Walker's

National Labor Relations Board - Board Decisions

Jun 24, 1966

159 N.L.R.B. 1159 (N.L.R.B. 1966)

WALKER'S 1159
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, Room
2023, Federal Office Building, 550 Main Street , Cincinnati , Ohio 45202 , Telephone
684-3627.
Bishop and Malco , Inc., d/b/a Walker's and Edna P. Mashburn
Bishop and Malco , Inc., d/b/a Walker's and Retail Clerks Orga-
nizing Council of Southern California , Retail Clerks Interna-
tional Association , AFL-CIO and A. J. Cruciani ; Lester B.
Newsome ; Kunion Beauty Salon , Inc.; Barton Jewelry Co., Inc.;
Harry Camp Millinery Company ; Dr. Marston E. Melton;
Wetherby-Kayser Shoe Co.; Helen Grace Candies ; Ralph and
Muriel Nymer d/b/a Pacific Coast Fur Co.; and Edwin R.
Brown, Parties in Interest . Cases ?1-CA-5977, 6087, and 6143.
June 24, 1966
DECISION AND ORDER
On December 28, 1965, Trial Examiner Wallace E. Royster issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. He also found that Respondent had not
engaged in other unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed. Thereafter,
Respondent filed exceptions to the Trial Examiner's Decision and
a supporting brief ; General Counsel filed a brief in opposition to
Respondent's exceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the Act, the
National Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel [Chairman McCul-
loch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the briefs, and the entire
record in the case, and hereby adopts the findings,' conclusions, and
1 The Respondent has excepted to many of the Trial Examiner 's credibility resolutions.
It is the Board ' s established practice , however , not to overrule a Trial Examiner ' s resolu-
tions with respect to credibility unless , as is not the case here , the clear preponderance of
all the relevant evidence convinces us that the resolutions were incorrect . Standai d Dry
Wall Products, Inc, 91 NLRB 544, enfd. 188 F . 2d 362 (C.A. 3).
159 NLRB No. 106.
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommendations 2 of the Trial Examiner, with the following
modifications :
1. In agreeing with the Trial Examiner's finding that the signed
union designation cards constituted effective designations of the
Union as the bargaining representative of Respondent's employees,
we rely on the fact that the Trial Examiner specifically credited
the testimony of the union organizers that they did not tell any of
the employees solicited to sign union authorization cards that the
only purpose of the cards was to bring about an election.3 Such
testimony plus the fact that the cards clearly and unequivocally
stated that the cards were for authorization purposes convinces us
that the card signers were well aware that the cards could and
might be used to obtain recognition of the Union without an election.
We also agree with the Trial Examiner's finding that the state-
ment in Union Organizer La Rocca's affidavit of November 1964,
when considered in context as it must be, cannot logically be inter-
preted to mean that La Rocca told employees that the cards would
be used only for an election, that the cards were not binding on them,
and that employees still had a freedom of choice.4 When the affida-
vit is considered in its entirety, it is clear that La Rocca correctly
told the employees that the cards were not binding upon them and
that they would have a freedom of choice to vote for or against the
Union only if the cards were used for election purposes rather than
for authorization purposes.
2. In finding that Respondent violated Section 8(a) (1) by threat-
ening to "change" the cosmetic saleswomen's line commissions in the
event of unionization, the Trial Examiner credited the testimony of
employee Van Ness and discredited that of Shuff, Respondent's
manager. However, the Trial Examiner failed specifically to men-
tion the testimony of employee Whitney which corroborated that
of Shuff. Also, in finding that the Respondent violated Section
2In the absence of exceptions thereto, we adopt pro forma the Trial Examiner ' s findings
that Respondent did not violate Section 8 ( a)(3) and ( 1) by discharging employee Edna
P. Mashburn , and 8 ( a) (1) by granting wage increases to certain employees.
3 Cumberland Shoe Corporation , 144 NLRB 1268 , enfd 351 F .2d 917 ( C A 6) ; Peterson
Brothers, Inc, 144 NLRB 679, enfd. as modified 342 F.2d 221 (C.A. 5). Cf. Trend Mills,
Inc., 154 NLRB 143 ; Englewood Lumber Company, 130 NLRB 394.
4In his November 1964 , affidavit, La Rocca stated that although he told employees "one
of the purposes for signing the cards was to get an election ," he "never told any employee
who signed a card that the card was for the purpose of obtaining an election only" and
that he told employees " the procedure of a card check " He then stated,
"I told employees that the card was not binding on them and that they still have free-
dom of choice , and that the employees in the secret ballot could vote against the Union,
for the purpose of the card was to give them that right This came up when I was ex-
plaining that the Union never went to an election with less than 50 to 60 percent of the
employees signed up because inevitably someone would change their vote because the card
was not binding on them to vote for us " He concluded his affidavit by stating that "I
always outlined that the purpose of the card was to get an election and also to designate
the Union as a bargaining representative , and for use in a card check."
WALKER'S 1161
8(a) (1) by threatening the closing of the store, loss of employee
benefits, and forced retirement of older employees, and by stating
to employees that Respondent was aware of the identity of those
employees who attended union meetings, the Trial Examiner cred-
ited the testimony of employees Guacci, McGinnis, and Hoff, and
discredited the testimony of Supervisor Pollack. However, the
Trial Examiner did not discuss the testimony of employee Grimes
which corroborated that of Pollack.
The Respondent excepts to these two findings of the Trial Exam-
iner. We find such exceptions to be without merit. The failure of
a Trial Examiner to detail completely all conflicts in the evidence
does not mean, as the Respondent infers, that this conflicting evi-
dence was not considered.5 A "Trial Examiner [is] not `compelled
to annotate to each finding the evidence supporting it.' " 6 Indeed,
the Trial Examiner stated in his Decision that his findings were
based "upon the entire record in the case, from [his] observation of
the witnesses, and upon consideration of the briefs filed." Since the
Trial Examiner specifically credited testimony directly contrary to
that of Whitney and Grimes and specifically discredited testimony
which was the same as that of Whitney and Grimes, it reasonably
can be inferred that the Trial Examiner did not find the testimony
of Whitney and Grimes credible.
3. In the light of Respondent's other unfair labor practices and
unconcealed hostility toward the Union, we concur in the Trial
Examiner's conclusion that Respondent counsel's interrogation of its
employees concerning the unfair labor practices with which it was
charged was violative of Section 8(a) (1) .7 We rely, however, only
upon the Trial Examiner's findings relating to "the systematic inter-
rogation by Respondent's counsel, particularly in the area of [the
employees] subjective intentions in signing designation cards." We
do not find unlawful the questioning of employees as to whether
they had given statements to Board personnel.8
4. The Trial Examiner found that Respondent was responsible
for a coercive, antiunion bulletin composed and distributed by some
of Respondent's employees. The Respondent contends that it can-
not be held responsible for this bulletin because it was composed,
circulated, and distributed by rank and file employees, and there is
no evidence indicating that the Respondent instigated, ordered,
5 Olin Industries , Inc., 86 NLRB 203, enfd. 191 F.2d 613 (C.A. 5), cert. denied 343
U.S. 919; Macon Textiles, Inc., 80 NLRB 1525.
6 Trumbull Asphalt Co . of Delaware v. N.L.R.B., 314 F.2d 382, 383, cert. denied 370
U.S. 808, citing as authority U.S. v. Pierce Auto Lines, 327 U.S. 515, 529.
7 See Plains Cooperative Oil Mill, 154 NLRB 1003; Johnnie's Poultry Co., 146 NLRB
770, enforcement denied 344 F.2d 617 (C.A. 8).
8 See Montgomery Ward t Co., Incorporated, 146 NLRB 76, 79, 81.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
encouraged, authorized, ratified, or adopted the conduct of these
employees. We disagree. At the hearing, Manager Shuff admitted
that employee Hauck, the composer of the petition, came to his office
and stated that she would like him to read the petition. Shuff testi-
fied that he replied, "No, Miss Hauck. I'm sure whatever you've
done is fine and I'd prefer not to read it." [Emphasis supplied.]
Shuff then gave Hauck permission to use company equipment and
supplies to "put out the bulletin." Shuff testified that, after consul-
tation with counsel, he informed the employees that if company
equipment and supplies were used to publish the bulletin, a statement
should be added at the bottom of the bulletin that the materials were
furnished by Respondent.9 In our opinion, such a statement at the
end of the antiunion bulletin could only cause the employees to
believe that it was the Respondent "speaking," since the bulletin con-
tained the same type of antiunion propaganda which the Respondent
had already expressed to employees, even though the bulletin stated
that it was an "expression of the undersigned employees." Accord-
ingly, as the Respondent was aware that the bulletin was to be cir-
culated to employees, as the Respondent supplied the equipment and
supplies for the publication of the bulletin, and as the Respondent
required that a statement be placed on the bulletin that the materials
were furnished by the Respondent, we find, in agreement with the
Trial Examiner, that the Respondent is responsible for the bulletin.10
5. We agree with the Trial Examiner's finding that Respondent's
refusal to bargain with the Union violated Section 8(a) (5) for the
reasons stated in the Trial Examiner's Decision. Moreover, even if
the record warranted the conclusion, contended for by the Respond-
ent, that it refused to bargain with the Union because it had a bona
fide doubt of the Union's majority status, effectuation of the policies
of the act would still require a remedial order directing the Respond-
ent to bargain with the Union upon request in order to remedy the
Respondent's other unfair labor practices found herein." The record
establishes that the Union had a clear majority when the Respondent
began its course of unfair labor practices directed at destroying that
0 The Respondent contends that this statement was placed at the bottom of the bulletin
"out of an abundance of caution to insure that Respondent complied with the spirit of the
'contemporaneous disclosure ' exception to reporting requirements of the 1959 Labor-
Management Reporting and Disclosure Act."
10 The Borden Company, 142 NLRB 364, relied upon by Respondent , is clearly inap-
posite. In that case, unlike here , the employer refused to let employees use company time
and materials to type up an antiunion petition, and the employer required employees to
halt soliciting signatures to the petition when it discovered employees were soliciting
signatures during working hours.
11 N.L.R B. v. Delight Bakery Inc , 353 F 2d 344 ( C A 6) ; Piasecki Aircraft Corpora-
tion v N L.R.B., 280 F 2d 575 (C.A 3), cert denied 364 US 933 ; Editorial "El Impartial"
Inc. v. N L.R.B., 278 F.2d 184 (C.A. 1) ; N.L.R.B. v. Joe Caldarera d/b/a Falstaff Distribut-
ing Company, 209 F.2d 265 (C .A. 8) ; D. H. Holmes Company, Ltd. v . N.L.R.B ., 179 F.2d
876 (C.A. 5). Cf. N.L.R.B . v. Flomatic Corp ., 347 F.2d 74 (C.A. 2).
WALKER'S 1163
majority. To the extent that the election revealed a loss of union
support thereafter, such loss must be attributed to Respondent's
unfair labor practices. Therefore, we shall order the Respondent to
bargain, upon request, with the Union to remedy its violations both
of Section 8(a) (5) and (1) of the Act.12
[The Board adopted the Trial Examiner's Recommended Order.]
13 Member Zagoria agrees that a bargaining order is appropriate to remedy the Respond-
ent's serious violations of Section 8(a) (1) of the Act which, as the Trial Examiner found,
were designed to destroy the majority which the Union ultimately received and evidence a
rejection of the collective-bargaining principle. He deems it unnecessary therefore to
decide whether the Respondent's conduct in the circumstances of this case also violated
Section 8 ( a)(5).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed by Edna P. Mashburn, an individual, and by Retail Clerks
Organizing Council of Southern California, Retail Clerks International Associa-
tion, AFL-CIO,' the General Counsel of the National Labor Relations Board
issued a consolidated complaint on February 18, 1965, alleging that Bishop and
Malco, Inc., d/b/a Walker's, herein the Respondent, had engaged in unfair labor
practices affecting commerce within the meaning of Section 8(a)(1),(3), and (5)
of the National Labor Relations Act, as amended, herein the Act. The Respondent
filed an answer denying the commission of any unfair labor practices.
The matter was tried before Trial Examiner Wallace E. Royster, in Long Beach
and in Los Angeles, California, on various dates beginning May 10 and ending
June 25, 1965. At issue is whether the Respondent by means of threats, promises,
wage increases, and interrogations intertered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7 of the Act; discrimina-
torily and unlawfully discharged Edna P. Mashburn; and refused unlawfully to
extend recognition to and to bargain with the majority representative of its employ-
ees in an appropriate unit.
Upon the entire record in the case, from my observation of the witnesses, and
upon consideration of the briefs filed, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a California corporation engaged in the retail sale of general
merchandise at its store known as Walker's Department Store in Long Beach,
California. It is a wholly-owned subsidiary of City Products Corporation, an Ohio
Corporation. Respondent, in the course and conduct of its business operations, has
a gross volume of business in excess of $500,000 per annum and during the 12-
month period preceding the issuance of the complaint, purchased more than
$50,000 in goods and services directly from suppliers outside the State of Cali-
fornia. A number of business entities operate within Respondent's store as licens-
ees and are named in the caption as "Parties in Interest." It is conceded, and I
find, that the Respondent at all times material herein with its licensees constituted
a single employer within the meaning of Section 2(2) of the Act. I find that
the business of the Respondent and its licensees constitute operations in commerce
and affecting commerce within the meaning of Section 2(6) and (7) of the Act.
IT. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union Local No . 324, Retail Clerks International Association,
AFL-CIO, herein the Union , is now and at all times material has been a labor
organization within the meaning of Section 2(5) of the Act.
1 Mashburn filed her charge on June 2, 1964. The remaining charges were filed July 24
and August 28, 1964, and on January 19, 1965.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The setting
Situated a few miles from Los Angeles , Long Beach is a city of approximately
400,000. The Respondent ' s department store , known to its customers as Walker's,
has been in existence for a number of years and became the property of City
Products Corporation in 1960. Many of its employees had worked for Walker's
for years before this most recent change in ownership . The population of Long
Beach, reputedly , consists in large measure of persons well past their middle years;
at times in the past, and perhaps now, it is regarded by some as the Mecca of
retired midwest farmers and shopkeepers . If it be true that the residents of this
area are on average beyond the years attained by those in other urban areas,
this circumstance is mirrored and perhaps exaggerated among Respondent's
employees. Of the approximately 240 working there in the spring of 1964,2 75 to
100 were at least 60 years old.
Early in that year the Union began its campaign to organize the store. A team
of solicitors consisting of Jerome La Rocca, Donald Taylor, Dorothy Copinger,
and Joyce Turney called upon employees at their homes , held employee meetings,
and distributed literature at points near the store . These efforts attained a measure
of success. Eventually 140 employees signed designation cards which unequivo-
cally authorized the Union to represent them in dealings with the Respondent.
On March 17 , before the Union held such designations from a majority of
Respondent 's employees , it wrote to the Respondent asserting that it had been
chosen as bargaining representative by a majority of the employees and suggesting
that its claim could be proved through some disinterested agency by a check of
the signed cards in its possession . On the same date it filed a petition with a
Los Angeles office of the National Labor Relations Board seeking a representation
election By a letter dated March 24, the Respondent refused the Union's sugges-
tions , said that it doubted the assertion of majority designation , questioned the
authenticity of whatever designation cards the Union possessed , and expressed
a desire that the matter be determined by a secret-ballot election conducted by the
Board.
Following a hearing, an election was directed among Respondent 's employees in
a unit which all agree and I find to be appropriate .3 The election was held on
May 22 and the Union lost.
The complaint alleges that the Respondent from about mid-March to the date
of the election conducted a campaign against the Union which was marked by
threats, predictions of disaster , and misrepresentations calculated to destroy the
Union 's majority ; and by the granting of wage increases as an inducement to
employees to oppose the Union . The Respondent denies that it did anything but
to point out to employees that a union would not necessarily provide happy
answers to their problems and that after all it had been a pretty good employer.
Counsel for the General Counsel asserts that on a date no later than March 25 the
Union attained the status of majority representative and that the Respondent never
held a good faith doubt to the contrary . The Respondent denies that the designa-
tion cards which the employees signed were obtained in circumstances fairly sus-
ceptible of a conclusion that the cards really evidenced a desire by the employees
to have the representation the Union Was offering . This flames the major issue.
There are other matters of less import which will be discussed and decided at a
later point in this decision.
B. The Union 's majority
By any computation a majority of the employees in the bargaining unit had
signed designation cards by March 25. Counsel for the General Counsel claims
that 135 of 249 employees had signed by that date Counsel for the Respondent
reaches the same result by conceding that the Union then held cards from 121
of 236 employees . I am unable to determine from the record the reason for the
disagreement about the number of employees in the unit. In any event it is the
contention of the Respondent that many of the designation cards were signed as
a result of misrepresentations of the Union 's solicitors and that many of the cards
therefore do not evidence an intent by the signers to have the Union as bargaining
2 All dates mentioned are in 1964 except as otherwise stated
3 The unit is . All regular full-time and part-time employees in the store , excluding pro-
fessional employees , guards, and supervisors as defined in the Act
WALKER'S 1165
representative. Before entering upon a consideration of this contention, it may be
noted that at all times after March 25 to the date of the election on May 22 the
Union held unrevoked designations from a majority of Respondent's employees.
In the course of its campaign the Union sent literature to employees which
included a designation card headed in bold print, AUTHORIZATION FOR
REPRESENTATION and continuing, "Desiring to enjoy the rights and benefits of
collective bargaining, I" then followed spaces to be filled out showing place of
employment, job title, and home address. Immediately over the signature line it
read "hereby authorize Retail Clerks International Association, AFL-CIO, or its
chartered Local Union to represent me for the purposes of collective bargaining,
respecting rates of pay, wages, hours of employment, or other conditions of employ-
ment, in accordance with applicable lau " Date and signature lines followed The
cards used by the Union's solicitors in making calls at the homes of employees dif-
fered in no important respect from the mailed card Missing from the card used by
the solicitors was the phrase, "Desiring to enjoy the rights and benefits of collective
bargaining"; instead of "in accordance with applicable law," the card ended with
the words "and proceedings before the National Labor Relations Board." Neither
of the cards used makes reference to an election and both are, I find, clear and
unequivocal designations of the Union as bargaining representative of the signers.
But the Respondent argues that at least 78 cards are not what they appear to be
and, in support of this position, specifically attacks the validity of the designations
evidenced by 46 cards on the grounds that these were signed upon representations
by the solicitors that they were needed only for the purpose of bringing about
an election or that the cards were not "binding" so that a signer could vote as he
desired in any election or that initiation fees would be waived for those who
signed or that the cards didn't really mean anything or that the solicitors asserted
at the time the signature was sought that the Union already had received cards from
a malouty of the employees.
Before examining the evidence adduced by the Respondent in support of these
assertions of invalidity, the observation must be made that counsel for the
Respondent (over the objections of counsel for the General Counsel) was afforded
by my rulings at the hearing an impermissible scope in the examination and cross-
examination of witnesses. Many witnesses who had signed designations were
questioned about their subjective intent, whether by that act they meant to select
the Union to represent them. Any lingering thought that perhaps such question-
ing might be permissible during the course of a hearing, with the answer given
such weight as it might appear to deserve, is laid to rest by a recent Board holding
that in the absence of ambiguous designations, such evidence is irrelevant and that
it is error to receive rt.4 Mindful of that adjuration, I have not given considera-
tion to such evidence in reaching my conclusions as to the efficacy of the
designations.
The union solicitors, Jerome La Rocca, Donald Taylor, Dorothy Copinger, and
Joyce Turney, all testified flatly that although the probability of an election was
often mentioned to prospective card signers, no one was told that the signed
designations would be used only to bring about that outcome.
Edna M. Tillery testified that she recalled only that the union representative
said that signatures were needed to bring about an election; that she could
not remember whether she read the card before signing it. She filled out the
card herself. It is difficult to believe that she did not see the words "AUTHORI-
ZATION FOR REPRESENTATION" printed boldly across its face or realize
their import. The overt act of signing an unequivocal designation is not overcome
by evidence of this character. I count her card as valid.
Faye McGinnis testified that she was told that the Union had to obtain a number
of signatures before an election could be held. She also recalled that she was told
by the solicitor that signing the card would not oblige her to vote for the Union
when the election was held. There is no evidence that McGinnis did not read the
card which she admittedly signed and I do not consider that the testimony adverted
to above establishes that she was induced to sign the card by reason of the fact
that she could in the privacy of the voting booth vote as she chose.
Edna Mashburn testified that she recalled only that if enough cards were signed
an election could be held. However, Mashburn testified credibly that on some
occasion shortly after she signed the card she told her supervisor, Thomas Pollack,
4 Bauer Welding & Metal Fabricators , Inc., 154 NLRB 954.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that she thought a union was needed in the store . This statement , coupled with
the fact that the card is wholly unambiguous , causes me to conclude that Mash-
burn 's card is a valid designation of the Union.
Semmie Brager testified that the union solicitor told him if enough signatures
were obtained , an election could be held ; that "what I remember him saying" was
that the card had no other purpose. Brager denied that he read the card before
signing it . However, further questioning developed that Brager filled out the card
and, of course , had it before him when he did so. It is difficult to believe his
testimony that he overlooked the language over his signature which authorized
the Union to represent him and I do not do so. His card is a valid designation
of the Union.
Fern Genter testified that she learned from the Union 's organizer that if enough
cards were signed an election would be held "and you would have it explained
what the union could do or what it couldn't do." She recalled that the organizer
might have said that the card was not "binding or anything"; that at union meet-
ings she could listen to a discussion about what the Union could do; and that in
an election she could vote as she pleased. However, on further examination by
Respondent's counsel she amended her testimony by denying that the organizer
said anything about the card being "binding." Genter testified that she read the
card at the time of signing I find her card to be a valid designation of the Union.
Willene Bowker and her daughter, Nancy Bowker, signed cards on the same
occasion . As a witness for the Respondent , Willene Bowker testified that the
union representative said that he was getting card signatures "merely" to bring
about an election . She went on to testify that she was told on this occasion that
the Union would have to bargain with the Respondent to get any benefits but that
an attempt would be made to improve wages and working conditions . I find that
neither Willene nor Nancy Bowker were misled and that they executed valid
designations of the Union.
Bobby Bradley testified that he signed a card at the solicitation of La Rocca
and that La Rocca told him he was trying to get the signatures of 85 percent of
the employees so that an election could be held . However , Bradley testified that
La Rocca also mentioned the benefits that the Union could obtain for the employ-
ees and that he told La Rocca at the time of signing that most of the employees in
the department in which he worked favored the Union . I find no evidence of
misrepresentation in respect to the card of Bobby Bradley and hold it to be a
valid designation of the Union.
Catherine Montgomery testified that she was told only that the card would facili-
tate an election and that she was unsure whether she read the language on the card
authorizing the Union to represent her. Considering the unambiguity of the card.
I find that it constitutes a valid designation of the Union.
Florence Green testified that she was told only that the card was to bring about
an election . However, she read the authorizing language on the card before sign-
ing it and I conclude that her designation is a valid one.
Beatrice Klick testified that the umon solicitor told her her signature was needed
so that an election could be held, that the card did not mean anything , and that it
was confidential . The solicitor went on to say that if the Union won the election
there was much that could be done for the employees . Klick denied that she read
the authorizing language on the card . Considering the testimony of the union
solicitors that in no case did they say that a card was only for an election and
bearing in mind the clear language of the card itself, I find that Klick's designation
is valid.
Forrest Heck testified that he signed a card at the solicitation of Donald Taylor
and that Taylor told him he wanted the card so that an election could be held;
that signing would not indicate that Heck wanted a union . Heck denied that he
read the authorizing language on the card . Heck gave Taylor the names and
addresses of other employees in the department in which he worked and attended
at least one union meeting. I am convinced that he knew the significance of the
card and, in signing it, understood what he was doing and thus validly designated
the Union.
Gladys Meyers testified that La Rocca told her that he wanted her signature so
that the Union could start to organize the store and that she would not be obli-
gated in any way . Meyers denied that she read the authorizing langauge on the
card. There is no indication that Meyers had any difficulty reading or understanding
the language; the card is unambiguous and I find it to be a valid union designation.
WALKER'S 1167
Hattie Dollarhide testified that she was told that those who signed cards would
not have to pay initiation fees. The Union's policy of no initiation fees was early
and widely publicized. The benefit of the initiation fee arrangement was not lim-
ited to card signers. I find that Dollarhide's designation is a valid one.
Dorothy Morrison testified that the union solicitor told her that he was attempt-
ing to get cards signed so that an election could be held, that she was undertaking
no obligation by signing, and that if she did so she need not pay an initiation fee.
However, all employees were told that there would be no initiation fee. The
solicitor left the lard with her and she signed it in his absence. Obviously she
had time and opportunity to read the card and to understand the nature of her act.
[ find that the designation of Morrison is a valid one.
Mildred Agan testified that the solicitor told her that the card was to bring about
an election and that she could not remember that any other purpose was men-
tioned. The card was left with her and she signed it. Obviously she had oppor-
tunity to read and to understand the card and by signing it I find she validly
designated the Union as her representative.
Roy Flounoil testified that La Rocca told him that if enough signatures were
obtained an election would result in which Flounoil could vote as he desired. La
Rocca left the card with him and Flounoil signed it. There is no suggestion that
Flounoil was unable to comprehend the plain language on the card and I find
that his designation is a valid one.
Olive Fulton testified that she did not remember clearly just what was said to
her by the union solicitor but that there was mention of the necessity to obtain a
certain number of signatures to bring about an election. Fulton also testified that
the solicitor stressed the argument that signing the card placed her under no obliga-
tion to the Union and that there was mention of the benefits that the Union might
be able to obtain I find that Fulton knew that she was designating the Union as
bargaining representative when she placed her signature on the card and that her
designation is a valid one.
Adelaide Whitney testified that the union solicitor told her that the signatures of
a majority of the employees were needed in order to hold an election. That the
union representatives routinely told employees of the possibility or probability of
an election is certain. I find no reason based upon this record to invalidate the
clear and unambiguous designation of the Union which Whitney made by signing
the card.
Marie Ratcliffe testified that she was told that if enough cards were signed, an
election would eventuate in which she could vote as she desired. I find nothing in
this testimony to cause me to conclude that her designation of the Union is in
any respect invalid.
Anne Blanchard testified that the solicitor, Donald Taylor, said that the act of
signing the card did not necessarily mean that she favored a union but that a
certain number of signatures were needed in order to bring about an election.
Blanchard denied that she read the authorizing language on the card. However,
at one point in her testimony Blanchard said that when she was given the card
she was told that it was to enable the Union to "come into the store." Blanchard
manifested considerable confusion throughout the course of her testimony. It ap-
pears that she signed the card in the absence of union representatives and perhaps
after consultation with her husband. I find her card to constitute a valid desig-
nation of the Union.
Marie C. Garrison testified that the union solicitor said that he was trying to
obtain signatures so that an election could be held and that she was not told that
the card would serve any other purpose. On further examination she testified that
the representative said he was trying to get enough signatures to hold an election
so that the Union would be able to come into the store and the employees could
vote on the question of union representation. The card itself, however, bearing as
it does a clear designation of the Union as bargaining representative, is not to be
overcome by testimony such as this. I find her card to be valid.
Bonnie Hill testified that she was asked to sign a card because the Union had
to show if she could vote against the Union in an election if she changed her mind
asked if she could vote against the Union in an election if she changed her mind
and was assured that she could. Although Hill testified that she was told of no
purpose that the card would serve other than to bring about an election, it is
clear, in addition to the language of the card itself, that she knowingly signed the
card because she then favored the Union. I find that her designation is valid.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Helen Mahoney testified that she was told that if two-thirds of the employees
signed cards, there would be an election in which she could vote as she desired.
This does not constitute evidence satisfactory to me that Mahoney was in any
way misled with respect to the card. I find her designation to be valid.
Agnes 1. Phillips testified that the union representative told her the card was to
bring about an election or that it might be checked against an employee list by "an
outside party." In the discussion with the union representative she told him that
the Union could not help her because as a social security annuitant her earnings
were necessarily limited. When he replied that signing might help her fellow
employees, she complied. Obviously her designation is valid.
Marguerite Swanson testified that she was told the cards were essential to bring
about an election. Swanson at first testified that she did not read the authorizing
language on the card and then amended her testimony to say that she did not
recall doing so. The card is a clear designation of the Union and I do not find
that Swanson's testimony makes it less so. It is valid.
Marian Krug testified that La Rocca told her that if 70 percent of the employees
signed cards an election could be held in which she could vote as she desired.
La Rocca said that if the Union won the election, it would be the representative
of the employees. She signed the card and mailed it to the Union. Obviously
she had time to read and to consider the authorizing language of the card and I
find her designation is a valid one.
Dessie Peevler testified that the union representative tried to persuade her of the
advantages which representation would afford; asserted that he already had enough
signatures to bring about an election, and held out the hope of higher wages and
better retirement benefits. Peevler recalled that she was told that anyone who
had not signed a card before an election was held would have to pay an initiation
fee. Considering the publicity that the Union gave to all employees in connection
with initiation fees, I am sure that Peevler is mistaken in her recollection of what
what was said to her in that connection. Her card is a valid designation.
Christy Dodd Houston testified that La Rocca told her that a certain number of
signatures were needed in order to hold an election and that signing the card
would not obligate her in any way. Houston was not persuaded to sign on the
first visit and La Rocca left some union literature with her. She signed the card
but told La Rocca, she testified, that she was uncertain whether she favored
the Union because she did not have a complete understanding about it. Obviously
Houston gained an understanding in some fashion so that she signed the card
apparently outside the presence of La Rocca. As the card is an unambiguous
designation of the Union, I find it to be valid.
Mudcihn Howard testified that the solicitor, Dorothy Copinger, told her that sig-
natures were needed to bring about an election. Howard said that she was not
interested in the Union, but nonetheless a conversation developed in which union
benefits were discussed. Howard seemingly came to the conclusion that even if a
union could not help her it would be of benefit to the other employees. She signed
the card and I find that it constitutes a valid designation.
Georgean Gaddis testified that La Rocca told her signatures were needed to bring
about an election and that she signed the card without reading it. The card is
clear and Gaddis had opportunity to read it. I find her designation to be valid.
Evangeline Lucenti Glassnei testified that she was told signatures were necessary
in order to bring about a vote in which employees could express their desires
Glassner read the authorizing language on the card before signing it. . I find that
her designation is valid
Maitha Martin testified that she was solicited on the basis that a percentage of
card signatures was essential to bring about an election; that she could vote in the
election as she desired, that if a malouty chose the Union it would become the
bargaining representative. Again the, card is clear and unambiguous. I find her
designation to be valid
Illa Mullenneix testified that she asked the union representative why he wanted
her to sign the card and received the answer that it was to determine whether
enough people favored an election. Mullenneix commented that she could not
see where it would do her any good but that she would sign it and the decision
would be up to the other people in the store This does not detract from her
designation; I find it to be valid
Edward Leinmerinan testified that he told La Rocca that he was working only
part time and did not want to sign a card which might antagonize his employer.
Upon La Rocca's insistence that the card was needed in order to bring about an
election and that no one would see it, Lemmerman, he testified, signed. La Rocca
WALKER'S 1169
denied that he told Lemmerman that the card was solely for the purpose of bring-
ing about an election and testified that Lemmerman spoke to him about his unhap-
piness at the wage he was being paid. Witnessing Lemmerman's extreme discom-
fort on the stand where, in my opinion, he was fearful that he might say something
which would offend his employer, I give. little credence to his testimony concerning
the conversations attending the card signing. The card itself is clear and unam-
biguous and I find it to be a valid designation of the Union.
Francis Hornsby testified that he was told the card was for the purpose of bring-
ing about an election. On cross-examination, Hornsby conceded that he was not
told that an election was the only purpose that the card might serve and that he
read it. The card is clear and unambiguous and I find it to be valid.
Lura Maxwell testified that after about three visits from a union representative
she signed a card and mailed it to the Union. She was told that an election would
probably be held, read the card and understood it, and in a conversation with the
union representative was told that higher wages might result. I find her card to
be valid.
Mary Huntly Jenkins testified that she was told that if a sufficient number of
employees signed cards an election would be held in which she could vote as she
desired. Although La Rocca told her, she testified, that the Union would benefit
her, she felt that this was not so and told him that because of her age she was
not interested in a union. Jenkins denied reading the authorizing language on the
card but I am not convinced that this is so. She had several visits from union
representatives and had ample time to read and understand the card. I find that
her designation is a valid one.
Mary S. Pursell testified in substance that she was told that the card was needed
in order to bring about an election in which she could vote as she pleased. She
told the solicitor, Donald Taylor, that she had not decided how she would vote.
Although Pursell testified that she did not recall reading the authorizing language
on the card, it is clear that she had opportunity to do so and I find that her desig-
nation is valid.
Marguerite Silverthorn testified that the union representative said the card was
for an election and that the Union would be the bargaining representative of the
employees if it succeeded in getting a majority of the votes. This testimony does
not detract from the efficacy of the designation card and I find it to be valid.
Louise M. Bromley testified that La Rocca told her he was trying to get enough
cards so that an election could be held Bromley told La Rocca that it made no
difference to her which way the employees voted. Bromley testified that she did
not read the authorizing language on the card. Surely she had opportunity to do
so and I greatly doubt hei recollection, many months after the event, that she did
not is to be trusted. I find her card is a valid one.
Franklin Rothenbush testified that La Rocca told him that signing the card would
make it possible to have an election in the store. This testimony does not detract
from the efficacy of the card and I find it to be a valid designation of the Union.
May Walker testified that Dorothy Copinger asked her to sign a card so that
Copinger could demonstrate to her employer that she had been working Walker
denied that she read the authorizing language on the card. There may have been
some casual comment by Copinger on this occasion to the effect that obtaining
Walker's card would show that she had been at work, but it is not credible that
this was the plea made by Copinger to obtain the signature. I find that Walker's
card is a valid designation.
Ruth C. Davis testified that La Rocca told her that the purpose of the card was
to bring about an election in which she could vote as she desired. Although at
points in her testimony Davis said that La Rocca said the card would be used
only for an election, at other times she testified that she did not recall if the card
was to be so restricted. The card is a clear and unambiguous designation of the
Union and the testimony of Davis as to what was said to her on the occasion of
signing does not in my opinion detract from its validity.
Signa Bullock testified that it was explained to her that the card was needed
"merely" to bring about an election in which she would be privileged to exercise
her choice. No doubt Bullock was told that an election was likely and probably
that she could vote as she pleased. However, the card constitutes a clear and
unambiguous designation of the Union and I find it to be valid for that purpose.
Underlying my findings of validity in connection with the signing of designation
cards is a conviction based upon circumstances later to be elaborated that long
before this hearing was held most of the card signers became fearful that any
243-084-67-vol. 159-75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admission that they had ever truly wanted union representation would earn them
the displeasure of their employer. After all the election had been lost. The
Respondent had made evident its belief that a union was hostile to the best inter-
ests of the employees and of the store. Thus it was easy to rationalize that they
did not really understand what they were doing in signing a designation card or
had been misled into doing so. I am also convinced by the testimony of La Rocca,
Taylor, Copinger, and Turney, given at the hearing, that they were engaged in an
effort to persuade Respondent's employees to support the Union in an election
should it eventuate and not in the sterile business of collecting signed cards on
whatever basis they could. Each of them testified credibly that in no circumstance
was any card signer told that signing the card was solely for the purpose of bring-
ing about an election. La Rocca testified that he did not tell any employee "that
the card was not binding on them and that they still had a freedom of choice."
This testimony is challenged by the Respondent on the basis of an affidavit given
by La Rocca in November 1964, which might be interpreted to the contrary. In
that document La Rocca said, "I told employees that the card was not binding on
them and that they still have freedom of choice and that the employees in the
secret ballot could vote against the Union for the purpose of the card was to give
them that right. This came up when I was explaining that the Union never went
to an election with less than 50 to 60 percent of the employees signing it because
eventually someone would change their vote because the card was not binding on
them to vote for us Also things would happen at election time to make them
change their minds." Reading the whole of La Rocca's November statement on
this point, I think it to be clear that he was not soliciting cards on the basis that
they were meaningless but that when the question arose as to the percentage of
cards needed, he explained that a certain number of signers could be expected to
change their minds and to vote against the Union as they had a right to do.
I find that none of the designation cards submitted are invalid by reason of mis-
representation on the part of the solicitors and that they constitute effective desig-
nations of the Union as bargaining representative of Respondent's employees.
In early March, the Union distributed handbills to employees and mailed to
many of them an explanation of its initiation fee policy. This was that there would
be no initiation fee charged to any individual until after the negotiation of a bar-
gaining agreement with the Respondent. This I find negatives the suggestion in
the testimony of some individuals that they were told that only card signers would
be exempt from the imposition of initiation fees.
On March 17, the Union wrote to the Respondent claiming that it represented
a majority of the employees in the bargaining unit and demanding recognition.
On March 24, the Respondent answered that it had no "credible knowledge" con-
cerning whether the Union represented any employees; that it doubted the claim
of majority; was uninformed as to the authenticity of any designation cards in the
Union's possession, and declined to extend recognition. Respondent's manager,
James Shuff, testified that he held the doubts outlined in the letter for a number of
reasons. In consultation with Respondent's attorney, George Richter, and George
T. Moore, who was then Shuff's superior, the conclusion was reached, based in
part upon reports from subordinate officials in the store, that the Union was
obtaining signatures to designation cards on the representation that the signers
were doing no more than evidencing a desire to gain more information about the
Union and upon the misrepresentation that everyone had signed cards. Further-
more, Shuff and Richter testified, a few weeks earlier the same Union, in connection
with an organizing campaign at another store owned and operated by City Products
Corporation in a nearby area, had taken the position that buyers and employees in
leased departments should not be included in the bargaining unit. Assuming that
the Union was taking the same position in respect to Respondent's store, the belief
was held that such a unit was inappropriate foi bargaining purposes. Of course,
as it developed, the Union did not ask for the exclusion of buyers or leased depart-
ment employees and the wording of its demand for recognition mentioned no such
exclusions. However, I am convinced that in the circumstances outlined, the
Respondent could have held a good-faith doubt as to the status of the Union either
on the basis of the number of cards of their validity and also because of a not
unreasonable uncertainty as to the scope of the bargaining unit.
C. Interference, restraint, and coercion
Shuff testified that beginning Saturday morning, April 18, he held weekly meet-
ings with all of Respondent's personnel. According to Shuff, he told the employees
in general that they should examine the promises of the Union carefully; that the
WALKER'S 1171
Union was primarily interested in the revenue it could obtain from the employees
in the form of dues and perhaps other assessments; that the Union had failed in
its attempt to organize other comparable stores in the Los Angeles area; that wages
in organized discount and variety stores ranged from $1.30 to $1.50 an hour, less
than the rate earned by some of Respondent's employees, and that any cutback of
higher wages then being ieceived would be a subject of negotiation. Shuff went
on to say that because an individual had signed a designation card he was not
obliged to vote for the Union; that the Respondent hoped that the Union's effort
would be repulsed; and that the Respondent was paying wages as high as it could
and would continue to do so. Six days before the election on May 16, Shuff
reminded the employees that in May 1965, those who had become employees of
the Respondent upon its acquisition of the store in 1960, and who were not dis-
qualified because of age, would become eligible for the pension plan offered by
City Products Corporation. He ended the meeting with the plea that the employees
"vote for me."
Shuff held additional meetings on three occasions during this period, limited to
employees over 60. He told them that they were an asset to the store and that he
had jeopardized his own position with City Products Corporation by insisting at
some time in the past that no person should be forced to retire because of his
calendar age. He reminded them that in the past 4 years of his managership, not
one older person had been discharged. Saying that many had asked him if older
employees would be terminated after the store became organized, he said this was
not necessarily so, that a mandatory retirement age would be a matter subject to
negotiation and that no arbitrary age could be set without Respondent's acquies-
cence. He reminded his audience, however, that a sister local of the Union was
on record as stating that no one over the age of 58 should be allowed to continue
working.
Edna McGinnis, who was discharged in January 1965, and who was the Union's
observer at the election, testified that Shuff said at one of the meetings that in the
event the Union was successful, employees over 65 could lose their jobs and that
the store might have to close. McGinnis testified that Thomas Pollack, her super-
visor, told her on May 21, the day before the election, that the Respondent was
not financially able to pay the wages the Union would demand and that a result
of union success could be the closing of the store.
Grace Gigliuto testified that at one of the employee meetings Shuff said
that if the Union came in the Respondent would have to close its store and that he
feared the Union would require the layoff of those over 58.
Joann Hoff, an elevator operator, testified that her supervisor, Pollack, told her
about a week before the election that the store was operating at a loss, could not
meet union wage demands, and probably would close.
Robert Guacci, a truckdriver, testified that his supervisor, Pollack, at two meet-
ings of employees, said that he did not want them to join the Union and that they
would be better off without it. About a week before the election, according to
Guacci, Pollack said that if the Union succeeded in organizing the store, the
employees might lost their bonuses, some of their privileges and their jobs. Pollack
commented, according to Guacci, that he knew who attended union meetings.
Laraine Norcross, a buyer, and a witness called by the Respondent, testified
that Wilder Morrison, director of personnel and industrial relations for City Prod-
ucts Corporation, was present at one of the employee meetings held by Shuff.
Norcross testified that at some point in this meeting Morrison commented that City
Products once owned a store "that went union" but that City Products no longer
had a store in that location.
Marguerite Van Ness, an employee for the past 9 years in cosmetics, testified
that she derives commissions directly from cosmetic suppliers amounting to approxi-
mately $1,000 annually. Two or three days before the election, according to Van
Ness, Shuff met with the employees in the cosmetic and jewelry departments, and
said that if the Union got in, the Respondent might arrange to have such commis-
sions paid directly to the store.
Fern McCormick Leham testified that Hazel Heinz, the West Coast supervisor
of Kunion Beauty Salons, Inc , one of the concessions operating in Respondent's
store, told employees in the beauty salon that she hated unions because they bene-
fitted gangsters. Heinz went on to say that the beauty salon would be discontinued
if the employees voted for the Union. Still, according to Leham, on May 19 or 20,
2 or 3 days before the election, Heinz visited the salon again and told the employees'
that if the store went Union her employer would close the shop at once. Leham
further testified that the manager of the salon, Sally Patterson, on the day of the
election said that Harold Seymour, the assistant manager of the store, wanted to
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
know how the employees were going to vote. Leham answered that it was none
of Patterson's business. On the same day, Heinz asked Leham the same question
and Leham gave her the same answer.
Irene Baxter, a buyer, testified that sometime in May she told the employees in
her department that as an expression of loyalty to their employer, a reply should
be made to some of the literature then being distributed by the Union. Soon there-
after, Baxter composed the following:
This is an expression of the undersigned employees however time did not
permit many more signing this bulletin, who would have liked to do so.
Have you talked about and carefully considered what a "YES" vote for the
union will do to us, the employees at Walker's?
Are you going to vote yourself out of a job?
Union retirement in retail clerks union is now 60, and last March they voted
for retirement at 58. Walker's is the only City Products store with indefinite
age limit employment. For you who are over 60, where can you get a job at
any pay for the output you produce here?
Are you going to get less salary and pay union dues besides? Retail clerks
in comparable department stores, now get $1.30 and $1.35 an hour-top pay
after two years $1.45 and $1.50.
Are you going to sacrifice the best medical plan available to you now with
Walker's9 Union offers choice of medical plans-none as good as City Prod-
ucts. You cannot go to your own private physician, they do not pay as much
towards hospital or doctor bills, ambulance or anaestheist etc.
Are you going to be replaced by self-service and a cashier? Yes, IF
Walker's meet union promises made to you--similar to Save-On or the grocery
stores who have Mio the employees-do five times the volume-work Sundays
and all nights.
City Products are going to show a profit for their stock holders, this would
cut all employees to "nil" would completely shut the doors to you and cus-
tomers for ever.
If you vote union in-Walker's will never become a closed shop, will not
agree to unreasonable union demands. You as a union member would be
required to strike and to picket. While you are picketing, do you think your
job will remain open for you? NO, you will be replaced. After you have
joined the union and are no longer employed at Walker's, where would you
work-no similar store will hire you-they do not want a union either.
We appreciate our medical plan, the privilege to work at any age, 15%
employee discount, vacation benefits, retirement plan for "young" ones, a
pleasant association with co-workers and management.
Remember the union promotors promise you anything and everything-can
give you nothing . Everything you get at Walker's must come from
Walker's and what they can give you.
Are you going to bite the hand that feeds you?
Vote NO Friday vote .. . .
The next day, Baxter gave this in draft form to an employee in her depart-
ment, Bernice Hauck. Although this was her day off, Hauck took it to Emma
Bruce, an employee in the general offices on the fourth floor of the store. Bruce
cut a stencil following the draft given her by Hauck and Hauck took the stencil in
to Shuff, telling him it was a "bulletin" against the Union. Shuff said that he did
not desire to read it. Hauck then took station in an office on the fourth floor of
the building. She asked buyers to send employees to her and directly solicited
other workers to come to the office to sign the stencil. About 70 did so. After
the stencil was signed as space permitted, it was mimeographed, and at closing
time Hauck passed copies to employees as they left the store. At the bottom of
the sheet was a statement to the effect that the materials were furnished by the
Respondent. Although a large number of employees from throughout the store
came to the fourth floor to affix their signatures to the stencil, both Shuff and Sey-
mour denied that they were aware of this activity.
On the morning of the day of the election before the store opened for trade but
during working hours, a large group of employees paraded throughout the several
floors of the store carrying signs urging a "No" vote.
The respondent feared that the Union might succeed in its organizing efforts
and the employee meetings were held in an attempt to blunt the Union's appeal.
Shuff denied that he made any statement to the effect that union success might
bring about a closing of the store or that he suggested that the Respondent in that
WALKER'S 1173
event would lay off its older employees. However, Edna McGinnis and Grace
Gighuto testified that he warned his audience that the Union might force the early
retirement of employees or bring about the closing of the store. Neither McGinnis
nor Gighuto is now employed by the Respondent and it may be in the case of
McGinnis that this circumstance has aroused her resentment. Furthermore, all
witnesses were testifying to happenings which occurred more than a year ago. The
likelihood of inaccurate recollection pervades the record. However, there is no
question but that the "bulletin" was prepared by Baxter, was stenciled by Bruce,
was mimeographed by use of Respondent's facilities, and was distributed in the
store by Hauck. It is beyond belief that the Respondent's managers were not aware
of what was taking place. Hauck exhibited the stencil to Shuff and he declined to
iead it. The Respondent cannot escape responsibility for this happening by a pre-
tense of ignorance. Certainly the employees who were invited by Hauck or by
the buyers in the various departments to go to the fourth floor to sign it could
only suppose that they were doing the bidding of their employer and reading what
it wanted them to believe. All employees were provided with duplications so that
all got the message. Thus they were informed in circumstances which would
cause any sensible person to understand that he was listening to the voice of his
employer:
That a vote for the Union might mean the loss of employment with little
likelihood of finding work elsewhere.
That if he was making more than $1 . 50 an hour his wage might be lessened.
That he might be replaced by a self-service arrangement.
That a strike was possible if not likely attended by the possible loss of job.
That other employers would not hire Union members.
Furthermore, even though Shuff did not read the stencil, he was told by Hauck
that it was against the Union. Knowing as he did that it was to be stenciled and
mimeographed by use of Respondent 's equipment and distributed in Respondent's
store, he cannot escape sponsorship . No doubt the Respondent hoped by seeming
to "see no evil" to avoid responsibility and at the same time to reap the benefits
flowing from the coercive language of the bulletin.
The actions of the Respondent in respect to the bulletin lend credence to the
testimony of McGinnis and Gigliuto that Shuff made similar predictions and uttered
similar threats in his weekly meetings with the employees . I find , despite the denial
of Shuff and the support of his denial in the testimony of employee Frances Bran-
nock , Advertising Manager Betty Walsh, and Buyer Loraine Norcross , that the
threats outlined in their testimony were made. Indeed, the testimony of Shuff
standing alone establishes that he attempted to arouse fears among the older
employees that the Union would force their early retirement and that only Shuff
could be and had been their protector from such a development.
Employees in the cosmetics department in 1964 , were assigned a manufacturer's
"line" to sell and were paid a commission directly by the manufacturer for all pur-
chases of that "line" made by the store . This amounts to a substantial part of the
earnings of such sales persons. Shuff testified that he had heard that the employees
in the cosmetics and costume jewelry departments were dissatisfied because in mid-
1963 the Respondent had discontinued a practice of paying a one percent commis-
sion on all sales. This change had affected all sales employees and was not limited
to those in the cosmetics or costume jewelry departments . So, nearly a year after
the change, Shuff testified," he called these employees together to explain why the
commission had been terminated and to demonstrate that their salaries had been
adjusted to compensate for that loss . He denied that he uttered any threat to
change the "line" commission arrangement and testified that when one of the
employees questioned him on that point he replied that it was something which, in
the event of union organization , would be a matter for negotiation . The record
suggests , however, that there may have been a different reason for the meeting
between Shuff and these employes. Lillian Putnam , the cosmetics buyer, testified
that she discussed the union compaign or more than one occasion with Shuff and
that Shuff commented at some point that he had been told that all of the employees
in Putnam 's department were union supporters . I find that in meeting with these
employees Shuff was not acting to allay any possible dissatisfaction with the stale
business of the one percent commission but in the belief that these employees con-
stituted a group in which union interest was strong . A threat of change in the
"line" commission arrangement was a potent one and I credit the testimony of Van
Ness that Shuff said that this might result were the Union to succeed.
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas Pollack, Respondent 's traffic manager, has about 35 employees under his
supervision. As the date of the election approached, Pollack held two meetings of
his employees. On these occasions he told them, he testified, that he had heard
rumors to the effect that he would receive a bonus should the Union be defeated
and that he had threatened older employees with the loss of their jobs should the
Union win. He denied that either of these had any basis in fact. He conceded,
however, that he did predict that the Union would insist upon an early retirement
age, that with the Union as a bargaining representative he would be unable to
arrange wage increases or permit time off, observed that no business would con-
tinue to operate at a loss, and that he was aware of the identity of those who were
attending union meetings . He denied saying anything about losing bonuses or
privileges or telling McGinnis that union success would bring about the closing of
the store.
I find that Pollack spoke to employees substantially as outlined in the testimony
of Guacci, McGinnis, and Hoff. It is apparent that the Respondent hoped to per-
suade the employees to vote against the Union by suggesting the likelihood of the
store closing, forced retirements, and the like. To the extent that Pollack's testi-
mony is in conflict with that of Guacci. McGinnis, and Hoff, I do not credit it. I
am persuaded to this resolution in part because both Guacci and Hoff are still
employed and still under Pollack's supervision . Dependent at least to some extent
as they are upon his approval for wage increases and perhaps for an occasional
hour off duty, it is most unlikely that they would manufacture testimony to support
the complaint. Guacci, in particular, impressed me as a witness unhappy about the
requirement to appear and eager to give his testimony and leave. There was noth-
ing about him (or about Hoff and McGinnis for that matter) to suggest that he
held any antipathy toward his employer.
Hazel Heinz conceded that she had spoken to the employees in the beauty salon
on two occasions about the impending election and that she may have asked some
of them how they intended to vote. She denied, however, that she said anything to
the effect that the closing of the salon would follow upon a union victory. It may
well be that Leham harbors some resentment against Patterson and the Respondent
over her discharge some months after the election. Even with this factor in mind I
credit Leham. Her testimony was circumstantially detailed and unshaken in any
important respect by cross-examination . Because Leham's testimony that she was
hired by the manager of the salon, Sally Patterson, in August 1963, stands unde-
nied, I find that Patterson is a supervisor within the meaning of the Act. Her
questioning of Leham about how Leham intended to vote is attributable to the
Respondent.
In the period from March 1 through May 1, the Respondent gave wage increases
to about 113 of its nonsalaried employees. The increases were small and only a
few of them exceeded five cents an hour. Although Respondent has followed a
practice of selecting employees each year to receive increases , some of those who
were so favored in the spring of 1964 had not been raised for several years. At
all times in the past the increases had been based upon evaluations of persons under
consideration with the aid of performance rating sheets prepared by the supervisor
or the buyer in the department where the individual worked . In the spring of 1964,
this practice was not followed . Shuff and Assistant Manager Seymour, upon the
basis of personnel records, decided which individuals should be given raises. Shuff
explained , rather lamely , that time did not permit him to have the usual ratings
prepared, that he and Seymour could do the job much faster and that the two of
them managed to get the job done in about three months . Apparently about half
of the employees received raises. The logic of the situation seems to lead to the
conclusion that Shuff and Seymour would have saved much of their own time had
they received the aid of employee ratings and that the raises could thus have been
effected more quickly if that was Respondent 's desire. Furthermore, Shuff's testi-
mony that individual selling records were helpful in reaching decision on whether
to grant an increase , leaves unexplained how he evaluated about one-third of the
employees in nonselling jobs for which such records do not exist. No doubt both
Shuff and Seymour had opportunity from time to time to observe the work per-
formance of employees . These opportunities would seem, however, to be minimal
in comparison with those of the persons directly in charge of the several depart-
ments. There is no evidence that the giving of wage increases was publicized
although it may be permissible to infer that such changes generally do not remain
secret. The Respondent may have been trying to dilute the interest the employees
WALKER'S 1175
held in the Union in this fashion, but I am not convinced that this was so .5 The
increases were small; hardly enough to persuade anyone who though that bringing
in a union would mean more money in the wage envelope to conclude that the
battle was won Furthermore, any dubious dividend of good will accruing to the
Respondent by this action was likely to be diminished or even canceled by the
resentment of those who were passed over. I do not find that the granting' of
wage increases in the circumstances recited amounted to interference , restraint, or
coercion of the employees.
On May 18, four days before the election , Shuff met with the buyers. One of
them asked Shuff how he thought the election would go. He replied that those
assembled were closer to individual employees than he and should better be able
to answer the question. Shuff then asked each individual how he thought the
employees in his department would vote. Some essayed to answer ; two did not.
Seymour tabulated the responses.
Within a day or two of this meeting, according to the testimony of Marguerite
Van Ness, an employee in the cosmetics department, her buyer, Lillian Putnam,
said to Van Ness and two other employees that Putnam had to know how they
were going to vote. One of them, Marian Krug , answered that she would vote as
she pleased. Putnam replied that employees had been getting a living from the
Respondent for a number of years and that she had a right to the information.
Thelma Bostwick, then working in the department for which Laraine Norcross was
buyer, testified that at about the same time Norcross said that she had to know
how Bostwick stood on "this Union business." When Bostwick asked if she was
serious, Norcross replied impatiently that she was. Bostwick gave her an incon-
clusive answer . Counsel for the General Counsel argues that buyers were Respond-
ent's agents , encouraged to poll employees to determine the amount of sentiment
for the Union. I am sure that some.of the buyers considered , themselves to be a
part of management even though, as will be found, the evidence does not establish
them to be supervisors. This belief was a reasonable one and surely was shared
by the employees in the selling departments . Although buyers appear to have
given directions to employees only in respect to matters not involving the exercise
of independent judgment, still it was direction based upon authority arising from
the employment relation. Buyers also rated employees in connection with annual
or semiannual wage increases . The evidence is that Shuff or Seymour then independ-
ently determined who would be given a wage rise but the buyers nonetheless
participated in this action. Employees could hardly have avoided the conclusion
that a route to preferment was through the buyer and to this extent at least buyers
appeared to be management . When Shuff evidenced interest in how the employees
would vote, some of the buyers followed through on what was at least a suggestion.
I find that the Respondent encouraged its buyers to poll the employees and that
the employees could reasonably have concluded that the buyers, in doing so, were
acting for management.
Following the filing of the representation petition in March 1964, a hearing was
held in which testimony was adduced bearing upon the status of Respondent's buy-
ers. After this testimony was in , the Respondent and the Union entered into a
stipulation which in effect constituted an agreement that the buyers were not super-
visors and thus were within the bargaining unit . After losing the election the Union
asserted that the conduct of the buyers contributed to that result and asked the
Regional Director to attribute the actions of buyers to the Respondent upon the
ground that, after all, buyers are supervisors . The Regional Director found no
merit in the Union's claims about supervisory status both on the basis of the stipu-
lation referred to and on the record evidence concerning the powers and duties of
buyers. Now, the General Counsel argues, he should not be bound by this deter-
mination because he was not a party to the stipulation in the representation case
and because the buyers are in fact supervisors . I permitted evidence to be taken
concerning the authority of buyers and I conclude , as did the Regional Director,
that they do not exercise supervisory authority within the Act's meaning.
Doreen Andal, Respondent 's comptroller , is admittedly a supervisor and has a
number of office employees under her direction . One of these, Solveig Berglund,
testified that shortly before May 1, while commenting favorably on Berglund's work
51 recognize that what is controlling here is not whether the Respondent intended to
allure the employees from the Union by means of wage increases but whether the increases
reasonably tended to interfere with Section 7 rights. I find that they did not See
American Freightways Co., Inc., 124 NLRB 146, 147.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and while telling Berglund that her wage rate was being increased, Andal accused
Berglund of "talking union" to sales personnel. Berglund said that this was untrue.
Andal then said that Berglund favored the Union. Berglund answered that she
was interested in both sides. Andal commented that Shuff was "very concerned"
about Berglund's feelings toward the Union and had asked Andal to speak to her
about it. Ethel Harrington, another employee under Andal, testified that a few
days before the election Andal asked her how she felt about the impending vote.
Harrington answered that she was interested in anything that would mean more
money. Andal denied that the Union or Shuff's name was mentioned to Berglund
on the occasion described. As to Harrington, Andal testified, rather than asking
Harrington how she would vote, it was Harrington who asked for advice in the
matter. Andal then replied that Harrington must use her own judgment. Both
Berglund and Harrington are still in Respondent's employ and each of them, I am
convinced, has been and hopes to remain on friendly terms with Andal. I credit
their testimony and disbelieve the disclaimers of Andal. It was Respondent's policy
and purpose to discourage support for the Union and it would be strange indeed
if Andal did not participate in its effectuation.
D. The discharge of Edna Mashburn
Edna Mashburn was discharged on April 21 after 10 years' employment as a
marker. Her supervisor, Thomas Pollack, evidenced his satisfaction with her work
performance in rating reports dated February and August 1963, which characterized
her as a "very excellent worker," "far above average," "very dependable & efficient,"
"well liked," "very cooperative," and "will do anything ask[ed] of her." Pollack
was not asked to rate Mashburn in the spring of 1964, this task was performed by
Shuff and Seymour. In February or March, returning to work after an extended
absence, Mashburn asked Pollack what had happened at an employee meeting held
while she was away. In the course of his answer, Mashburn testified , Pollack
remarked that he did not think that the Union would do the employees any good.
Mashburn replied that she thought that it would and added that the store needed a
union. Pollack denied that the Union was mentioned in any conversation he held
with Mashburn.
About April 1, Shuff called Mashburn to his office and told her that he had
received complaints about errors she was making in marking . Shuff said that he
knew Mashburn could do better work and Mashburn said that she would try. On
April 15, Mashburn's wage rate was increased by 5 cents an hour. On April 21
she was again called to Shuff's office. Shuff exhibited some mismarked merchandise
to her and said that so many errors were upsetting the buyer in the department
affected , Jennie Westfall. Mashburn protested that she did not believe she had
made the mistakes attributed to her and told Shuff of a mixup on pricing some
items for Westfall's department. Shuff then discharged her.
Westfall testified that she complained first to Pollack, and later to Seymour and
Shuff, beginning in December 1963, about errors in marking her merchandise.
According to•Westfall the marking errors probably brought about losses of several
hundred dollars She last complained about mismarkings to Shuff in April.
Shuff testified that he had no information about Mashburn's feelings toward the
Union and was concerned only with the fact that she seemed to be making an
inexcusable number of errors. On the occasion of discharge, Shuff testified, Mash-
burn said that she did not intend to give good service to Westfall. Shuff then told
Mashburn that she had left him no alternative; that she was discharged.
It does not seem unlikely that, on an occasion when her work was the subject
of criticism, Mashburn would so recklessly threaten to continue making the errors
she was accused of committing. Her testimony on cross-examination, however,
indicates that this is just what she did. Mashburn admitted that she was annoyed
by the fact that Westfall had again complained about her and that she confided
her dislike for Westfall to Shuff. She further conceded that she "could have" told
Shuff that she intended to give poor service to Westfall, whereupon Shuff said "some-
thing like" he had no alternative but to terminate her.
Crediting Mashburn, I find that she told Pollack on some occasion before her
discharge that a union was needed in the store. It does not follow as of course,
however, that her attitude in this area was reported to Shuff. Pollack valued
Mashburn's work highly and I think would not have attempted in any way to pro-
vide cause or excuse for her discharge. Mashburn thought that the criticisms
directed to her work by Westfall were unmerited. Perhaps they were There is
WALKER'S 1177
some possibility that Mashburn was charged with mistakes that should have been
attributed to others. But Westfall didn't think so and neither did Shuff. I find
that Shuff reasonably believed, upon the occasion of his last interview with Mash-
burn, that the latter was so resentful of the complaints voiced by Westfall as to say,
in effect, that she would make no attempt to do accurate and satisfactory work on
merchandise going to Westfall's department. Her discharge followed. I find that
it was not based upon discriminatory considerations.
E. Interrogation by Respondent's counsel
Counsel stipulated that in September, October, and November 1964, Respond-
ent's counsel, David A. Maddux, interviewed approximately 160 of the employees
in the bargaining unit and that the interviews were held in an office in Respondent's
store. Maddux told those he spoke to that their employer had been accused by
the Union of engaging in "certain technical violations of the National Labor Rela-
tions Act" and that it was his purpose to learn the facts about the charges in order
properly to represent the Respondent. At the outset, Maddux said, "I want you
to understand that the questions I ask and the answers you may give to them have
absolutely nothing whatever to do with your job here at Walker's or your future
here at Walker's. They are solely for the purpose of assisting me in my investiga-
tion. I am not personally interested in whether you are sympathetic to or in favor
of the Union, or against it. I am interested in learning the true facts pertaining
to these charges. I do want you to understand that your answering my questions
is entirely voluntary on your part. You do not have to answer any questions and
your refraining to answer will not be held against you in any way."
The questions were:
1. Has anyone ever attempted to get you to sign a Union authorization card?
a. How many times?
b. When
c. Who else was present?
d What was said by the person about the purpose of signing the card?
2. To refresh your recollection, did the person seeking to have the card
signed say anything to the effect:
a. The only purpose for signing the card was to get an election;
b. That the card did not mean anything, all it was for was for an election;
c. That you were the only person in your department, or in the store, who
had not signed a card;
d That if you did not sign the card, when the Union came in you might
lose your job;
e. That if you signed the card now, when the Union came in you would not
have to pay any initiation fees;
f. That if you wanted to receive more information from or learn more
about the Union, you should sign a card or that signing a card merely puts
you on the mailing list;
g. That signing the card authorized the Union to represent you for purposes
of collective bargaining with them.
3. Did you sign a card?
4. Did you read the card before you signed it?
5. Why did you sign the card? (Asked of some employees.)
6. By signing the card did you intend to authorize the Union to represent
you for purposes of collective bargaining9
7. By signing the card did you intend to authorize the Union to represent
you for collective bargaining even though a majority of the employees had
voted against it?
8. Did you ever change your mind about the Union?
a. When?
b. What caused you to change your mind?
9. Have you answered the foregoing questions fully and completely to the
best of your recollection?
10. Do you have anything that you would like to add or say in addition?
11. Have you given a statement to an agent of the National Labor Relations
Board?
When these interviews took place, no complaint had issued. However, a copy
of the charge alleging an unlawful refusal to bargain had been served along with
a request that the Respondent provide the Board's Regional Director with a written
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
account of the facts and a statement of position concerning the charge. I conclude
that the questioning of employees was not unlawful solely because no complaint
had as yet issued upon the charge. The question of what may be permissible
interrogation in such circumstances is a troubling one. Counsel for the Respondent
had a duty to his client to discover as best he could what evidence might be avail-
able to the Union to support its charge and thus available to the General Counsel
to support a complaint. It is part of the same duty for such counsel to discover,
if he can, evidence which might persuade the General Counsel that no complaint
should issue. Employees have a right, guaranteed by statute, to engage in con-
certed activities or to refrain from doing so. I think it to be a corollary of those
rights to be free from any questioning about whether they have been invoked and
how. Respondent's employees had validly designated the Union to represent them
and through the Union had charged that the Respondent had unlawfully refused to
honor that designation. This placed the question in controversy, and, I find, privi-
leged the Respondent through its counsel to conduct an investigation free from
retaliatory threats or promises of benefit reasonably designed to provide an answer
to the Union's claim. If counsel could show by interviewing employees that they
had been misled by the Union's solicitors; had been duped, or had not in fact
executed the designations as claimed, I think that he was free to do so. The inter-
views were conducted in an atmosphere ostensibly free of compulsion but no soft
words of counsel could be expected to erase from the minds of the employees a
recollection of what their employer had said during the campaign preceding the
election. They knew that the selection of a bargaining agent had been described
to them as a step toward unemployment. No doubt many of those interviewed
attempted to justify their actions to Attorney Maddux, as they did later as witnesses
in this hearing, by asserting that they did not really understant what they had done,
that they had been the victims of a glib sales campaign, and that of course they
did not want a union interposed between them and their employer. Furthermore,
in preparation for the interviews, all employees had been told in writing by the
Respondent that:
You solidly affirmed our beliefs by voting to reject the Union in the NLRB
election by a majority of over two to one. Surely the Union knows just as
well as we do that an overwhelming majority of you have never, at any time,
wanted it to represent you, or it would agree to another secret ballot election.
Obviously the Union knows it would lose any election by an even greater
margin than before. So, knowing it can never win a free and democratic
election, it has filed a technical legal charge in an attempt to force a union
contract upon you, against your will.
Let me assure each one of you that we are not going to stand by and do
nothing, while the Union tries to force itself upon you. We have instructed
our attorneys to protect you and your rights. In the next few weeks our
attorneys may want to discuss this matter with you personally. You can all
help in protecting your rights by giving your full cooperation to them.
It would be a bold and chauvinist employee who would decline to be interviewed
or who would not respond to this invitation Jo say that of course he did not want
a union and never did. One employee, Liberty Guacci, admitted that upon the
occasion of his interview, he told Maddux, contrary to fact, that he had never
signed a designation card.
In any event, questions about an employee's subjective state of mind at the time
of signing an unambiguous designation and whether he has given a statement to
an agent of the Board, seem clearly under the decisions 6 to be well beyond the
scope of permissible inquiry and to constitute an unlawful invasion of rights guar-
anteed in Section 7 of the Act. I find that the questioning in the interviews con-
ducted by Maddux exceeded permissible bounds.
F. Conclusions
It has been noted that the Union had not gained majority status when it made its
request for recognition on March 17. It did not reach that position until March 25.
So when the Respondent on March 24 refused recognition and expressed its
doubt that the Union held cards from more than half of the employees, no excep-
tion can be taken to its action on the basis of facts then existing. But thereafter
9 Johnntie'a Poultry Co., 146 NLRB 770. Although this decision was set aside by the
8th Circuit, 344 F.2d 617, I do not believe that the Board has departed from the prin-
ciples there enunciated.
WALKER'S 1179
much happened. Almost immediately the Union secured sufficient designations so
that it did attain the majority status which it had prematurely claimed. Quickly
the Respondent embarked upon a course of unfair labor practices demonstrating
that whatever doubt it entertained about the number of adherents the Union had
attracted, it, the Respondent, was going to insure that this support was diminished
or destroyed. The Respondent was not really content to let the question be settled
through an election as its March 24 letter asserted. It was its purpose to and
it did use the time preceding the election to frighten the Union's followers. Absent
the unfair labor practices upon the part of the Respondent, its protestations of good
faith doubt might be credible. But Respondent's refusal to recognize the Union
was motivated, I find, not by the principle that it should not deal with a labor
oiganization without persuasive assurance that its employees had freely chosen it
to act for them, but rather by a determination that it would deal with no union at
all. In these circumstances it is clear, and I find, that any demand for recognition
by the Union after it had obtained the additional designations would have been
futile. The Respondent's objection to the Union was not based upon considera-
tions of arithmetic or upon the desires of its employees. I find that by refusing
after March 25 to extend recognition to and refusing to bargain with the Union
the Respondent engaged in unfair labor practices within the meaning of Section
8(a)(5) of the Act.
The explicit and implicit threats to continued employment or forced retirement
set forth above in the talks Shuff made to the employees generally and to the older
employees in particular; the dire consequences of a union victory spelled out in the
"bulletin" composed by Baxter and distributed by Hauck in circumstances indicat-
ing Respondent's approval, if not sponsorship; the intimation by Wilder Morrison
that if the Union won, Respondent's parent might not keep the store; the suggestion
by Shuff that buyers poll their employees concerning their attitude toward the
Union and the polling which eventuated; the threats by Pollack about closing the
store, loss of benefits, forced retirements, and his comment that he was aware of
the identity of those who attended union meetings; Shuff's intimation to the cos-
metics department employees that they might lose all or a portion of their "line"
commissions; Heinz' threats to close the beauty salon and the questioning by Heinz
and Patterson of employees concerning their voting intentions; Andal's questioning
of employees about their feelings toward the Union; and the systematic interroga-
tion of employees by Respondent's counsel, particularly in the area of their sub-
jective intentions in signing designation cards and whether they had given state-
ments to Board personnel. constitute in the context of this case, interference with and
restraint and coercion of employees in the exercise of rights guaranteed in Section
7 of the Act. The Respondent thereby has engaged in unfair labor practices within
the meaning of Section 8(a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent !set forth in section III, above, occurring in
connection with its operations described in section I, above, have a close, intimate,
and substantial relation 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 certain unfair labor practices,
it will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent has unlawfully refused to bargain with the
Union as the majority representative of its'employees in an appropriate unit, it
will be recommended that upon request. the Respondent so bargain, and if an agree-
ment is reached with the Union, reduce it to writing and sign it. .
Because I consider the conduct of Respondent, as detailed in the body of this
decision, to manifest a determination to deprive employees of statutory rights, it
will be recommended that the Respondent be ordered to cease and desist from
infringing in any manner upon rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Bishop and Malco, Inc., d/b/a Walker's, Long Beach, California, and its
licensees are engaged in commerce within the meaning of Section 2(6) and (7)
of the Act. .
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Retail Clerks Union Local No. 324, Retail Clerks International Association,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
3. By threatening employees with a curtailment or cessation of operations, by
suggesting that older employees would be forced into retirement, by threatening
a change in cosmetics commission arrangements, and by questioning employees in
a context of coercion respecting their feeling about the Union, the Respondent has
engaged in, and is engaging in, unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. All regular full-time and part-time employees of the Respondent and its
licensees at the Long Beach store, excluding professional employees, guards and
supervisors as defined in the Act, constitute a unit appropriate for purposes of
collective bargaining within the meaning of Section 9(b) of the Act.
5. On and since March 25, 1964, the Union has been and now is the majority
representative of Respondent's employees in said appropriate unit for purposes of
collective bargaining in respect to wages, hours, and other terms and conditions of
employment within the meaning of Section 9(a) of the Act.
6. By refusing since March 25, 1964, to recognize the Union and to bargain with
it, the Respondent has engaged in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
7. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
8. The evidence does not establish that the discharge of Edna P. Mashburn was
in violation of Section 8(a)(3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in the case, I recommend that Bishop and Malco, Inc., d/b/a
Walker's, Long Beach, California, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with curtailment or cessation of operations; suggest-
ing that older employees will be forced into retirement; threatening a change in the
commission arrangement of cosmetics department employees; questioning employ-
ees in a coercive context concerning the Union or activities in behalf of the Union;
suggesting that union meetings are under surveillance; or in any other manner inter-
fering with, restraining, or coercing its employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist Retail Clerks Union
No. 324, Retail Clerks International Association, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of their own choos-
ing; and to engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from engaging in any or all such
activities except to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment as authorized
in Section 8(a)(3) of the Act.
(b) Refusing upon request to bargain with the Union as the exclusive represent-
ative of all employees in the appropriate unit.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request of the Union bargain with that organization in respect to
wages, hours, and other terms and conditions of employment and if an agreement
is reached, reduce it to writing and sign it.
(b) Post at its store in Long Beach, California, copies of the attached notice
marked "Appendix." 7 Copies of said notice to be furnished by the Regional Direc-
7 In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
WALKER'S 1181
tor for the Board's Region 21, Los Angeles, California, shall, after being signed by
an authorized representative of the Respondent, be posted by the Respondent
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 the Respondent to
insure that said notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 21, in writing, within 20 days after
receipt of this Decision and Recommended Order what steps have been taken in
compliance.8
8In 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 ALL EMPLOYEES IN THE STORE
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL recognize and bargain collectively upon request with Retail Clerks
Union No. 324, Retail Clerks International Association, AFL-CIO, as the
exclusive bargaining representative of all employees in the appropriate unit
described below with respect to wages, hours of employment, and other terms
and conditions of employment, and if an agreement is reached, embody it in a
signed contract. The appropriate unit is:
All regular full-time and part-time employees including employees of
licensees in the store, excluding professional employees, guards and super-
visors as defined in the Act.
WE WILL NOT interfere with, restrain, or coerce employees in the exercise of
their rights to engage in or to refrain from engaging in union activities by
questioning them in a context of coercion concerning their union activities or
interests, suggesting the loss of commissions or any privileges or benefits,
threatening directly or indirectly that adherence to the above-named Union or
any labor organization might bring about the closing of the store or result in
forced retirements, intimating that union meetings are kept under surveillance,
or in any other manner interfere with, restrain, or coerce employees in the
exercise of the rights to self-organization, to form labor organizations, to join
or assist the above-named or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from engaging in any or all such activities except
to the extent that such rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment in conformity
with Section 8(a)(3) of the Act, as amended.
All employees are free to become or remain, or to refrain from becoming or
remaining, members of any labor organization except to the extent mentioned
above.
BISHOP AND MALCO, INC., d/b/a WALKER'S,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may , communicate directly with the Board's Regional Office, 849
South Broadway, Los Angeles, California 90014, Telephone 688-5229.