Watkins Furniture Co.

National Labor Relations Board - Board Decisions

Jul 25, 1966

160 N.L.R.B. 188 (N.L.R.B. 1966)

188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, Sixth
Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas 76102, Tele-
phone 335-4211, Extension 2145.
Watkins Furniture Company, Watkins-Pearl , Inc., Watkins-
Southgate Furniture Co., Watkins -Great Northern Furniture
Company, Forman Furniture Company , Watkins-Euclid Furni-
ture Co., Inc. , and Watkins-Mentor Furniture Co. and Retail
Store Employees Union Local 880, Retail Clerks International
Association , AFL-CIO and the Employees Committee , Party of
Interest. Case 8-C-1-4047. July 25,19(76
DECISION AND ORDER
On April 27, 1966, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision, a supporting brief, and a brief in opposition
to the cross-exceptions of the Charging Party; and the Charging
Party filed cross-exceptions, a supporting brief, and a brief in oppo-
sition to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
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 exceptions, cross-exceptions, briefs,
and the entire record in this case, and it hereby adopts the findings,
conclusions, and reconunendations of the Trial Examiner with the
following modifications :
We agree with the Trial Examiner that the evidence establishes
that Respondent interfered with the administration of, and contrib-
uted support to the Employees' Committee in violation of Section
8(a) (2) and (1) of the Act. We do not agree, however, with the Trial
Examiner's further finding that the evidence establishes domination
of the Employees' Committee by Respondent.'
See Iri i,iq An Chute Company, 149 NL11B 627, 641.
160 NLRB No. 20.
WATKINS FURNITURE COMPANY -Ag
[The Board adopted the Trial Examiner's Recommended Order,
with the following modifications :
[1. Delete the word "dominating" from paragraph 1(e).
[2. Delete paragraph 2(b) and substitute therefor the following
paragraph 2(b) :
[" (b) Withdraw and withhold all recognition from the Employ-
ees' Committee, or any successor thereto, as the exclusive representa-
tive of its employees for the purpose of dealing with it concerning
grievances, wages, rates of pay, hours of employment, or other con-
ditions of employment, unless and until such organization shall have
been certified by the Board as the exclusive representative of such
employees."
[3. Delete the third paragraph of the notice and substitute therefor
the following paragraph:
[WE WILL withdraw and withhold all recognition from the
Employees' Committee, or any successor thereto, as the exclusive
representative of our employees for the purpose of dealing with
it concerning grievances, wages, rates of pay, hours of employ-
ment, or other conditions of employment, unless and until such
organization shall have been certified by the Board as the exclu-
sive representative of such employees.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceding , heard before Frederick U. Reel at Cleveland, Ohio, on Febru-
ary 1 to 3, 1966 ,1 pursuant to a charge filed the preceding October 20 and a com-
plaint issued November 23, concerns allegations that Respondents , herein jointly
referred to as the Company , countered the organizing efforts of the Charging Party,
herein called the Union , by various acts of interference , restraint, and coercion, by
dominating or supporting a "company union," by discriminating against employees
for union membership or activity, and by refusing to bargain with the Union which
represented a majority of the Company 's employees . Upon the entire record,2 includ-
ing my observation of the witnesses , and after due consideration of the opening
briefs filed by the parties and of Respondents ' reply beef , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATIONS INVOLVED
The pleadings establish , and I find, that the Company, which consists of seven
affiliated Ohio corporations, each of which is engaged at a separate location in the
Cleveland area in the operation of a retail furniture store, constitutes a single
employer engaged in activities affecting commerce within the meaning of Section
2(6) and ( 7) of the Act and subject to the Board's jurisdiction under its standards.
The pleadings further establish , and I find, that the Union is a labor organization
within the meaning of Section 2 ( 5) of the Act. The complaint alleges and the
answer denies that a group known as the Employees' Committee is also a labor
organization , I find upon facts set forth in greater detail infra that this group is an
1 Unless otherwise noted, all other dates herein refer to the year 1965.
2 The transcript is hereby corrected in accordance a ith the stipulation of the parties.
Also, pursuant to stipulation , Joint Exhibits A-t through 11 are hereby admitted into
evidence Finally, Respondents ' motion of March 31, 1966, to make further corrections in
the transcript is hereby granted.
190 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
"organization " or "agency" or "employee representation committee . .. in which
'employees participate and which exists for the.purpose, in whole or in part, of
dealing with [ the Company ] concerning grievances ," and is therefore a "labor
organization" within the meaning of Section 2(5).
II. THE UNFAIR LABOR PRACTICES
A. The Union's organizational campaign '
In the late summer of 1965 the Union conducted an organizing campaign among
the furniture salesmen employed by the Company at its seven stores.3 During the
course of the drive, the Union held a meeting on September 15 at the Versailles
Motel, at which a number of men signed cards authorizing the Union to represent
them, and at which six employees were named as "contact men" between the Union
and the employees. The six employees thus designated were Harold Salavon, John
Rogers, James Barry, John Litrico, George Spence, and John: Mindala, one from
each of the stores except the Lakeshore store. By September 17, the Union had
obtained signed authorization cards from 21 of the 40 employees in the unit.4
One employee at the Mentor store, William Diday, received a card from Salavon
but declined to sign it, although he did print his name and address on the card- for
the purpose of enabling the Union to communicate. further with him. Some days
later Store Manager Wertheim approached Diday in the store and asked if Salavon
"was the one that approached you about joining the Union?" Diday replied, "I don't
know anything."
On September 16, the day after the union meeting at the Versailles, Broadway
Store Manager Brill told employee George Spence: "I understand you were at a
meeting, a union meeting last night." Spence admitted the fact, and Brill continued
that Company President Silver had told him of Spence's attendance at the meeting.
Brill added that he thought it a "kind of stupid thing" for Spence to have done, and
also inquired whether Spence had signed a union card, which Spence admitted. Later
Brill told Spence not to worry about his job, as Brill had told Silver that Spence had
not signed a card. Some days later Brill remarked to Spence that there were two
"finks" 5 in the union organization.
On September 21, James Bird, credit manager at the 89th Street store, asked
Rogers "how you're making out with the Union." Bird indicated that Rogers need
not tell him as it was "actually none of [Bird's] business," but Rogers replied that
they "had done pretty good."
B. The discharges and transfers of September 23 and 24
Louis Rippner, vice president of the Company, returned to his office at noon on
September 22, after a week's absence. The next day a number of salesmen, including
Mindala and Barry, were attending a sales meeting at the Company 's main office.
During the course of this meeting Rippner called Mindala and Barry, separately,
into his office, and notified each that effective the following Monday they were being
transferred to other stores. Rippner told Barry that "for the benefit of the Company
and the members involved" Barry would be moved from the Southland to the Men-
tor store, a change which added 70 miles daily to Barry's travel. Rippner told Min-
dala that "We need a good salesman out at the Euclid store," and transferred him to
that store from Southgate.
That same afternoon Rippner discharged Spence, stating that the Company was
cutting the force, that Spence's sales were not good, and that it would be best for
both Spence and the Company that they part. Also on that Thursday, Company
President Silver discharged Rogers, stating that the latter's sales were down for the
year and the Company "couldn't afford to keep [him] any longer." The following
day, Rippner discharged Salavon, stating that with Barry's transfer to that store,
The pleadings establish, and I find , that a unit composed of the salesmen was ap-
propriate The parties stipulated that the unit consisted of 40 employees at the time of
the Union ' s request to bargain The Company has collective -bargaining agreements with
other unions covering the truckdrivers and the furniture refinishers
4 The card signers included all seven of the employees at the Lorain Avenue store, five
out of seven at Southgate , four out of seven at Southland , two out of four at Broadway,
two out of five at Great Northern , and one out of five at Mentor
c Webstera New Collegiate Dictionary, 1959, defines "fink" as slang for "an informer or
squealer "
WATKINS FURNITURE COMPANY 191
Salavon as the lowest in seniority would have to go. Rippner declined Salavon's
request to be transferred to another store. Finally, on Friday or Saturday, Septem-
ber 24 or 25, Sales Manager Hartman notified employee George Fritz of the latter's
transfer from Southland to Broadway to replace Spence.
The Union filed unfair labor practice charges on September 24 alleging discrimi-
nation against Spence, Rogers, Barry, and Mindala, and on September 28 alleging
discrimination against Salavon. The Union also filed petitions for certification on
September 24, covering the Lorain, Southland, and Southgate stores, which were
alleged as separate units On the same day the Union sent telegrams to the Com-
pany, claiming to represent the salesmen at the three stores. On Wednesday, Septem-
ber 29, Company Counsel Glickman advised Vice President Rippner that Union
Counsel Finley had requested Glickman to prevail on the Company to reinstate
the discharged employees and undo the transfers. Glickman advised Rippner to do
so to avoid "bitter feeling among the Union people," and the Company on Wednes-
day night, September 29, decided to follow this advice. All six men were restored
to their original jobs on or before October 4, and the Company paid the discharged
men for the week they had missed.
The day after,Salavon's discharge, when he went to his store for his paycheck,
Store Manager Wertheim took him into the office and stated that he was "disap-
pointed in" Salavon, and in "the things that transpired." Salavon replied that he had
done what he thought was necessary "to get things done," to which Wertheim
rejoined by asking if Salavon "thought that was the way, or that was the best way?"
On Saturday, October 2, when Company President Silver saw Salavon at Silver's
office, he told Salavon he was "willing to forget about this Union activity," and
reemployed Salavon, telling him that he would "have a future with us if you just
behave yourself." 6
When Spence returned to work on October 4, Store Manager Brill expressed
pleasure at the event, to which Spence commented that he did not know why he
had to leave. Brill asked, "Did you hand out any cards?" and upon Spence's affirma-
tive reply, continued: "That's your answer." 7
C The 'Employees' Committee"
Largely through the efforts of one Whitcomb, a salesman at the Mentor store, a
meeting was held on Thursday or Friday, September 30 or October 1, at the Sahara
Motel, attended by Rippner and Silver on behalf of the Company and by Whitcomb,
Barry, Fritz, and Mindala. The management representatives stated that "they were
hurt" because the employees had gone to the Union "behind their backs," and the
employees responded by telling of their grievances, notably dissatisfaction with the
sales manager, with certain reductions in their commissions, and with Saturday
night work. The Company officials responded that they had had no idea of the dis-
satisfaction and "would do whatever they could to rectify it." They agreed to take
steps to eliminate the contacts between the salesmen and the sales manager, stated
that the pay scale and commissions would be reevaluated at the end of the year,
and agreed to adjust the Saturday night problem by giving the men who had to
work then a morning off.
The company representati' es also stated that they would reinstate to their former
positions the men just discharged or transferred. Although, according to Rippner's
testimony, noted above, this decision had been reached on the preceding Wednes-
day, as the result of conversations initiated by union counsel, the record is clear
that no such explanation was vouchsafed to the employees at the Sahara meeting.
Indeed, the Union appears not to-have figured in the conversation, but the men did
discuss the possibility of a "guild," a "committee," or a "company union." They
decided that the employee representatives would communicate with their fellows to
discuss further the formation of some such organization.
On Saturday, October 2, seven employee representatives (Litrico, Perusek, and
Rogers in addition to the previous four representatives) met again at the Sahara
Motel, this time in the absence of management. The store managers gave these men
° Company President Silver did not testify Cf NL R B v Elias Bros Big Boy/, inc. 327
F.2d 421 , 427 (CA 0 ). See note , 5 ALR 2d 893, 896-898, 907-908, 909-911
The testimony of Spence and Salavon concerning the statements of Brill , Wertheim,
and Silver is uncontradicted , and I credit it A similar statement , attributed by Mindala
to Rippner and denied by the latter , would , if credited , be purely cumulative , and I there-
fore make no finding with respect thereto.
192 DECISIONS.OF NATIONAL LABOR RELATIONS BOARD
permission ' to take time off from work to attend the meeting . After some discussion
the group broke up to return to their several stores to discuss with their fellow
employees whether to "go along with the proposals and promises of management"
and to form a committee to meet monthly with management . The salesmen in the
several stores approved this course . On Sunday , October 3 ; the same seven employ-
ees met with Rippner and Silver in a brief session at the Sahara Motel, and the
various proposals previously discussed , including the formation of a committee, were
finally agreed to. Management at that meeting as at a previous meeting assured the
employees there "would be no reprisals" and they "would forget that this ever tran-
spired ." The employees did not pay the room rental at the motel for any of the
three meetings.
The employees in the several stores proceeded the following Monday during work-
ing hours to elect their respective representatives to the Employees ' Committee. The
sole meeting of the Employees ' Committee with management occurred later that
week Company President Silver called the committee together , and stated that he
was disturbed over reports that the committee had been collecting funds from the
men. The committee members explained that they wanted a "kitty " to cover pos-
sible expenses , such as hiring a lawyer or paying for room rental . Either Silver or
Rippner replied that as to meeting rooms, they could use company property or send
the Company the bill if they rented motel space, and that they "didn't need any legal
fees or need any legal advice." Silver further stated that "He wasn ' t having any man
collecting money for that purpose ," that they were merely a grievance committee,
and that if they desired to negotiate wages they needed a union. A second meeting
of the Committee with management , scheduled for a few days later, was canceled
by management , and no subsequent meetings have been held.
D. The representation proceeding and the bargaining requests
As noted above , the Union on September 24 and 28 filed with the Board unfair
labor practice charges and also filed on September 24 separate petitions for certifica-
tion covering three separate stores. A consolidated hearing on the representation
petitions was held on October 13 , in the course of which the Union took the posi-
tion that each separate store constituted an appropriate unit, and the Company took
the position that a single unit composed of all seven stores was the only appropriate
unit.
On Friday , October 15 , only 2 days after the hearing in the representation case
and a week before briefs were due in that proceeding , the Union in a telegram to
the Company reasserted the Union 's request for recognition as representative of the
salesmen in the three stores, and "alternatively" requested recognition as representa-
tive of the salesmen in all seven stores . In this telegram the Union claimed majority
status in the three stores separately and also in the seven taken as a whole altered
to prove its claims by submitting proof to an impartial third party, and asked for
the opening of bargaining negotiations in either the single seven-store unit or in the
three separate units. The following Monday, October 18 , the Company replied by
letter stating that "In view of [the Union's] apparent uncertainty as to what would
be an appropriate bargaining unit," the Company thought "the only logical and safe
course" was to have the Board determine that issue . The Company further observed
that authorization cards were unreliable evidence of the employees ' desires with
respect to representation , and expressed "great, reasonable and justifiable doubts" as
to the Union 's claims of majority, noting that the Union had filed separate petitions
for "only three random stores ..." The letter concluded by advising the Union that
the Company had that day filed its own representation petition with the Board,
alleging that the seven stores constituted a single appropriate unit.
The next day, October 19, the Union requested permission to withdraw the
representation petitions which it had filed and which had been the subject of the
October 13 hearing. The Regional Director granted this request on October 22. Also
on October 19 the Union offered to show its signed cards directly to the Company,
but the Company declined, again stating that it regarded cards as unreliable and
that it wanted a Board election On October 20, the Union filed the charge in the
instant proceeding alleging a refusal to bargain in the seven-store unit Finally, on
November 16, the Union asked to withdraw the unfair labor practice charges filed
on September 24 and 28 ( dealing with the discharges and transfers ), and the
Regional Director granted the withdrawal request on November 19, although he
included the substance of those charges in the complaint issued on November 23.
WATKINS FURNITURE' COMPANY 193
The representation petition filed by the Company has been held in abeyance pending
ultimate disposition of this proceeding.
E. Concluding findings
1. Violations of Section 8(a)(1), (2 ), and (3)
In the light of the entire record , I find the following statements constitute inter-
ference, restraint , or coercion , violative of Section 8(a)(1):
(a) Store Manager Wertheim's interrogation of Diday as to whether Salavon had
approached Diday about joining the Union.
(b) Store Manager Brill's interrogation of Spence as to whether Spence had
signed a union card.
(c) Brill 's statements to Spence that Company President Silver knew Spence had
attended a union meeting , and that Spence need not worry about his job because
Brill had told Silver Spence had not signed a union card . Silver's knowledge of who
attended a union meeting created an impression of surveillance . Brill's later refer-
ence to "finks" may have dispelled the impression of company-planted spies, but
apart from the harm already caused by his earlier statement of Silver's knowledge,
even the later remarks brought home to the employee that the Company was acquir-
ing knowledge of internal union affairs . And the reason for acquiring such knowl-
edge was indicated in Brill's telling Spence that the latter's job security depended on
Silver 's believing that Spence had not signed a union card.
(d) Company President Silver's advice to Salavon that Salavon's future with the
Company depended on his "behaving himself," which-following, as it did, upon a
comment.that Silver would "forget about" Salavon's past union activity-can only
be construed as a warning to refrain from similar activity in the future.
(e) Store Manager Mill 's statement to Spence on the latter's return to work that
Spence's activity in distributing union cards had caused his layoff
(f) The promise to the employees in the meetings at the Sahara Motel that the
Company would ameliorate their grievances by lessening their contacts with Sales
Manager Hartman, by adjusting the schedule to meet the objection to Saturday night
work, and by reexamining the salary schedule at the end of the year. Granting the
employees' demands with respect to Hartman and Saturday work at this time and
under these circumstances was manifestly an effort to wean them away from their
support of the Union N.L.R.B. v. Exchange Parts Co., 375 U.S. 405. Indeed the
Company all but admitted as much to the men, for it coupled its expressed resent-
ment over their having gone to the Union with an inquiry into the reasons for "dis-
satisfaction" and a promise to rectify the matters complained of.
Insofar as the foregoing violations turn on statements of Store Managers Wertheim
and Brill, the Company contends that they are not supervisors and that the Com-
pany is not legally responsible for their statements. The record establishes that they
are in charge of their respective stores, and that visits from company officials are
sporadic . In the nature of the employment , the salesmen require little, if any , direc-
tion from the manager. Nevertheless, I find that as the responsible head of the loca-
tion, the manager occupies supervisory status. There is some evidence that they have
some authority in the hiring of office personnel. Also, the record discloses that when
a salesman is discharged , Rippner as a matter of course informs the store manager.
When a salesman's record is poor, the store manager may "talk to [him ] about it."
At the representation hearing, the parties at one point stipulated that the managers
and credit managers were supervisory employees. Also in that hearing both Mindala
and Rippner testified that the managers attended meetings with company executives
and would then relay to the employees in the stores the management policies and
directives announced at these meetings. Under all the circumstances , the managers
appear to be supervisory employees, and at the very least are in a position where
employees could reasonably regard the statements of managers as reflecting com-
pany policy, N.L.R.B. v. Solo Cup Company, 237 F.2d 521, 523-524, (C.A. 8);
N.L.R.B. v. Des Moines Foods, Inc., 296 F.2d 285, 286-288 (C.A. 8), and cases
there cited.
I further find that the Company violated Section 8(a)(2) and (1) of the Act by
dominating , interfering with the administration of, and contributing support to the
Employees' Committee The Company contends that the Committee was the spon-
taneous choice of the employees after being proposed by a group of employee lead-
257-551-67-vol 160 14
19,4,, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ers. Even assuming that the Company played only a silent role in the creation of the
Committee , however ( and the record establishes that Silver and Rippner met with
the employee leaders at the session which gave rise to the new organization), the
Company recognized the Committee and expressed readiness to deal with it concern-
ing grievances at a time when another labor organization was claiming representa-
tive status. Further, the Company apparently paid for the motel room on Saturday
October 2 , when the employee leaders met among themselves to discuss the possi-
bility of forming ,the Committee , permitted the employees to attend that meeting, to
solicit support for the Committee and to hold elections on company time, and
expressly offered to furnish or to pay for any future meeting places the Committee
might require. Finally, the Company's complete domination of the Committee was
evidenced by Silver's and Rippner 's calling the Committee together, inquiring into
the purposes for which it had been raising money, and informing it that it would not
be allowed to'raise funds or to retain a lawyer. Cf. N.L.R.B. v. Chardon Telephone
Company, 323 F.2d 563 (C.A. 6);, N.L.R.B. v. Oliver Machinery Corp., 210 F.2d
946 (C.A. 6).8
Finally, with respect to the discharges and transfers, I find that Salavon, Spence,
and Rogers were discharged, and Mindala and Barry transferred, because of their
leadership of the Union, but that the transfer of Fritz was in fact caused by the
need to fill the vacancy left by Spence's departure. Salavon's case is substantially
proved by his conversation with Silver at the time Salavon was rehired, and Spence's
case derives strong support from the statement of Store Manager Brill when Spence
returned . Rogers, Mindala , and Barry were the union "contact men" at their stores,
as were Spence and Salavon at theirs. Company knowledge of their union activity
may be found in the statements of Silver and Brill, referred to above, in Assistant
Manager Bird's inquiry of Rogers, in Wertheim's interrogation of Diday anent
Salavon, and in Brill's comment to Spence that there were "finks" in the
organization.
The Company introduced some evidence that Spence was a poor salesman, that
Rogers' sales had fallen off, and that the store in which Salavon was junior man
needed strengthening at the time he was replaced with Barry, an abler man. These
changes, the Company contends, were all decided on when Rippner returned from
a trip, and it is mere coincidence that the union activity also occurred during his
absence. The figures submitted by the Company tend to support its criticisms of
Spence and Rogers. On the other hand, the Company's resentment over the union
activity occurring at that time is also clear on the record; Silver and Rippner told
the four employees at the first Sahara Motel meeting that they felt "hurt" because
the employees had gone "behind their backs." Consideration of all the factors,
including the Company's resentment of the union movement, the Company's knowl-
edge of the identity of the union leaders, and the selection of five union contact
men for discharge or transfer at the very time the union movement was gaining
strength, would give rise, at the very least, to a suspicion that the Company's actions
were discriminatorily motivated. When to this is added the comments of Silver and
Brill on the rehiring of Salavon and Spence , the evidence goes beyond mere suspicion
and preponderates in favor of a' finding of illegal motivation .9
2. The refusal to bargain
The critical issue in this case is whether the Company should be directed to recog-
nize and bargain with the Union; the other matters, discussed above, bear signifi-
6 The complaint alleged that the Company was guilty of dominating, as well of unlaw-
fully interfering with and supporting, the Committee General Counsel moved to withdraw
the allegation of domination, but the Charging Party opposed that motion I denied the
motion to withdraw, and adhere to that ruling, now fortified by Leeds & Northrup Co v
N L R B , 357 F 2d 527 (C A. 3), decided February 3, 1966 (the same date on which I
denied the motion to withdraw) The sole effect of the ruling is to require "disestablish-
ment" of the Committee rather than meiely "withholding recognition" from it, a distinc-
tion of peculiarly little significance inasmuch as the Committee appears to be defunct
The question whether General Counsel has an absolute right to withdraw a complaint'once
the matter has gone to hearing, however, is far from insignificant
The Company does not contend that the withdrawal of the charges alleging discrimina-
tion precludes consideration of this issue I note that the matter k as fully litigated, and
that "the entire series of events are all closely interrelated " N L R B. v Peckeur
Lozenge Co , Inc. 209 F 2d 393, 401 (C A 2), cert denied 347 US. 953
WATKINS FURNITURE.,COMPANY , 195
cantly upon this issue but have little independent importance , as the Employees' Com-
mittee is moribund if not defunct and the discharges and transferees have been
reinstated without suffering any loss of pay.
a. The Union 's majority
The Union obtained 21 signed cards (not counting Diday's ), a majority of the 40
in the unit , authorizing the Union to act as bargaining representative . The record is
devoid of evidence that the cards were obtained by any misrepresentations . Although
union representatives did refer to the possibility of obtaining a Board election and
indicated that the cards would be used for that purpose , they also indicated that the
cards might be used to obtain recognition without an election , and at no time stated
that the only purpose of the cards was to obtain an election . See N.L.R.B. v. Cum-
berland Shoe Co., 351 F.2d 917, 920 (C.A. 6). Indeed, Salavon , whose card the
Company challenges, expressly testified that the union agent told him the Union
might "be bargaining agent without an election , based on a majority of cards." The
Company also challenges the cards of Hauenstein and Vhynal, but as I read their
testimony they, were under no illusion that the card was solely for the purpose of
holding a meeting. And Lois Adams' card is valid notwithstanding her testimony that
she read it "superficially."
Rippner testified that at sometime , approximately between October 6 and 20,
Spence told him that a union official had threatened Spence with physical violence if
Spence revoked his union authorization . Spence denied having made such statement
to Rippner, denied having received such a threat, and denied having ever indicated
to the Union or any of the men working with the Union that he wanted to withdraw
his authorization . I am inclined to credit Rippner's testimony as to what Spence
stated, but any withdrawal of union support by Spence or anyone else after the
Company's unfair labor practices would have been attributable to those unfair labor
practices and therefore would not affect the Union's status as majority representa-
tive See, e g., N.L R.B. v. Stow Manufacturing Co., 217 F.2d 900, 905 (C.A 2), cert.
denied 348 U.S. 964, N.L.R.B. v. Armco Drainage & Metal Products, Inc., Fabricat-
ing Division, 220 F.2d 573, 577 (C.A. 6), cert. denied 350 U S 838 Since Spence's
withdrawal would have been of no legal significance in this proceeding , the fact (if
such it be) that the Union forcibly prevented his withdrawal is likewise of no signifi-
cance to our inquiry here. The Company in its brief does not challenge the validity
of Spence 's card.
b. The Company's "good-faith" doubt of majority
Under long-settled principles , where a union obtains majority status and the
employer thereupon engages in unfair labor practices tending to dissipate that major-
ity, his refusal to recognize and bargain with the union violates Section 8 (a) (5) and
(1). In those circumstances he cannot be heard to say that he doubted the majority
in good faith and is entitled to an election because his own unlawful conduct has
rendered the election route impassable , and permits , if it does not indeed require,
recourse to other means ( such as authorization cards ) of establishing the union's
majority status . The instant case falls squarely within that settled law , particularly
as several of the unfair labor practices (notably, those surrounding the recognition
of the Committee and the grant of benefits to meet the employees ' grievances) were
palpable attempts to wean the employees away from their support of the Union. Even
when the Company acted to undo and remedy some of its actions by reinstating the
transferred and discharged men with backpay, the Company concealed from the
employees that it had decided on this action at the urging of the Union, and created
the impression that it was offering the concession to the employee representatives.
The Company points out that as late as October 13, the Union was stilt pressing
for recognition in three separate stores, and that the Union did not concede the
appropriateness of the single seven store unit or claim a majority therein until Octo-
ber 15. (The Union points out in its brief that as it has no representative in the
Euclid store, it did not know how many salesmen were employed there until the
hearing on October 13, when it learned for the first time that its 21 cards gave it a
majority in the seven-store unit.) The Union's change of position as to the appro-
priate unit might in some circumstances give rise to a bona fide doubt as to whether
it enjoyed majority status in the unit it belatedly agreed was appropriate. But on this
record, as stated above, the Company' s own unfair labor practices preclude it from
claiming a good-faith doubt, and preclude it from insisting on an election which its
own conduct would have tainted. Moreover, even if the Union had made no request
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to bargain in the appropriate unit, the record establishes that the Union had a major-
ity in the stipulated appropriate unit and that the Company by unfair labor prac-
tices sought to destroy that majority. A bargaining order would therefore be appro-
priate to remedy the violations found above and to restore the status quo ante, even
if there were no violations of Section 8(a)(5). See N.L.R.B. v. Delight Bakery, Inc.,
353 F.2d 344, 346-347 (C.A. 6), and cases there cited; Local No. 152 IBT [Ameri-
can Compressed Steel] v. N.L.R.B., 343 F.2d 307, 309 (C.A.D.C.), and cases there
cited.10
CONCLUSIONS OF LAW
1. The Company by interrogating its employees as to their union activity and that
of fellow employees, by stating that union activity had resulted in or would result in
reprisals against employees, and by offering benefits to employees to induce them to
abandon union activity engaged in unfair labor practices affecting commerce within
the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act.
2. By dominating, interfering with the administration of, and contributing support
to the Employees' Committee, the Company engaged in unfair labor practices affect-
ing commerce within the meaning of Sections 8(a)(2) and (1) and 2(6) and (7)
of the Act.
3. By transferring and discharging employees because -of their activity in the
Union the company engaged in unfair labor practices affecting commerce within the
meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act.
4. By refusing to bargain with the Union as the statutory bargaining representa-
tive of the salesmen employed at the Company's seven stores, the Company engaged
in an unfair labor practice affecting commerce within the meaning of Sections 8(a)
(5) and (1) and 2(6) and (7) of the Act.
THE REMEDY
I shall recommend that the Company cease and desist from its unfair labor prac-
tices, and affirmatively, that it disestablish the Employees' Committee, bargain with
the Union upon its request, and post appropriate notices.
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in the case, I recommend, pursuant to Section 10(c) of the Act, issuance of
the following:
ORDER
Respondent corporations, their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees as to their or their fellow employees' membership
in, or activities on behalf of, any labor organization.
(b) Threatening any employee with discrimination, or in any manner discriminat-
ing against any employee, because of such membership or activity.
(c) Offering benefits to employees for the purpose of inducing them to abandon
support of a labor organization.
(d) Creating the impression that it is keeping union meetings under surveillance.
(e) Dominating, interfering with the administration of, or contributing support to,
the Employees Committee or any successor thereto, or any other labor organization
of their employees.
(f) Recognizing or negotiating with the Employees Committee or any successor
thereto for the purpose of discussing grievances or other terms or conditions of
employment.
(g) Refusing to bargain with Retail Store Employees Union Local 880, Retail
Clerks International Association, AFL-CIO, as the exclusive bargaining representa-
tive of all furniture salesmen employed at the Respondents' stores in the Cleveland
area, excluding all office clerical employees, porters, guards, professional employees,
and supervisors as defined in the Act.
(h) In any other manner, interfering with, restraining, or coercing employees in
the exercise of their rights under Section 7 of the Act.
10 The Company emphasizes that the unfair labor practices here found antedate the
Union ' s request for recognition in the appropriate unit But the unfair practices followed
hard upon the Union ' s attaining majority status and tended to dissipate the Union's
majority This circumstance distinguishes Oklahoma Sheraton Corp , 156 NLRP. 681,
on which the Company relies , for In that case the union successfully conducted its orga-
nizing drive after the unfair labor practice , which plainly did not dissipate a majority
WATKINS FURNITURE COMPANY 197
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Upon request, bargain collectively with the above-named Union as the exclu-
sive bargaining representative of the employees in the above-described unit.
(b) Completely disestablish the Employees' Committee as the representative of
any of the employees for the purpose of dealing with Respondents with respect to
grievances or other terms or conditions of employment.
(c) Post at their respective stores in the Cleveland area copies of the attached
notice marked "Appendix " 11 Copies of such notice to be furnished by the Regional
Director for Region 8, after being duly signed by an authorized representative of
the appropriate Respondent, shall be posted immediately upon receipt thereof, and
be maintained by it for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by each Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 8, in writing, within 20 days from
the date of the receipt of this Decision what steps the Respondent have taken to
comply herewith.12
n The Regional Director shall fill in on each set of notices over the word "Employer"
the name of the particular Respondent at whose store the notices are to be posted In the
event that this Order is adopted by the Board, the words, "an Order" shall be substituted
for "a 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" shall be inserted immediately
preceding "an Order."
11 In the event that this 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 the Respondents have taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
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 our employees that:
WE WILL bargain with Retail Store Employees Union, Local 880, as the rep-
resentative of the salesmen employed in the affiliated Watkins stores in the
Cleveland area.
All our employees have the right to join or support a labor union . WE WILL
NOT in any manner interfere with their exercise of this right. Specifically, WE
WILL NOT question them as to their union membership or activity, or that of
fellow employees. WE WILL NOT discharge employees or transfer them to other
stores or threaten to take any action against them because of their union mem-
bership or activity. WE WILL NOT grant benefits to them to induce them to
abandon union membership or activity.
We have disestablished the Employees' Committee as the representative of any
of our employees for the purpose of dealing with us concerning grievances or
other terms or conditions of employment.
WATKINS FURNITURE COMPANY, WATKINS-PEARL, INC.,
WATKINS-SOUTHGATE FURNITURE CO., WATKINS-GREAT
NORTHERN FURNITURE COMPANY, FORMAN FURNITURE
COMPANY, WATKINS-EUCLID FURNITURE CO., INC., AND
WATKINS-MENTOR FURNITURE CO.,
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 pro-
visions, they may communicate directly with the Board's Regional Office, 720 Bulk-
ley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone 621-4465.