Spiegel Fashion Shops

National Labor Relations Board - Board Decisions

May 22, 1950

89 N.L.R.B. 1538 (N.L.R.B. 1950)

In the Matter of SPIEGEL, INC. D/R/A SPIEGEL FASHION SnoPS, EM-
PLOYER and LOCAL 655, RETAIL STORE EMPLOYEES UNION, AFL,
PETITIONER
Case No. 14-RC-688
SUPPLEMENTAL DECISION
AND
ORDER SETTING ASIDE ELECTION
May 22,1950
On August 20, 1949, pursuant to a Decision and Direction of Elec-
tion issued by the Board on July 28, 1949,1 an election by secret bal-
loting was conducted under the direction and supervision of the Re-
gional Director for the Fourteenth Region, among the employees in
the unit found appropriate in said Decision. Upon completion of Zhe
election, a tally of ballots was issued and duly served by the Regional
Director upon the parties concerned. The tally reveals that out of
approximately 20 eligible voters, 19 cast ballots, of which 7 were for
and 12 were against the Petitioner. There were no challenged ballots.
On August 26, 1949, the Petitioner filed with the Regional Director
of the Fourteenth Region of the Board, objections to conduct affecting
the results of the election. Thereafter, on October 12, 1949, following
an investigation, the Regional Director issued a Report on Objections,
in which he found that substantial and material issues with respect to
the election were raised by three of the five objections, recommended
that two objections be overruled and that with respect to the matters
contained in the remaining three objections, designated as objections
B, C, and D, there was evidence disclosed by the investigation which,
if true, would warrant the Board's sustaining the objections and order-
ing a new election. However, because of the conflict in the testimony
in the investigation, the Regional Director recommended that the
Board order a hearing for the purpose of taking evidence in connec-
tion with objections B, C, and D. On October 20, 1949, the Employer
filed exceptions to the Regional Director's Report.
1 Spiegel, Inc . d/b/a Spiegel Fashion Shops , 85 NLRB 437.
89 NLRB No. 204.
1538
SPIEGEL FASHION SHOPS 1539
Thereafter, on November 7, 1949, upon consideration of the Peti-
tioner's objections to conduct affecting the results of the election, the
Regional Director's Report, and the Employer's exceptions to the Re-
gional Director's Report, the Board issued an Order in which is re-
manded this proceeding to the Regional Director and directed that a
hearing be held, limited to objections B, C, and D.
A hearing on the Petitioner's objections was held on December 5,
6, 7, and 8, 1949, at St. Louis, Missouri, before Joseph A. Butler, hear-
ing officer of the National Labor Relations Board. All parties ap-
peared and participated. In accordance with the Board Order, the
hearing officer on April 5, 1950, issued and caused to be served on all
parties concerned a report containing his findings and a recommen-
dation that the Petitioner's objections to the election be sustained and
the election be set aside.
On April 10, 1950, the Employer filed exceptions to the hearing
officer's findings and recommendations.
The Board has reviewed the rulings of the hearing officer and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the hearing officer's report, the
Employer's exceptions and brief, and the entire record in the case.
Like the hearing officer, we believe that the circumstances here present
warrant setting. aside the election. In reaching this conclusion, how.-
ever, we rely solely upon the following incidents :
1. The record shows that during the week preceding the election
Samuel Cohen, manager of the store, had a conversation with Pat
Schmitt and Phyliss Mathless, both of whom were employed as extra
sales girls. During the course of this conversation, Cohen, according
to Schmitt, "started talking about the union and then said that if the
union would get in that he would probably have to lay off some of the
girls." Mathless did not recall the conversation and Cohen denied it.
However, the hearing officer found that Schmitt was a credible witness
and that Cohen was not, and we perceive no basis for upsetting the
hearing officer's credibility findings. Accordingly, we find that Cohen
made the statement attributed to him and that such statement consti-
tuted, as the hearing officer found, a threat of economic reprisal.2
2. Kay Tamarkin, whom the hearing officer found to be a credible
witness, testified that Cohen,-during the period immediately preceding
the election, "told [the salesgirls] of this one instance where this
man [an Indianapolis employer] had his own business and the union
got in . . . and he found out who the people were that voted
for the union and he sent out to a certain area those people's records,
9 J. S. Abercrombie Company, 83 NLRB 524. See also Holmes v. N. L. R. B., 179 F. 2c1 876
(C. A. 5).
889227-51-vol. 89-98
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no matter if they were good or bad, to these different employers so
that they wouldn't hire them." Tamarkin testified that when Cohen
related this to her, she told him that she did not think that it was
right, and, indeed, had asked him what he (Cohen) would do in such
a case. He did not reply. Cohen denied relating this story to Tamar-
kin. We find, however, on the record as a whole, as did the hearing
officer, that the statement was made by Cohen, and that it was coercive.
Coming as it did at a time when the pending election was practically
a daily subject of discussion,' it constituted a veiled threat of economic
reprisal if the union won.
3. The record also shows that Cohen, during the period immediately
preceding the election, in a conversation with Jean Delaney, one of
the employees, told her that "if he (Cohen) wanted to, if the union
got in he could be an awfully hard man to get along with ...."
Kay Tamarkin also testified to a similar statement made by Cohen to
her. During the same preelection period, Cohen stated, according to
Tamarkin, that "if the union gets in he wouldn't be like he is now,
he'd have to be harder because he wouldn't be his own boss." The
testimony of a third witness, Estelle Silverman, who was called by
the Employer, tended to support that of Delaney and Tamarkin. She
testified that Cohen stated that the employees knew, "they could come
in and talk freely and if they did get the union, things might change."
We believe that the hearing officer properly credited the testimony of
these witnesses in this connection. Under the circumstances, we find,
as did the hearing officer, that the statements attributed to Cohen
were made and that the particular statements testified to by Delaney
and Tamarkin constituted threats of a change in working conditions
which tended to interfere with the exercise of the employees' free choice
in the election.4
Thus, on the basis of the entire record, we concur in the hearing
officer's conclusion that, by certain statements, the Employer inter-
fered with the free choice of the employees at the election. As we
regard the above-noted incidents sufficient to warrant setting aside the
election, we find it unnecessary to pass upon the other objections
treated by the hearing officer.
Accordingly, we shall sustain the Petitioner's objections in the
respects noted, and shall set the election aside. When the Regional
Director advises the Board that the circumstances permit the free
choice of a bargaining representative, we shall direct that a new elec-
S Cohen testified that he talked to the girls in the store about the forthcoming election
"quite frequently . . . might have been once a day."
4 See N . L. R. B. v . Continental Oil Company, 159 F. 2d 326 , 327 (C. A. 10) where a
supervisor stated "things would be different."
SPIEGEL FASHION SHOPS 1541
tion be held among the employees of the Employer 's St. Louis,
Missouri, store.
ORDER
IT IS HEREBY ORDERED that the election held on August 20, 1949,
among the employees of Spiegel, Inc., doing business as Spiegel
Fashion Shops, St. Louis, Missouri, be, and it hereby is, set aside.
MEMBERS REYNOLDS and MURDOCK took no part in the consideration
of the above Supplemental Decision and Order Setting Aside Election.