The M. O'Neil Co.

National Labor Relations Board - Board Decisions

Jul 28, 1970

184 N.L.R.B. 629 (N.L.R.B. 1970)

THE M . O'NEIL COMPANY
The May Department Stores Company d/b/a The M.
O'Neil Company and Retail Clerks International
Association , Local 698 , AFL-CIO. Cases
8-CA-5511 and 8-RC-7138
July 28, 1970
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
By MEMBERS FANNING , MCCULLOCH, AND JENKINS
On April 29, 1970, Trial Examiner Ivar H. Peter-
son issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in unfair labor practices within
the meaning of the National Labor Relations Act,
as amended, and recommending that it cease and
desist therefrom and take certain affirmative ac-
tion, and also recommending that the representa-
tion election held on May 22, 1969, in Case
8-RC-7138, be set aside and a new election held,
all as more fully set forth in the attached Trial Ex-
aminer's Decision. Thereafter, Respondent filed ex-
ceptions to the Trial Examiner's Decision, a sup-
porting brief, and a brief in answer to the Charging
Party's cross-exceptions; the Charging Party filed
cross-exceptions and brief in support of the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in these cases, and
hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, The May Department
Stores Company d/b/a The M. O'Neil Company, its
officers, agents , successors , and assigns , shall take
the action set forth in the Trial Examiner's Recom-
mended Order.
IT IS FURTHER ORDERED that the election held on
May 22, 1969, be, and it hereby is, set aside.
629
[Direction of Second Election omitted from
publication.2]
I The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board 's established policy not to overrule a
Trial Examiner 's resolutions with respect to credibility unless the clear pre-
ponderance of all the relevant evidence convinces us that the resolutions
are incorrect Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188
F 2d 362 (C A 3) We find no such basis for disturbing the Trial Ex-
aminer 's credibility findings herein
! In order to assure that all eligible voters may have the opportunity to be
informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their ad-
dresses which may be used to communicate with them Excelsior Un-
derwear Inc , 156 NLRB 1236, N L R B v Wyman -Gordon Co, 394 U S
759 Accordingly, it is hereby directed that an election eligibility list, con-
taining the names and addresses of all the eligible voters, must be filed by
the Employer with the Regional Director for Region 8 within 7 days after
the date of issuance of the Notice of Second Election by the Regional
Director The Regional Director shall make the list available to all parties
to the election No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Trial Examiner: On April 23,
1969, pursuant to a petition filed May 16, 1968, by
the Charging Party-Petitioner, also referred to as
the Union, the Board directed an election among
all regular selling and nonselling employees of the
Respondent-Employer at its Stow-Kent, Ohio,
store, with certain exclusions (175 NLRB 514).
The election, held on May 22,' was lost by the
Union by a vote of 91 to 40, with 12 challenged
and 2 void ballots. The Union filed timely objec-
tions on May 27 and unfair labor practice charges
on June 23 (Case 8-CA-5511). On November 28
the Regional Director issued his report on the ob-
jections, in which he recommended that a hearing
be held on certain objections and that the hearing
be consolidated with the hearing on the complaint
he issued the same day alleging that the Respond-
ent had committed unfair labor practices violative
of Section 8(a)(1) of the Act in connection with
the election. On December 18 the Board directed a
hearing on the objections as recommended by the
Regional Director and provided that such hearing
might be consolidated with any hearing in the un-
fair labor practice case . The cases were con-
solidated for hearing by an order of the Acting Re-
gional Director dated December 3 1. In its answer,
the Respondent denied the commission of any un-
fair labor practices.
Pursuant to notice, I heard the consolidated
proceeding on January 26 and 27 and February 5,
1970, at Akron, Ohio. All parties were represented
by counsel and were afforded full opportunity to
participate in the hearing and to adduce relevant
evidence bearing upon the issues . Briefs filed by
' Unless otherwise indicated , all dates refer to the year 1969
184 NLRB No. 68
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
counsel for each of the parties have been fully con-
sidered.
Upon the entire record in the proceeding, and
from my observation of the witnesses and their
demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT-EMPLOYER
The May Department Stores Company, a New
York corporation with its principal offices and
place of business in St. Louis, Missouri, is engaged
in retail sales of general merchandise. Through its
operating division known as The M. O'Neil Com-
pany it operates department stores in the vicinity of
Akron, Ohio. One of these stores is the Stow-Kent
store, the only retail outlet of Respondent involved
herein. Annually the Respondent sells products
valued in excess of $10 million and it receives
goods valued in excess of $1 million at its Ohio
stores directly from points located outside the State
of Ohio. The Respondennt admits and I find that it
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks International Association, Local
698, AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Evidence
The events which give rise to the issues here to
be resolved took place, for the most part, during
the approximately 2-week period preceding the
election on May 22. As framed by the pleadings
and the record the issues are whether the Respond-
ent violated Section 8(a)(1) by (1) threatening
employees with loss of their store discount
privileges and other employment benefits, reduced
hours for part-time employees, and closing of the
store, if the employees selected the Union as their
collective-bargaining representative; and (2) un-
lawfully questioning employees about their mem-
bership in, activities on behalf of, and sympathy for
the Union. A further issue concerns the supervisory
status of one Theodore Czar and the Respondent's
responsibility for his conduct. No question is raised
as to the supervisory status of the remaining per-
sons alleged to have engaged in coercive conduct,
as the parties stipulated that they were supervisors.2
We turn next to a consideration of the evidence, in
substantial part conflicting, in which these in-
dividual supervisors were allegedly involved.
1. Ron Brown
During the week before the election Brown, the
branch store coordinator, had a conversation about
the Union with Mary Wildroudt and Eileen
Belmonte , in the lingerie department where the two
women worked. According to Wildroudt, Brown
said that the employees should give the new
management a chance, and that employees would
lose their discount and the store would close.
Brown referred to a store (the name of which Wil-
droudt could not recall) which had closed after
being organized. To this, Wildroudt commented
that Kaufman's, the May Company outlet in Pitts-
burgh, had been organized for years and had not
closed. Belmonte related that Brown said he and his
wife had shopped at Kaufman's and had not been
given a discount. She further testified that Brown
said they would lose their discount, and that the
two women replied they doubted it.
Brown testified that in addition to Wildroudt and
Belmonte , Emma Halachoff was present and that
she asked him what he thought of the upcoming
election. He replied that management was con-
cerned and urged that they should give manage-
ment a chance rather than vote in the Union.
Brown admitted stating that employees could lose
their discounts and other benefits if the Union
came in because it was his understanding that such
matters were negotiable. With respect to Kaufman's
store in Pittsburgh, Brown testified he told the
women that the store was half organized and "the
ones that are union don't get discounts and the
ones that aren't do get a discount." Also, Brown
testified that in response to a comment by one of
the women that unions were " going in
everywhere," including discount houses and super-
markets, he stated that Stern's store in New York,
which was a union store, was closing because of in-
ability to meet union demands or because of the
Union. Brown stated he did not indicate that the
Respondent would or might close if the Union
came in.
Mrs. Halachoff testified that on the day of the
election, around 6 o'clock in the evening, she and
others were passing through a section of the
downtown Akron store and saw Brown. Mrs.
Halachoff remarked (with reference to the election
at the Barberton store, according to Brown) that
the election "is going great." Brown then stated, so
Halachoff testified, "Rather than have a union out
there, we will close that store." Mrs. Halachoff
testified she replied, "I don't think you really mean
that," and acknowledged that in her pretrial state-
ment she stated that she took Brown's remark
about the store closing as a joke. Brown testified
that Mrs. Halachoff said that the Union had won at
Barberton , to which he replied, " Big deal , going to
' These individuals are Margaret Neff, Gladys Lower, Robert Tofanell,,
Gerald Fischer, and Ron Brown
THE M. O'NEIL COMPANY
close that store anyway." Brown testified that at the
time there "was sort of general gossip around the
store that there were a couple of stores ... that
they might be closing in the future and Barberton
was one of them."
2. Margaret Neff
Several employees testified to conversations with
Mrs. Neff, divisional manager , concerning the
Union. Beatrice Smith testified that during the 2-
week period before the election Mrs. Neff came to
her section, where Smith was talking to one of the
union men , and stated, "You better be careful how
you vote, you know you'll lose the discount and
lose everything." According to Smith, she and Mrs.
Neff frequently discussed the discount and other
benefits, Mrs. Neff pointing out that employees
"could lose everything, that if the Union came in
that we would have to start all over again."
According to Mrs. Neff, she and Mrs. Smith had
frequent conversations about the Union before
Mrs. Neff became a supervisor in August 1968. She
testified that they held opposing views, and that
upon Mrs. Neff becoming a supervisor she and Mrs.
Smith agreed that they would not discuss the
Union. Mrs. Neff denied that she made any remarks
to Mrs. Smith threatening loss of the store discount
or other benefits if the Union won.
Myrtle Cobb, a full-time employee who worked
under Mrs. Neff's supervision, testified that shortly
before the election Mrs. Neff spoke to her and
three part-time employees on the night crew in her
department. It is her testimony that Mrs. Neff told
the group that part-time employees would pay the
same amount in union dues as full-time employees,
that their hours would be reduced because the
Company could not afford to have as many people
if it met all the Union's demands, and that they
would lose the discount. Mrs. Neff further stated,
according to Mrs. Cobb, that granting all the
Union's demands would cause the store to close.
Mrs. Cobb testified that after this conversation one
of the part-time employees present, Beverly Dick,
told her that she had been for the Union but that
she could not afford to pay for a babysitter and $6
union dues if hours were reduced; that in such a
situation she would have to quit.
Ann Rittenhouse, a part-time employee in the
fashion fabrics department, testified that during the
week before the election Mrs. Neff stated to her
and two other employees, in talking about the
Union, that discounts would or could be taken
away and that the store would probably close.
Mrs. Neff testified on direct examination that she
recalled the conversation with Mrs. Cobb and the
three part-time employees on the night crew. Her
testimony is that the employees were talking about
631
the Union and the subject of discounts came up. At
that time, so she testified, "there was quite a lot of
conversation about the discounts" as management
had placed a poster referring to discounts near the
timeclocks.3 Mrs. Neff testified she told the em-
ployees that she "felt like the discount was a gift
from the company and we all enjoyed them and we
all wanted to keep them." In response to an em-
ployee's question whether she thought the hours of
part-time help would be cut, Mrs. Neff testified that
she replied that the Company had to stay within a
certain budget and that if salaries went up a great
deal "we might have to work with less part-time
people." She denied that she told employees that
they would lose their discounts if the Union came
into the store, or that the store would close rather
than deal with the Union. On cross-examination
Mrs. Neff acknowledged that she had mentioned to
employees that other stores had closed when a
union came in and , in response to a question about
the discount, told a group of employees that the
discount was a benefit and she "couldn't say
whether they would or would not lose it" as she had
nothing to do with it.
Barbara Flanders, who was present at the conver-
sation with Mrs. Neff testified to by Mrs. Ritten-
house, testified that the discussion concerned the
union election and what would come of it. She
could not recall Mrs. Neff making any statement to
the effect that employees would lose their discounts
if the Union came in. Nor did she "specifically"
hear Mrs. Neff refer to the loss of any other benefit
if the Union won. She did not hear Mrs. Neff say
the store would close if the Union won.
Janice Crayton, one of the part-time workers
Mrs. Cobb identified as being present when Mrs.
Neff made the remarks to which Mrs. Cobb
testified, related that while she recalled that Mrs.
Neff did discuss the Union she could not recall any
specific conversation. She further testified she did
not hear Mrs. Neff say the hours of part-time em-
ployees would be cut or the store closed if the
Union won the election.
3. Robert Tofanelli
Beatrice Smith related that during the 2-week
period before the election Tofanelli, a buyer
located at the downtown Akron store and a super-
visor, had a telephone conversation with her. She
testified that he wanted to come out and talk to her
about the Union, as he felt the girls were making a
big mistake in wanting the Union. According to
Smith, Tofanelli stated that employees could "lose
everything" and could lose their discount.
Tofanelli recalled the conversation and that there
was some discussion of the Union. He testified on
direct examination that he did not recall making
' On Friday, May 16, the Company did exhibit a poster near the
timeclocks , which stated "Don 't Discount Your 20 Percent Discount
Vote No May 22 "
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any statement to Smith relative to employee
discounts and denied making any statement about
other benefits. On cross-examination he first stated
he did not tell Mrs. Smith she would lose her
discount, although he had discussed with other ex-
ecutives the loss of or reduction in the discount. He
then acknowledged that in his pretrial affidavit he
stated that he told "other employees whenever the
occasion arose, that there was also a possibility of
their losing their 20 percent discount or being
reduced from 20 percent to 10 percent, as in many
stores. 11
4. Gladys Lower
Mrs. Halachoff, Mrs. Wildroudt, and Clara Car-
dini testified to a conversation they had with Mrs.
Lower, supervisor of the ready-to-wear department,
the Monday gefore the election. According to Mrs.
Halachoff, Mrs. Lower stated that she could see the
pros and cons regarding the Union, but that em-
ployees would lose their discount and other benefits
if the Union got in . Mrs. Wildroudt testified that
Mrs. Lower referred to the Union on several occa-
sions and said that employees would lose their
discount. She further testified that Mrs. Lower
referred to employees of a hospital which had
"gone union" and their hours had been cut. Mrs.
Cardini testified that in the discussion of the Union
Mrs. Lower "brought up about how we could
possibly lose our discounts and other benefits that
the company had been giving us." When Cardini
expressed some doubt that that would happen, Mrs.
Lower referred to Robinson Memorial Hospital in
Ravenna which was unionized and where employee
benefits had not been upheld . Mrs. Cardini also
testified that Mrs. Lower quite often would ask her
if she had gone to union meetings and who of the
employees had attended.
Mrs. Lower, who voluntarily left the Respond-
ent's employ the month following the election,
testified that she engaged in conversation with em-.
ployees about the Union and the election. She
stated that two employees did ask her if they would
lose their discount if the Union came in and that
she told them "this was a possibility; that they
would lose their discount but it wasn't something I
knew as a definite thing." She testified further that
she expressed the view that "if the Union came in
the slate would be clean and from there the
Company and the Union would negotiate" regard-
ing conditions and benefits. She recalled "telling
some of the girls" that Robinson Memorial Hospital
had been organized and conditions were no dif-
ferent than before-employees were still "griping
about the same old gripes." She denied having any
conversations with Mrs. Cardini about the Union.
5. Gerard Fischer
During the week preceding the election Fischer,
vice president of branch stores, held approximately
15 meetings with store employees in groups of ap-
proximately 10 in the office of Ronald Tedeschi,
the store manager. The meetings were conducted
during store hours and employees were requested
to attend by Personnel Manager Alice Wade.
Fischer testified that the meetings were held
because the Respondent "wanted to find out why
some of the people felt it was necessary to have a
Union" and to ascertain if there were any problems
and to discuss them. He stated that employees were
called in small groups in order to make for better
discussion meetings. Fischer testified he followed
no set format in conducting the meetings. At most
of them he first talked about company benefits and
then opened the meeting for discussion. He stated
that the Company was constantly improving em-
ployee benefits and that he did not know how the
Union could do more in regard to benefits. He
stated that employees would always be treated
fairly whether or not the Union won. Fischer
testified that on "a couple of occasions" he was
asked if anything would happen to employee
discounts if the Union won, and that he answered
that he did not think anything would happen to the
discounts. Questions were asked Fischer about the
recently adopted profit-sharing and savings plan
and the retirement plan. In connection with
discussing job security at the Respondent 's store,
Fischer referred to the closing of Stern's store in
New York City, which was unionized and stated
that the fact that it was organized was of little help
in keeping the concern open. Fischer denied that
he made any statement that the Respondent 's store
would be closed if the Union won the election.
Mrs. Halachoff and Mrs . Belmonte attended the
same meeting conducted by Fischer. Mrs.
Halachoff testified Fischer said that the Respondent
had been lax in the matter of communication
between employees and management and hoped to
remedy this problem. At one point, according to
Mrs. Halachoff, Fischer questioned the caliber of
men representing the Union, stating they were not
the type the employees would want anything to do
with . Mrs. Halachoff testified that she responded by
saying that when representation was achieved the
employees would have participation. At that, so she
testified, Fischer became angry and said, "over my
dead body. I will still control everything that goes
on in this company." Mrs. Belmonte testified that
Fischer said the Respondent was making changes
and that things were going to be different. When
Mrs. Belmonte commented that it was a little bit
late for changes , Fischer responded, so she
testified, "It's never too late. The store will close
before the Union gets in ." Mrs. Cobb testified that
at the meeting she attended no mention was made
of the Union.
6. Theodore Czar
Czar, section manager of men's sportswear at the
time of the election, and whose supervisory status is
THE M. O'NEIL COMPANY
in issue, several times shortly before the election
spoke to Mrs. Halachoff about the Union. Mrs.
Halachoff's uncontradicted testimony is that Czar
"pointed out that we would lose all our benefits and
our retirement fund and they would take away our
discount." Czar did not testify.
The Respondent denies that Czar occupied a su-
pervisory position at the times here material. In the
representation proceeding the Board determined
that, with respect to section managers, the evidence
"is inconclusive as to their supervisory status" and
permitted such persons to vote subject to challenge.
Before me, the only testimony regarding Czar's
status was that given by Mrs. Halachoff, who had
worked with Czar for the first year and a half of her
employment, a period ending about 3 years before
the hearing herein. So far as appears, Czar con-
tinued in the same position until about 3 "months
before the hearing, when he was promoted. Mrs.
Halachoff testified that Czar scheduled work hours
and lunch periods, and assigned work in his depart-
ment. He had an office in the department and ap-
parently did not work on the selling floor. He
recommended hiring of employees, and employees
took up complaints regarding hours or fellow work-
ers with him. Mrs. Halachoff also testified that
Czar reprimanded employees. I credit the testimony
of Mrs. Halachoff respecting Czar's duties and find
that he was a supervisor within the meaning of Sec-
tion 2(11) of the Act.
B. Conclusions
Upon a consideration of the entire record and
having endeavored carefully to observe the
demeanor of the witnesses as they were testifying, I
have come to the conclusion that on the whole the
witnesses for the General Counsel are to be
credited. In some instances, the supervisory person-
nel involved in the conversations admitted that the
subjects of loss of discounts and benefits had been
discussed, although in a somewhat different
manner. The employees generally impressed me as
sincere individuals, all had been employed for sub-
stantial periods and were still employed at the time
they testified, and they did not appear to me to be
motivated by a desire to color their testimony.
With respect to the conversation Mrs. Wildroudt
and Mrs . Belmonte had with Brown , the branch
store coordinator, I find that Brown urged that the
new management should be given a chance and
warned that employees would lose their discounts
and the store would close if the Union came in.
Brown admittedly told the women that employees
could lose their discounts and other benefits if the
Union came in ; I do not believe he added the
qualification that this would come about only as the
result of negotiations. I further find that Brown
sought to emphasize the likely loss of discounts by
stating, as he admitted, that in Kaufman's store in
633
Pittsburgh organized employees did not receive a
discount whereas those not represented by a union
did receive discounts. I am also persuaded that he
underscored the possibility of the store closing if
the Union came in by his reference to the closing of
Stern's in New York City, which was organized. On
election day, I find, Brown told Mrs. Halachoff and
a group with her, in reference to the Barberton
store and the progress of the election there, that the
Respondent would close that store. I conclude that
by these statements of Brown threatening loss of
benefits and store closure if the Union were suc-
cessful, the Respondent violated Section 8(a)(1) of
the Act.
I credit the testimony of Mrs. Smith and Mrs.
Cobb that Mrs. Neff, divisional manager, stated to
them that if the Union won the election employees
would lose their discounts and could lose other
benefits, and, with reference to part-time em-
ployees who were present on one occasion, said
that their hours would be cut as the Respondent
could not afford to meet all the Union's demands. I
also credit the testimony of Mrs. Rittenhouse that
during the week before the election Mrs. Neff
stated to her and two other employees that
discounts would or could be taken away and that
the store would probably close. These statements, I
am convinced, were coercive and therefore viola-
tive of Section 8(a)(1) of the Act.
Supervisor Tofanelli, during the 2 weeks before
the election, told Mrs. Smith, as the latter testified,
that employees were making a mistake in wanting
the Union and that they thereby could lose their
discount and other benefits. While Tofanelli
testified he could not recall making any statement
to Mrs. Smith relative to the discount and denied
making any statement about other benefits, in view
of his admitted statement that "whenever the occa-
sion arose" he told other employees that there was
a "possibility that the discount would be lost or
reduced from 20 to 10 percent," I believe Mrs.
Smith and find that he did make the statement to
her as she testified. Accordingly, I find that thereby
the Respondent further violated Section 8(a)(1) of
the Act.
With respect to Mrs. Lower, the supervisor of the
ready-to-wear department at the time of the elec-
tion, I find, in agreement with the testimony of the
employees who related conversations with her,4
that Mrs. Lower discussed the Union and the elec-
tion with them and stated that employees would
lose their discount and other benefits if the Union
were selected, and questioned Mrs. Cardini as to
her attendance at union meetings and who had at-
tended. In so finding, I note that Mrs. Lower ad-
mitted telling employees that loss of the discount
"was a possibility," although she allegedly qualified
this comment by stating she told them loss of
discount was not "something I knew as a definite
thing." Even on her version, I think it plain that she
' Mrs Halachoff, Mrs Wildroudt, and Mrs Cardini
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clearly implied that the discount would be lost if
the Union were selected. Accordingly, I find that by
Mrs. Lower's statements to the effect that selection
of the Union would mean loss of the discount
privilege and other benefits, and her questioning of
Mrs. Cardini regarding her own and other em-
ployees' attendance at union meetings , the Respon-
dent violated Section 8(a)(1) of the Act.
The testimony of Mrs. Halachoff is uncon-
tradicted, and credited, that Section Manager Czar
told her that by bringing in the Union employees
would lose their benefits, the retirement fund, and
their discounts. Inasmuch as I have found that Czar
occupied a supervisory position, these remarks are
attributable to the Respondent and are violative of
Section 8(a)(1).
The only directly coercive statement attributed
to Fischer, vice president of branch stores, who
conducted some 15 meetings of employees in
groups of about 10 during the week before the elec-
tion, was by Mrs. Belmonte. She testified Fischer,
in response to her remark that it was a little bit late
to make changes or improvements, said "It's never
too late. The store will close before the Union gets
in." Fischer denied saying that the store would
close if the Union won the election. I am persuaded
that Fischer did not make the remark about store
closing attributed to him by Mrs. Belmonte. Mrs.
Halachoff attended the same meeting as Mrs.
Belmonte. Significantly, Mrs. Halachoff did not at-
tribute such a remark to Fischer, although she did
testify in some detail as to what he said. Had
Fischer threatened that the store would close be-
fore the Union would get in, I think it highly unlike-
ly that Mrs. Halachoff would have failed to testify
to that effect. Moreover, considering the testimony
of Fischer and employees regarding what was
discussed at these meetings, and the fact that I was
favorably impressed with Fischer as a witness, I
conclude he made no threats of loss of benefits or
closing of the store in the event employees selected
the Union. Nor do I agree with General Counsel's
contention that the meetings themselves were a
device used by the Respondent "to lure its em-
ployees into airing their grievances, so that Respon-
dent could make veiled promises concerning their
complaints," and therefore constituted conduct
violative of Section 8(a)(1). Although discussion
was invited by Fischer concerning existing benefits
which he described, the evidence as a whole does
not persuade me that Fischer went any further than
to say in substance that the benefits provided by the
Respondent were good, that the Respondent was
constantly improving benefits, and that he did not
believe the Union could do more in this regard.
Moreover, the complaint did not contain an allega-
tion to this effect but, with respect to Fischer, was
confined to two matters : alleged unlawful interroga-
tion and a threat to close the store if the Union
became the collective-bargaining representative.
Accordingly, I do not find that by conducting these
meetings the Respondent violated the Act in any
respect.
Finally, it should be noted that, although the
complaint alleged that each of the six supervisors
here involved "interrogated employees of Respond-
ent, concerning their membership in, activities on
behalf of, and sympathy for, the Union," the only
incident of unlawful interrogation established by
the record was that involving Mrs. Lower, found
above.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent found to con-
stitute unfair labor practices as set forth in section
III, above, occurring in connection with the opera-
tions described in section I, above, have a close, in-
timate, and substantial relationship to trade, traffic,
and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices violative of Section
8(a)(1) of the Act, I shall recommend that the
Respondent cease and desist therefrom and take
appropriate affirmative action in order to effectuate
the policies of the Act.
VI. REPORT ON OBJECTIONS
The objections to the election encompass all of
the conduct of the Respondent found in section III,
B, above, to constitute violations of Section 8(a)(1)
of the Act. Tothat extent, therefore, I find the ob-
jections to have merit and I shall accordingly
recommend that the election held on May 22,
1969, be set aside and that the Regional Director
conduct a new election at such time as he deems
appropriate.
Upon the basis of the foregoing findings of fact
and upon the entire record in these proceedings, I
make the following:
CONCLUSIONS OF LAW
1. The May Department Stores Company d/b/a
The M. O'Neil Company is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Retail Clerks International Association, Local
698, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of
the Act by threatening employees with loss of their
discount privileges and other employee benefits,
reduced hours of work for part-time employees,
and closing of its store if they selected the Union as
bargaining representative, and by questioning em-
THE M. O'NEIL COMPANY
ployees concerning attendance at meetings of the
Union.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
5. In other respects alleged in the complaint the
Respondent has not committed any unfair labor
practices.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, and upon the entire record
in the case , it is recommended that The May De-
partment Stores Company d/b/a The M. O'Neil
Company, Stow, Ohio, its officers, agents, succes-
sors, and assigns , shall:
1. Cease and desist from:
(a) Threatening employees with loss of their
discount privileges and other employee benefits,
reduced hours of work for part-time employees,
and closing its store if they select the Union as bar-
gaining representative , or by questioning employees
concerning attendance at meetings of the Union.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed to them in Section 7
of the Act.
2. Take the following affirmative action to effec-
tuate the policies of the Act:
(a) Post at its store in Stow, Ohio, copies of the
attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional
Director for Region 8, after being duly signed by
the Respondent's authorized representative, shall
be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by it to in-
sure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify said Regional Director , in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.6
IT IS FURTHER RECOMMENDED that the election
held on May 22, 1969, in Case 8-RC-7138, be set
aside, and that a new election be held at such time
as the Regional Director deems appropriate.
' In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
635
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals , the words in the notice reading "Posted by Order of the Na-
uonal Labor Relations Board " shall be changed to read " Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
I In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read " Notify said Regional Director, in
writing , within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with loss
of their discount privileges or other employee
benefits, reduced hours of work for part-time
employees, or closing of the store if they select
Retail Clerks International Association, Local
698, AFL-CIO, as collective-bargaining
representative, nor will we question employees
about their attendance at union meetings.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed to them in
Section 7 of the National Labor Relations Act,
as amended.
THE MAY DEPARTMENT
STORES COMPANY D/B/A
THE M. O'NEIL COMPANY
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 1695 Federal Office Building, 1240
East Ninth Street, Cleveland, Ohio 44199,
Telephone 216-522-3715.