The Bailey Co.

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