While Kalin testified, his testimony does not, include a denial
of the recital by the witness Ewell of this promise. I find and conclude that the
promise was made substantially as Ewell testified, and that it constitutes a vio-
lation of the Act in that it was a promise of better working conditions, made in
the context of a conversation where an. employer sought to persuade an employee
to oppose the union. Ewell had sought the same advantage some months previously
and it had been denied him.
There can be little doubt that most, if not all, of the management representa-
tives, who had met for instructions as to the extent of lawful opposition to the
Union, made some effort to comply with what they had been told. In addition,
however, to the violations hereinbefore noted, concerning most of which there is
no dispute in the record, there were other transgressions . Where resistance to union-
ization is as determined as it was in this case , and where contacts with employees are
as extensive and as systematic as they were here, it seems inevitable that the
enthusiasm, if not to say antagonism, that is apt to grow out of lengthy conver-
sations on a controversial issue, results in statements , perhaps not intended, that
the law does not permit.
I credit the testimony of the witness, Borgaard that the store manager, Norman
Whitesman, told her that, she would not -get a raise if the Union got in because
Respondent would cut the hours even if they had to bring in outside help; also
that Store Manager Kalin asked her if she was going to vote for the Union. I find
that this statement and this question, in context, both violated Section 8(a)(1)
of the Act.
I also find that Joe Saks asked the witness Christine Trojanowski whether she was
going to vote for the Union . This question was asked in the context of a conversa-
tion revealing Saks' opposition to the Union , without any slight indication of any
concern as to whether or not the Union represented a majority of the employees,
or other justifiable reason, and was therefore an improper inquiry, in violation of
the Act.
The record also reveals several instances of remarks by management personnel to
various employees, clearly giving to the employees the impression that they were
under surveillance by management with respect to union activity. I credit the
employees ' testimony that Store Manager Kalin told employee Trojanowski that
he had heard some of the "kids" in the store had been talking about the Union
and that he had heard about her; that Assistant Store Manager Charles Bagley
said to employee John Petrovich that he knew Petrovich had signed a union card
and had been asked to be a steward, and when Petrovich asked how he knew
this, Bagley said, "Oh; just the grapevine," indicating further that the news "gets
around"; that Store Manager Kalin told employee Petrovich that he had heard
Petrovich was for the Union, and that he had heard it down at the office; that
Kalin told employee Borgaard that Respondent knew she had held a union meeting
in her home, that Kalin told the witness Ewell that they knew the Union was
trying to get people to sign membership cards , and when Ewell looked at Kalin
in response to this statement , Kalin told Ewell "not to give him that look, he knew
that everybody knew about the cards."
1764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I conclude that all of these statements, in the context of Respondent's open
opposition to the Union, including the promises, some of them quite vague, of
better working conditions if the Union should be defeated, and the threats of
economic loss if the Union won, constitute coercion in violation of Section 8(a) (1)
of the Act in that they interfered with the employees' freedom of action with
relation to the Union.
I also find that various management representatives, in discussing such fringe
benefits as vacations and health benefits, created the impression in the minds of the
employees that certain benefits were in store for them in these areas, and that these
conversations , vague as some of them were, in the context of the other violations,
constituted a breach of Section 8(a) (1) of the Act.
The General Counsel offered evidence and argued in the brief that certain other
conduct of Respondent violated Section 8(a) (1) of the Act. This has to do with
heated conversations that took place between management representatives and two
union organizers in one of Respondent's stores, and subsequent references to the
incident by management representatives in their visits with various employees. In
these conversations the evidence revealed that management referred to the union
agents as "parasites" and the "Gestapo"; and in all probability, in recounting the
initial incident, advised certain employees that if the union agents ever showed up
again in the store they would be thrown out. While I think such methods on the
part of management are ill-advised and unsophisticated, and really against manage-
ment's own interests, I am not persuaded that they constituted coercion or interfer-
ence within the meaning of Section 8 (a) (1) of the Act. This is my view after giving
full consideration to the other violations, hereinbefore noted, committed by
Respondent. It is difficult for me to understand how this undesirable conduct on the
part of Respondent's representatives would cause employees, knowing of it, to oppose
the Union. The reverse seems to me more likely, with any coercive effect, either way,
negligible. Experience has established that election campaigns are often character-
ized by extreme charges, accusations, and misrepresentations in varying degrees.
The apprasial of the validity of such extravagances can, as the Board has found,
be left in the main to the good judgment of the voters. Thus not all name-calling,
falsehoods, or inaccuracies are held to be in conflict with the law. I find and con-
clude that this particular conduct complained of by the Union and argued by the
General Counsel to be violative, is of the kind that the Board does not condone but
does not find to be in violation of the Act.
Neither do I find support in the record for the General Counsel's allegations that
Respondent violated Section 8(a)(1) of the Act by furnishing its employees with
meals and refreshments to induce them to oppose the Union. Such evidence as there
is establishes no extensive pattern of this practice, or any significant deviation from
a pattern that existed in previous years.
The Unlawful Discharges
During the first half of November 1964, Respondent discharged Christine Ochwat
Birdwell, Cheryl Gallas, Leslie Schierhorn, Pauline Federlin, Lolita Hansen, and
Josephine Stoga. The complaint alleges that the discharges were made because of
union activity, while the' Respondent's defense is that all, with the exception of
Birdwell, were discharged because they were involved in thefts of merchandise
from one of Respondent's stores. All of the discharged employees excepting Paul-
ine Federlin had signed cards designating the Union as their representative for the
purposes of collective bargaining, and Christine Birdwell had become a primary
contact for the Union in the store where all the dischargees were employed.
The resolution of the conflict as to the real reason for the discharges is difficult
because of the conflicting circumstances appearing in the record: (1) the timing
of the discharges, the opposition of Respondent to the Union, and the union activity
of the dischargees point toward discharges because of the union activity; and on
the other hand (2) assuming that petty theft on the part of an employee warrants
discharge, as I believe it does, Respondent had good reason for discharging at least
some of the people, if in fact they were discharged for theft. For reasons hereafter
appearing I resolve the conflict against Respondent and find and conclude that the
Respondent's stated reason, that the people discharged were either guilty of stealing
or strongly suspected of stealing, was in fact a pretext, and that all of the dis-
chargees were actually discharged because of their umon activity.
In my consideration of the problem I find that the discharge of the employee
Christine Ochwat Birdwell is a good indication of Respondent's true motivation in
SAXON PAINT STORES , INC. 1765
all the discharges. It is not claimed by Respondent that Birdwell was discharged
for theft or suspicion of theft. She was however the key employee for the Union in
a flurry of organizational activity that took place just prior to the discharges when
Jerry Jones was employed by the Union in October 1964 to help organize Respond-
ent's operation.
Birdwell was first employed by Respondent in September 1963, as a cashier
About the time she graduated from high school in May 1964, she was made head
cashier in one of the stores. After about a month, or a little longer, before she was
discharged without any advance notice, she had been given a pay raise and addi-
tional responsibilities by Robert Beasey, the store manager , who, so soon after,
made the decision to let her go. The reason he gave for the discharge was stated
by Beasey on cross-examination in these questions and answers:
Q. And the reason that you fired Christine Birdwell was that she didn' t smile
enough for customers , isn't that correct?
A. That is correct.
Q. And there was no other reason then for that, was there?
A. Only her attitude.
Birdwell had taken time off to be married without advance notice to Respondent,
although she had telephoned "in" during the period to explain why she was absent.
This absence coincided closely with the discharge, but was positively rejected by
Beasey as forming any part whatever of the ground for discharge. Beasey acknowl-
edged that her attitude toward customers had not changed substantially from the
time he first observed her, and the record has no indication that there had been
significant change in her attitude from her first employment to the time of her dis-
charge. During her term of employment with Respondent, extending lust over a
year, the record reveals no complaint about either her service or her attitude first
as a part-time cashier, then as a full-time cashier, and then as head cashier super-
vising some five or six full- or part-time people, except that on some occasions
someone of management may have said to her "smile Chris."
Another question as to Respondent's stated reason for the discharge of Birdwell
arises from Joe Saks' volunteered statement from the stand that "there are only two
reasons why we let people go immediately in our firm. One is stealing, one is insub-
ordination." In seeking to reconcile the apparent conflict with this stated policy, and
the immediate dismissal of Birdwell because of her bad attitude-not smiling, that
is-Saks explained that his statement of policy had been with reference to top level
dismissals, and that managers can exercise authority without being questioned "too
much" by higher authority. This explanation is not convincing, and the dismissal
of Birdwell for a highly innocuous cause, seems so abrupt as to run contrary to any
good business policy and therefore possibly in conflict with what may actually have
been the policy of this Company, as stated by Saks, not to discharge immediately,
that is without notice, except for the two cases of theft and insubordination.
By reason of the foregoing circumstances, revealed in the record, bearing directly
upon the discharge of Birdwell, and the knowledge that I hereafter find to have
existed on the part of Respondent as to her union activity, and the whole record of
Respondent's opposition to the Union, and its violation of the Act in connection
therewith, I find and conclude that Birdwell was not dismissed because of her bad
customer attitude but rather because of her union activity.
As previously indicated, the dismissal of Birdwell for union activity, as hereinbe-
fore found, raises a question as to Respondent's motivation with respect to all the
other discharges that took place at about the same time.
If the people discharged were actually discharged because of their union activity,
a determination of this fact necessarily involves a finding that Respondent had
knowledge of such activity. Direct evidence of knowledge is not overwhelming, and
actually consists of bits and pieces, some of which are not greatly persuasive stand-
ing alone. Such direct testimony as there is, however, of company knowledge and
the inference that I find must be drawn from the whole record, induces the finding
which I make (supported thus by a preponderance of all the evidence) that man-
agement was aware of the union activity of all of the employees who were
discharged.
Thus Joe Saks, the dominant figure of Respondent' s organization , as previously
stated, testified that Respondent had suspected that the Union was organizing over a
2-year period, going back to the previous organizational effort. He testified concern-
ing specific incidents that raised the suspicion-the rare occasion when somebody
would come in with union literature-the conversation with one employee concern-
ing the somewhat distressing visits made in the evening by union agents.
1766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The witness David Vales, of Respondent's management force at the time of the
hearing, gave completely credible testimony concerning knowledge on the part of
management of union activity among the employees in or about June, prior to the
discharges in November 1964. He testified that the union agent, Gene Fitzpatrick,
in about June stopped him on the street, advised him that the Union was seeking to
organize the Saxon stores and that he would like to talk to the witness. The witness
testified that thereafter and near the time of the conversation he advised Beasey,
the manager of the store where witness then worked, of this conversation with Fitz-
patrick. He said that Beasey apparently knew of the union activity already because
when told he said, "Yes, I know." Following this incident Beasey was transferred
to become manager of the store where the' six people who were discharged worked.
The evidence clearly establishes (1) that for a few days, just before the six dis-
charges took place , the Union was using a laundromat, across the street from
Respondent's store, to meet with store employees; and (2) that all of the dis-
chargees, and they in particular among the employees, were in the laundromat, dur-
ing this period, with the union organizers. There is also direct testimony, which I
credit, that some of the dischargees were observed there by Respondent's manage-
ment, and still other credited evidence that management was advised of these
employees ' association there with the union representative.
I credit the testimony of Cheryl Gallas that the day she signed a union card in
the laundromat, November 11, 1964, she advised Store Manager Beasey she was
going across the street to get a Coke and that he observed her as she walked across
the street and while at the laundromat. She was discharged the next day. Beasey did
not testify as to this incident on direct examination and on cross-examination testi-
fied he did not recall ever seeing any of the employees in the laundromat with the
union organizers.
The testimony of the witness Vales, hereinbefore referred to, establishes clearly
that Beasey, manager of the store involved, had knowledge of union activity ante-
dating the laundromat conferences. The undenied testimony of several employee
witnesses , that management personnel had indicated a degree of surveillance, sup-
ports the finding that the Company knew what was going on. The undisputed,
credited testimony of the employee Lolita Hansen that Ann Travelstead, manager
of the laundromat, told Lolita in the laundromat 2 days before she was discharged,
that Travelstead was going to tell the- manager of the store of the employees' meet-
ings with the union representatives in the laundromat, is supported by the testi-
mony of Ann Travelstead, which I credit, to the effect that she did speak to Bob
Paulin , assistant manager of the store, about the matter. She asked him, "What's
going on with these kids and this guy across the street?" and he replied, "I guess
concerning the Union." While there is conflict in the testimony as to whether this
conversation took place before the discharges or after, I infer and find that it took
place before, that is, within a day or two of the time Ann Travelstead said she was
going to tell management. I discredit the testimony of Bob Paulin to the effect that
it took place late in November or in December, because of his uncertainty as to
the time, and the unlikelihood that Travelstead would have delayed so long in doing
what she said she was going to do. I make the reasonable inference that she spoke
to management about it while the matter was fresh is her mind About the
time she made the statement to Lolita Hansen that she was reporting the matter to
the store manager, the union representatives ceased meeting employees in the
laundromat.
From all of the foregoing evidence, and still other evidence in the record having
a bearing on the question, I find and conclude that Respondent's management delib-
erately identified the employees most actively for the Union and thus had knowl-
edge of the current union activity of all of the dischargees, at the time that they
were discharged. In the light of the dischargees' union activity,. Respondent's knowl-
edge thereof, the implausible ground advanced by Respondent for the discharge of
Christine Birdwell, and the questionable factors appearing in Respondent's stated
reasons for discharging the other five employees then Birdwell, hereinafter detailed,
I find and conclude that all of the discharges were made because of the union
activity of the employees.
As previously indicated Respondent claimed and sought to prove that the dis-
charges of the employees Gallas, Schierhorn, Federlin, Hansen, and Stoga were
made for theft or at least suspicion of theft. According to the testimony adduced by
Respondent, all of the discharges were triggered when another employee, Jerry
Elmendorf, acknowledged having taken merchandise from the store and involved
the dischargees in similar conduct. According to the best evidence available as to
SAXON PAINT STORES, INC. 1767
what Elmendorf himself did and said, he at first involved only three of the dis-
chargees, namely, Hansen , Gallas, and Federlin. The record is not clear when
and whether Elmendorf named Schierhorn and Stoga in the pilfering. It is clear
he named only the three others the evening of his first disclosure. Arthur J. Busby,
Respondent's personnel director and the principal witness for Respondent on this
aspect of the case, testified that the next morning Elmendorf again named only the
three. Later in his testimony, recounting the effort to give Elmendorf a lie detector
test and seeking to repeat what Elmendorf then and there said, Busby said that
Elmendorf "named Cheryl, Pauline, Lolita and, I believe, Leslie Schierhorn." Still
later, in a reenumeration of the suspects, Busby included Schierhorn without quali-
fication. He also testified that about 5 days after Elmendorf first mentioned pilfering
by other employees, he added Josephine Stoga to the list.
The record leaves some uncertainty, not only as to which of the employees
Elmendorf involved in thefts, but still more as to the precise nature of his admis-
sion, with respect to Schierhorn and Stoga. The record is clear that the amounts
involved in theft, insofar as they were uncovered, were small although such theft,
where definitely established, was adequate ground for dismissal, if in fact the dismis-
sal was made on such ground. Respondent's stated reason, however, for dismissing
five of the six dischargees would be considerably more persuasive if the claimed
offenses of the six had been of a more serious nature and if an actual offense in
some of the cases had been established with certainty. Insofar as the issues in this
case are concerned, of course, the Repondent had the right to discharge its employ-
ees for whatever offense it should choose, or no offense at all, except it be for their
union activity. But when a question arises as to whether the latter -was, in fact the
cause, the validity, or apparent validity, of the stated, justifiable reason for dismis-
sal, comes under close scrutiny.
While there are some conflicts in the testimony of Arthur Busby and Leslie
Schierhorn as to what was said at the time of the latter's discharge, there are also
points of agreement. They agreed that Schierhorn never admitted stealing anything.
There is no detail whatever in the record concerning the claimed charge of Elmen-
dorf that Schierhorn did steal, or any explanation by Busby concerning Elmendorf's
charge or other detailed accusation by Busby as to Schierhorn's claimed offense.
Busby and Schierhorn agreed that the latter at one time during the conversation
said that it, was possible Schierhorn took something, but had forgotten it. Busby
testified that Schierhorn volunteered this statement whereas Schierhorn testified that
it came only after repeated queries by Busby as to whether Schierhorn was sure he
had stolen nothing; and that Busby said "Well, maybe its possible you forgot." And
that Schierhorn answered, "Yes, it's possible but I don't think I'd forget." I resolve
this conflict in favor of Schierhorn on the ground that his version is the one more
likely to have taken place under the circumstances of this conference. It seems
likely that Busby would have been pressuring Schierhorn for an admission and on
getting repeated denials would have resorted to the suggestion that possibly he had
taken something and forgotten it, in an effort to ease the suspect into an admission.
The two are also in disagreement as to whether Busby asked Schierhorn, outright,
if he would take a lie detector test. Busby's testimony is that he asked Schierhorn,
and advised him since he was a minor he would have to get his parent's consent
and that when Schierhorn said that he did not know if he could, Busby suspended
him pending the time he would ascertain if he could get his parents' consent.
Sohierhorn testified that there was never an outright request that he take the test,
although there was reference to Busby's informant having taken one, and that
finally Busby said to him "Well, we'll have to let you go and we'll call you when
we need you for what happens according to this." Schierhorn then seemed to be
uncertain as to whether he was fired and went back to his work, following the late
evening conversation. Busby came to him just about store closing time, at the place
of Schierhorn's work, and again advised him that they would not need him after
that day. Schierhorn, noting that it was just closing time, punched out, left, and
heard no more about the matter.
I find and conclude that the record as hereinbefore set forth relating to the
alleged discharge of Schierhorn for theft or suspicion of theft, does not establish
any reasonable basis for discharge on any such ground, or any positive, clear
action of discharge for such reason; and I conclude that on the contrary Schier-
horn was discharged because of his union activity.
Dischargee Josephine Stoga, when confronted by Busby with information that
she had been stealing, admitted that she had taken certain music records, and had
later paid for them on an installment basis when her conscience began to bother
1768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her. The record reveals that it is the policy of Respondent to dismiss employees
.caught stealing; such policy is reasonable, and is likely the policy of most
employers. That it is the policy of this Respondent is substantiated by evidence in
the record relating to other employees not involved in the case. While it is my
opinion that Respondent had lawful grounds for discharging Stoga, and might
have discharged her for theft, even if there had been no union action among
employees, I am not persuaded that this was the real reason for her discharge
I find and conclude that Respondent had knowledge of Stoga's union activity,
and I find and infer from the evidence hereinbefore set forth bearing on the
other discharges for union activity, that she came under Respondent's plan,
apparent in other discharges, to get rid of these six young employees who appeared
to be cooperating too well with the Union and that the discharge of Stoga was in
violation of Section 8(a)(3) of the Act.
Dischargee Lolita Hansen, when confronted by Busby's story of Elmendorf's
accusations, admitted that she had taken hair spray, in a defective container, from
the store but that it had been given to her by a boy whose name she did not
recall who worked in the drug department. Busby, personnel director, testified
that Hansen admitted taking cosmetics and also cutting prices; also that he told
her in an interview that if what she took was of small value, to let him know
and he would do what he could to protect her; when she then admitted taking
the cosmetics he told her he was sorry but that he would have to let her go. Not-
withstanding there is nothing in the record to indicate that her theft involved
anything of substantial value, he failed to deal with the employee concerning the
alleged theft in the manner he said he would. This raises a serious question as to
Respondent's good faith in the claimed discharge for theft. I find and conclude
that Hansen was actually discharged for union activity, for all the reasons herein-
before set out as to the other discharges, in violation of the Act.
In Busby's conversation with Pauline Federlin, he first explained to 1 er that
another employee had advised him that she was taking goods from the store;
that she got upset and told him that she had stolen a lock; that "I told her that I
would do whatever I could in my power to protect her, if she had just taken this
lock; if she had taken anything more, to tell me now and I would do whatever
I could to help her." As in the case of the interview with Lolita Hansen, what
Busby testified he told both of these girls-that he would protect them and do
what he could for them in the event that their theft involved only things of trifling
value-seems to have been a reasonable approach to the problem. One would
expect therefore that when he could develop nothing more than pilfering of rather
insignificant items, he would not have discharged the employees summarily, if
dealing with them in complete good faith, but would have either taken the matter
under consideration for future handling or have delayed final action until he could
confer with his superiors. Inasmuch as he did not do this in the case of Pauline
Federlin, as in the case of Lolita Hansen, the question arises as to whether the
discharge was really motivated by the theft or suspicion of theft, and I conclude
that it was not but rather that it was because of Federlin's union activity; because
of the foregoing circumstances, and for all the reasons hereinbefore stated respect-
ing the other discharges, her discharge was in violation of the Act.
Busby's interview with dischargee Cheryl Gallas followed the pattern used with
the other girls. He advised her they had been missing merchandise and that some-
body had accused her of taking some. She denied it and Busby told her, as in
the other cases, that if the theft involved petty items he would do whatever he
could to protect her. Gallas then told him about taking "bubble bath" which she
claimed was in a damaged package and that the manager had given her; also
hair spray that somebody had given to her. Even according to his own testimony
he developed no theft of any item of significant value, yet notwithstanding his
assurance to her that if the theft was petty he would do what he could to protect
her, he terminated her then and there. For the same reasons involved in the case
of Pauline Federlin and Lolita Hansen I find and conclude that Gallas was not
really discharged because of theft or suspicion of theft, but rather because of her
union activity.
One other circumstance bears on the real reason for the discharge of all the
employees dealt with above. Another employee not involved in the case, one
Art Johnson, was discharged for stealing according to evidence adduced by
Respondent, about which there is no question. General Counsel's Exhibit 25 (a
business form used to record changes in personnel status) is Respondent's office
record of Art Johnson's dismissal. The form shows "Reason for separation-
stealing." Such forms, also introduced in evidence, as to Scheirhorn, Stoga, Gallas,
SAXON PAINT STORES, INC. 1769
Hansen, and Federlin make no reference to stealing as the reason for their dis-
charge, but rather all show the following, establishing a common pattern: "Did
not meet company standards (see Busby) " The forms were all approved by
Busby. Though the failure of Respondent to show "stealing" as the reason for
these discharges in company records may not be of great probative force, I give
weight to such failure in my determination that the real reason was not stealing
If "stealing" was the proper entry as to Johnson, the question is unanswered why
"stealing" was not entered for the others if theft was their offense. Or if, as
some of Respondent's evidence seems to imply, any of the discharges were for
failure to take a lie detector test, or suspicion of theft, why were such not entered
in these records?
For all of the reasons hereinbefore stated I find and conclude that all these
employees were discharged for their union activity in violation of Section 8(a)(3)
of the Act.
The Refusal to Bargain
The complaint alleges that Respondent has unlawfully refused to bargain with
the Union. The validity of the allegations in this connection, that is in violation
of Section 8(a)(5), depend (1) on the appropriateness of the unit involved; (2)
a demand by the Union for bargaining; (3) a refusal by the Respondent to bargain
on such demand; (4) proof that a majority of the employees in the unit had
designated and selected the Union as their representative for the purpose of collec-
tive bargaining at such time as the Union demanded that Respondent bargain with
it and Respondent refused ; and (5) proof of unfair labor practices by Respondent in
a critical period intended to undermine the Union and destroy its majority. The
8(a)(5) allegations are made, of course, notwithstanding the results of the election
indicating that less than a majority of the employees in the unit voted for the,
Union. The basic theory of the violation as alleged and argued by the General
Counsel, is one of long-standing, grounded in the Board's decision in Joy Silk
Mills, Inc., 85 NLRB 1263 (1949), enfd. 185 F.2d 732 (C.A.D C.), cert. denied
341 U.S. 914, as that theory has been modified and supplemented in the more
recent decision of the Board, Bernel Foam Products Co, 146 NLRB 1277.
There is no substantial problem relating to the unit involved. The record reveals
that it is essentially a unit comprising the unrepresented retail outlets of Respondent
in the Chicago metropolitan area. The unit was stipulated by the parties in a third
conference on the subject when a stipulation for certification upon consent election
was signed. While Respondent extended the record somewhat through cross-
examination in contending that Respondent had not been bound by proceedings,
placing certain of Respondent's other employees in other bargaining units, indirectly
affecting the makeup of the present unit, Respondent does not here contend that
this unit should be enlarged or otherwise altered. I find and conclude that under
clear Board authority the unit here. involved is an appropriate unit for the purposes
of collective bargaining.
The position of Respondent with respect to unit seems to be that the problem
of the unit was sufficiently complex that the complexity in itself served as a justifi-.
cation for Respondent's doubt as to majority and insistence on an election, and
rendered Respondent 's refusal to recognize the Union on the proffered card check,
as a good-faith position. I find this theory lacking in merit . Respondent cannot
enter into a voluntary agreement establishing an appropriate unit, -and later, in
effect, reject the result of its agreement by professing uncertainty as to the validity:
of its voluntary action . Actually in this contention Respondent seeks to inter-
mingle two separate problems-the unit question- ' with the majority question.,
Respondent, having stipulated to an appropriate unit, is in no better position
to question a majority as established by cards than it would be to question a
majority established by an election. Thus Respondent becomes bound , insofar
as unit goes, by all the Board principles which, in certain situations, hold an,
employer to recognition of the union and require bargaining, where its representa-
tion status rests on a card check, notwithstanding an adverse decision through an
election. The General Counsel has met the burden of establishing that the unit
involved in this case is a proper one.
The record also clearly establishes that there were appropriate demands made
by the Union of the Respondent to bargain, and that the Respondent refused' to
bargain until such time as the Union's majority status was established by an
NLRB election. There is no dispute about the demand and the refusal.
The majority question , however, is troublesome. Whether the Union represented
a majority of the employees in the unit involves a determination as to which
1770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees are properly included in the unit, how many signed authorization cards
for the Union, whether any signatures were obtained on representations by union
agents that the only purpose for signing the cards was to get an election, and if
the number of cards signed for representation purposes constituted a majority of
the employees in the unit at the time of the request and the refusal to bargain
Surmounting all these questions of unit, demand, refusal, and the arithmetic
involved is the question whether Respondent's unfair labor practices, committed
during the period preceding the election under all the circumstances of this case,
are of a kind that establish a motivation on the part of Respondent to gain time
in which to destroy the Union's majority by unlawful means, pending the election
upon which it insisted.
I find and conclude that the unfair labor practices of the Respondent in this
case, as hereinbefore set out, established Respondent's motive to undermine the
Union's majority which I hereinafter find it had when it requested bargaining. The
discharge of six employees for union activity, at a time when the Union's organi-
zational effort was gaining momentum, as revealed in the record, and in a store
where the organization at that time was centered, quite clearly establishes Respond-
ent's intention to deprive the Union of majority status, by whatever means lawful
or unlawful. This effective blow was followed by a systematic opposition involving
contact with essentially all of the employees in the unit by numerous management
representatives. Some of Respondent's opposition effort was lawful, but repeatedly
it exceeded the bounds of lawfulness and took form as promises of bene-
fit if the Union did not win, warnings of denials of benefit if the Union did, and in
at least one instance-the threat of Albert Goldstein to the employee Donna
Daniels-the opposition came to light in a harsh form. While the violations in the
main were perhaps more subtle and thorough than flagrant and gross, they were
effective against the Union and must be interpreted as intentionally destructive of
the Union's position.
Respondent relies on two recent Board decisions, Clermont's Inc., 154 NLRB
1397; and Hammond & Irving, Incorporated, 154 NLRB 1071. In each of these
cases, notwithstanding violations of Section 8(a)(1) by the respondent at a time
when the union represented a majority of the employees in the unit, the Board
refused to find violation of Section 8(a)(5) and to give the union a bargaining
order. I distinguish the cited cases from the case at bar. Here there is present a con-
tinuing and extensive campaign on the part of Respondent in opposition to the
Union, in which there appear repeated violations of Section 8(a)(1), and also of
Section 8(a)(3) (not present in either of the cited cases ) following the refusal to
bargain on a card check and up to the time of the election. Concerning a bargain-
ing order the Board has drawn a line in this area of employer misconduct that
divides mortal sin from venial sin, to borrow language from the church. On the
venial side fall cases such as the two cited, and on which Respondent relies. On the
mortal side fall cases such as Irving Air Chute Company, Inc., 149 NLRB 627.
One type denies the union a bargaining order notwithstanding the employer's unfair
labor practices; and the other type grants it. It is not always easy to say on which
side of the line a given case falls. It is often hard enough to distinguish
unlawful conduct from the lawful, to say nothing of determining gradations of the
unlawful. But the instant case, in my judgment, quite clearly falls on the egregious
side of the somewhat uncertain line, along with Irving Air Chute, and I so hold.
There remains the question of the arithmetic. The first part of this problem has
to do with the number of employees properly within the unit. The list of eligible
voters prepared and submitted by Respondent for the purposes of the election, Gen-
eral Counsel's Exhibit 23, contains 64 names. All are in the original typewritten
form except the name of Daniel Calendo, inserted in ink after the original prepara-
tion; and the name of James Ewell first appearing in typewritten form, then lined
out with the notation "quit 3-25-65 A. Busby," and reinserted in ink. The General
Counsel accepts this list, and the number of 64 employees, as a place to begin in
determining the number of employees in the unit. He would, however, eliminate
from the list Richard Van Noy on the ground that he was ineligible to vote, being
at best, at the time eligibility was determined, a temporary employee. General
Counsel would also eliminate as management trainees, inelibigle to vote, Walter
Haugeson , Stanley Olenjack, Stanley Chamberlin, Harold Wilson, Joe Glyzewski,
Richard Williams, and Joe Weis, seven employees hereafter referred to as the
alleged trainees.
Respondent also accepts the eligibility list, bearing 64 names as stated, as a
proper beginning place for determining the number of eligible voters in the unit.
SAXON PAINT STORES, INC. 1771
Contrary however to the position of the General Counsel, Respondent contends
that Daniel Calendo should be eliminated from the unit, the General Counsel insist-
ing that even though he was not actually on the payroll of Respondent at the time
eligibility was properly determined, he was at such time in laid-off status, with a
reasonable expectancy of recall. Calendo's active earlier employment had termi-
nated on January 26, 1965, and he went on the payroll again, after the election, on
April 3, 1965. On this issue I hold with the Respondent, for there is no substantial
evidence in the record on which to base a finding that on January 26, when he was
let go, he had any right to expect that he would be recalled. To find expectancy of
recall would be mere speculation growing only out of the circumstance of his hav-
ing been employed, released, and rehired.
Contrary to the contention of the General Counsel, the Respondent claims that
Richard Van Noy was an eligible voter, properly in the unit, notwithstanding he had
been transferred back and forth to work assignments in stores inside and outside
the unit. He was working in a store of Respondent's outside the unit at the time of
election. Because, however, he was a regular employee of the Respondent, and
employed in a store within the unit on the critical date of eligibility, with no fixed
assignment anywhere else, I find and conclude that he was eligible to vote at the
time of the election and was properly within the unit.
Respondent also takes issue with the General Counsel as to the seven alleged
trainees. This dispute arose at the time of the hearing, by virtue of testimony of
Personnel Manager Arthur Busby that all, or substantially all, of the people
employed by Respondent were actually management trainees, hired as such through
newspaper advertising, all with some prospect of working into management posi-
tions. I find and conclude, however, that notwithstanding the testimony of Busby,
the seven employees which the General Counsel seeks to eliminate from the unit on
this ground, are not management trainees of the kind denied the right to vote in
union representation elections. For the preponderance of the evidence establishes
that these employees did what was required of them in a variety of tasks involved
in the operation of Respondent's retail outlets, tasks such as receiving goods, stock-
ing shelves, and marking prices. Busby's conclusionary statement that these employ-
ees are management trainees, hired as such, with a reasonable anticipation of future
managerial employment, on analysis of the record, is about the only indication there
is of such status. There is no evidence of a formal training program, or any at all
except such as is present in all jobs-learning how to do them while doing them.
They do about the same work as "stock boys," the essential difference being that
they are full time, which fact also accounts in the main for discrepancy in pay.
Stockboys who survive in employment, can become full-time "management trainees"
with the same prospects of management jobs as if they had been hired as trainees
in the first place. Company records do not differentiate as to classification between
the employees in question and all others doing similar work: The best, and essen-
tially the only assurance they have of management jobs rests in the fact that
Respondent does not usually hire "managers" outside the organization but pro-
motes from within. Stockboys have about the same prospect. In Barber-Coleman
Company, 130 NLRB 478, 480, the Board used this pertinent language in a some-
what similar situation: "But there is no assurance that any particular, employee in
the program will in fact become a supervisor. . . On the contrary, they were all
engaged in work similar to that performed by other employees included in the unit.
In view of the foregoing we find that their interests and conditions of employment
are similar to those of other production and maintenance employees and we shall,
therefore, include them."
The parties are in agreement as to the eligibility of the employee James Ewell,
whose name first appeared in the original preparation of the eligibility list, was
stricken because he quit before the election, and was readded by pen and ink
interlining.
The foregoing disposition of the various contentions of the parties concerning
the number of employees in the unit results in a total of 63. It does not, however,
take into account the six employees hereinbefore held to have been discriminatorily
discharged because of their union activity. Their names did not appear on the
eligibility list. It was prepared in March 1965, whereas they were discharged in
November 1964. Inasmuch as they were discriminatorily discharged from employ-
ment classifications within the unit, they remain employees properly in the unit,
and entitled to consideration in determination of the majority question. These six
additions to the eligibility list, increase the total of employees in the unit to 69.
1772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To achieve majority status in support of an order requiring the Respondent to
bargain with it , the Union must show that it held , at the time of the demand for
bargaining and,the refusal, valid cards from not less than , 35' employees within the
unit. Validity of cards would depend not only on the voluntary signing by the
employees but a signing for purposes of representation in the collective -bargaining
process, rather than a signing solely for the purpose of obtaining an election.
Thirty-eight authorization cards are in evidence , each bearing a signature of
unquestioned authenticity , that is to say, no contention is made that the signature
each card bears is not that of the person whose name appears thereon . Among the
38 however , is the card of Daniel Calendo , hereinbefore held to be improperly
included in the unit . This reduces the number of cards for consideration to 37.
The form of authorization card used by the Union in this case , and each card
in evidence , clearly authorizes the Union to represent the signer for the purpose
of collective bargaining . Nowhere on the card does there appear any reference to
the use of the card for the purpose of obtaining an election . Thus, under clear
Board precedent , unless the evidence shows that any signature was obtained on the
representation of a union agent that the only purpose for signing was to get an
election , the card should be counted in determining whether the Union had a
majority of the employees in the unit . Apart from the authorization cards signed
by five of the six dischargees , which, of course , counsel for Respondent contends
should not be counted inasmuch as the signers lost their employee status through
justifiable discharge , counsel contends that three other cards, those of Norma
Borgaard , Dorothy Gazinski , and Jean Rowe, should not be counted "even within
the rigid limitations of Cumberland Shoe Corporation , 144 NLRB 1268 ," for the
reason that the evidence substantially establishes that these cards were signed so that
the Union could obtain an election , and for no other purpose . In addition to the
strong argument thus made concerning these cards, counsel suggests , as a second
line of defense on the cards of three of the five dischargees , that these employees
also "were told in varying degrees that the purpose of the card was for an election."
I have previously, indicated that I consider Norma Borgaard a credible witness.
She gave testimony hereinafter set forth forcefully and with conviction leaving
no slight room for doubt as to what constituted the motivating or inducing repre-
sentations made to her by union representatives , when they obtained her signature
on the authorization - card she signed . From her demeanor, the rigid independence
she displayed on the stand from the influence of either her employer or the Union,
and the substance of the following testimony , I find and conclude that when she
signed the authorization card she did not thereby authorize the Union to represent
her for bargaining purposes , but rather sought only to bring about an election in
which she could express her considered viewpoint as to whether the Union should
or should not represent her.
When asked what the union representatives told,, her when they presented the
card for signing she testified: .
Well they came in and they told me they had been working on this project
for awhile and, I . ^mean when you sign a card actually it doesn't mean you're
going for the Union [or] you 're going against it. It just means they can go
ahead and try to get an election , that they had to have so much percentage
of the employees to sign before an election can even come up, and that sign-
ing that card doesn 't incriminate me, the fact I am for the Union or that if I
don't sign the_ card I am against the Union.
Q. You mean this is what they told you?
A. Yes, that signing the card doesn 't mean that I am going to walk in and
vote yes, but means I am interested in learning what the Union can do and
to set up an election for me to vote the way I want to vote.
Concededly her recital reflects a mixture of representations made to her with a
subjective state of mind; but there is nothing whatever in the record to indicate
that her conclusions came from any source excepting the representations made to
her by Union Representatives Fitzpatrick and Jones . Called to testify by the Gen-
eral Counsel , she threw additional light on the representations that induced the
signing on redirect examination following the foregoing recital. She was asked:
Q. Mrs. Borgaard, did either Mr. Jones or Mr. Fitzpatrick tell you that the
only result of your signing could be an election , did they mention that this
[was] the only thing that could happen?
A. Yes, that they had to have so many percent of the cards before an elec-
tion could be held.
SAXON PAINT STORES, INC. 1773
This testimony seems quite clearly to meet the rigid requirement of the Board that
an authorization card signed by an employee is rendered invalid as an authorization
for representation when it appears from the evidence a union agent tells the signer
that the only purpose in the signing it is to obtain an election . Because I find
Borgaard signed her authorization card on such representation-for the purpose of
obtaining an election-it cannot be counted toward the Union's majority. I make
such finding notwithstanding the testimony of the witnesses Fitzpatrick and Jones
that seems to conflict with Borgaard's own testimony. This, however, is not so
much a resolution of a sharp credibility conflict as it is a determination of where
emphasis was placed on what actually was said. The significant representations in
the hours of conversation that take place in the card-signing process, for our pur-
pose here , are those representations that actuate the employee into signing . In this
case Borgaard made it very clear as to the representations that induced her. The
record reveals, furthermore, that throughout the Union's campaign to the time of
the hearing, she maintained an open mind on the Union and had been sympathetic
to the point that she held a union meeting in her own home
Elimination of the Borgaard authorization card reduces the number of cards
under consideration for determination of the majority question to 36.
. I find invalid the contention of Respondent that the employees Dorothy Gazinski
and Jean Rowe also signed their cards because of representations that the only
purpose in signing was to obtain an election. Their testimony, and particularly that
of the witness Gazinski , has some of the character of the testimony of the witness
Borgaard. The stories of both, however, even that of Gazinski, lacks the persuasive
quality that produces a conviction that the total of the representations made by the
union representatives amounted to an assurance that the purpose for signing the
card was to get an election, and no other. Furthermore no part of the testimony
of Gazinski and Rowe is as specific, as that of Borgaard, that the representations
made were that the only purpose in signing the card was to get an election.
The evidence bearing upon the purposes for which the three dischargees Gallas,
Schierhorn, and Birdwell signed cards is even, less persuasive that representations
were made to them that the only purpose in signing was to get an election.
For these reasons I find and conclude that the authorization cards of Gazinski,
Rowe, Gallas, Schierhorn, and Birdwell, all questioned by Respondent, are valid
and should be counted toward the Union's majority.
Thus I find that at a time when the Union requested Respondent to bargain
with them , that is on March 16 , 1965 ( following earlier requests and refusals), and
Respondent refused, the Union represented a majority of the employees in an
appropriate unit-36 out of 69; also that Respondent prior to such date, and there-
after in the time gained by insisting on an election, committed unfair labor prac-
tices designed to thwart collective bargaining and to undermine the Union's
majority; that by reason thereof an order should be entered requiring the Respond-
ent to recognize and bargain with the Union concerning the wages, hours, and
working conditions of all the employees in the unit.
The Objections to the Election
As hereinbefore set forth, the objections filed by the Union to conduct of the
Respondent affecting the election held in Respondent's stores, were consolidated
with the complaint cases involved herein for determination in this hearing. The
objections contain 14 specifications of conduct alleged to have interfered with the
free choice of the employees. Specifications numbered 1, 2, 3, and 10 allege unlaw-
ful interrogation of the employees, threats of loss of benefits and economic reprisal
to discourage union activity, unlawful promise of benefits , and employer surveil-
lance of union meetings . These allegations involve essentially the same conduct
that forms the basis of the violations of Section 8(a)(1) of the Act, hereinbefore
found, and I find and conclude that such conduct engaged in by the Respondent
did interfere with the free and untrammeled choice in the election held on April 2,
1965 . I shall therefore recommend that the election be set aside on these grounds,
that the petition for the election be dismissed, and that all proceedings in Case
13-RC-10514 be vacated.
The other grounds of objection to the conduct affecting the election are not
supported by the evidence and I, therefore, recommend dismissal of the other num-
bered specifications.
1774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
In view of the findings and conclusions hereinbefore set forth that Respondent
engaged and continues to engage in certain unfair labor practices , it will be recom-
mended that the Board issue an order requiring that Respondent cease and desist
therefrom and take certain affirmative action designed to effectuate policies of
the Act.
It will be recommended that Respondent cease and desist from the interference with,
restraint , and coercion of its employees in the manner hereinbefore found to have
violated Section 8(a)(1) of the Act; and because there appears from the com-
mission of this conduct a disposition to commit other unfair labor practices, it will
be recommended that Respondent cease and desist in any manner from infringing
on rights guaranteed employees by Section 7 of the Act.
It will be recommended that the six employees of Respondent , hereinbefore found
to have been discriminatorily discharged because of their union activity, in viola-
tion of Section 8(a)(3) of the Act, be restored to their former or substantially
equivalent positions without loss of seniority or other rights and privileges, and
that they be made whole, with interest, for the pay they lost because of their dis-
charge (F. W. Woolworth Company, 90 NLRB 289, Isis Plumbing & Heating Co.,
138 NLRB 716).
It will be recommended that the Respondent , having been found in violation of
Section 8(a)(5) of the Act by unlawfully refusing to bargain with the Union in
good faith, bargain upon request with the Union, and if an understanding is
reached, embody such understanding in a signed agreement.
RECOMMENDED ORDER
On the foregoing findings of fact and conclusions of law , and the entire record
in the case , it is recommended that each and all of the corporations named in the
caption of this proceeding , hereinbefore designated as Respondent, their officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating their employees concerning their union sympathies and
activities.
(b) Engaging in or creating the impression of surveillance of meetings held by
the Union , or by other labor organization , or of any other activity of such employ-
ees in support of or in connection with the Union or any other labor organization.
(c) Offering , promising, or granting them benefits or improvements in their
terms and conditions of employment if they refrain from supporting the Union or
any other labor organization ; and threatening such employees with economic
reprisals if they support the Union or any other labor organization.
(d) In any other manner interfering with, restraining, or coercing employees
in the exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Offer immediate and full reinstatement to Christine Ochwat Birdwell , Pauline
Federlin , Leslie Schierhorn , Lolita Hansen , Josephine Stoga , and Cheryl Gallas to
their former or substantially equivalent positions without loss of seniority or other
rights and privileges, and make them whole, with interest, for the pay they lost
because of their discharge , in accordance with the Remedy section of this Decision:
(b) Upon request, bargain collectively with Retail Store Employees Union,
Local 300, AFL-CIO, in this unit:
All regular full -time and part -time employees employed at Respondent 's loca-
tions at: 3840 West Fullerton Avenue, Chicago; 3237 North Central Avenue,
Chicago; 28 East 112 Place, Chicago; 124 North Broadway, Melrose Park,
Illinois; and 21 North LaGrange , LaGrange , Illinois, excluding clerical employ-
ees, confidential employees, guards , and supervisors as defined in the Act, in
respect to grievances , wages, hours, conditions of work , and other terms of
employment;
and if an accord is reached sign a written contract embodying the same.
(c) Notify any of the above-named employees if presently serving in the Armed
Services of the United States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act, as amended , after discharge from the Armed Services.
SAXON PAINT STORES , INC. 1775
(d) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records relevant to com-
pliance with the backpay and reinstatement provisions mentioned above.
(e) Post at its retail stores in the locations described in subparagraph 2(b)
above, copies of the attached notice marked "Appendix." 1 Copies of such notice,
to be furnished by the Regional Director of Region 13, after being duly signed by
Respondent's representative, shall be posted immediately upon receipt, and be
maintained by it for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any material.
(f) Notify the Regional Director for Region 13, in writing, within 20 days from
the date of the receipt of this Decision, what steps the Respondent has taken to
comply herewith?
i 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 is 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."
2 In the event that this Recommended Order is adopted by the Board, this provision shall
be modified to read : "Notify the Regional Director for Region 13, in writing, within 10 days
from the date of this Order, what steps the Respondent has 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 interrogate our employees concerning their union sympathies
and activities.
WE WILL NOT engage in or create the impression of surveillance of meetings
held by the Union, or of any other activity of the employees in support of
or in connection with the Union, or any other labor organization.
WE WILL NOT offer, promise, or grant employees benefits or improvements
in their terms and conditions of employment on the condition that they refrain
from supporting the Union or any other labor organization; or threaten any
employees with economic reprisals because they support the Union or any
other labor organization.
WE WILL NOT in any other manner interfere with , restrain, or coerce our
employees in their right, guaranteed by the National Labor Relations Act, to
join or assist Retail Store Employees Union, Local 300, AFL-CIO, or any
other labor organization, to bargain collectively through it, or engage in any
other concerted activities for the purpose of mutual aid or protection; or not
to engage in these activities, as they choose.
WE WILL offer immediate and full reinstatement to their former or sub-
stantially equivalent positions to the following employees, who were found
to have been discharged because of their support of the above Union; and
WE WILL make good to them with interest all pay that they lost because of
such discharge:
Lolita Hansen Christine Ochwart Birdwell
Josephine Stoga Pauline Federlin
Cheryl Gallas Leslie Schierhorn
WE WILL, on request bargain collectively with Retail Store Employees
Union, Local 300, AFL-CIO, as the exclusive bargaining agent of our regular
full-time and part-time employees in the following locations of our retail
outlets: 3840 West Fullerton Avenue, Chicago; 3237 North Central Avenue,
Chicago; 28 East 112 Place, Chicago; 124 North Broadway, Melrose Park,
Illinois; 21 North LaGrange, Illinois, in respect to grievance, wages, hours,
and working conditions , and if an agreement is reached, we will reduce it to
writing and sign it.
1776 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
All employees are free to join or assist the Union above named , or not to do so,
without fear of reprisal or effect upon their tenure by reason of their choice either way.
SAXON PAINT STORES, INC., SAXON CENTRAL CORP ., SAXON
ROSELAND CORP ., NIXON LABORATORIES , INC., NIXON HAR-
LEM CORP., NIXON 32ND CORP., NIXON CLARK CORP., NIXON
HALSTED CORP., NIXON 87TH CORP., NIXON STREATOR
CORP., NIXON 95TH CORP., NIXON VILLA CORP., NIXON
RACINE CORP., NIXON KENOSHA CORP ., NIXON HALES CORP.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-Notify the above-named employees if presently serving in the Armed
Forces of the United States of their right to full reinstatement upon application in
accordance with the Selective Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed Forces.
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, 881
U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago,
Illinois, Telephone 828-7597.
Teamsters Local 783, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America and Coca-
Cola Bottling Company of Louisville . Case 9-CB-1260. Octo-
ber 11. 1966
DECISION AND ORDER
On March 25, 1966, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certai n unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent and the Charging Party filed
exceptions to the Trial Examiner's Decision and supporting briefs.
The National Labor Relations Board has reviewed the rulings of
the Trial Examiner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board has
considered the Trial Examiner's Decision, the exceptions and the
brief, and the entire record in this case, and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner, with
the following modification.
We agree with the Trial Examiner that Respondent Union was
responsible for the repeated acts of misconduct and violence by the
strikers, thereby violating Section 8(b) (1) (A) of the National
Labor Relations Act, as amended. Our agreement, however, is based
on the fact that Respondent, which authorized the strike, knew of the
acts of misconduct and violence but took no steps reasonably calcu-
lated effectively to stop such acts.
160 NLRB No. 138.