Tipton Electric Co.

National Labor Relations Board - Board Decisions

May 14, 1979

242 N.L.R.B. 202 (N.L.R.B. 1979)

I)DECISIONS OF NATIONAL LABOR RELATIONS BOARI)
Tipton Electric Company and Professional Furniture
Company and Retail Store Employees Union, Local
655, affiliated with Retail Clerks International Asso-
ciation, AFL-CIO. Cases 14 CA 10220 and 14
RC 8353
May 14. 1979
DECISION AND ORDER
By CHAIRMAN FANNIN(; ANI) MEMBHRS JENKINS
ANI) MURPHY
On September i, 1978, Administrative Law Judge
Robert M. Schwarzbart issued the attached Decision
in this proceeding. Thereafter the Respondents filed
exceptions and a supporting brief'.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings. 2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
We agree with the Administrative Law Judge's
finding that the assistant to the sales manager, Mi-
chael Krieg, 3 created the impression of surveillance
by showing employees a list upon which he had re-
corded his opinion of each employee's union senti-
ments. However, we disagree with his finding that
Krieg engaged in surveillance by maintaining the list.
We do not believe that it is unlawful fr anyone to
IThe Respondents have requested oral argument. Ihis request s hereby
denied as the record, the exceptions, and the brief adequatel present he
issues and positions of the parties.
2 The Respondents hase excepted to certain credibility findings nmade by
the Administraltive I.as Judge. It is the Board's established policy llot to
overrule an admiiitraltie law judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence co,nvinces us
that the resolutions are incorrect. Standard Dr Wall Prldulv. Inc. 91
NL.RB 544 (1950). enfd. 188 i.2d 362 (3d ('ir 1951). We have carefully
examined the record and find n basis for reversing his findings. urther. we
find no merit to the Respondents' cottentin thalt the Administrative l.aw
Judge was biased.
Since we agree with the Administrative law Judge's finding that Krieg
iccupied a position from which employees culd reasoniably inter that he
spoke on behalf of the Respondents. we need not rely on his findings that
Krieg was a supervisor.
Member Murphy agrees with the Adminlslratile Iaw Judge's finding that
Krieg was an agent acting on behalf II the Respondents at all times naterial
herein. ('oinsequenly, she concludes that Krieg's statements in his aflidal i
concerning his telling employees that till,aing the election the Respondents
would make cert;lin changes in terms Aof mplonlient re in the nture l
admissions against interest and re. therefore. not hearsa . Accordingly. she
finds that the Administratie l.aw Judge's reliance on 4.i/ J Bar ind ('.
Inc., 236 NI.RB 242 (1978). in which she dissented, i misplaced because
there the affidavit was used to prove ai fact in conflict with his eslimon at
the hearing: i.e.. that the witness was a supersisor In those circumstances
Member Murphy would hase treated such afllidaiit as heairsay because the
witness was not subject Io cross-examination at the tking it the statement
and thus it did not meet the requirements of Federal Rule 801(c) of the
Federal Rules if i idence tII qualil a admissible ecidence
form an opinion concerning any individual's union
sentiments. Since there is no evidence that Krieg
based his opinion on information gathered by illegal
means, we are not convinced that Krieg's mere re-
cording of his opinions violated the Act.
We also disagree with the Administrative Law,
Judge's finding that the Respondent's violated Sec-
tion 8(a)( I) of the Act when Krieg and Tipton Vice
President Allen Fishman separately told salesman
Tony Mikulis that, in the event of a salesmen's strike.
the Respondents would maintain operations by using
stock clerks and management personnel. Both state-
ments were in response to questions by Mikulis re-
garding the Respondent's intentions to continue op-
erations and constitute nothing more than lawful
statements of the Respondent's intention to exercise
their right to do so.
Finally. we believe that the remedial hargaining or-
der recommended b the Administrative Law Judge
is warranted. Before the election the Union enjoyed
the support of a majority of employees, as evidenced
by signed authorization cards. However. the Respon-
dents told employees that, with a union, the' could
not present their grievances directly to. or discuss
their problems directly with, management. They told
employees that the Union would "split the company
down the middle" and that it threatened the loss of'
harmonious working relationships. Not only did the
Respondents, on one occasion, promise changes in
their payback and draw policies but. on another, the3
implied that, but for the union campaign, the sale-
man's draw would have been increased.
Nor did the Respondents attempt to limit their un-
lawful conduct to that aimed solelI at dissipating the
Ilnion's preelection mtajority. After the election, and
while the UInion's objections were pending, the Re-
spondents changed their draw and payback policies.
an action which. as the Administrative Law Judge
found, constituted a substantial benefit to employees
and carried out their illegal preelection promises.
Moreover. these postelection benefits fiollowed an-
nouncements of both their appreciation fr the em-
ployees' "vote of confidence" and their hopes that
management and salesmen would, once again, work
as a "unified team."
As the Supreme Court said in A'I...R.B. . '-
change Paris C(., 375 U.S. 405. 409 (1964):
The danger inherent in well-timed increases in
benefits is the suggestion of'a fist inside the elvet
glove. mployees are not likely to miss the infer-
ence that the source of' benefits now conferred is
also from which future benefits must flow and
which may dry up if' not obliged.
Here, the Respondents' postelection grant of' bene-
fits rewarded employees for rejecting a union which
the Respondent had earlier portrayed as a divisive
242 NLRB No. 36
202
I IPION I.ECIRIC C earlier had worked for the Respondent tr
7 ears He had started as salesman and sersed as a store manager for 2-
1/2 )ears hbefore reering to the satus o' salesman. In which capaci,. he was
at the time of the events considered herein
13 Hawkenbers had no problems in selhing ESP
sl Fishman recalled that in mid-March. Krieg had asked him .hether he
had given thought to transferring Ed Ha;wkenher). an experienced salesman.
to Store No. 9. as tlavskenber's ESP sales ablhit) might he useful at that
store In response. Fishman had told Krieg sharplI that he was to conten
trate on adsising people on h to sell FSP and to not becomne in,lsNed in
this subject Fishman then told Krieg that there as no opening at the
Brown ('ampus store and that it he put 1tawkenbery there hen there Aas
no pening, there was a psslilthv that someone would sas that Fi:shman
was trying to hun his s,.te. because a month r Iso earlier he had seen
tlawkenhers serve as a union witness at the National Lahbor Relations Board
representation case hearing. Fishman als, nl;rmed Krieg that the manager
of the store here tHawkenhers vwas then emplo.Ned had tIld him that
Ilawkenhers constantl complained about his J,,b and personal situation and
was depressing srne of tlh salespeople to a poilt v here II was .ilectllrlg their
sales. Fishman declared that he did not .ant sonieone llke that to poison the
situaiolln at Sore No. 9. where the sal's silulnle. p.rl Itom iSP. a.1 w u(-
stlandlng.
2 11
DECISIONS OF NA I()ONAI. ABOR REI.A rIONS BOARI)
kinown complainer. ishman felt that he woulid poison the
minds of' the people at the warehouse store a happy hunch
who got along well together and made a lot of money.
Krieg reported to Hawkenbery that because of the coming
election, to transfer him would be like buying a vote and
that therefore. Fishman was denying the transfer.
Soon after the election. a vacancy having developed.
salesman Jim Dorris was transferred to the Brown C'amnpus
store.
The above accounts by Hawkenbery. Krieg, and Fish-
man as to the events underlying the denial of Hawkenbery's
requested transfer do not basically conflict.
However, it is noted from the above testimony that while
Fishman was motivated by some administrative concerns in
refusing the transfer. he included among his stated reasons
Hawkenbery's appearance as a union witness at an earlier
representation case hearing and the related impact that
transferring Hawkenbery would have upon employees be-
fore the election. It is noted that in reporting to Hlawken-
bery the reasons why his transfer was denied, Krieg told
this conspicuous union adherent that the effect of transfer-
ring him would be to poison the employees' minds and that
it would be like buying a vote. Accordingly. both Fishman
and Krieg explained the refusal to transfer Hawkenbery in
the context of the pending election in such fashion as to
indicate to Hawkenbery, from Krieg's explanation, that had
he not been a known union advocate, his transfer request
might have been approved. Therefore, it is concluded that
the failure to transfer Hawkenbery was based in part upon
his support for the Union, in violation of Section 8(a)( I ) of
the Act.'
5. The Respondent's postelection conduct
After the conclusion of the representation election on
April 15, Kaplan sent the following memorandum of that
date to all sales personnel:
Now that the election is over. I hope that we can
once again become a unified team and work for the
mutual success of Tipton and each and everyone of the
people employed by Tipton. I hope that the activities
of the past month will have a long range benefit be-
cause it certainly made clear that there are things that
have to be done at Tipton and which can bring about a
better situation for everyone.
Within the next two weeks, I will be having discus-
sions with various sales people relating to some of the
ideas which Allen [Fishman] and I have heard ex-
pressed in recent months and will be coming out with
some changes which I think will be very beneficial.
I appreciate the vote of confidence that the sales per-
sonnel have given and I want you all to know that the
management of Tipton is going to do everything it can
to make Tipton a profitable operation which will offer
the short range and long range security and income
that you all desire.
Thereafter, while the Union's objections to the election
"9 Hawkenbery's statement to Fishman in the last week of March that he
had signed a union card, noted supra, occurred after the denial of the trans-
fer.
were pending, Fishman sent the following nlcnloranduml,
dtited April 22. to all ripton Electric sales personnel:
Starting Ma) 1. 1977. Tipton is going to make the
following matjor changes in the draw sstem or I ipton
Electric ('ompan5 employees:
Salespersons at Tipton for less than three months
will continue to have a draw of $600()()() per month.
Salespersons at l'ipton for three months or more
will have a draw of $800.0() per month.
Salespersons with Tipton five years or more will
hale a draw of $1000.0X) per month.
At the end of each calendar year, ans salespersons
who have an accumulated income under draw f:r the
year will he wiped clean, if' the salespersons were with
Tipton fr at least 6 full months.
The changes came about ron the requests by many
of the salespersons for us to rev iev the dra~w sstem on
the basis that it is economicall 3 sound. since there is no
salesperson who will be making as little as $7.200.00
per year. An increase in draw results in the sellin[ per-
sonnel being able to better budget for their o),n per-
sonal expenses and also rewards persons who are sell-
ing with the ('ompany for 5 five ears with the
knowledge that they will be earning at least $12.0(NX).00
a ear.
Syl and I appreciate the logic behind the request and
thank all those who came forth with various ideas re-
lating to changes in draw.
The benefits thus afforded on April 22. in addition to the
above-indicated increases in the draw. included the intro-
duction of a polic wherebh salespersons with 6 months
service whose income from sales did not exceed their draw
no longer owed the difference to the Company. These bene-
fits were afforded in the context of' Kaplan's statement of
appreciation for the ote of' conlidence that the sales per-
sonnel had given management a,, contained in his April 15
memorandum.4 "
In Fseltihal Psvis, lIt. A /ir ( r'edc P/a.tic. a Dil -
sion of' Grede Foti hlrWs. I('.. .Admninistrative .law J.idge
Davidson, in finding a simnilar violation in his Board-ap-
proved Decision, noted as follows:
Not only does the timinig suggest that Respondent
sought to gain an advantage if a new election was di-
rected, but the letter sent to the employees to annomnce
the increased benefits gies atirmativc evidence that
Respondent sought to consCey that the grant of berefits
at that time was made to tulfill the implied promise in
[the employer's preelectionI letter. Thus. the introduc-
tion and close of' the Ietter thnked the employees for
their vote of confidence in . .. manaerl ent and the
close invited "continued teIL i work and cooperation in
the future ... to make [tIe plait] even a better place to
" The benefits allnotllned in ilic \f 22 rllcmoranduni i ar iplril em-
ployees may not also h e been c.il ddil I 'lte IPrtesi nat Furntur: em-
ploees, as Sharon Slern Sumnmr l , 1r t a'r s$llil I urniure emnploec. esli-
fied that she did not receiced th . ir, i ,i1, dra\w
41 224 NLR 1312, 1315
212
TIPTON ELECTRIC COMPANY
work." indicating that because . . . employees had
joined the team of Respondent's nonunion employees
they had received the benefits described in the letter
The Respondent's arguments in its brief that Kaplan's
April 15 memorandum was vague in that it promised
"changes." not "benefits," and that the memoranda and
benefit improvements should be discounted as not influenc-
ing the election, having issued thereafter, were answered in
the Felsenthal case. There, it was noted that the timing of
the postelection benefits suggested that the Respondent, in
the event of a new election, would gain an advantage, and
the new benefits clearly had been made available in appre-
ciation for the employees' vote.
Therefore, I conclude that the Respondent's actions in
increasing the draw and eliminating its draw payback pol-
icy after the election, while objections were pending, was a
reward to employees for having rejected the Union in ful-
fillment of the implied promise in Fishman's statement to
employees on April II and, therefore. violated Section
8(a)( ) of the Act.42
C. The Applicabilitv of a Bargaining Order
1. The appropriate unit
The April 15 election conducted pursuant to the Stipula-
tion for Certification Upon Consent Election, executed by
the parties and approved by the Regional Director. in-
volved the following unit:
All full-time and regular part-time retail selling per-
sonnel employed by the Employer at its facilities lo-
cated in the metropolitan St. Louis area, including
Missouri and Illinois, excluding managers, assistant
managers, office clerical and professional employees,
guards and supervisors, as defined in the Act, and all
other employees.
The Respondent contends that the Stipulation, in providing
for a less-than-storewide unit of only retail selling employ-
ees, established an inherently inappropriate unit and cannot
control.
In WCA R, Inc.,4 and Blades Manufacturing Corporation.
et al.,4 the Board found that a unit definition agreed to in a
preelection representation case stipulation is binding on the
employer in a subsequent hearing where the representation
case objections have been consolidated with a related unfair
labor practice case. The Respondent's further contention,
that a unit restricted only to selling personnel in the Re-
spondent's stores is inherently inappropriate in that such a
unit also should include nonselling personnel is rebutted by
the Board's more recent decision in Wickes Furniture, a
Division of The Wickes Corporation,45 where it was found
that a unit restricted solely to retail sales personnel is ap-
propriate.
42 See also Westminster Community Hovpira. Inc., 221 NLRB 185 (1975).
' 203 NLRB 1235, 1243 (1973).
" 174 NLRB 937, 939 (1969).
'
5
231 NLRB 154 (1977).
2. The Union's majority status
The General Counsel and the Union contend that he
Respondent's unfair labor practices were so pervasive and
opprobrious as to have effectively destroyed the Union's
majority support within the sales unit. which, in the critical
period before the election, consisted of between 43 and 46
employees.4 The parties disputed the unit placement of em-
ployees Diane Smith. Mary Brown, and Dale Baden, whom
the Respondent. contrary to the General Counsel, would
include within the unit.
Although the Union claimed that it originally had re-
ceived a total of 23 signed authorization cards dated be-
tween September and November 1976,.-the Respondcnt
challenges cards signed by employees Janice Harris, Shar:n
Stern Summers, Katie Snyder. Darrell Revels, Shai Farber,
and Paul Devino on the ground that their signatures on
these cards had been induced by misrepresentation.
a. The unit placement issue
Diane Smith
At the hearing the parties submitted the following com-
plete factual stipulation concerning Diane Smith:
Smith, an employee of Professional Furniture, has no ti-
tle, is hourly paid and is supervised solely by Harold Kopit-
sky, who owns 75 percent of the Professional Furniture
stock, Smith works at the Brown Campus facility where she
spends approximately 40 percent of her time in clerical du-
ties, including typing and filing for Kopitsky, in an office
which she shares with him on the second floor. This is the
sole office leased by Professional Furniture from Tipton.
Smith spends approximately 15 percent of her time reorder-
ing products for Professional Furniture, doing so on a rou-
tine basis to maintain inventory levels. She spends between
25 and 35 percent of her time on the sales floor of Brown
Campus store selling the products of Professional Furni-
ture. while covering for people who are absent, at lunch, or
on vacation. If someone is on vacation for a 2-week period.
Smith does not cover for that person for the entire 2 weeks.
She regularly does replace one specific unit employee every
Thursday for 2 hours at the Brown Campus facility. She
also works on the floor during sales and holidays, and has
worked on the sales floor on occasions up to 20 hours a
week. Smith also could work at sales for more than 40
hours a week. Smith also could work at sales for more than
40 hours a week. Smith receives no commission on sales
that she makes, but does receive the same health insurance,
profit sharing life insurance, discount buying privileges, va-
cations, and the availability of disability insurance as all
other Tipton employees, including the sales force. Smith
has contact with the salespersons at the Brown Campus
facility when engaged in sales duties. She has no supervi-
sory authority of any kind.
On the above facts, noting that Smith basically is as-
signed to an office where she works under the separate su-
pervision of a corporate owner rather than a store manager.
' The above minimum and maximum unit sizes are by stipulation of th,
parties.
'7 All union cards considered herein were dated in 1976.
213
DECISIONS 01: NATIONAL ILABOR RE.A'TIONS BOARD
spends the great bulk of her time in clerical duties, that the
time she does spend on the floor selling Professional Furni-
ture's products essentially is in replacement of other em-
ployees, and that she is hourly rated and does not received
sales commissions I find that her duties essentially are of a
clerical nature, lacking the significant characteristics and
incentives of the sales function. Accordingly, it is concluded
that Smith does not share a community of' interest with
other sales employees and, therefore, is excluded from the
unit.
Mary Brown
The parties entered into a partial stipulation as to
Brown's duties and responsibilities. In accordance with
their agreement at the hearing, Brown is employed by Tip-
ton, has the title of director of administration 4s receives a
monthly salary rather than commissions, and works at the
Brown Campus facility, where she shares an office with a
Tipton clerical employee. She is supervised by the merchan-
dising manager, Jerry Merritt, and assist Merritt during ap-
proximately 50 to 75 percent of her time."
The parties further agreed that although Brown's title is
director of' administration and she was so regarded in the
past when she had substantive responsibilities in maintain-
ing inventory, at which time 12 employees reported to her.
since December 1975, Brown has had no one working un-
der her direction. At the time of the hearing, Brown could
occasionally request specific typing assistance from the
clerical employee who shares her office or from other such
personnel. s
Brown testified that she also receives calls from custom-
ers referred by Kaplan or Fishman and from personal ac-
quaintances and relatives, selling merchandise only to those
who have been referred. Accordingly, Brown's sales work
caters exclusively to a private or privileged clientele who
know that when they speak to her they will receive specially
discounted prices not generally available.' Brown's initial
contact with such customers is by phone, when she at-
tempts to determine their needs and, within the framework
established by the customer, indicates the different brands
and models, their specifications, comparative features, and
advantages and disadvantages. Brown may complete the
sale on the telephone, or, if a customer wishes to inspect the
merchandise. Brown will invite the party to the Brown
Campus showroom. In handling these transactions, it is
necessary for Brown to become periodically updated on the
Respondent's inventory.
Brown, who at the time of the hearing spent about 10 to
15 percent of her time in sales-related work, including the
clerical ticket-writing and recording aspect, never has been
"The stipulation also specified that Brown would represent that at the
time of the hearing she did not have administrative duties over other employ-
ees.
"9 Merritt's responsibilities include purchasing "white goods" such as re-
frigerators. washers, and dryers, as distinguished from "hi own goods." which
includes television sets and audio equipment, and assuring that the items he
buys arrive at the stores from the warehouse.
5 The foregoing concludes the stipulated evidence as to Brown's duties.
s' The bottom prices, established in advance by Kaplan or Merritt, are
profitable and it is Brown's responsibility, if possible, to make the sales.
assigned to a store as a sales employee.,' never has covered
for absent salesmen, and sells only to the special customers
referred to above. Her principal contact with store sales
personnel comes when they call her to obtain special items
not then in inventory and for information as to when such
items might be delivered.
On the above facts, noting that Brown's background and
the great majority of her time have been in clerical and
other functions. that she is separately supervised by the
merchandising manager, and that, unlike the sales staff, she
is paid a monthly salary and does not receive commissions,
is never assigned to the sales floor, and handles only special
customer transactions, it is concluded that Brown. although
no longer a supervisor, does not share a community of in-
terest v ith the sales employees such as to warrant her inclu-
sion in the unit. Accordingly, I find that Brown should be
excluded from the unit.
Dale Baden
Baden, once principally concerned with the commercial
leasing of the Respondent's equipments by March and
April was engaged in the outside sales of Advent large
screen television sets and major audio equipment to com-
mercial or institutional purchasers, such as hotels, theatres,
restaurants, discotheques, and other businesses. In so doing,
Baden operates from the Sight and Sound office at the
Brown Campus, which he uses principally to make his tele-
phone calls.
In conducting his outside sales operation, Baden spends
about 45 percent of his time away from the Respondent's
premises, creating new business and dealing with prospec-
tive customers, and he is the only salesperson reimbursed
by the Respondent for using his own automobile on sales
trips. Interested customers are usually brought by Baden to
the Brown Campus where the Advent television and var-
ious audio systems are displayed." In addition to time spent
away from the Respondent's premises and in administering
2 Brow n began her employment with the Company in 1968 as a part-time
clerical employee. In 1971. she began to work for the Respondent on a full-
time basis. mostly in inventory control, also serving as secretary to Kaplan
and then to Fishman, as well. Although she received the director of admin-
istration title in 1972. her duties remained mostly clerical until 1974. when
she became responsible for inventory control. However, as noted, in Decem-
her 1975. she was relieved of her administration duties and assumed her
present functions
15 After a period of initial employment as a salesman during which he rose
to the position of assistant store manager, Baden left the Respondent's em-
ploy, returning I year later with the title of vice president of Sight and Sound
Leasing Company a wholly owned corporate subsidiary of Tipton. which
serves as its leasing unit. In late 1976, it was decided to phase out the leasing
end of the Respondent's business and in the next year. only one short-term
lease was made. Baden's remaining responsibilities in March and April as to
the 75 to 80 outstanding leases made earlier was to receive and record rental
payments. a procedure which occupied a maximum of about 5 percent of his
time. Most such leases had been marketed by other salesmen who received
the same commissions available to Baden. As leasing commissions accrue
when the lease is made, Baden's continued work with these leases did not
afford him additional compensation.
5 As these items of major equipment are not generally available at all of
the Respondent's stores and as most salesmen are not equipped to sell them.
store salesmen who do receive inquiries in these areas generally either refer
such customers directly to Baden or invite Baden to help them close the
transactions. Prior to April 15 Baden and the salesman who thus assisted
him would split commissions. Since then, assisting salespersons receive only
fiat fees. Baden is paid the commission.
214
TIPTON ELECTRIC COMPANY
the leases. Baden spends about 20 percent of his time on the
telephone attempting to promote sales and in followup calls
to check customer satisfaction. He allots another 10 percent
to administering extensive mailing programs and promo-
tions. Baden also is regulary scheduled to work as a floor
salesman when the Respondent runs its 3-day long cus-
tomer appreciation sales, held thrice yearly." Baden also
fills in at stores where help is needed and is on the floor of
the Brown Campus store for roughly an hour a day, where
he picks up customers who may be unattended.
The record reveals that Baden's business card designa-
tion as vice president of Sight and Sound is but a strategem
to increase his prestige with the commercial purchasers
with whom he deals. His own paychecks are from Tipton.
He has no authority to sign checks for Sight and Sound or
for the Respondent, and no one works under his authority.
Baden is compensated by draw against commissions, as are
the other salesmen, and he receives the same benefits. From
the record herein, contrary to the General Counsel, it is
concluded that Baden is a sales employee who should be
included in the unit found herein. While his situation is
singular in that most of his work is performed away from
the Respondent's premises in the sale of the Respondent's
larger and more sophisticated items, it is a distinction based
upon skill and experience rather than on a basic difference
in the nature of the work performed. Baden's background
and efforts with the Respondent relate to sales, and he is
regularly scheduled to do store selling during customer ap-
preciation sales. He covers for absent salesmen and daily
meets with customers at the Brown Campus store. While it
is not practicable for other salesmen to sell quantities of the
specific merchandise principally sold by Baden. salesmen
may attempt to do so and, in fact, an Advent set was sold
by another salesman. Baden is compensated in the same
manner as other salespersons, has identical benefits, and is
without special authority. Accordingly, I find that his inter-
ests are so united with those of other sales employees as to
warrant his inclusion in the unit.
Having found that Brown and Smith should be excluded
from the unit and that Baden should be included, I deter-
mine that the unit consists of 44 employees.
b. The disputed authorization cards
At the hearing, the signed, dated authorization cards of
17 employees were received in evidence without dispute as
to their validity. The Respondent's argument that the cards
of six other employees, all admittedly completed and signed
by the employees in question, should not be counted as
induced by misrepresentation will now be evaluated.
The Union began its organizational campaign among the
Respondent's employees on about September 1, 1976, when
it began to mail authorization cards to employees accompa-
nied by a letter of that date which, in relevant part. pro-
vided as follows:
1s While working at the store during the 9 days of customer appreciation
sales each year, Baden like other salesmen. takes his turn with incoming
customers on a rotating basis and reports to the store manager at the as-
signed location. Otherwise. he is directly responsible to Kaplan or Fishman.
meeting weekly with one or the other to discuss his sales progress.
Enclosed, you will find two authorization cards to be
used by yourself and a co-worker who is also inter-
ested. Local 655 must have at least 51% of the employ-
ees employed by Tipton sign one of the cards to obtain
union representation. Remember three important
things when signing this card:
I. You are not joining a union, by signing the
card.
2. You cannot be fired by signing the card.
3. You are onl allowing Local 655 to attempt to
negotiate a contract, which you will vote on!
The authorization cards enclosed, used throughout the
Union's campaign, were as follows:
RFTAIL. STORE EMPLOYFFS UNION OCAl NUMBER 655
AFt CIO AUTHORIZATION FOR REPRESENIAtION
Union's address Union's telephone number
Date
Name Home Ph
Address (Street) (Zone)
(City) (State)
Employed by: Company Store No.
Store Address
Job title (Full-time
Department Weekly' S
My day off is Date of E
one
e-Part-time)
alary
.mployment
I, the undersigned, of my own free will, authorize the
above named union, their agents or representatives to
act for me as a collective bargaining agency in all mat-
ters pertaining to pay rates, hours of employment and
other conditions of employment.
(Signature)
TillIS (ARD IS KEPI SIRI(CTIY CONFIDENTAI.--
In M & J Trucking Co., Inc.s,6 administrative Law Judge
Shapiro in his Board-approved Decision restated the fol-
lowing relevant principles:
It is settled that, where an employee has signed an
unambiguous authorization card of the type here, it
counts as a designation unless the Respondent can
demonstrate that the card's clear language was "delib-
erately and clearly cancelled by an union adherent
with words calculated to direct the signer to disregard
and forget the language above his signature." N.L.R.B.
v. Gissel Packing Co., 395 U.S. 575, 606 (1969). In par-
ticular, "there is nothing inconsistent in handing an
employee a card that says the signer authorizes the
union to represent him and then telling him that the
card will be used first to get an election." Gissel, supra,
at 607-608. Accord: Texaco v. N.L.R.B., 436 F.2d 520,
523 524 (C.A. 7, 1971). Indeed, the Supreme Court in
Gissel expressly validated the authorization cards
where each of the employees "were told one or more of
the following: (1) that the card would be used to get an
election; (2) that he had the right to vote either way,
'6214 NLRB 592. 607 (1974).
215
DECISIONS OF: NATIONAL LABOR RELATIONS BOARD
even though he signed the card .... " Supra. at 584. fn.
5. In evaluating the validity of the Union's card:
The Board looks to substance rather than to form.
It is not the use or nonuse of certain key or "magic"
words that is controlling, but whether or not the to-
tality of circumstances surrounding the card solicita-
tion is such, as to add up to an assurance to the card
signer that his card will be used for no purpose other
than to help get an election. Levi Strauss] 172
NLRB 732, 733 (1968), fn. 7 [cited with approval in
Gissel, supra, 608, fn. 27.]
The authorization cards depicted above are worded un-
ambiguously and on their face clearly set forth a purpose to
designate the Union as the signatory's collective-bargaining
agent. Such purpose is furthered by the representation in
the Union's accompanying September I letter. As was
noted in Levi Strauss Inc., Co., supra, with reference to the
type of authorization cards herein involved:
An employee who signs such a card may perhaps
not understand all the legal ramifications that may fol-
low his signing, but if he can read he is at least aware
by his act of signing he is effectuating the authorization
the card declares.
The disputed cards will be considered in consonance with
the above principles.
Janice Harris
Harris, employed by Tipton at its Store No. 10, Crest-
wood Plaza, St. Louis, testified that she had received her
authorization card by mail in early September, but did not
recall receiving the Union's September I letter enclosed
therewith. Harris admits completing, dating, signing, and
mailing her card to the Union on September 16, but denies
having read the body of the card although proximate to the
filled-in blanks.
Harris related that she had submitted her signed card to
the Union solely to obtain information about that organiza-
tion, at the urging of three fellow employees-Jack Zeber.
Erwin Welling, and Mike Oldani.57
Zeber, after asking if she had mailed in her card, had told
Harris that in that way she could find out about the Union.
Although Harris replied that she already knew how she felt
about the Union, Zeber had insisted that she learn more.
Harris testified that she had been reluctant to discuss
with Welling, during a telephone conversation, whether she
had sent in her card. Welling then told her that the card did
not commit her to anything. Harris replied that she was not
interested.
In September, before signing her card, Harris also was
approached by Oldani who asked if she had signed and sent
in the card. She told him that she had not. Oldani expressed
his wish that she would send in the card, that she thereby
would receive information, that it did not commit her one
way or the other but would bring a vote to the Company.
Oldani stated that the purpose of the card was to enable
employees to obtain information about the Union. Harris,
5" Harris was the only witness to testify as to the circumstances under
which her card was signed.
as noted, then completed, signed, and mailed the card, by
her account, solely to obtain information.
Harris' testimony that she had never read the card and
did not know its intent is incredible as she had retained the
card for approximately 2 weeks, had had at least three ear-
nest discussions with fellow employees concerning the
card's significance, and its purpose was spelled out in close
proximity to the blanks she completed. It further is noted
that Zeber, Welling, and Oldani were fellow employees and
not agents for the Union. It now is fund that Harris' card
was a valid designation for the Union."
Sharon Stern Summers
Summers" testified that she had completed and signed
her union authorization card on November 8.9' Stern re-
lated that she read the card before signing it. She further
said that in the first week of November she had a conversa-
tion with two other employees of her store, Mike Louis and
Eric Caldwell. On that occasion, Louis told her that if there
was a union, there would be a more equitable commission
system which would enhance her earning power and that if
she signed the card she would simply be opting for an elec-
tion and to have both sides present their cases. After this
conversation, she signed her card and gave it to Louis who,
in turn, handed it to Caldwell.
As the record shows that Summers had read the single
purpose card before signing and as there is no evidence that
she was told anything inconsistent with the express lan-
guage of the card, it is concluded that Summers' card was a
valid designation.
Katie Snyder
Snyder, an employee of Professional Furniture, testified
that on October 12, while she was at her desk in the sleep
department of the Respondent's Crestwood store, she was
approached by Robert J. Litteken. the Union's director of
organizing. who told her that the Union did not know that
she was employed as she had not been at any of the stores.
Snyder explained that this was because she alternated be-
tween certain stores. Litteken observed that as Snyder had
not sent in her card, the Union did not know where she was
working and could not communicate with her. Snyder, stat-
ing that she had not realized that this was the card's pur-
pose, agreed to mail in the card from her home.6 Litteken
offered to save her the trouble of finding the card by hand-
ing her one which she could sign immediately. Snyder testi-
" Cumberland Shoe Corporation, 144 NLRB 1268 69, enfd. 351 F.2d 917
(6th Cir. 1965); Federal Stainless Sink Div. of Unarco Industries, Inc., 197
NLRB 489, 493-494 (1972).
9 Summers, who no longer was with the Respondent at the time of the
hearing, was employed by Professional Furniture from July 1976 to the fol-
lowing May, in the sale of beds and bedding, at the Respondent's Store No.
20, Fairview Heights, Illinois.
6 Summers, who was then married, signed the card under her maiden
name, Sharon Lee Stem.
61 Snyder's reference was to the letter and authorization cards she had
received in the mail on about September I. Between then and the time she
signed the card, October 12, Snyder had received additional correspondence
from the Union, all of which, she related, she had stored unread in a drawer
at her home, after first opening the envelopes. Snyder testified that she had
never read the union card.
216
TIPTON ELECTRIC COMPANY
fled that Litteken then told her that the card was just for an
election. It did not mean that she was for or against any-
thing. hut was just so that the Union would know where she
was employed. Snyder then filled out the card, signed it.
and gave it to Litteken.
Litteken testified that when he solicited Snyder's signa-
ture at her desk, he discussed with her the reasons why she
should have the Union represent her and told her that the
card could be used by the Union to gain recognition from
the Respondent. Nothing was said about the card being
used for an election. Litteken also testified that he had
made no reference as to other employees who had signed
cards other than to tell Snyder that it was necessary to
obtain cards from the majority of employees in order to
obtain recognition. Snyder then signed and gave him the
authorization card.
Noting that Snyder had long retained possession of var-
ious union materials, including the card and September 1
letter, had completed the card herself at Litteken's request,
as but three short lines appear on the card authorizing the
Union to represent and negotiate for the signatory, and as
Snyder. herself, testified that it was not her practice to sign
unread documents. I do not credit her statement that she
had never read the brief paragraph on the card's face ex-
plaining its purpose.
I credit Litteken's testimony that he had told Snyder be-
fore she signed that the card was to be used to gain recogni-
tion and that nothing was then said about its use for an
election, as he appeared to be a forthright credible witness
whose testimony was substantively more logical.
For the foregoing reasons, it is concluded that Snyder
knew the purpose of her card before filling out and signing
it, that she was not induced to sign through misrepresenta-
tion, and that her authorization constituted a valid designa-
tion of the Union.62
Darrell Revely
The parties briefly litigated the authorization card of
Darrell Revely. employed by the Respondent as a salesman
at Store No. 2. on Chambers, St. Louis. Revely testified that
he received the card and letter from the Union dated Sep-
tember I, sent to his home at the start of the Union's cam-
paign. He mailed his signed authorization card, dated Sep-
tember 10, back to the Union after filling in all the blanks
and signing it.
Subsequently. in November. Revely attended a union
meeting with other employees during which Shai Farber, a
salesman, asked the presiding union representatives. Robert
Litteken and Tom Willey, what sending in the card would
mean. One of these officials replied that it simply' meant
that the Union was trying to get 51 percent of the distrib-
uted cards signed and returned to let it know that the em-
ployees were interested and to allow an election. The card,
it was iterated, did not mean that the signatory employees
had joined the Union.
As there is no evidence to indicate that Revely's card.
which he had read before signing. was in any way tainted
by misrepresentation, it is deemed a valid designation for
the Union.
e
2
Jas. H. Matohews & Co. v. N.LRB., 354 F.2d 432. 437 438 (8th Cir.
1965), cert. denied 384 U.S. 1002 (1966).
Shai Farher and Paul Devino
Farber and Desinot ' testified that on Sundab. November
7. they and about 20 other employees attended a meeting at
the union hall conducted by Director of Organizing Litte-
ken and Union Representatives Tom Willey and Terry
Bowman.
Willy opened the meeting, stating that after 51 percent of
the employees in the unit had signed cards. the Union could
go for an election. If the Union won the election. it would
become the bargaining representative for the employees
and would bargain with management about benefits. An
explanation as made as to how the Union could improve
the employees' situation by helping to achieve greater bene-
fits.
Both Farber and Devino testified that later in the meet-
ing. while questions were being received. Farber asked
whether signing an ;authorization card meant that he was
committed to the Union and would give the Union the
power to bargain. Willey replied that the card was merely
for the purpose of securing an election at Tipton.?
Both men testified that based on the foregoing explana-
tion, they each signed a card and returned it to the union
officials.
Although Farber and Devino claimed not to have re-
ceived authorization cards in the mail in September. Farber
acknowledged that he did receive cards and correspondence
by mail from the Union during October. This included the
Union's above-described letter, dated September . and
Farber admits that prior to the time he signed the card at
the meeting. he had read the union card from one to four
times.
Devino. too. read the card before signing and, contrary to
his testimony at the hearing. averred in his pretrial affidavit
that he did not recall that there had been any mention at
the meeting that the cards' sole purpose was to enable an
election.b
Union Representative Willey testified that during the
November 7 meeting. Farber asked but one question. "If
the Union got in and the contract was negotiated would
everyone have tojoin the Union?" Willey had replied that
if the negotiated contract contained a union-securitN clause.
everyone in the unit would have to join. Farber had pro-
tested.
Willey testified that he had explained to those at the
meeting that the Union was attempting to organize the Tip-
ton sales people. If 51 percent of the employees signed the
distributed cards, the Union would demand recognition of
the Employer. who, at that point, would either grant the
Union a card check and recognition and begin negotiations.
or tell the Union to petition the National Labor Relations
Board for an election. Willey related that he told the group
that if the second alternative happened and the Employer
'3 Both Farber and Devino are salesmen employed a the Respondent's
Store No. 6, St. Charles Rock Road, St. Ann. Missouri.
"4 As Dcvino similarly recalled, Willey answered Farher's question by stat-
ing that the card did not represent a vote for the Union nor did it commit the
signer to anything. but was only for the purpose o obtaining an election.
65 The parties stipulated at the hearing that were employee James Dorris
present, he would testify as had Farber and Devino concerning the events of
the November 7 meeting. Dorris' signed authorization card. dated Septem-
ber 16. was received by stipulation.
217
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refused to grant a card check and recognition, the Union
definitely would petition the Board for an election. He out-
lined the Boaid's representation case procedures in arrang-
ing and conducting elections.
Willey related that at the conclusion of the meeting, Far-
ber and Devino approached him at the front of the room.
Farber asked if signing the card meant that he would be
obligated to join the Union. Willey, in turn, asked whether
he meant by joining the Union, that he would have to pay
union dues and initiation fees or be required to attend
meetings. Farber replied affirmatively: if he signed the card,
would he be obligated to the Union in any fashion as far as
that goes? Willey said that he would not be.
On the record herein, I credit Willey's testimony as to the
November 7 meeting.w6 Both Farber and Devino had read
their cards before signing them, in Farber's case, perhaps
several times. Farber also had previously received and read
the Union's September I letter to employees and other
union correspondence, and Devino's testimony was contra-
dicted by his own earlier affidavit wherein he could not
recall that it had been stated on November 7 that the sole
purpose of the cards were to secure an election. Noting
from the credited testimony that no statement was made at
the meeting as to the purpose of the cards that was inconsis-
tent with that described on their face, it is concluded that
the cards signed by Farber and Devino are valid designa-
tions.67
Conclusions as to the Union's majority status
Having found no merit to the Respondent's challenges to
the validity of authorization cards signed by Janice Harris,
Sharon Stern Summers, Katie Snyder, Darrell Revely, Shai
Farber, and Paul Devino, it is concluded that these cards
are valid and should be counted in establishing the Union's
majority status. In addition to the foregoing, the parties
have introduced into the record the signed and dated au-
thorization cards of 17 other employees, the validity of
which was not contested.
Accordingly, I find that by the time the Respondent be-
gan its pattern of unlawful conduct in the first week of
March 1977, there were 44 employees in the bargaining
unit, 23 of whom freely had authorized the Union to repre-
sent them by signing unequivocal authorization cards.
as their exclusive bargaining representative in what has
been determined as the appropriate unit. It is not significant
that the Union thereafter may have lost its majority status
for it must be presumed that, but fbr the Respondent's un-
fair labor practices, that majority would have been re-
tained."6
I am in agreement with the General Counsel's claim that
the Respondent's unfair labor practices were sufficiently fla-
grant to warrant entry of a remedial bargaining order, al-
though no request for recognition was made to the Respon-
dent by the Union.6
In the context of the pending election," the Respondent
embarked on a course of unlawful conduct to undermine
the Union's majority status. The Respondent coercively
created the impression of and engaged in surveillance of its
employee's union activities; on several occasions it threat-
ened employees that if they selected the Union, they would
lose their right to talk directly with management concerning
grievances and, also, they would lose harmonious working
conditions and relationships with management. Employees
were informed by the Respondent that if they chose the
Union, bargaining would be futile, a strike would be inevi-
table, and, in an event of a strike, employees who did not
support the Union would remain employed. The Respon-
dent promised and granted employees an improved pay
policy to become effective after the election, and denied an
employee a requested transfer, in part because of his union
activities. All the above conduct, except for the actual
granting of the improved compensation program, took
place between the date of the filing of the petition and the
date of the election.
Under these circumstances, the likelihood that a fair elec-
tion could be insured by the use of traditional Board rem-
edies is sufficiently remote to warrant a finding that the
desires of the employees, once expressed through authoriza-
tion cards, would be better protected through issuance of a
bargaining order. Accordingly, I shall require the Respon-
dent to recognize and, upon request, bargain with the
Union as bargaining agent for the employees in the unit
found appropriate herein.'
In these circumstances, I find that the duty to bargain
commenced on March 10, 1977, the date the Respondent
began its pattern of unlawful conduct to undermine the
Union's majority status. 2
c. The refusal to bargain
It has been found that on March 3, the Union represent-
ed at least 23 of the Respondent's 44 employees-hence a
majority-by virtue of the employees' execution of authori-
zation cards which on their face duly designated the Union
as their exclusive representative for purposes of collective
bargaining with the Respondent.
It is, therefore, concluded that the Union had been val-
idly selected by a majority of the Respondent's employees
6 Willey's account generally was corroborated by the testimony of em-
ployee Gary Meier, also present at the November 7 meeting. Meier related
that he had received the same message at the meeting as from the Union's
above September I letter to employees.
67 As there is no evidence that James Dorris' card, signed in September
well before the time of the above meeting, was procured by misrepresenta-
tion, it, too, is deemed a valid designation.
"American Map Company, Inc., 219 NLRB 1174 (1975); J. C Penny (o.,
Inc., 160 NLRB 279, 287 (1966), enfd. 384 F.2d 479 (10th Cir. 1967).
6N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575; Trading Port, Inc.,
219 NLRB 298 (1975); American Map Company, Inc., supra. See also Ludwig
Fish & Produce, Inc., 220 NLRB 1086 (1975), where the Board, in issuing a
bargaining order, noted that there was nothing in Gissel which conditioned
the bargaining order remedy upon a demand for bargaining, and reiterated
that the test in Gissel was whether it reasonably may be concluded that the
Respondent's unfair labor practices may have rendered "a fair and reliable
election" impossible.
70 The election petition, as noted, was filed on January 24 and the Stipula-
tion for Certification Upon Consent Election was approved on February 16.
71 Trading Port, Inc., supra; Ludwig Fish & Produce, Inc., supra. In Felsen-
thal Plastics, Inc., et al, 224 NLRB, supra at 1319, it was found that the
grant of promised benefits following an election made impossible the con-
duct of a fair second election.
71 Although the complaint alleges that the Respondent's pattern of unlaw-
ful conduct began on March 3, the evidence indicates the date found herein.
218
TIPTON ELECTRIC COMPANY
D. The Ohieclions to the Eletion in ('asI 14 R(' 8353
The Union's objections to the election closely parallel
certain of the unfair labor practices allegations set forth in
the complaint and found violative herein. including the Re-
spondent's promises to employees of an improved pas pol-
icy effective after the election and the Respondent's con-
duct in creating the impression of and engaging in
surveillance of its employees' union activities. These unfair
labor practices precluded the exercise of a free and unco-
erced choice in the election.
The Regional Director, as noted, was affirmed bh the
Board in his recommendation that Objections Nos. 1. 2. 3
as to part D, and 4 as to parts B, C. D, and E, he overruled.
In view of the bargaining order found applicable herein.
it is recommended that the election in Case 14- RC 8353 he
set aside and that the said representation proceeding he
dismissed.
IV. THE EFFECT OF TE UNFAIR ABOR PRAC('IICES LUP()N
('OMMER('E
The activities of the Respondent set forth in Section III.
above, occurring in connection with the Respondent's op-
erations described in Section 1, above, have a close. Inti-
mate, and substantial relationship 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 thereof.
V. THIE REMEII)Y
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.73 For the reasons
set forth above, I shall recommend that the Respondent be
ordered, upon request. to bargain collectively with the
Union as the exclusive collective-bargaining representative
of the employees in the above-described unit.
As a bargaining order has been found appropriate, it is
recommended that the election held in Case 14 RC 8353
be set aside and that the petition in that matter be dis-
missed.
CON(CI.USIONS o)F LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union 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:
(a) Creating the impression that it was engaged in sur-
veillance of the union activities and sympathies of its em-
ployees.
?3 As the unfair labor practices committed by the Respondent are serious
and go to the very heart of the Act I shall recommend that it cease and
desist therefrom and in any other manner from interfering , ith the rights of
employees guaranteed under Sec. 7 of the Act N I. RB s Enlwtlkrl ffR
Co.. 120 F.2d 532 14th Cir 1941 ).
(h) Engaging in surveillance of the union activities and
sympathies of its employees.
(c) Threatening employees with loss of their right to
speak direct with management concerning their gries-
ances and other work-relalted problems if they should select
a union.
(d) Promising new pay benefits to its employees during
the critical period before the election.
(e) Granting new pay benefits to its employees immedi-
ately after the election in reward for their antiunion ote.
(f) Informing employees that ift' they supported the
Union a strike would be inevitable and bargaining futile.
(g) Telling employees that in the event of a strike. em-
plovees who did not support the Union would remain em-
ploy ed.
(h) D[ensing an employee a requested job transfer be-
cause ot his union activities.
(i) Threatening emplo)ees with loss of harmonious work-
ing conditions and relationships with management if the,
designated the Union as their bargaining representative.
4. The following unit is appropriate for purpose of col-
lective bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time retail selling per-
sonnel employed by Tipton Electric Company and
Professional Furniture Company at their facilities lo-
cated in the metropolitan St. Louis area, including
Missouri and Illinois, excluding managers. assistant
managers, office clerical and professional employees.
guards and supervisors, as defined in the Act, and all
other employees.
5. On or about March 10, 1977, and at all times material
thereafter, the Union herein represented a majority of the
employees in the above-described appropriate unit, and it
has been the exclusive representative of all said employees
for purposes of collective bargaining within the meaning of
Section 9 (a) of the Act.
6. B refusing to recognize and bargain with the Union
as the exclusive collective-bargaining representative of its
employees in the above-described unit since on or about
March 10, 1977. the Respondent has engaged in. and is
engaging in, further unfair labor practices within the mean-
ing of Section 8(a)( I ) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
8. The Respondent's unlawful conduct interfered with
the representation election held on April 15. 1977.
ORDER"
The Respondent. Tipton Electric Compan, and Profes-
sional Furniture Compan. St. Louis. Missouri, their offi-
cers, agents. successors. and assigns, shall:
7 In the event no exceptions are filed as provided b Sec 102 4 of the
Rules and Regulations of the Natonal Labor Relations Board, the findings.
conclusions. and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. he adopted b the Board and become its
findings. conclusions and Order. and al! ohections thereto shall he deemed
waised for all purposes
219
Dl( CISIONS OF NATIONAL LABOR RELATIONS BOARD
I. Cease and desist from:
(a) Engaging. or giving employees the impression that it
is engaging. in surveillance of their activities or sympathies
in support of Retail Store Employees Union Local 655. af
filiated with Retail Clerks International Association. AFL
CIO.
(b) Promising and/or granting benefits to employees to
dissuade employees from joining. assisting. voting t)r, or in
any other manner supporting the above-named Union, or
any other labor organization.
(c) Threatening employees that if they support the
Union, they will lose their right to directly approach man-
agement concerning their grievances and job-related prob-
lems and that they will otherwise lose their harmonious
working conditions and relationship with management.
(d) Informing employees that it is futile to support a
union.
(e) Threatening employees that if they designate the
Union as bargaining representative, a strike would be inevi-
table.
(f) Threatening employees that in the event of a strike,
those employees who do not support the Union will remain
employed.
(g) Denying employees requested job transfers because
of their union activities.
(h) Refusing to recognize and, upon request, bargain
with the above-named Union as the exclusive collective-
bargaining representative of its employees in the following
unit:
All full-time and regular part-time retail selling per-
sonnel employed by Tipton Electric Company and
Professional Furniture Company at their facilities lo-
cated in the metropolitan St. Louis area, including
Missouri and Illinois, excluding managers, assistant
managers, guards and supervisors, as defined in the
Act, and all other employees.
(i) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act.
(a) Upon request, recognize and bargain with Retail
Store Employees Union, Local 655. affiliated with Retail
Clerks International Association, AFL-CIO. as the exclu-
sive collective-bargaining representative of its employees in
the bargaining unit set forth above, with respect to wages,
hours, and other terms and conditions of employment and.
if an understanding is reached, embody such understanding
in a signed agreement.
(b) Post at its various metropolitan St. Louis area facili-
ties, including those in Missouri and Illinois, copies of the
attached notice marked "Appendix."" Copies of the notice
on forms provided by the Regional Director of Region 14.
after being duly signed by the Respondent's authorized rep-
resentatives. shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter. in conspicuous places, includ-
ing 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 cov-
ered by any other material.
(c) Notify the Regional Director of Region 14, in writ-
ing, within 20 days from the date of this Order. what steps
the Respondent has taken to comply herewith.
IT IS ORDERED that the complaint be dismissed insofar as
it alleges violations of the Act not specifically found herein.
11 Is FURTHEIR O)RDIRE ) that the election held on April
15. 1977, in Case 14 RC-8353 hereby is set aside and that
the petition in that matter is dismissed.
'5 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
iona! Labor Relations Board,"
220