The Bailey Co.

National Labor Relations Board - Board Decisions

Jan 21, 1948

75 N.L.R.B. 941 (N.L.R.B. 1948)

In, the Matter of THE, BAILEY COMPANY and DEPARTMENT STORE
EMPLOYEES ORGANIZING COMMITTEE (AFL)
in the Matter of THE BAILEY COMPANY (EAST SIDE BRANCH ) and
LOCAL 1524, DEPARTMENT STORE EMPLOYEES UNION OF THE RETAIL
CLERKS INTERNATIONAL ASSOCIATION , A. F. L.
Cases Nos. 8-R-2011 and 8-C-1818,1 respectively.-Decided January
21,1948
Mr. Louis S. Belkin, for the Board.
Messrs. Stanley cC Smoyer, by Messrs. Welles K. Stanley, Eugene
B. Schwartz, and Carl H. Clark, all of Cleveland, Ohio, for the
respondent.
Mrs. Marie Duke, of Cleveland, Ohio, representative of the Union.
DECISION
AND
ORDER
On February 13, 1947, Trial Examiner W. P. Webb issued his
Intermediate Report in the above-entitled proceeding, finding that
the respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action as set forth in the copy of the
Intermediate Report attached hereto. In the Intermediate Report
the Trial Examiner further found that the respondent had interfered
with an election conducted by the Board on April 2, 1946, among the
respondent 's employees to determine their representative for the pur-
poses of collective bargaining, and he recommended that the election
be set aside. The Trial Examiner also found that the respondent had
not engaged in certain other alleged unfair labor practices and recom-
mended that the complaint be dismissed with respect to such allega-
tions. Thereafter, Board's counsel and the respondent filed exceptions
to the Intermediate Report, and briefs in support thereof. The re-
spondent, by leave of the Board, also filed a supplemental brief.
I These two cases were consolidated by Board Order dated October 30, 1946.
75 N. L. R. B, No. 113. 941
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
,case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner with the exceptions and additions noted below :
1. The Trial Examiner found that the respondent violated Section
8 (1) of the Act prior to the recent amendment thereof 2 by engaging
in an unlawful course of conduct consisting of (1) summoning em-
ployees to the manager's office just prior to the election of April 2,
1946, and promising them certain economic benefits, including a more
generous vacation plan, more frequent payment of commissions, and
a more liberal drawing account; (2) distributing certain anti-Union
circulars and notices among the employees on the eve of the election;
and (3) interrogating two employees concerning their union activities.
We agree with the Trial Examiner that the respondent has interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed them in Section 7 of the Act. Our finding in this
respect, however, is based solely upon the promises of economic bene-
fits made by the respondent to its employees immediately preceding
the election. We do not, as did the Trial Examiner, predicate our
unfair labor practice finding upon the statements contained in the
circulars and notices distributed by the respondent, for although they
clearly indicated the respondent's antipathy toward the Union and
its leaders and the respondent's preference for individual bargaining,
they appear to be only such expressions of opinion as are protected
by the constitutional guarantee of free speech. Nor do we agree with
the Trial Examiner, on this record, that Manager Thorman's remarks
to employees Kolbe and Lutz relative to their attendance at a dinner
sponsored by the Union amounted to unlawful interrogation con-
cerning their union activities. We do not base our 8 (1) finding on
a course of conduct theory.
2. The present case is a consolidation of two separate proceed-
ings-a representation proceeding and an unfair labor practice pro-
ceeding. The representation proceeding was initiated by Department
Store Employees Organizing Committee (AFL), which has not com-
plied with Section 9 (f) and (h) of the amended Act. However, it
appears that it requested that it be designated on the ballot as Local
1524, Retail Clerks International Association, A. F. L. The latter
organization also has not complied with Section 9 (f) and (h) of the
2 See The Labor Management Relations Act, 1947, amending the National Labor Rela-
tions Act The provisions of Section 8 (1) of the National Labor Relations Act, which
the Tiial Examinei herein found were violated , are continued in Section 8 (a) (1) of the
amended Act.
THE BAILEY COMPANY 943
amended Act, although the International has done so. In view of
these facts, we shall dismiss the petition herein without considering
the merits of the Trial Examiner's findings as to the objections to the
election.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the respondent, The Bailey Com-
pany (East Side Branch), Cleveland, Ohio, and its officers, agents,
successors, and assign shall:
1. Cease and desist from :
(a) In any manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Local 1524, Department Store
Employees Union of the Retail Clerks International Association,
A. F. L., or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining, or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Mail to each of its employees at its East Side store,, Cleve-
land, Ohio, a copy of the notice attached hereto, marked "Appendix
A"
7
; 3
(b) Post at its East Side store, Cleveland, Ohio, copies of the
notice attached hereto, marked "Appendix A." Copies of said notice,
to be furnished by the Regional Director for the Eighth Region,
shall, after being duly signed by thee respondent's representative, be
posted by the respondent immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material;
(c) Notify the Regional Director for the Eighth Region in writ-
ing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the respondent violated Section 8 (1) of the Act by holding a meeting
of its East Side store employees on July 13, 1946, for the purposes
9 In the event that this Order is enforced by decree of a Circuit Court of Appeals, there
shall be inserted, before the words, "A DECISION AND ORDER," the words "DECREE
OF THE UNITED ST4TES CIRCUIT COURT OF APPEALS ENFORCING
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of preventing said employees from attending a union meeting be,
and it hereby is, dismissed.
IT Is FURTHER ORDERED that the complaint, insofar as it alleges that
the respondent unlawfully discriminated against Jacob Gold with
respect to his hire or tenure of employment, be, and it hereby is,
dismissed.
AND IT IS FURTHER ORDERED that the petition for investigation and
certification of representatives filed by Department Store Employees
Organizing Committee be, and it hereby is, dismissed.
MEMBER GRAY took no part in the consideration of the above Decision
and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist LOCAL 1524 DEPART-
MENT STORE EMPLOYEES UNION OF THE RETAIL CLERKS INTER-
NATIONAL ASSOCIATION, A. F. L., or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protection.
All our employees are free to become or remain members of the
aforesaid Union or any other labor organization.
THE BAILEY COMPANY,
East Side Branch,
Employer.
Dated -------------------------- By -------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material. .
INTERMEDIATE REPORT
Mr. Louts S Belkim, for the Board.
Messrs. Stanley & Smoyer. by Messrs. Welles K Stanley, Eugene B. Schwartz,
and Carl H Clank, all of Cleveland. Ohio, for the Respondent
Mrs. Marie Duke, of Cleveland, Ohio, representative of the Union.
THE BAILEY COMPANY
STATEMENT OF THE CASE
945
On October 1, 1945, Department Store Employees Organizing Committee (AFL),
herein called the Union , filed with the Regional Director for the Eighth Region
(Cleveland , Ohio ), of the National Labor Relations Board, herein called the
Board , a Petition for Certification of Representatives pursuant to Section 9 (c)
of the National Labor Relations Act, 49 Stat. 449, herein called the Act, alleging
that a question concerning representation affecting commerce, within the meaning
of the Act , had arisen with respect to the employees of The Bailey Company,
herein called the Respondent , at its East Side store in Cleveland , Ohio (Case No.
8-11-2011 ) Pursuant to notice , a Board hearing was duly held at Cleveland,
Ohio, on November 9 and 14 , 1945 On or about December 1, 1945, the Respondent
filed a brief in support of its contention that the Petition for Certification should
be dismissed by the Board for certain reasons therein set forth. On March 18,
1946 , the Board issued its Decision and Direction of Election , ordering that a
Board election be conducted among certain employees of the Respondent at its
East Side store in Cleveland . Ohio ,' to determine whether or not these employees
desired to be represented by the Union for the purposes of collective bargaining.
The election was duly held on April 2 , 1946 , and the Union was defeated' On
April 3 , the Union wrote the Regional Director requesting that the election be
vacated and set aside, and on April 8, the Union submitted its reasons for the
request, alleging interference , coercion , and intimidation by the Respondent. On
June 27, 1946 , the Regional Director issued his Report on Objections to the elec-
tion , in which he found that the activities of the Respondent , prior to the election,
"interfered with the employees ' free choice of a bargaining agent " and recom-
mended that the election be set aside. On July 13 the Respondent filed exceptions
to the Regional Director 's Report on Objections , alleging that the report was
"arbitrary , capricious , and contrary to law " On August 22 , 1946, the Board
issued an order directing a hearing on the objections . On October 21, 1946, the
Union filed an amended charge against the Respondent , alleging the violation of
Section 8 (1) and ( 3) of the Act. (Case No. 8-C-1818 ) On October 30, 1946,
the Board issued an order consolidating these two cases.
Pursuant to the aforesaid amended charge , the Board , by the Regional Direc-
tor for the Eighth Region ( Cleveland , Ohio), issued its complaint , dated Novem-
ber 5 , 1946 , against the Respondent , alleging that the Respondent had engaged
in and was engaging in unfair labor practices affecting commerce , within the
meaning of Section 8 (1) and ( 3) and Section 2 (6) and (7 ) of the Act . Copies
of the complaint and the amended charge , accompanied by notice of hearing
thereon, were duly served upon the Respondent and the Union
With respect to the unfair labor practices , the complaint as amended at the
hearing , alleged in substance : ( 1) that on July 13, 1945, the Respondent held
'The appropriate unit established by the Board consisted of all the employees of the
Respondent 's East Side store, excluding bushelmen represented by the Amalgamated Cloth-
ing Workers ( CIO), seasonal extras, the store superintendent and the store manager and
any other supervisory employees with authority to hire, piomote , discharge , discipline, or
otherwise effect changes in the status of employees , or effectively recommend such action.
2 The result of the election was as follows .
Approximate numbei of eligible voters- -------------------------------- 77
Valid votes counted . plus challenged ballots ---------------------------- 73
Votes cast for the Union --------------------------------------------- ,22
Votes cast against the Union------- ----------------------------------- 44
Challenged ballots--- ------------------------------------------------
The challenged ballots, if favorable to the Union, would not alter the result.
7
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a meeting in its East Side store of all its employees at the same hour that a union
meeting had been scheduled to be held, in order to prevent the employees from
attending the latter meeting, and that the Respondent, in the presence of an
employee, made known its intention to hold such a meeting ; that from July 13,
1945, the Respondent urged, persuaded, and warned its employees not to join or
remain members of the Union, disparaged, ridiculed, and vilified the Union and
its representatives, urged and persuaded its employees to vote against the Union
in a coming Board election, and offered them favorable changes in the payment
of commissions, vacations, and rest rooms, in order to influence them to vote
against the Union; (2) that on October 7, 1946, the Respondent discharged, and
thereafter refused to reinstate, Jacob Gold for the reason that he joined and
assisted the Union and engaged in concerted activities; and (3) that by such acts
and statements, the Respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act
On November 14, 1946, the Respondent filed with the Regional Director a
motion for a bill of particulars, accompanied by a brief in support thereof.
Under the same date, the motion was granted in part and denied in part by the
Regional Director, and an order was issued setting forth certain of the particu-
lars requested by the Respondent
On November 20, 1946, the Respondent filed its answer, admitting certain
allegations of the complaint with respect to its corporate existence and the opei a-
tion of its business, but denying that it had engaged in or was engaging in any
of the alleged unfair labor practices
Pursuant to notice, a hearing was held at Cleveland, Ohio, on November 25,
26, and 27, and from December 9 to 12, 1946, before the undersigned, W P Webb,
the Trial Examiner duly designated by the Chief Trial Examiner. The Board
and the Respondent were represented by counsel and the Union by its representa-
tive, and all participated in the hearing. Full opportunity to be heard, to exam-
ine and cross-examine witnesses and to introduce evidence bearing on the issues
was afforded all parties.
On November 26, the second day of the hearing, counsel for the Board moved
to amend the complaint in several minor respects, which was objected to by
Respondent's counsel. The motion was granted by the Trial Examiner with
the proviso that no testimony, with respect to the amendments, would be received
until Monday, December 2, 1946.'
At the conclusion of the Board's case-in-chief, and- again at the close of the
hearing, counsel for the Respondent moved to dismiss paragraphs 4 and 5 of
the amended complaint Ruling thereon was reserved by the Trial Examiner.
The motion is herewith denied by the undersigned.
The parties waived oral argument before the Trial Examiner. Briefs have
been received by the undersigned from the Board, the Respondent and the Union.
3 The amendments were • (1) to change the date in paragraph 4 of the complaint from
October 1, 1945 to July 13, 1945; and (2) to add the following sub-paragraphs to para-
graph 4 of the complaint; (f) "Upon learning that the Union had scheduled a meeting of
the employees for on or about July 13, 1945, through supeivisors , Thorman and Kuhner
scheduled a meeting of employees at the same hour and date as the union meeting herein-
before given , and compelling the employees to remain for that meeting for the purpose of
interfering with the meeting established and scheduled by the Union , and (g ) stating in
the presence of its employees through Supervisois Thorman and Kuhner that it was the
purpose of the Company to schedule a meeting for July 13 , 1945, with the purpose of
spoiling and preventing the meeting scheduled by the Union for that date " On Novem-
ber 26 it was understood that the hearing would be adjourned to December 2 However,
on Novembei 27 it became necessary to adjourn until December 9.
THE BAILEY COMPANY 947
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Bailey Company is an Ohio corporation having its principal office and place
of business in Cleveland, Ohio, where it is engaged in the operation of three retail
department stores, herein called the "Main" store, the "Lakewood" store, and the
"East Side" store" The instant proceeding is concerned only with the employees
of the East Side store During its latest fiscal year, the Respondent's purchases
of merchandise, for resale at its Cleveland stores, exceeded $10,000,000, in value,
of which approximately 95 percent was shipped to the Respondent from points
outside Ohio. Approximately 10 percent of the total purchases was sold at the
Respondent's East Side store. Of its total sales during the same period, not
mole than one-tenth of 1 percent was shipped to points outside Ohio. In a prior
proceeding by the Board (Case No. S-R-2011) the Board, in its Decision and
Direction of Election, dated March 18, 1946, found that the Respondent was
engaged in commerce within the meaning of the Act, and the undersigned so
finds.
II. THE ORGANIZATION INVOLVED
Local 1524, Department Store Employees Union of the Retail Clerks' Interna-
tional Association, formerly known as Department Store Employees Organizing
Committee (AFL), affiliated with the American Federation of Labor, is a labor
organization admitting to membei ship employees of the Respondent."
III. THE UNFAIR. LABOR PRACTICES
A. Sequence of events
In the spring of 1945, a campaign was inaugurated by Retail Clerks' Interna-
tional Association, A. F. L, under the supervision of Peter Formica, its inter-
national representative. In order to facilitate the movement, a Department Store
Organizing Committee was set up to conduct the campaign. It was understood
that when a sufficient number of members had been secured, locals would be
chartered by the International to cover the various groups of employees. Local
1524, Department Store Employees Union of the Retail Clerks International
Association, A F. L, was chartered to cover the employees of the Respondent at
its East Side store s
B. Alleged acts of interference, Iestsaint, and coercion
The amended complaint alleged that the Respondent, on July 13, 1945, com-
pelled its employees at the East Side store to attend a meeting in the store in
order to prevent them from attending a union meeting scheduled for the same
i The main office of the Respondent is located in "Main" store, from the general
operations of the three stores are directed under the supervision of Howard L. Boynton,
general manager
5 As found below , during the Union ' s campaign to organize the Respondent 's East Side
store employees , the Union was known as Department Store Employees Organizing Commit-
tee (AFL). After receiving its charter , the name was changed to Local 1524 , Department
Stoic Employees Union of 'the Retail Clerks' International Association , A. F. L
These"findings are based upon the credible and undenied testimony of Formica.
766972-48-vol. 75-61
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date, and that the Respondent made known, in the presence of an employee, its
intention to hold a store meeting for that purpose. The undersigned finds that
the record does not sustain these allegations.
Jeanne Workman testified that in the summer of 1945 she was employed by
the Respondent as an elevator operator ; that on July 12, 1945, Manager Harold M.
Thorman and Assistant Manager Henry Kuhner, of the East Side store, were pas-
sengers in her elevator ; and that she heard either Thoi man or Kuhner say "if
they held a store meeting maybe there wouldn't be a Union meeting " Both
Thorman and Kuhner denied having made any such statement Workman could
not recall whether the statement Was made in the elevator during the forenoon
or afternoon, neither could she remember anything else that either Thorman or
Kuhner may have said on that occasion Workman further testified that the
Union meeting -Nvas scheduled to be held from 5: 45 p in to 6 p in at the Boys
Y. M. C A, which was about 7 or 8 minutes wall: from the Respondent's East
Side store;' and that she attended the Union meeting after the store meeting
was concluded. Both Thorman and Kuhner testified that in the forenoon of
July 12, 1945, the management posted a notice in the East Side store that a meet-
ing of the employees would be held in the store at 5: 30 p. in on July 13, 1945;
that at the time the notice was posted they did not know that a Union meeting
had been scheduled for that (late; and that they learned of the Union meeting
after the notice had been posted General Manager Bovnton also testified that,
at the time he instructed Thorman to hold a meeting of the employees on July 13,
1945, he did not know that the Union had scheduled a meeting on that date; that
he learned about it when he attended a meeting in the Regional Office at 2 30
p in July 13, 1946, at which a representative of the Union was present : that it
was mutually agreed that the Respondent would hold its meeting 15 minutes
earlier, at 5:15 p. m., so that the employees could attend both meetings; and
that the store meeting ended about 5 32 p in The record shows and the under-
signed finds that the store gong was rung at 5: 15 p. in on July 13, 1945, although
the regular closing time was 5: 30 p m : that as soon as the customers had left
the store, the street door was closed and locked and the stoi e watchman was
posted at the door; that for the past several years, it had been the custom and
practice of the Respondent to keep a watchman constantly on duty at the main
entrance ; and that at 5: 30 p in it was his duty every day to see that all custo-
mers had left the store and to let the employees out. Employees were required to
explain any bundles that they might be taking out All the employees attended
the meeting which lasted until about 5: 35 p. m., and then they left the store
The undersigned accepts the testimony and denials of Thorman and Kuhner and
finds that neither made the remark attributed to him by Workman, and that they
did not know of the Union meeting when the store meeting notice was posted
The undersigned also finds that the Respondent, by holding a meeting of its
employees in the East Side store on July 13, 1945, did not violate the Act, as
alleged in the amended complaint.
C. Interference, restraint, and coercion
Former employee Marie W. Richards testified without contradiction that on
April 1, 1946, the day before the Board's election among the Respondent's em-
ployees in the East Side store, while she was in the employ of the Respondent she
' According to the testimony of Marie Duke, the Union representative, the Respondent's
employees were notified, by letter, on July 9, 1945, that a union meeting would be hold in
the Y. M. C. A, at 5: 30 p m on July 13, 1945, after the East Side store had closed
THE BAILEY COMPANY 949
was called into Manager Thorman's office; that Assistant Manager Kuhner and
General Manager Howard L Boynton were present; and that the Union was dis-
cussed Her testimony in respect to this meeting reads as follows :
- Well, about the first thing, they discussed the wages I was asked if I
knew just what my average earnings was I hadn't figured that out, but
I did give my approximate earnings for them, that is weekly draw. Mr.
Boynton had it figured, which included the commission and all, so he went
over those figures with me, just to show me what the average earnings per
week was Mr. Thorman gave me a pamphlet to read about the dues for
the Union It was one of the International Advocates, stating that where
it was possible, they charged $2 00 a month Union dues; and a previous.
pamphlet that the Union had given out, saying that the clues would be $1.50.
And they questioned the fact that they couldn't settle their minds on just
what they would be. There wasn't too much said, I mean concerning the,
Union. They simply talked about it. . . . My conversation was quite largely
with Mr. Thorman. He had asked me to look over this literature, this
magazine that I mentioned, and the pamphlet about the dues. And he also
gave me a paper that had a paragraph in it concerning a labor organization
in a Pittsburgh department store, whereby they hadn't gained such a high
rate of pay Then Mr. Thorman, we talked in a friendly conversation about
conditions in the store. And he pointed out that the vacation plan was
going to be changed, but that that had been in their minds before any
attempt to organize a union He said that that vacation, I think, ran
fioni May until May. If you were employed there for a year, then you
would have two weeks vacation with pay. And it had been changed, I am
not sure what dates, I think until perhaps September 1st. However, it did
not effect my status at all Then they discussed, or he, rather Mr. Thorman,
told me about the wash room and some of the different changes that were
being made to our betterment. He said that the commission basis was being
changed, they were paying -they were going to pay on a three month basis
rather than a six month basis . . . Another thing I remember is that he
told me I could have more on the weekly draw if I cared to, make my
weekly pay larger. But, still that would only come out of the commission
pay, that would be smaller, naturally, at the end of the three months. I
don't recall much more that was said, except that when our interview was
over he mentioned that he had given me some good food for thought, and
asked me if I would think it over before the next clay. . . . Then it was
also brought in about these younger people, Eddie Bates and Catherine
Stewer, who were very young to have on the Executive Board.
Richards further testified that during the above interview it was brought out
by Thorman that prior to 1945, the employees were paid their commissions on
sales once each year;' that in 1945 a change was made and the commissions
were paid semi-annually; that the Respondent had now decided to pay these
commissions every 3 months ; that better rest room facilities would be furnished
to the employees since the Respondent had acquired the premises of the Marshall
Drug Co located near the East Side store, which would be used for the appliance
8 The Respondent's nonsupervisory employees were not paid on a wage basis, but on a
commission basis-6 percent on their sales. They were given a drawing account of so much
a month, and when their commissions were paid, the amounts drawn during the period were
deducted from the commissions
'950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
department , thus giving more space in the East Side store for a larger rest room
and lunch room
Allen M Glezerman , a former employee of the Respondent , testified that about
a week prior to the Board election while he was in the employ of the Respondent,
he was called into Manager Thorman ' s office , and that Boynton and Kuhner were
present . Glezerman ' s testimony in this connection which is credited by the
undersigned , reads as follows :
Well , we went in there and started talking, and I don ' t know who said it,
said they were going to have an election And he said, "We want you to vote
on it " And started to ask me if I was going to school , and all that, and then
asked me what my father was doing . And he said-I said he was a builder.
And I don ' t know who said it, but someone there said something about,
"Then you are naturally against the Union " ° And I didn 't say anything.
And then they started talking again about-about what Is wrong with the
Union, and we weren't going to get any benefits out of it. And they started
talking about somebody who was in the Union , -,w ho-from the store , I don't
know their name, I think one was colored fellow who worked down-10 Yes.
I think that is his name And him and another girl , I don ' t know what her
name is , Stewer . What kind of officials they would be in the Union,11 be-
cause they aren ' t responsible , or anything like that And they mentioned
something about the head of the Union , the local , and what they are, is
nothing but Communists , or something like that At least that is what I
think he [Thorman ] said . . . And they talked about that, and they told me
that-I asked them what did the store do for you ? And they says, they
asked me if I wasn 't satisfied , and I told them no He said-I remember Mr.
Thorman said this : "If you are not satisfied , you can always go and find
some place else to work that will pay you more money."
Thorman did not deny this testimony of Glezerman except as to what he said
to Glezerman with respect to seeking employment elsewhere . He testified that
he told Glezerman that "he was receiving as much as he was worth to us, and if
he felt that lie could make more, we wouldn 't object to his going elsewhere and
obtaining it."
- According to the credited testimony of employee Grace Kolbe , about a week
prior to the Beard election , she was called into Manager Thorman ' s office Gen-
eral Manager Boynton and Assistant Manager Kuhner were also present. Thor-
man asked her if she knew that there was it possibility of the Union dues being
increased , and be showed her a union circular in which the dues were men-
tioned as $1.50 a month , and he also showed her a magazine called Retail Clerks'
International Advocate issued by the International office of the Union, in which
it was recommended that the Union dues be increased to $2.00 a month . He told
her about the proposed new rest room and that certain changes were going to
be made in vacations , which would be favorable to the employees On cross-
examination by counsel for the Respondent , Kolbe testified that Thorman said
on that occasion , he wanted the employees to know all the facts , and that the
Company would abide by their choice.
9 According to Glezerman , there was no one in Thorman's office at that time, except Thor-
man, Boynton , Kuhner and himself.
10 The witness was interrupted at this point by counsel asking if the man's name was
lEddie Bates.
n Eddie Bates and Ardelle Stewer were members of the Union Executive Committee and
both were under 20 years of.age.
THE BAILEY COMPANY 951
Kolbe further testified that she was called into TThorman ' s office again on the
morning of election day,12 and in the presence of General Manager Boynton and
Assistant Manager Kuhner , she was told by Thorman that they wanted the em-
ployees to vote , and hoped that they would "Vote in the right way." Thorman
also asked her if she had attended a Union dinner which had been held on the
night before 13
Employee Lillian M. Lutz testified without contradiction that she was called
into Thorman 's office about a week or 10 clays prior to the Board election, and
again on the morning of election clay ; that on the first occasion Thorman asked
her it she knew much about unions and if she had ever had any experience with
unions and if she had received fair treatment by the Respondent , also if she was
satisfied with her employment . Thorman also showed her the Union circular
and periodical with reference to union dues. Also he mentioned that commissions
would thereafter be paid quarterly instead of semi -annually , and explained the
new vacation plan On the second occasion , Thorman told her that he knew
she had attended the Union dinner on the night before Boynton testified that no
representative of the Respondent told any of the employees who were called
into Thorman's office on the day of the election that he knew any particular
employee had been to the Union dinner which had been held on the night before
the election . The undersigned does not credit this general denial of Boynton,
and finds that Thorman made the remarks substantially as testified to by Lutz
Former employee Jacob Gold testified that on the day prior to the Board elec-
tion lie was called into the presence of General Manager Boynton, Manager
Thorman and Assistant Manager Kuhner ; that he was asked about his earnings ;
that he was told about the change in vacations ; that he was asked if he knew
what he was "getting into" by joining the Union , and if lie realized that the
Union could "put all kinds of assessments" on liiui He was told that, as a
member of the Union , he could be made to do picket duty anywhere the Union
called a strike Gold's testimony , in part, reads as follows :
I don ' t know of very much more , but I think that was about all. But as
I was leaving-oh, yes, I beg your pardon . He says , before it all ended,
they remarked , they says , "In spite of everything ," lie says , "you know,"
lie says, "as an American ," he says , "although you send in your card, and
you are one of the officials , and all that stuff," he says, "that doesn't really
mean that you have to vote for the Union . Of course , that is up to you. We
don't tell you how to vote, but you don't have to necessarily vote 'Yes.' "
And that was practically all. And as I was leaving , Mr Kuhner interjected
by saying , he says, "Well, we are still not sure whether you are going to vote
for us or against us " 14
Employee Ardelle A. Stever testified that on the day before the Board election,
she was called into Manager Thorman ' s office, and that Assistant Manager
Kuhner and General Manager Boynton were present , together with Thorman ;
that she was shown a pamphlet concerning a union in Pennsylvania ; that "they
pointed out the fact of the amount of money that the employees had given into
the Union , and they were in a worse condition than if they hadn ' t belonged to
The election began about 2 30 p at on-Ain ill 2, 1940'
'a Thorman denied that lie spoke to Kolbe about the Union dinner The undersigned does
not credit his denial, and finds that he made the statement substantially as testified to by
Kolbe.
14 Kuhner denied that he said to Gold on that occasion, "Well, we are still not sure
whether you are going to vote for us or against us." This denial was corroborated by Thor-
man. The undersigned credits Kuhner's denial
k
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union in the first place. And they said that was just a bad example of
Unionism"; that she was told about the changes in the payment of commissions
and vacations with pay ; that Thorman said most unions called strikes at in-
tervals and that the union members would have to go on strike when ordered
to do so by the Union officials whether they wanted to or not; and that, in the
Board election the next day , the employees could vote as they liked.
The Respondent admitted that during the period from March 27, to April 1,
1946, it executed and disseminated - among its employees at its East Side store
the following statements designated as Exhibits A, B, C, D, and E , which are
attached to this report A summary of these statements , in which the undersigned
concurs, was attached to the Regional Director ' s Report on Objections issued by
him on June 27, 1946 , and made a part of the record in this case . This report
reads as follows:
The Company 's pre-election campaign began on that afternoon, March 27,
1946. Prior to closing time , the Company called all employees together Mr.
Howard L Boynton , General Stores Manager, read from a prepared state-
ment. The printed form of this statement was then mailed to the homes of
all employees, and a copy is attached as Exhibit 3 [Exhibit A]. In his speech
Mr. Boynton first outlined the details of the election , including when and
where it would be held , and"the method of voting . He then pointed out that
employees did not have to vote "yes " just because they had signed a union
card. (It may be noted here that in its subsequent bulletins , which will be
discussed below, the Company emphasized this fact continually.) Boynton
then discussed the alleged motive of the Union in asking for an election at
only one store of the Company , stating in passing that it was contrary to the
general rule of the Labor Board to order an election in one store where a
company has several in the same locality . He emphasized the alleged weak-
ness of the Union in this connection . Boynton then went on to tell the
assembled employees that they did not have to join the Union , and then
stated that there would be no coercion by either side . He set the stage for
the ensuing bulletins by saying , "Our Company considers it a duty to all of
you to furnish the truth about this union so that you can vote intelligently."
The second Company bulletin [Exhibit B ] was issued on the following day,
March 2S , 1946, and was entitled "The Bad Reputation of This Union." Copy
is attached as Exhibit 4. It was stated therein that the purpose of this
bulletin was to acquaint the employees with the facts concerning the Union
which "is asking you to vote for it so that it will be your sole representative
in bargaining with our company ." A number of statements are then made
concerning picketing in front of the Sterling & Welch Company in Cleveland
where a strike involving this Union was in progress at the time . The bulletin
quoted anti -union editorials published in the Cleveland papers, and con-
cluded with, "Any union officer can order a member to picket."
Under a heading entitled "UNION HIDES ITS REAL NAME " the bulletin
then advised the employees : "Don 't be deceived by the name of `Department
Store' in the name on the ballot. The organizers would like to have you
believe .that it has contracts with other Cleveland department stores It
has none. The reason for the organizers hiding the name R. C. I. P. A. is
the bad reputation it has received in many newspapers."
The bulletin then discussed the "UNION'S BAD REPUTATION IN CHICAGO"
and presented alleged quotations from Chicago newspapers in 1941 and 1943.
The third Company bulletin [ Exhibit C ] was issued the following day, March
29, 1946, under the title of "The Truth About Peter Formica and The Dukes."
THE BAILEY COMPANY 953
Copy of this is attached as Exhibit 5. As stated in the first paragraph of this
bulletin, the issue in the forthcoming election was to- be "whether you prefer
to surrender the control of your job rights here to a group of Communist-
dominated professional outside oiganizei•s " The bulletin then proceeded to attack
the reputation and integi ity of the Union and its officials by referring to them
as a "group of outsiders" which had come along and singled out "one of our
stores for an organizing attack, under the guise of a "union" or a "protective
association" or any other name they see fit to adopt for the purpose of inducing
our employees to pay dues to them by making lavish and impossible promises
to them."
The bulletin singled out Peter Formica, who is International Representative
of the Union, and Marie and Sam Duke, Union Organizers, for the purpose of
allegedly telling the truth "about the identity of the professional outsiders woho
hope to win control of your jobs through this election " The Company, in its
bulletin, engaged in a discussion of the alleged connection between the Dukes
and the Independent Communist Labor League, sometimes known as the Love-
stoneite Party, a splinter of the Communist Party in America. While first
associating Marie Duke with this Independent Communist Labor League, the
Company then attempted to impute to her a connection with the Communist
Party itself.
Again making its own interpretation of the issues involved, the Company
referred to the Dukes as organizers for the "RCIPA in its attack on the Bailey
Co and its employees." The bulletin went on to make mention of the Union's
history in connection with a Toledo department store and once again the
Company made it clear that "Yon have a perfect right to vote `No' even though
you may have previously signed a union authorization card "
The fourth Company bulletin [Exhibit DI was issued March 31, 1946, and is
entitled "UNION'S MISLEADING STATEMENTS." A copy is attached as
Exhibit 6 This bulletin discussed some wage rates paid by companies organized
by RCIPA. The Communist charge was again mentioned and the denial by the
Dukes of the Communist charge was ridiculed. The Company then again repeated
its charges contained in the previous bulletins. Once again the bulletin con-
cluded that "You can vote against the Union, even though you signed a Union
card "
The fifth Company bulletin [Exhibit El was issued the day before the election,
April.l, 1946, and is attached as Exhibit 7. This bulletin advised the employees
"DON'T BE FOOLED!" and in one paragraph minimized the Union's chances
of victory by saying '*Some of our fellow employees who have talked with many
of you, have told us that the Union will receive a very small percentage of
the VOTES " Again the statement was made "Even though you signed a
membership card, you can still vote NO in tomorrow's election "
The Respondent contends that by calling all of its employees into the manager's
office prior to and on the day of the election as aforesaid, and by disseminating
the aforesaid statements (Exhibits A to E inclusive) among its employees at its
East Side store, it has not violated the Act, but is protected by the free speech
provision of the First Amendment of the Constitution of the United States. The
undersigned finds no merit in this contention.
In the case of National Labor Relations Board v. Hal Peterson, et at., 157 F. (2d)
514, decided October 16, 1946, Sixth Circuit, the Court said as follows :
Respondents' principal legal contention is that the statements of respond-
ent's managing partner, made to their employees, were protected by the free
speech provision of the First Amendment to the Constitution of the United
States, and therefore did not constitute evidence of unfair labor practice.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Supreme Court, in National Labor - Relations Board v 1/i,iginia. L'lectl is
d Power Co , 314 U. S. 469 , 477, recognized the fact that the National Labor
Relations Act does not forbid expressions by an employer to his emplo} ees of
his views on labor policies . This had been previously held by this Court,
which declared in Midland Steel Pioducts Co v. Nat ional Labor Relations
Board, 113 Fed. (2d ) 800, 803, that the statute does not forbid the employer,
where lie is innocent of coercion , interference or restraint , from advocating
advantages of individual conferences as opposed to unionization In a more
extended discussion in National Laboi Relations Board v Ford Motor Co,
114 Fed (2d ) 905, 913-915 , cert . denied 312 U S. 689 , this court held that
the employer has the right not only generally to express his labor views,
but to distribute a pamphlet embodying these views to his employees To
the same effect is our holding in T,a .tronal Laboi Relations Board v West
Kentucky Coal Co ., 152 Fed. ( 2d) 198, cert . denied June 10, 1946 , 66 Sup.
Ct. 1372
But in the decisions upon this point , the right of freedom of speech of the
employer , in making statements disparaging of the Union , has always been
held to be justified only if the expressions in controversy are non -coercive.
If they are couched in such phrases , or attended by such circumstances that
they tend to exercise undue influence and coei cion upon the employees, the
expressions of opinion are not protected
Concluding findings
The facts set forth above are, in all essential details, uncontradicted and
undenied They disclose that the Respondent embarked upon a course of con-
duct designed to defeat the Union in the election and to discourage membership
in the Union The Respondent admitted that all of its employees in the East
Side store were called into the manager's office just prior to or on the dad of
the election, and that the Union and the election were discussed, together with
what the Respondent had done for its employees in the past and what it intended
doing for them in the future At these interviews, some of the employees were
interrogated concerning their union activities, and approximately all of then
were offered a more favorable vacation plan, better rest rooms, more frequent
payment of commissions and a more liberal drawing account. The eiuplo3 ees
were also warned that should the Union become their sole bargaining agent by
virtue of winning the election, the Union's dues were liable to be increased and,
should the Union call a strike anywhere in that area, the Union could compel the
Respondent's employees to do picket duty whether they wished to do so or not.
Also the distribution of the notices and circulars, therein referred to as "Exhibits
A, B, C, D, and E" to its employees on the eve of the election was, in effect,
an adroitly timed maneuver intended by the Respondent to persuade its em-
ployees to vote against the Union. Of course , the Respondent had a right to
change the vacation plan, provide better rest rooms, pay commissions oftener
and permit a more liberal drawing account, but the Respondent' s choice of a time,
just prior to and on the very day of the election. to announce these benefits, was
not a coincidence, but a studied move to influence its employees to vote against
the Union. By its well-timed announcement of these economic concessions,
as well as by other means, the Respondent sought to convince its employees that
they could rely exclusively upon it for economic advantages, thereby minimizing
the need for a collective bargaining agent. The effect of such an object lesson
THE BAILEY COMPANY 955
in the futility of self-organization, upon the employees in the exercise of their
right to select a bargaining representative, needs little elaboration." The under-
signed finds that the Respondent's motive for promising the aforesaid economic
advantages was to persuade its employees against voting for the Union in the
coming election, and thereby repudiating any affiliation with the Union.
Upon the entire record in the case, and viewing the Respondent's course of
conduct as a whole, the undersigned is convinced and finds that the-Respondent's
statements and circular letters and its attempt to bribe its employees were all
part of a whole course of conduct designed to coerce its employees to vote against
the Union, such as interrogating its employees concerning their union activities,
offering them a more favorable vacation plan, better rest rooms, more frequent
par'ment of commissions, more liberal drawing account, and the derogatory
characterization of the Union representatives. The undersigned finds that the
totality of the aforesaid activities of the Respondent was intended to and, in
fact, did interfere with, restrain, and coerce its employees in the exercise of the
rights guaranteed in Section 7' of the Act. The undersigned further finds that
since the Respondent's campaign statements were an integral part of the
Respondent's course of conduct which constituted the interference, restraint, and
coercion above found, the aforesaid statements of the Respondent are not
privileged under the First Amendment of the Constitution of the United States.
D. The alleged discriminatory discharge of Jacob Gold
The complaint alleged that the Respondent discharged or laid off Jacob Gold
on October 7, 1946, and thereafter refused to reinstate him for the reason that
he joined and assisted the Union and engaged in concerted activities. The
Respondent averred that Gold's employment with the Respondent ceased on
October 7, 1946, for reasons other than those alleged in the complaint. The under-
signed finds that the record does not sustain the aforesaid allegations of the
amended complaint in respect to the discharge of Gold
Gold began working for the respondent in August or September 1944 and his
employment was continuous until his discharge on, October 7, 1946. He was
put in charge of the Boys Clothing department of the Respondent's East Side
store, as department manager and salesman.
According to Gold, his duties were to look after his department, which con-
sisted of selling, receiving, and checking merchandise, keeping the stock in order
and in the proper places, rendering all necessary reports, such as mark-down
sheets and slow-selling sheets, make requisition for additional stock, take semi-
annual inventories, etc
With respect to Gold's duties as head of the Boys Clothing department at the
Respondent's East Side store, Kuhner's credited testimony reads as follows :
I instructed Mr Gold, the same as are given to all people that are engaged
in a capacity similar to Mr. Gold, as lie was engaged in . , . that he is re-
'5 See for example N L R B v The S Frieder and Sons Company, 62 N L R B 880,
155 F (2d) 268 (C. C. A 3). See also Medo Photo Corp. v. N. L R B , 321 U. S 678, 686;
N L R B. v Jahn cC Allier Engraving Co, 123 F (d2) 589, 592-593 (C C. A 7) , N. L.
R B v Bradley Lumber Co, 128 F (2d) 768, 770 (C C A. 8) ; Reliance Mfg Co. v
N L R B, 143 F (2d) 761-763 (C C A 7) ; (on contempt) See also May Department
Stoi cs Co v N L R B , 326 U S 376, where the Supreme Court, enforcing the order of
the Board, held (at P 209) that "the manner of presenting and publicizing the application
bad the effect of coercing the employees," because it "minimize [d] the influence of collec-
tive bargaining . . [and] interfere[d] with the right of self-organization by emphasizing
to the employees that there is no necessity for a collective bargaining agent "
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sponsible that his stock is kept up, that all merchandise necessary for promo-
tion or for sale are procured, and the stock kept up as to sizes , and in good
location. That he has to order his merchandise, check his records, record
what he receives ; what he disposed of other than through sales. Because
those things are ordinarily clone by sales check and the cash register slips.
In other words, the physical disposition of merchandise returning to vendors,
or to the, stock room, merchandise that is no longer desirable. That those
were his duties, that his report, that he has to make certain reports, and,
the, well, the general duties of any department manager.
Gold was not a supervisory employee. He was paid on a commission basis,
the same as other sales persons He joined the Union in July 1945, and soon
thereafter, became a Union steward. Prior to the Board election on April 2,
1946. he was active in soliciting other employees of the Respondent to join the
Union. He was one of the Union's observers at the Board election and signed
a report on "Tally of Ballots "
According to Gold, beginning in July 1945, he was frequently criticized by
Thorman and Kuhner in respect to the way he kept his stock and rendered his
reports; that the criticism became more pronounced after the semi-annual inven-
tory of his department in January 1946 After this inventory Gold was told by
Manager Thorinan that the inventory showed a shortage of $1,100. Gold's testi-
mony, in this connection, reads as follows :
After the first inventory in January it was called to my attention that I
was short-well, if I may interject at this time, Dir. Examiner, those in-
ventories, there isn't a department that ever had it right, to my knowledge.
Well, anyhow, I was told that I was $1,100 short in my inventory. And
they made quite a hullaballoo about it.16 Of course, I don't blame them
. . . So, of course, I told him, I said, "Well, you know, Dir. Thorman, that
downtown makes plenty of mistakes. And the way lam set here, with
my inventory, there was two crews It wasn't just I alone And that I
didn't have the best assistance in the store to help me And it is impos-
sible, in fact," I says, "I discovered some mistakes , as you know, and,"
I says, "there must be many other mistakes Perhaps that will be found
later on. It has happened before and it may happen again But," I says,
"as far as I am concerned," I said, "after all," I said, "If they do, any
stealing out of the store, I can't help that either. I can't do ever\ thing.
I have got so many duties upon me that I can't watch everything"
Gold further testified that subsequent to the inventory that was taken in
July 1946, he received his "slow-selling sheets,"" and in looking them over, be
discovered that 46 shirts, which retailed at $445 each, had not been taken in
the July inventory. He reported the matter to Assistant Manager Kutner,
and told him that there might be other items missing in the inventory After-
wards he discovered that some sweaters had been omitted He did not turn
in the slow-selling sheets promptly, but kept them for several days. About
2 clays later Kuhner inquired about them and Gold informed him that they
had riot been completed. Kuhner took the sheets anyhow, and immediately
thereafter Thorman came down to Gold's department, and "bawled him out."
Thorman said to Gold, "You are too darned old, and I don't want to fire
you. . . . Any time you want to get out of this place, Goddam you, take your
11 Thorman testified that the shortage was $315 57.
17 Slow-selling sheets consisted of merchandise that was a year old.
THE BAILEY COMPANY 957
hat and coat and walk out."" Gold further testified that "from August of
1946, on, there wasn't a day went by without me getting a bawling out of
some kind, to the extent that it made me so nervous and so sick that I had
to take off a few days."
According to Gold, he became ill again, and on October 3, 1946, his wife in-
formed Kuhner that lie would be absent fiom the store for probably 10 days
or 2 weeks In the meantime, Gold consulted a doctor, who told him that
there was nothing radically wrong with him but that lie had been upset by
something, and that he could return to work. Gold notified Kuhner to that
effect and told him that he would return to work on Monday, October 7.
Kuhner informed him that the Respondent had hired someone to take his
place, and for Gold to come to the office on Monday October 7 and get his check
Gold returned to the East Side store on Monday, as instructed, and worked
until about 5 p m. at which time he was called to Kuhuer's office. When he
arrived at the office, Kuhner said to him. "I think it best we call it quits And
I want you to know one thing, we haven't got a thing against you. As a sales-
man you are as good as any salesman that I have ever seen, but there are some
other things I think you might as well go, because you will never be happy
here." Kuhner told hum that he would be paid tor both the past week and
the current week Gold told Kuhner that he would apply for a job at the
Respondent's Main store, and Kuhner• immediately telephoned the personnel
director at the Main store and stated that Gold was no longer connected with
the Respondent's East Side store, and that he would apply for work at the
Mani store; that he was a good salesman. but the job at the East Side store
was a "little too much for him" : and that if anything could be done for him
at the Main store, it would be all right with him Gold went to the Main
store the next day rind was told by General Manager Boynton that these was
no opening at present, but if anything came up, he would be notified . Gold was
never reemployed by the Respondent.
According to the credited testimony of Edgar G Blessing, the Respondent's
buyer for Boys' Clothing and Furnishings. in September 1946 he visited the Boys
Clothing l epartment at the East Side store for the purpose of inspecting the
stocks of merchandise and tilling in the requited articles in prepaiation for the
fall business, and that he found the stock badly kept. His testimony in this
respect reads as follows:
I found that the stock was in very poorly kept condition. The boxes on
the shelves were badly arranged. The clothes in the shelving, hanging clothes,
was badly arranged . . I found that the stock was in very bad shape as far
as being kept properly was concerned. And I had to go through the entire
stock myself and reorganize and fix it all nip for their . . . I suggested to Mr.
Gold that he keep his shelving and his boxed goods straightened out, and to
go through them and condense his stock properly. And he also had some
sweaters that he didn't know anything about that I had sent out a couple of
days before, some ski sweaters. And very popular A very popular item
at that time. And he asked me about ski sweaters And I told him that 1
had sent them out. And we found them lying in this shelving Apparently
he had forgotten about them . .. about three dozen sweaters. He inunedi-
ately put them on the tables for sale
jR Both Thorm.ui and Kuhner denied that Thorinan said to Gold anything about being too
old and getting his hat and coat The undersigned credits the denials of Thorman and
Kuhner , and finds that Thorman did not make the statement attributed to hint by Gold.
1958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blessing further testified that during his visit to the East Side store, as related
above, Manager Thorman came into Gold's department and found some boys'
trousers that had been sold, but required alterations, lying in the shelving behind
the glass case among shirt boxes and dust cloths Thorman told Gold to put the
garments in the store room, as he wanted the shelving kept neat and clean Gold
replied that he had put the trousers there temporarily as he had not found time
to put them in the proper place. Blessing's testimony was corroborated by
Thorman.
According to the credited testimony of Assistant Manager Kuhner, in September
1946, while he and Manager Thorman were checking the slow-selling sheets of
the various departments in the Respondent's East Side store, they discovered that
Gold's report had not come in, therefore he went to Gold's department and asked
for the report. Gold replied that he had not completed it. Kuliner took the report
anyway, and delivered it to Thorman. They then decided to go to Gold's depart-
ment and inspect the stock in order to ascertain the kind, condition, quantities,
and prices of the merchandise. They found that several items of stock did riot
agree with Gold's records, especially in respect to sweaters Gold told them that
he thought his records were correct but lie might have guessed at some of the
items. Thornian told Gold that it was not a "guessing game" and that the
inventory should show the actual stock on hand. Gold admitted the mistakes, but
endeavored to blame it on others who had helped to take the inventory. Kuhner
further testified that during Gold's absence. due to illness, from the store from
September 25 to October 7, 1946, a slow-selling report of merchandise in Gold's
department was made and it showed that Gold's report contained a number
of errors.
The testimony of Manager Thorman in regard to this incident, which is credited
by the undersigned, reads as follows :
We went down, to the department to look at the merchandise, and we got
there and we commenced to count it, and we went through and we found
there was much more than was listed on the slow-selling sheet We changed
the figures, reduced the price of it, and spoke to Mr Gold and asked him
how it could be possible to have much more of the same merchandise there
than he had originally copies from the inventory, and go through more than
a month and not catch it and correct it. He explained to us that he had
guessed at some of it, and lie hadn't taken an accurate count. Then I told
him that it wasn't possible to guess; that we wanted as accurate information
as it was possible to obtain, and that was why the records were sent out.
We could do all the guessing
Kuhner further testified that he was present'at the interview with Gold in
Thorman's office on the day of the election,10 but that he said nothing during
the meeting He denied that either himself, Boynton or Thorman said to Gold,
"We are still not sure whether you are going to vote for us or against us." In
respect to that interview, Kuhner's testimony which is credited by the under-
signed, reads as follows :
He [Gold] rapped on the door, and asked if we were busy 2° And he had
some papers in his hands. He came in. And he stated that he had been
Gold testified that this interview occurred on the day before the election.
20 Thorman testified that all of the employees were called into the office, some just prior
to the election and others on the day of the election Therefore the undersigned finds that
Gold was called into the office and did not go there voluntarily as indicated by Kuhner's
testimony.
THE BAILEY COMPANY 959
called upon by representatives of the Union to do certain things, and de-
manded that he must attend to certain matters, which he felt was an in-
fringement upon his liberties and his rights He told them that he was
not going to be dictated to by anyone, other than what he desired to do,
as he considered the war was just finished to do away with dictators, and
he felt, as an American citizen, lie wasn't going to be dictated to by any-
one That he had no more to do with the Union And he wanted us to
know it. He was assigned to certain duties without his knowledge. One
of them was overseer in the election, which he at that moment could not
waive any more.21
This testimony of Kuhner was corroborated by Thorman and Boynton.
In connection with the discharge of Gold by the Respondent on October 7,
1940, Kuhner testified that on Saturday. October 5, 1940, Gold telephoned him
that he would return to work on Monday, October 7; that lie informed Gold
that not knowing how long he would be ill, another man had been hired to
take his place,22 but to come in Monday. that Gold came to work on Monday ;
that later that clay lie discussed the situation with Thorman and they decided
to discharge Gold; and that Gold was requested to come to his office. Kuhner's
testimony, winch is credited by the undersigned,, reads as follows :
I told Mr Gold that, some of the various things that had happened, that
had conclusively proven that, while he was a good salesman, lie was a poor
maringei. That the work and duties such as are assigned and necessary for
a manager, wei e way over his head It was not quite possible to continue
running a business with someone in charge on that basis. And we thought
it might be best it we separate. Things are too, too much for you, Mr. Gold.
And he says, "I think I agree with you " I then proceeded to tell him, in
order to ease it, I was awfully sorry that this had to happen, but in order
to ease it, we decided to pay him practically two weeks in lieu of separation.
The week that lie had been away, and the full week of, beginning October 7th
to the 12th. And he thought that was very fair I further said to Mr. Gold,
Now, in order for you-" I felt it might be hard for him to locate immedi-
ately I said, "Now, you are at liberty to go downtown to the main store and
talk to the Personnel Manager, Mrs. Aiken. As a matter of fact, I will be very
glad to call her." And I did. In his presence, recommending that Mr. Gold
should be given an opportunity, if there was a vacancy, to be engaged down
there in selling.
Kuhner told Gold that if he applied for a job at any other store, to refer them
to him and lie would give him a reference and that Thorman would also. Gold
replied, "I know it, and I thank you " Thorman then came in and Gold shook
hands with him and then left the store The next day Gold returned to the
East Side store for his pay. Kuhner instructed the office to put on Gold's separa-
tion report that he had "left of his own accord." Kuhner's reason for doing
that was because, if Gold applied for a job elsewhere and the Respondent was
asked why Gold had left, the personnel department could then say that he had
21 Gold was an observer for the Union during the Board election on April 2, 1946 He
also signed the "Tally of Ballots" on behalf of the Union
22 The name of the new employee was Mr Kleinsliart He had filed an application for
employment with the Respondent on September 14. 1946 He was notified on October I
that lie had been emplo.led He reported for work on October 4 or 5, and was told to come
to work on October 7 At the time Kleinshart 'ias hired, Kuhner had not been intoimed by
Gold as to when he would return to work
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quit of his own accord. That was the Respondent's policy and practice Subse-
quently, Kuhner received an inquiry from the Jewish Placement Bureau concern-
ing Gold and he told them, "There is nothing against Mr. Gold. If you can
manage to get him a salesman's position, he will be satisfactory wherever he
goes."
Concluding findings
The Respondent admitted that Gold was a good salesman, but contended that
he failed to perform his other duties, which were also important, in a satisfactory
manner. Naturally Gold was primarily interested in selling merchandise, as
his entire compensation was derived from his sales. The Respondent was also
interested in sales; it was also interested in having the various departments of
the East Side store present a neat, clean and attractive appearance, which in
itself would facilitate sales. It was highly important for department managers
to take correct inventories and to render the necessary reports. Gold failed to
perform these latter duties to the satisfaction of the Respondent, therefore he
was frequently "bawled out" by the Respondent, which resulted in his having
a nervous breakdown, as testified to by Gold. A frequent excuse given by Gold
for not attending to these other duties, was that lie had too much to do. The
record discloses and the undersigned finds, that, although a good salesman, Gold
was either incapable of handling the job, or he neglected his other duties in
order to devote more time to sales. The Respondent came to the conclusion that
his trouble was the former and discharged him.
The record shows and the undersigned finds that Gold was active in the
Union prior to the Board election on April 2, 1946, and that he had been made
a Union steward Also that he acted as one of the Union observers at the elec-
tion. However, subsequent to the election, union activity among the employees
subsided considerably. On the day of the election Gold told Kuhner and Thor-
man that he resented the liberties taken by the Union in having his name appear
on Union circulars, and that he did not desire to have anything more to do with
the Union after the election. According to Gold's own testimony, substantially
the only Union activity engaged in by him subsequent to the election was to
express the opinion that the election would be set aside by the Board and that
another election would be held.
Gold was not discharged by the Respondent until more than 6 months after the
election. It is a reasonable inference that if the Respondent had desired to get
rid of Gold on account of his Union activities, as alleged in the amended com-
plaint, it would not have waited until 6 months after the Union had been defeated
and Gold's union activity had become negligible.
Upon the entire record in the case, the undersigned concludes and finds that
the Respondent discharged Jacob Gold on October 7, 1946, for reasons other than
those alleged in the amended complaint, and that by such discharge, the Respond-
ent has not violated the Act as alleged in the amended complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring
in connection with the operations of the Respondent described in Section I,
-9bove, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
THE BAILEY COMPANY 961
V. THE REMEDY
Since it has been found that the Respondent has engaged in and is engaging
in certain unfair labor practices affecting commerce, it will be recommended that
it cease and desist therefrom and take certain affirmative action which the
undersigned finds will effectuate the policies of the Act.
The undersigned has found that the Respondent has engaged in a general
course of conduct pi oscribed by the Act, such as calling all of its employees into
the management's office a few days prior to and on the day of the election and
interrogating them concerning their Union activities; offering them a more
favorable vacation plan, better rest rooms, more frequent payment of com-
missions, endeavoring to persuade them to vote against the Union by telling them
that the Union dues were liable to be increased and that Union members could
be required to do picket duty if a strike were called by the Union in that area
and by releasing to its employees a number of anti-union statements. Therefore
it will be recommended that the Respondent cease and desist from in any manner
interfering with the rights of its employees.
Since the undersigned has found that the Respondent has, by the aforesaid
unlawful conduct, interfered with the right of its employees to a free choice
of bargaining representative in an uncoerced election, it will be recommended
that the Board election which was held among the employees of the Respondent
in its East Side store, on April 2, 1946, be vacated and set aside. It has long
since been established that the Board is under a statutory obligation to protect
the right of employees to a free choice of a bargaining representative in an un-
coerced election, and that the infringement of this right by an employer con-
stitutes a clear violation of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAw
1. Local 1524 Department Store Employees Union of the Retail Clerks Inter-
national Association, A. F. L., is a labor organization within the meaning of
Section 2 (5) of the Act.
2 By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
3 The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
4 The Respondent has not discriminated against Jacob Gold with respect
to his hire and tenure of employment or any term or condition of employment,
within the meaning of Section 8 (3) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the Respondent , The Bailey Company ( East Side
Branch ), Cleveland , Ohio, and its officers, agents , successors , and assigns shall:
1. Cease and desist from :
(a) In any manner interfering with, restraining , or coercing its employees
in the exercise of the right to self-organization , to form labor organizations, to
join or assist Local 1524 , Department Store Employees Union of the Retail Clerks
International Association , A. F. L., or any other labor organization , to bargain
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collectively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining, or other mutual aid
or protection, as guaranteed in Section 7 of the Act
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Mail to each of its employees at its East Side store, Cleveland, Ohio, a
copy of the notice attached hereto, narked "Appendix A";
(b) Post at its East Side Store, Cleveland, Ohio, copies of the notice attached
hereto, marked "Appendix A." Copies of the said notice, to be furnished by the
Regional Director for the Eighth Region, shall, after being duly signed by the
Respondent's representative, be posted by the Respondent immediately upon
receipt thereof, and maintained by it for sixty (60) consecutive days, in con-
spicuous 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 other material ;
(c) Notify the Regional Director for the Eighth Region, in writing, within
ten (10) days from the date of the receipt of this Intermediate Report, what steps
the Respondent has taken to comply herewith.
It is further recommended that, unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, the Respondent notifies said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the Respondent
to take the action aforesaid.
It is further recommended that the amended complaint, insofar as it alleged
that the Respondent discriminated in regard to the hire and tenure of employ-
ment of Jacob Gold, be dismissed It is also recommended that the amended
complaint, insofar as it alleges that the Respondent held a meeting of its East
Side store employees on July 13, 1946, for the purpose of preventing said em-
ployees from attending a Union meeting, be dismissed
It is also recommended that the Board election, which was held in the East
Side store of the Respondent on April 2, 1946, be vacated and set aside
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel
for the Board may, within fifteen (15) days from the date of service of the order
transferring the case to the Board, pursuant to Section 203 38 of said Rules and
Regulations, file with the Board, Rochambeau Building, Washington 25. D C, an
original and four copies of a statement in writing setting foi th such exceptions to
the Intermediate Report or to any other part of the record or proceeding (in-
cluding rulings upon all motions or objections) as he relies upon, together with
the original and four copies of a brief in support thereof ; and any party or
counsel for the Board, may, within the same period, file an original and four
copies of a brief in support of the Intermediate Report. Immediately upon the
filing of such statement of exceptions and/or briefs, the party or counsel for the
Board filing the sat'ne shall serve a copy thereof upon each of the other parties
and shall file a copy with the Regional Director. Proof of service on the other
parties of all papers filed with the Board shall be promptly made as required
by Section 203.65. As further provided in said Section 203.39, should any party
desire permission to argue orally before the Board, request therefor must be made
in writing to the Board within ten (10) days from the date of service of the order
transferring the case to the Board.
W. P. WEBB,
Dated February 13, 1947. 't'rial Examiner.
THE BAILEY COMPANY
APPENDIX A
NOTICE TO ALL EMPLOYEES
963
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, Ave hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist LOCAL 1,524, DEPARTMENT STORE EAirr.ori s UNION OF THE
RETAIL CLERKS INTERNATIONAL ASSOCIATION, A. F. L., or any other labor
organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection.
All our employees are free to become or remain members of the aforesaid
Union or any other labor organization.
THE BAILLrY COMPANY,
East Side Branch,
Employer.
Dated ----------------------------- By ---------------------- ----------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
EXHIBIT A
COPY
MARCH 27, 1946
Fellow Worker s :
This morning the National Labor Relations Board set the date for an em-
ployees' election at this store I imagine most of you will want to know more
about the details of the election than the foinial notice Therefore, I have called
you together to give you what information I hai e about it.
First You will want to know upon what question you will be voting The
only question will be whether or not you employees at this East Side Store wish
to have the Retail Clerks Council represent you hereatter in collective bargaining
with our company.
Second. How will you vote? On the election day, you will be handed a ballot
on which you will find printed the word "yes" and also the word "no". If you
want the union to represent you, then you will mark a cross under the word
"yes'". If you don't want the union to represent you, then you will nraik your
cross under the word "no".
Third. How will the election be decided? By a majority of those voting Now
that is quite important. You see, the decision will not be by a majority of all
the employees in the East Side Store who will have the right to vote, but by a
majority of those who actually vote. Therefore, it is advisable for everyone
of you to vote If any one of you doesn't vote, then in effect by your not voting
you will be really voting against your own wishes Here's the way that would
work out. Suppose you would want the election to turn out one way and sup-
pose another person wants it to turn out the opposite way. If you vote. that
would cancel the vote of this other person But if you don't vote and this other
person does vote, then you've lost your vote and the net result is that this other
person's vote counts in the total against the way you would want the election to
result. Therefore, in your own interest everyone of you should vote.
766972-48-vol. 75-62
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fourth. The date of the election is next Tuesday, April 2nd, between 2 and 4:30
in the afternoon There will be booths insuring secrecy. No one can ever
know how any individual voted. The place is in the north end of the basement
in the East Side store.
Fifth Who will vote? In a general way it will include evetybotly who works
at the East Side store except the store superintendent and store manager and
two bushelmen. The regular extras can also vote.
Sixth Several employees have said the following. "I signed one of the Union
cards. Does that require me to vote for the Union just because I signed the card's"
The answer is "No". Even if you have signed a Union card, you have the right
to vote against the Union if you now want to do so.
In other words, you vote the way you want to vote on the election day. More
than that, you will go into, a closed booth and you can vote either way, just as
you please at that time.
Seventh What is the i eason for having an election just for the East Side store
and not for all three stores' Well, that very question was a chief cause of the
delay in having this election In a situation like this in which the same company
has several stores in the same locality the Labor Board as a general rule directs
that the employees of all the stores vote in one election. The union, however,
insisted on having an election only for the East Side store and after considerable
delay the Board ordered the election just for the one store.
Eighth. Why did the Union want to avoid one election for all three stores? The
reason is plain. The Union feared it would be beaten if the other two stores were
included. That is proved by the Labor Board's decision. The following is a
du ect quotation of what the Board wrote in its decision
Although the record reveals that the Union undertook similar organizing
campaigns at each of the three (Bailey Company) stores at approximately the
same time early in 1945, the evidence indicates that the organizing efforts
have not been successful at either the downtown or the Lakewood store.
Or to put it in plain English, the Labor Board found that the employees in the two
other stores are not interested in the Union The Board did not know how many
of you in the East Side Store would vote for and how many would vote against
the union and put the decision up to an election
Ninth What will happen if the Union wins the election or what will happen
if the Union loses the election? Here's the answer to that. If a majority vote
"yes", then the Union will represent all of you out here in dealing for you with the
company However, if a majority of those who vote, vote "no", then you will not
be represented by this Union but will be free to continue to deal independently
with the management just as you have heretofore.
Tenth. Do you have to join a Union? The answer is "No." An employee is
free to join or to refrain from joining according to his or her personal preference
Joining will not affect anyone's position with our store However, no'one has to
join anything, a union, a lodge or any organization, to keep his job
Now we want to make two more things perfectly clear to all of you.
Eleventh. How you vote is strictly the individual affair of each employee
Twelfth The result of this election is an important thing for everyone of you,
just, as it is important for this company and for the management Therefore,
before you tie up'with this'Union, you'should find out everything you can about it
and about its organizers, because however this election turns out, yes or no, this
company will abide by your majority decision.
Thirteenth: Will there be any coercion used upon any employee as to how you
should vote? The answer is "No". Certainly there will be no coercion by anyone
THE BAILEY COMPANY 965
representing the company. Besides we no one has any authority-to talk for the
company to you on this election matter. Whatever you hear from anyone, no one
can ever say the company is coercing him because I am repeating this now: Our
company wants everyone to vote and in accordance with his or her own judgment.
Now let's come to the question of any coercion attempted by the Union. If any
employee is threatened by the Union or by another employee, just walk away
from him and report it to me and we will see that it is stopped.
Fourteenth Our company considers it a duty to all of you to furnish you the
truth about this Union so that you can vote intelligently. You have a right to
have all that information in the short time before the election and we intend
to furnish it to you. As we have told you before, no employee has to listen to
any of these talks. However, all of us-all of you and all of the management-
have one common purpose, that is to serve the best interests of you employees, of
our stockholders and of our customers As far as I am concerned, my chiet
interest is in the harmonious relationship which has existed between all of us
heretofore. I want it to continue. Thank you.
Tan BAILEY COMPANY,
By (S) H. L Boynton,
HOWARD L. BoYNTON,
General Stores Monagei.
EXHIBIT B
COPY
MARCH 28, 1946.
Company's Statement No. 1
THE BAD REPUTATION OF THIS UNION
Fellow En rployees:
Yesterday we told you about the details of next Tuesday's election and said
that the company believes that it owes you a duty to tell you certain facts about
this Retail Clerks Union which will be on your ballot next Tuesday. In other
words, this union is asking you to vote for it so that it will be your sole representa-
tive in bargaining with our company. Therefore, you ought to know something
about it before the election. There are only a few days before Tuesday's Election.
You will have to get your information very quickly. Here is some of it.
THIS UNION STAGED LAST WEEK'S STERLING & WELCH MOB
Would you want to have your picture and name appear as a picket in a
disgraceful mob such as staged the riots in front of the Sterling & Welch store
last week? Well, if you had belonged to this Retail Clerks Union you could have
been called out by this union for the picketing in that very mob. Look in the
newspapers and you will see the name of this very Retail Clerks Union as causing
the mob picketing. Its organizers, Peter Formica, Sam Duke, Marie Duke and
Joanne Muth, were in the picket line You may say, "Well, I wouldn't have
gone into such a job " Well, some of May's clerks who had joined the Union
were there. Any union officer can order a member to picket.
UNION'S BAD REPUTATION IN CLEVELAND
Do you want to be represented by a union having this kind of a reputation
in Cleveland? l
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Here are parts of some editorials of Cleveland newspapers The Cleveland
News wrote the following under a heading-"Ugly Scene on Euclid".
The Sterling & Welch Company Store on Euclid Avenue, a store with history
and integrity back of it, was closed yesterday by the brute force of a gang of
orga,ni-zers for a union of stone workers A crowd of men and women
organizers pushed and fought the store employees away from their entrance.
At the opening of the store to the public, they massed themselves so no shoppers
could enter . . . None of the store employees was among the gang. It was
made up of outsiders intent on the union's organizing campaign. . . That was
an ugly sight yesterday on Euclid Avenue and it should not be perm-fitted if
there is laze and order left to suppress such bear-pit demmnstratrons and
defend the freedom of individual citizens to go where they please
The Plain Dealer said :
For three days a disgraceful niob scene was conducted in front of the
Sterling & Welch Store by labor organizers attempting to force the store
employees to join the union. . . . Police have not only the right but the duty
to protect innocent bystanders from mob violence regardless of whether the
mobs are composed of union or non-union members
UNION HIDES ITS REAL NAME
On the unions request its name on the ballot in next Tuesday's Election will
appear as follows : "The Department Store Employee's Union, Local 1524 of
Retail Clerks Council (AFL)." This omits the name of the international union
with which it is connected. That name is Retail Clerks International Protective
Association, usually called R C I P. A. You'll see the reason below
Don't be deceived by the name of "Department Store" in the name on the ballot.
The organizers would like to have you believe that it has contracts with other
Cleveland department stores. It has none The reason for the organizers hiding
the name R C I. P. A. is the bad reluitation it has received in many newspapers
UNION'S BAD REPUTATION IN CHICAGO
Here's something else which the union cannot deny. You can find this proof
in the Chicago newspapers, Herald American, Tribune and Daily News, all of
June and July dates, 1941, and most of it in a columnist's article throughout
the country on April 21, 1943. Let's quote from the latter :
Down in Miami recently a jury in the Federal Court convicted Max Pollack,
alias Max Caldwell of conspiring to violate the draft act and thereby re-
moved from circulation a filthy underworld rackateer * * * Caldwell,
as he calls himself, had been a muscle man in a number of typical crooked
Chicago unions * ^ *
Then the article describes how a group of retail store employees summoned the
nerve to revolt and demand an accounting of their money The Union was
Local 1248 of the Retail Clerks International Protective Association, the old
R. C I. P. A. the organizers are trying to hide here.
Now let's go to the Chicago papers. They show that after years of patiently
paying dues and getting nothing in return, 5,000 clerks, members of R C I P. A.
Local 1248 (this Chicago local) demanded an accounting of about $910,000 paid
by them into that local union. A union officer said there was only $05.00 left.
Then the hearings of the trial showed :
THE BAILEY COMPANY 967
(1) No financial reports had ever been made to the members
(2) Members never received any benefits of any kind.
(3) If a member wanted to transfer from one store to another, he was
compelled to pay an extra $7.00 to the union.
(4) In addition to dues and fines, every member was compelled to pay into
a so-called "hospitalization fund", but when any member needed hospitaliza-
tion the union told him that the fund was exhausted and that he could go to
the County Hospital as a public charge
Now let's quote from the columnist's article of April,1943 :
During his prosperous years as a boss custodian of labor's gains Caldwell
bought the home of Frank Nitti, the old Capone gorilla, on Miami Beach,
. . His racket, or union, was finally thrown out of the Chicago Federation of
Labor in February, 1940, but not because he was thieving . . . but Caldwell
had tried to muscle into the territory of another recognized by the Federa-
tion.
STOP, LOOK AND LISTEN
(1) Do you employees want to be known as being represented by this Local
1524 whose organizers staged the Sterling & Welch riot last week?
(2) Do you want to be represented by any local affiliated with R C I. P. A.?
We believe no one could deny the above facts. If you want to be represented
by this union, mark a cross under "Yes". If you do not want to be so repre-
sented, then mark a cross under "No".
EXHIBIT C
COPY
Company's Statement No. 2
MACH 29, 1946.
THE TRUTH ABOUT PETER FORMICA AND THE DUKES
To Our East Side Store Co-Workers:
On Tuesday, April 2nd, you will be asked to decide, by secret ballot in a
Labor Board election whether you want to continue your independent relations
with this store, or whether you prefer to surrender the control of your job rights
here to a group of Cbmnnun'ist-dominated professional outside organizers.
The Bailey- Company wants you to know exactly where it stands with respect
to this election. We have never sought a quarrel with any union and our relations
with reputable, recognized labor organization in Cleveland have always been
friendly and harm.onzous.
However, this does not mean that we will ever stand idly by, in silence, whenever
any group of outsiders comes along and singles out one of our stores for an
organizing attack, under the guise of a "union" or a "protective association" of
any other name they see fit to adopt for the purpose of inducing our employees
to pay dues to them by making lavish and impossible promises to them.
YOU ARE ENTITLED TO THE TRUTH
THE BAILEY COMPANY
In this instance, we feel that we would be unfaithful in our obligation to you,
as your friend and employer, if we withheld certain facts we feel you should
possess before you decide how to mark your ballot in Tuesday's election.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We believe you are entitled to know the truth about the identity of the piofes-
sional outsiders who hope to win control of your gobs through this election.
We give you these facts in the full knowledge that these organizers will raise a
great line and cry and that they will insist that we have no right to tell you the
truth about them
WHO IS PETER FORMICA?
Peter Formica is head man of the group of professional outside organizers
for the "protective association" (RCIPA) which hopes to induce you to turn
over part of your salary to it each pay day in return to representing you in
your dealing with the store.
What are Mr Formica's qualifications to represent you?
You have a right to know, for example, that Peter Formica is almost a stranger
to the department store business. He represented certain employees in the chain
drug, food and dairy stores.
He is a professional organizer who has been in and out of many different small
and obscure unions. Cleveland city directories show him as having been con-
nected with the Fish Handlers' Union, the Poultry Woi leers' Union, etc. It was
Peter Formica whose name appeared in all the Cleveland newspapers by leading
a mob of "pickets" who tried to keep the employees and customers from the
Sterling & Welch store in an unsuccessful attempt to force a bargaining contract
upon them
The RCIPA, the "protective association" which this small-time organizer now
represents in his efforts to place you on his dues-collection list, does not represent
the employees of a single depai tment stoic in all of Greater Cleveland and never
has!
WHO IS BEHIND FORMICA"
The real force behind Formica is Mlai ie Dake and her husband, Sawn Duke.
The Dukes have a long record in this country as Communist organizers Although
ifr. Formica has not a Communist record , he has supinely turned over to the
Dukes the direction and control of the ItCIPA organization in Cleveland It is
Marie and Sant Duke who appear in Labor Board hearings and admit having
written the union circulars.
They depend for their livelihood , like Formica, on promoting "organizing cam-
paigns" such as that which they have been conducting for the RCIPA in our
store for the past many months.
All of the following statements were made about the Dikes in thousands of
circulars distributed in a downtown store almost two months ago and were
never denied !
Marie Duke came to the United States from Soviet Rassia and became a lieic-
tenant in an outlaw faction of the Com munist movement Both Marie and Sam
Duke are well known in Detroit and Cleveland labor circles as leaders of the
Communist group which split the great auto union wide open in 1938
The record shows that Marie Duke was an associate of Jay Lovestone, a man
who was described in the Detroit Free Press as the "Leon Trotsky of Americana
Communism", the "predecessor of Earl Browder ", and once "virtual dictator of
the Communist Party in the United States."
Marie Duke came to the United States from Soviet Russia in 1924 , the year
that the Communist Party, under Lovestone ' s leadership , came out into the open,
after having been driven underground for advocating the overthrow of the United
States Government by violence and revolution.
THE BAILEY COMPANY 969
Lovestone later fell out with the Communist faction headed by William Z
Poster, the present head of the Communists in this country, and launched a
program to infiltrate the Amet icaui labour movement under the name of the
independent Communist Labor League
Marne Duke was high to the councils of this Coni miunnst faction The record
describes Sam Duke as her "silent partner."
In 1938 the top leadership of the auto workers' union at Detroit was openly
charged by the membership in the public print with having fallen under the domi-
nation of Lovestone, Marie Duke and other Communists In that year Marie Duke
was active in Cleveland, operating ostensibly as a union repreienata,tive while she
sought recruits for Comnmaintsm among the auto workers and others
PREDICTED "COMMUNIST AMERICA"
To her "converts " Marie Duke painted a glowing picture of a clay to come when
the Communists would have infiltrated all branches of the labor movement, and
would dictate the affairs of unions through Communist -controlled union coin-
mnittees , sitting down with representatives of management and government to
make over the economic structure of the United States
During that period the Duke residence in Cleveland was a center of Comn-
mnunist activity , social and political.
But their plans exploded . At Detroit the auto union was torn wide open
when four international vice presidents charged that their president was under
the domination of the Lovestone Communists Marie Duke was named (De-
troit Free Press , August 3 , 1938 ) as one of those "subservient" to Lovestone.
The union voted its president and his Communist advisors out of office The
Dukes turned elsewhere for "converts."
During the early part of the late war, while Hitler and Stalin were partners
under an armed truce , Communists in the United States savagely fought U. S.
intervention and tried to sabotage America's defense efforts Then, when
Ilitler turned on Russia , Communists in this country rushed to the support of
our war effort . Many of them actually found j obs with the United States Gov-
ernment
DURING THIS PERIOD MAR IE DUKE ENTERED THE EMPLOY OF THE
WAGES AND HOURS DIVISION OF TILE U. S. DEPARTMENT OF LABOR.
Government records show that she was later fired by the Government. She
appealed , and in 1944 the Civil Service Commission dented her appeal and upheld
her dismissal.
In the following year , 1915, she again appeared on the Cleveland Labor scene
with. her husband , Sam Duke . This time they were in new roles as organizers
for the RCIPA in its attack on the Barley Co. and its employees.
NO RESULTS IN SEVEN YEARS
The only major Ohio department stores with which this union deals are in
Toledo. It has been collecting dues in one of these stores for seven years. It
was a miserable failure there. You can find the authority for this statement
by reading an official record-15 Labor Relations Reporter starting at page 652.
Now the National Labor Relations Board generally criticizes employers and
praises labor unions, but here is what it said about the Toledo Retail Clerks
Union. In investigating a dispute in a store the Labor Board found only about
a year ago-
(1) During seven years in which the employees have been paying dues no
clerk in the store ever had the benefit of negotiating higher wages.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) After seven years the union had not established any grievance proce-
dure for the clerks in the store.
(3) Many clerks employed in this store never knew of any contracts which
had been negotiated for them by this union.
(4) All the clerks knew was that this Union had been collecting dues for
seven years and never produced any benefits.
HERE IS YOUR CHOICE
If a majority of you vote "Yes", then all of you will thereby turn over to the
Formica-fluke control the negotiation of your wages and working conditions.
And if you join this union, you will be compelled to pay it an initiation fee,
monthly dues and such fines as are assessed But it a majority of you vote
"No", then you will continue to deal directly with our management as to your
wages and working conditions.
BE SURE AND VOTE
We earnestly hope that you will vote The election will be conducted by
secret ballot No one will know how you vote You have a perfect right to
vote "No" even thongh you may have pi eviously signed a union authorization
card.
Ask yourself why Peter Formica has made such a strenuous effort to keep
true name of his union-the RCIPA-from appearing on the ballots to be used
in Tuesday 's election
Vote without fear and according to the dictates of your own conscience.
Discuss the facts mentioned in this letter with your family and friends. Con-
sider carefully whether you want to align yourself with the Formica-Duke
combination.
The decision is yours to make The Bailey Company, will abide by your
wishes Regardless of the outcome of the election , we shall carry on our
efforts to constantly improve conditions and to keep this store a friendly place
in which to work.
Sincerely,
EXHIBIT D
COPY
Company's Statement No. 3
UNION'S MISLEADING STATEMENTS
MARCH 31, 1946.
To Our East Side Store Co-Workers:
In the circular distributed to you on Friday the Union states what it calls its
"Program of Demands "
It first describes some specialty stores in Cleveland with which it states it has
contracts, largely chain drug, food and dairy stores. Then it states as its prin-
cipal demand a weekly hiring wage in an amount more than that which it says
Cleveland department stores pay. This demand, of course, would lead you to
believe that its members covered by its contracts in these Cleveland specialty
stores, receive that rate. Nothing could be farther from the truth.
Last summer this very Union distributed a circular to you regarding its con-
tract with the Dairy Dell Company. That contract called for only 50,¢ an hour.
THE BAILEY COMPANY.
THE BAILEY COMPANY 971
Based on a 40 hour week, that would be $2000 a week which is less than any
of you are receiving in The Bailey East Side Store
On March 29, 1945, the father of a Cleveland girl complained that his daughter
had to pay this Union $4 00 initiation fee and monthly dues of $2 00 out of her
food store wages. This Plain Dealer article quotes DIr. Formica's admission
that the girl received only 450 an hour. Based on a 40 hour week, that would
result in $18 00 a week That is far less than any employee in The Bailey Com-
pany East Side Store or any other Cleveland department store receives.
You should farther compare your hours with those in the Cleveland drug and
dairy stores. Your hours are 40 hours per week. The drug store hours are 48
and the dairy stores 45 hours per week
As we have stated, it has no contract with Cleveland department stores., Its
last contracts with certain Pittsburg department stores provided for a hiring
rate of only $1S 50 per week, which of course is far less than you recen e, and
which they now demand.
But more important than all that is the omission of the Union to state in their
circular that while our selling force receives commissions, no commissions are
paid under its food and dairy contracts.
As to store opening hours, you know that the union dairy and drug stores are
open 6 nights of every week In the few cities where the clerks in department
stores are organized, the stores are open on certain nights of every week, as in
New York, Pittsburgh and Philadelphia.
THE UNION CANNOT DISPROVE THE CHARGES AGAINST IT!!!
Our Company's statements as to this Union and its organizers are based on
documentary proof, going back as far as 1938 Many of them appeared in the
newspapers during that period The Union does not explain why it has not
denied any of them until its circular of Saturday evening, when Mr and Mrs.
Duke wrote that they were not Communists. Incidentally, how many Com-
munists eves admit it? Why then did these innocent anti-communist lambs
get into the fold of the bad Lovestone communist wolves?
The following charges remain substantially undenied:
(1) This Union promoted the publicly denounced Sterling & Welch picket mob
of two weeks ago.
(2) Two of the principal Union organizers, Mr. and Mrs. Duke, have Com-
munist records.
(3) This Union is a branch of RCIPA, whose Chicago branch became notorious
as being a racket and controlled by a member of the Capone gang.
(4) These organizers are using the misleading name of "Department Store
Union", when in truth they have no contract with any Cleveland department
store
(5) In a Toledo department store it was found by a Government agency that
its employees had been paying dues to this Union (RCIPA) for seven years and
received no benefits.
LOSS BY STRIKES
All of our employees who are related to General Motors employees will under-
stand the following facts:
Before G. M. employees were ordered to strike by the Union they were
offered certain increases by the Company. It will take 57/z years for em-
ployee to make up his average loss of $800, considering the amount for which
the Union finally settled.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
BE SURE AND VOTE
This Company's principal purpose in labor relations for its 47 years has been
to maintain harmonious relations and wages and working conditions satisfactory
to its employees. If we withheld from you the true record of this Union, then
you would justly criticize us.
The Truth Hurts No One.
You can vote against the Union, even though you signed a Union card.
Our Company will abide by the outcome of your votes in this election. In
either event, we will carry on our efforts to constantly improve conditions and
to keep this store a friendly place in which to work.
Sincerely,
EXHIBIT E
THE BAILEY COMPANY.
THE BAILEY COMPANY
THE BAILEY DEPARTMENT STORES CO.
Ontario & Prospect
CLEVELAND 15, OHIO
Company's Statement No 4
DON'T BE FOOLED !
APRIL 1, 1946.
Many of you were, called on by Union representatives, in your homes Sunday.
They told you that they had a large majority of votes assured them in tomorrrow's
election.
DON'T BE FOOLED !
Some of our fellow employees who have talked with many of you have told us
that the Union will receive a very small percentage of the VOTES.
DON'T BE FOOLED !
Even though you signed a membership card, you can still vote NO in tomorrow's
election.
DON'T BE FOOLED !
No one will ever know how you vote. The balloting will be secret in the good
American way.
DON'T BE FOOLED !
In every city we know of where department stores have been unionized, they
are open at least one night a week.
BE SURE AND EXERCISE YOUR OWN RIGHT TO VOTE IN TUESDAY'S
ELECTION
THE BAILEY COMPANY.
Euclid Ave. Store, 10007 Euclid Main Store, Ontario & Prospect Lakewood
Store, Warren & Detroit.