Famous-Barr Co.

In the Matter of THE MAY DEPARTMENT STORES COMPANY, D/B/A FAMOUS-BARR COMPANY and ELEVATOR OPERATORS AND STARTERS, LOCAL 50-E, A. F. L. In the Matter of THE MAY DEPARTMENT STORES COMPANY, D/B/A FAMOUS-BARR COMPANY and LOCAL 372, UNITED RETAIL, WHOLESALE, AND DEPARTMENT STORE EMPLOYEES OF AMERICA, C. I. O. Cases Nos. 14-R-779 and 14-R-794, respectively SUPPLEMENTAL DECISION AND ORDER SETTING ASIDE ELECTIONS March 31, 1945 On January 1, 1944, the National Labor Relations Board issued a Decision and Direction of Elections in the above-entitled proceed- ings,1- wherein it found that elevator operators and other general store employees of The May Department Stores Company, d/b/a Famous- Barr Company, St. Louis, Missouri, herein called the Company, in groups more particularly described below, constitute separate units appropriate for collective bargaining and directed that separate elec- tions be conducted to determine whether a majority of employees in either unit desired to be represented by one of the labor organizations participating therein. The Board provided that Elevator Operators and Starters, Local 50-E, a labor organization affiliated with the American Federation of Labor, and herein called the A. F. of L., par- ticipate in the election for elevator operators and that Local 372, United Retail, Wholesale, and Department Store Employees of Amer- ica, a labor organization affiliated with the Congress of Industrial Organizations, herein called the C. 1. 0., participate in both elections.2 On January 28, pursuant to the Board's Direction of Elections, as amended, and in accordance 'with the Rules and Regulations of the r54N.L.R B.230 2 The Board initially further provided that in the election among the general store employees the American Federation of Labor should have a place upon the ballot. Subse- quent to the issuance of the Decision and Direction of Elections , however, the American Federation of Labor notified the Board that it did not wish to participate in this election. Consequently , on January 20, 1944, the Board amended its Direction of Elections accordingly. , 61 N. L. R. B., No. 32. C 258 THE MAY DEPARTMENT STORES COMPANY 259 Board, separate elections were conducted by the Regional Director for the Fourteenth Region in the separate units noted above. Tallies of the balloting were duly served upon the parties. With respect to the results of the election held among elevator op- erators, the record indicates as follows : Approximate number of eligible voters____________________ 55 Valid votes counted--------------------------------------- 48 Votes cast for Local 50-E, Elevator Operators and Starters, A. F. L------------------------------------------------- 10 Votes cast for Local 372, United Retail, Wholesale, and De- partment Store Employees of America, C. I. 0------------ 3 Votes cast against participating unions ---------------- --- 35 Challenged ballots---------------------------------------- 0 Void ballots---------------------------------------------- 0 With respect to the results of the election held among other em- ployees in the general store, the record indicates as follows : Approximate number of eligible voters-------------------- 3,046 Valid votes counted-------------------------------------- 2,710 Votes cast for Local 372, United Retail, Wholesale and De- partment Store Employees of America, C. I. 0.____--______ 1, 313 Votes cast against participating union---------------------- 1, 397 Challenged ballots---------------------------------------- 50 Void ballots---------------------------------------------- 25 On February 1, the A. F. of L. and the C. I. O. each filed objec- tions to the conduct of the elections, alleging that the Company had interfered with the conduct of the elections and requesting that the Board set aside the results thereof and direct that new elections be held. On March.23, the Acting Regional Director issued and duly served on the parties her Report on Objections, finding that there was merit in the objections and recommending that the objections be sustained; that the elections be set aside; and that new elections be held. On March 30, the Company filed Exceptions to the Report on Objections. On May 31, the Board, having duly considered the objections of the labor organizations, the Acting Regional Director's Report on Objec- tions, and the Company's exceptions thereto, remanded the case to the Regional Director for hearing with respect to the issues raised on the conduct of the ballot. Pursuant to, notice, a hearing was held on June 22, 23, 26, and 28, at St. Louis, Missouri, before Samuel H. Jaffee, Trial Examiner. The Board, the Company, the C. I. 0., and the A. F. of L. appeared, participated, and were afforded full opportunity to be heard, to ex- amine and cross-examine witnesses, and to introduce evidence bearing on the issues. During the course of the hearing, the C.' I. O. moved to amend its objections. The Company opposed the motion. The Trial Examiner did not rule upon the motion, which was referred to the Board. The Trial Examiner received evidence on the issues 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD raised by the proposed amendment, subject to a motion to strike if the amendment were not allowed by the Board. For reasons which appear in Section II, below, we find it unnecessary to rule upon the motion. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. The Company's request for oral argument is hereby denied. At the close of the hearing on objections, the Trial Examiner pre- pared and served upon the parties a proposed stipulation for correct- ing errata in the official transcript of the hearing on objections. None of the parties raised any objection to the proposed stipulation, but the stipulation was not signed. On January 9, 1945, the Board, hav- ing duly considered the matter, issued and duly served upon the par- ties an order to show cause on or before January 19, 1945, why the official transcript of the record made at the hearing on objections should not be corrected in accordance with the proposed stipulation. None of the parties having filed any objection within the time allowed, it is ordered that the official record be, and it hereby is, corrected as set forth in the proposed stipulation. On August 30, 1943, Female Cafeteria & Soda Fountain Employees Union, Local No. 249, X. F. L., herein called Local No. 249, filed a mo- tion to intervene in this proceeding. For reasons indicated in Section III, below, the motion is denied. Upon the'entire record in the case, including the evidence adduced at the hearing on objections, the Board makes the following: SUPPLEMENTAL FINDINGS OF FACT I. THE BACKGROUND On July 12, 1943, in Case No. R-5331 (14-R-588), pursuant to a Decision and Direction of Election issued therein on June 16, 1943, and after an election held in that proceeding, the Board certified St. Louis Joint Council of the C. I. O. as the statutory bargaining agent of the employees in a unit consisting of the two busheling departments in the Company's store. Thereafter, as the Board subsequently found in Case No. 14-C-872,3 wherein the Company was charged with unfair labor practices proscribed by Section 8 (1) and (5) of the Act, the Company, on and after July 19, 1943, wrongfully refused to bargain with the certified representative, on the ground that the unit of bushel- men was inappropriate. In addition, on or about August 30, 1943, the Company made a unilateral application to the National War Labor Board for approval of a $2 per week wage increase for about 4,500 of its employees, excluding certain craftsmen then covered by 3 53 N L. R. B. 1366. THE MAY DEPARTMENT STORES COMPANY 261 union contracts, but including the employees in the busheling depart- ments. It qualified its application by stating that the latter em- ployees might be excluded therefrom if the C. I. O. objected to its action. Within the next several days, the Company 's employment superintendent, Griffith McCarthy, and its vice president and gen- eral manager, Fred J. Salomon , announced the application to the em- ployes over the store's public-address system. The Company's action was also publicized in its store newspaper, Store Chat. In our De- cision and Order in Case No. 14-C-872, we found that the aforesaid unilateral application, so timed and announced, wrongfully placed the C. I. O. "in a position where it would be required to request the National War Labor Board's deletion of employees it represented from respondent's application, or assert its approval thereof, in order to maintain a semblance of authority as bargaining representative," undermined the C. I. O.'s standing as a statutory bargaining agent, and discouraged the Company's employees generally from union affili- ation, in violation of Section 8 (1) of the Act.4 In Case No . 14-0-596, instituted by charges filed by the C. I. 0., the Board on December 14, 1944, issued its Decision and Order against the Company,5 wherein it adopted in large part the findings set forth in the Intermediate Report of its Trial Examiner , issued October 6, 1943. The Board therein found that in 1941, 1942, and 1943 , the Com- pany had engaged in sundry unfair labor practices within the mean- ing of Section 8 (1) and (3) of the Act, following an apparently suc- cessful campaign to defeat the C. I. O.'s earlier attempt at organiza- tion of its employees in 1937 .8 Inter alia, we found in that case that the Company had discriminatorily discharged or laid off 11 of its employees , discriminatorily enforced a no-solicitation rule against C. I. O. adherents , employed undercover agents to report on its em- ployee^' union activities, and by its course of conduct, including threats addressed to employees as well as arguments , belittling the economic advantages to be derived from collective bargaining, had undertaken to discourage membership in the C. I. O. In the course of the proceedings in the present representation case, in compliance with our customary requirement , the C. I. O. filed waivers, wherein it agreed not to urge as grounds for setting aside the elections in the instant proceedings, either the Company's unfair labor practices involved in Case No. 14-C-872, in which the Board's Order had then issued, or the alleged unfair labor practices involved in Case No. 14-C-596 , which was then pending before us. 4 On December 20, 1944, the Circuit Court of Appeals for the Eighth Circuit enforced the Board's Order in Case No. 14-C-872. 6 59 N. L.'R. B 976. 6 During the spring and summer of 1937, by means of written and oral anti-union state. ments and threats of discharge, the Company caused its employees to resign from the C. I. O. and discontinue their efforts toward self-organization. 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE CONDUCT OF THE ELECTIONS A. The chronology of events Pursuant to separate petitions filed by the A. F. of L. ands the C. I. O. on September 9 and October 4, 1943, respectively, and upon evidence adduced at a hearing held in November of the same year, the Board, on January 1, 1944, as noted above, issued a Decision and Direction of Elections and, on January 20, an amendment thereto, finding that elevator operators and other general store employees at the Company's St. Louis store, excluding, inter alia, employees in the busheling department, constitute separate appropriate bargain- ing units, and directing that separate elections be held among them, that the A. F. of L. participate in the election for elevator operators, and that the C. I. O. participate in both elections. On January 13, Russell Miller, a Field Examiner in immediate charge of the elections under the supervision of the Regional Director, gave the Company's representative some general information about the conduct of Board elections and, as part of the regular preparation for the elections, asked that the Company furnish the Regional Office with the designated pay rolls, listing in alphabetical order employees whom the Company deemed eligible to vote under the Board's Direction of Elections. On January 15, before details for the con- duct of the elections had been decided, or the day for the elections set, the Company, on the basis of the Board's Direction of January 1, and the information so obtained from Miller, wrote form letters on the Company's regular letterhead "TO EVERY EMPLOYEE of FAMOUS-BARR IN THE ARMED FORCES OF THE UNITED STATES," urging them to vote if in the vicinity of St. Louis on the day set for the elections or, if not, to influence the decision of their voting friends by written expressions of their opinions concerning the matter, and mailed them to employees in the armed forces whom the Company deemed eligible and who, according to the Company's personnel. records, were then located in continental, United States. A copy of this letter, marked Appendix 1 and attached hereto, is made a part of this Supplemental Decision. On Monday, January 17, a pre-election conference at the Board's Regional Office was attended by Field Examiner Miller and other representatives of the Regional Office, business representatives of both labor organizations, and the Company's attorney. No minutes were kept of this conference, and no written memorandum made, embodying agreements or discussions of election details. The place for holding the elections was selected and it was decided that the elections be held on Friday, January 28,7 and that the polls be open 7 Friday was chosen as the day for elections , as it was not a "rush day." Busy days at the store are Mondays, Tuesdays, and Saturdays. THE MAY DEPARTMENT STORES COMPANY 263 from 7 a. in. to 7 p. m. There was no specific agreement whether employees should vote on company time or on their own time, and the official elections notice subsequently issued by the Board did not specifically state." Agents of the Board left the meeting with the understanding that the voting hours allowed employees adequate opportunity to vote on their own time before or after work, at lunch hour, or at appointed rest periods during the day and they antici- pated that employees would vote on their own time. The Company's representative, however, left the meeting with the understanding that employees would vote within the hours specified and might vote on their own time or on company time. On Tuesday, January 18, the following day, the Company dis- tributed to its employees along with "Store"Chat," the newspaper for employees written and distributed by the Company, a special election bulletin, prepared by the Company and announcing that the Labor Board elections would be held on January 28, from 7 a. m. to 7 p. in., on the seventeenth floor of the Railway Exchange Build- ing; the building housing the store; 9 that the elections would be by secret ballot; and that the election results would be determined by the majority of employees who voted. The bulletin recited the Board's formula for determining the eligibility of voters. It com- menced with the bidding : THIS BULLETIN IS ISSUED TO INFORM YOU ABOUT THE FORTHCOMING ELECTION KEEP IT FOR REFERENCE FROM NOW UNTIL YOU HAVE VOTED and concluded with the directive : MAKE UP YOUR MIND TO BE SURE TO VOTE The Company senta'similar notice by mail to regular extra employees eligible to vote in the election who were not at work on January 1810 8 In the absence of special notice, Board practice permits employees to vote at any convenient time during which the polls may be open. 9 The Company's store at St Louis occupies the first 12 floors of a 17-story building Provisions had been made for holding the election on the seventeenth floor of the building, thus not upon company property, but within the building occupied by the store. The voting place was thus accessible to employees within the store and inclement weather would not require them to don their outer wraps or leave the building to cast a ballot if they voted after they had reported for work and previous to leaving the store for the day 19 In its Direction of Elections , the Board provided that regular extra employees who, during the 6-month period immediately preceding the date of the issuance of the Direc- tion, performed some work in at least 5 of such months and had worked a sufficient number of days during the 6-month period to represent an average of 10 days per month should be eligible to vote. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On Friday, January 21, Field Examiner Miller sent to the Com- pany by messenger official notices of the election with the request that the Company post them on bulletin boards throughout the store. These notices, however, were not posted by the Company until Monday or Tuesday, January 24 or 25, of the following week 11 On Saturday, January 22, which was pay day, employees received their pay envelopes, on which was printed the following admonition. NOTICE-KEEP THIS ENVELOPE Take it with you to the polls Friday for identification On the same day, the Company issued to "Department Managers and all other Supervisors" a four-page printed bulletin containing information about the coining elections. The bulletin stated, inter alia, that voting would be by secret ballot; that the question of representa- tion would be decided by a majority of those who voted; that failure to vote was in effect a vote against the desires of the employees not voting; and that supervisors should, if possible, contact eligible em- ployees absent from work, and urge them to vote. Managers and supervisors were further directed to read the bulletin carefully in order that they might "avoid any personal conduct which might sub- ject" them or the Company "to criticism," and to govern themselves accordingly. They were advised that the details concerning the elec- tion had been given them so that they might answer questions asked of them by employees; that they should say nothing to indicate that the employees might be prejudiced if they voted for or against the Union; but they should not volunteer information. They were di- rected to advise employees to vote and to tell them that the elections would be decided by a majority of the votes cast, but not to indicate how employees should vote or that reward or prejudice would result from how they voted. They were directed that each employee was to cast his vote as his own judgment dictated and that they were not to attempt to influence the manner of the vote. The instructions fur- ther stated that identification cards, such as Social Security cards or the employees' last pay envelope, should be taken to the polls for identification. This bulletin was distributed only to department In the notices of the elections, prepared and distributed by the Company on Jan- uary 18, noted above, the Company informed the employees that the American Federation of Labor would appear on the ballot and participate in the election for employees in the general store unit. This information was in accordance with the Board's original Direc- tion of Elections, issued on January 1. For the reasons noted in footnote 2, above, the Board, on January 20, amended its Direction of Elections so that the name of the American Federation of Labor would not appear, on the ballot. Due to the Company's unexplained action in deferring the posting of the official Board notices, its general store employees were not officially advised until January 24 or 25 that the American Federation of Labor had withdrawn from the ballot and that they would therefore vote for or against the C I. 0. as their bargaining representative. THE MAY DEPARTMENT STORES COMPANY 265 heads and floormen who had substantial supervisory authority, and upon whom the Company relied as instruments to carry out its policies, and was not distributed to non-supervisory employees. On Tuesday, January 25, Fred Z. Salomon, vice president and treas- urer of the Company and general manager in charge of operations at the Company's St. Louis store, sent to department managers a spe- cial memorandum containing instructions with respect to the voting of employees. The memorandum, in sum, expresses the desire of Salomon that all eligible employees vote in the election and that they vote at a specific time during working hours in accordance with a schedule of voting to be prepared and effectuated by supervisors within each department. Supervisors accordingly, were instructed to divide employees in their respective departments into voting groups, to schedule such groups so as to avoid conflict with any em- ployee's regular lunch hour, and to release employees according to the schedule for voting purposes, recording in each instance the fact and the time of voting. Supervisors were instructed to ask each eligible voter who reported for work on the morning of election whether or not he had voted and, if the answer was in the affirmative, to note in writing opposite the name of the employee, "Voted 9 a. M." On the same day, the Company mailed to all regular extra em- ployees eligible to vote summons to report for work on January 28, election day, sending to each an envelope containing a post card and a letter. The post card bore the usual message for calling extra em- ployees to work .12 The letter which was unusual and specifically drafted for the occasion, advised the recipient that January 28 was election day, that he was eligible to vote whether or not he worked on that day, that eligible employees should vote, and that the polls were open from 7 a. in. to 7 p. in., and promised that all employees who worked in the store on election day would have an opportunity to vote during working hours. The letter concluded with the fol- lowing words: IT IS SUGGESTED THAT YOU KEEP THE ENVELOPE IN WHICH THIS NOTICE IS MAILED AND TAKE IT WITH YOU TO THE POLLS FOR IDENTIFICATION On Wednesday, January 26, the Company forwarded to Field Ex- aminer Miller a copy of the pay roll which was to determine the eligibility of employees to vote in the election.lg, On the same day, "Extra employees ineligible to vote and summoned for work on election day received only the customary post card. 13 The pay roll thus submitted was rendered immediately available to the labor organiza- tions concerned. On January 27, the closing of the Regional Office was delayed until repre- sentatives of the C. I. O. had fully completed their checking of all employees listed on the pay roll and alleged by the Company to be eligible voters. During the course of the elec- tion, 50 voters were challenged , some of whom were listed as eligible on the pay roll sub- 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company mailed to its employees a letter prepared by Salomon and McCarthy, but distributed under the signature of its president, Morton J. May, concerning the election and its significance, noting, in particular, the long struggle of the C. I. O. for recognition as bargaining representative, the voluntary application filed by the Company for a wage increase and its success in obtaining the same, and concluding with an appeal for voting on election day. May did not usually write letters to employees. A copy of this letter, to which further reference is made below, is marked Appendix 2, and is attached hereto, and made a part of this Supplemental Decision. On the same day also, Wednesday, January 26, Salomon's memo- randum in the nature of election instructions, addressed to depart- ment managers and issued on Tuesday, January 25, came-to the atten- tion of the C. I. 0., and its representative promptly complained of its content to the Regional Director. Field Examiner Miller immedi- ately wrote Salomon, advising him that the Board's representative considered that the memorandum and its provisions constituted a violation of the agreement reached at the pre-election conference of January 18; that the Company was giving the employees the impres- sion that the Company and not the Board was conducting the elec- tion; and that, if the Board's representative had felt that the election could best be conducted by means of setting schedules for the syste- matic release of voters on company time, a request to this effect would have been made by the Board upon the Company, but that, consider- ing all the circumstances, the Board's representative "thought and still thinks that a voter should vote, if he wishes to vote at all, on his own time." Miller concluded by asking that the Company re- scind the instructions and make no further arrangements to release voters on company time. A conference with respect to the manner and time of employees' voting was subsequently arranged for the following day, Thursday, the day before the election. Meanwhile, at about 4:17 p. in., on January 26, McCarthy, as super- visor of personnel, announced to employees at the store over the Com- pany's loud speaker that the, Company had just received notice that mitted by the Company and challenged by the C 1 O. as supervisory employees . During the course of the hearing on objections , the C I 0 moved to amend its objections to the conduct of the elections, alleging for the first time as an additional ground for setting aside the elections, that, due to the Company 's delay in submitting the pay roll , the C I. 0 had had insufficient time to check the eligibility list and that for this reason supervisory em- ployees voted unchallenged in the election for general store employees The Company opposed the motion on the ground that the matter alleged and recited as the basis for objec- tions, if true, was known to the C. I. 0 both at the time of the election and when it filed its original objections to the conduct of the election on February 1, 1944, and that the motion to amend the objections at the hearing on objections was thus untimely filed. The Trial Examiner referred the motion to the Board , but permitted the parties to introduce evidence upon the issues raised, contingent upon the Board 's ruling upon the motion . Since we are of the opinion that the evidence adduced does not support the allegations urged by the C. I. 0., we find it unnecessary to rule upon the motion to amend the objections. THE MAY DEPARTMENT STORES COMPANY 267 its application of August 1943 for a store-wide salary increase had been finally approved by the National War Labor Board and assured them that, although some modifications had been made in the original appli- cation, most of the employees would receive the full amount of the increase and back pay from August 1, 1943; that the Company would take further action to see that none of the employees affected by the changes would be in the end disappointed; and that details of the matter would be available to employees as soon as received by the Company, but that the employees could be assured that all "obstacles had been overcome" and that the increase pay would go into effect as soon as the full text of the order was received and the necessary clerical work done: On January 27, while conferences were being held between the Com- pany and the Board representatives concerning the Company's voting plans, and the advisability of proceeding' further with the elections scheduled for the following day was being considered in the Regional Office, the Company proceeded to send to 364 employees reported absent that day 15 telegrams to the following effect : You are reminded of importance of casting your vote Friday in Room 1730, Railway Exchange Building, at Labor Board secret election. Be sure to come and vote if possible, even if unable to work Friday. On the same day the Company also distributed to employees who had reported for work bulletins headed "LAST MINUTE INFORMA- TION ABOUT THE ELECTION," giving directions how to get to the polls and emphasizing that employees did not need to put on their wraps to go outside the building to vote,16 that every eligible employee might vote on store time, and that, when they went to the polls, they should "be sure to take along a pay envelope or some other convenient means of identification." This bulletin was prepared before the Com- pany received word from Field Examiner Miller protesting the ar- rangements made by the Company for the dismissal of groups of employees at regular intervals during the day for the purpose of voting, but was distributed while conferences were pending between represen- tatives of the Company and the Board concerning this issue. Near the close of the day, an agreement was finally reached between the Company and Miller, wherein the Company agreed not to release 11 McCarthy ' s announcement of the approval of the war Labor Board of the wage increase sought by the Company, and the subsequent comments by Salomon on the same matter, are not intelligible in the absence of an understanding of the circumstances surrounding the Company's original application for the increase in August 1943, which were very familiar to employees who heard these several remarks and must have interpreted them in the light of the circumstances See Section I, supra. 15 McCarthy testified that it was not normal for 364 employees to be absent, but that the winter of 1943-1944 was not a normal season, 18 Employees prepared to vote on their way to or from work would normally be dressed in their outside wraps. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD voters in groups for voting, as set forth in its original instruction to department managers issued on January 18, or to keep any record of those employees who had or had not voted. The Company insisted upon giving employees paid time for voting during working hours, and it was accordingly agreed that the Company should, without more, post a voting schedule in each department, advising employees when they might conveniently be released for voting during working hours. It was distinctively understood that employees should vote, if they voted at all, on their own initiative and that supervisory employees of the Company would not direct them- when to vote or record the fact and time of their voting. On the same day, January 27, near closing time, Salomon briefly addressed employees at the store over the loudspeaker, saying that he wanted to draw their attention to some matters about the election; that since he knew they were anxious- to get home and he did not wish to delay them, he had written out what he wished to say and a copy of his remarks would be distributed to employees as they left the store; and that he trusted they would find what he had to say very inter- esting and would read the document carefully. In his talk Salomon referred again to the approval of the wage increase by the War Labor Board previously announced by McCarthy and to the payment of the full amount of back pay within a few days, and concluded with the following urgent appeal to employees to vote : In my printed remarks which will be handed to you I have urged you to be sure to vote in the election tomorrow. I want to make that just as strong as I can. Your opinion on the question will not be counted unless you vote. I urge each of you to vote. Remember, if you don't vote, it is just like voting against what you want. So be sure to vote. As the employees left the store, they received a copy of the printed remarks to which Salomon had referred in his address. A copy of this document, marked Appendix 3, is attached to this Supplemental Decision and made a part thereof. On the morning of January 28, the day of the election, as soon as the day's attendance records were available, the Company sent tele- grams to 53 absent eligible employees, who had worked on January 27, urging them to vote. These telegrams were similar to those sent on January 27, but referred to the election day as "today," rather than as "Friday." ' About 9 :15 a. in., Harold Hudson, a Field Examiner attached to the Board's Regional Office, was sent to assist Field Examiner Miller, who was the Board representative in direct charge of holding the elections. Making a trip through a portion pf the store in the discharge of his duties, Hudson discovered that, contrary to the agreement reached by THE MAY DEPARTMENT STORES COMPANY 269 the Company and Miller in the afternoon of the previous day, super- visors in at least two selling departments were following Salomon's original instructions of January 25 with respect to releasing employees to vote and recording the fact of their voting.17 The Company admits violation of its agreement with Miller respecting the two selling de- partments at its store 18 In the course of his duties Hudson surveyed the polling premises on the seventeenth floor and its approaches. The room set aside for the purpose appeared small for the large number of voters to be accommodated, and in the early part of the morning long lines of employees were waiting an opportunity to vote. This congestion later decreased. There was no disorder in the polling room. Through inadvertence, there were displayed no official badges identi- fying official observers and Board representatives as such. Leaving the seventeenth floor, Hudson made his way to the street floor and passed through the elevator lobby into the store proper. As he entered the store, Hudson noticed that a man, standing in the aisle leading to the door into the elevator lobby, was addressing some remarks to employees' passing him in groups to go through the door leading from the store into the elevator lobby. This man, unknown to Hudson, was later identified as Floorwalker Weigel. Hudson ac- costed Weigel, saying, "I am an agent of the National Labor Rela- tions Board and who are you and what are you doing?" Weigel identified himself and answered that he was reminding employees to have their identifications with them in order that they might not be sent back from the polls". In answer to Hudson's question why he was doing this, Weigel said that it was a "service" to the employees. Hudson asked Weigel to discontinue his activities and to leave the area. Weigel agreed to do so, and Hudson continued on his way. Weigel thereafter reported the incident to Salomon, the general manager, who told him not to stand near the door to the lobby, to discontinue making such remarks to employees, and to notify Salo- 17 In a third department an eligible employee himself recorded the fact of his voting on the voting schedule and thereafter explained to Hudson that he had done so in uncertainty and ignorance of what procedure might be expected of him after voting in accordance with the schedule. 18 Hudson also discovered that wrappers and cashiers working alone and stationed in several parts of the store were being released to vote, according ,to a schedule, at intervals during the day by regular relief operators assigned for general relief purposes , and that the time and facts of the voting of these employees became thus marked by supervisors in charge of supplying the necessary relief The Company does not consider that the orderly release of these operators for voting is a violation of the spirit of its agreement with Miller, since Miller consented to the Company 's request that eligible employees have an opportunity to vote on company time, and only by the kind of relief which was thus supplied could working time be made available to such employees for voting purposes. No previous pro. vision, however, was made for excepting these employees from the agreement not to dismiss employees for voting, although their working conditions were well known to the Company at the time the agreement was made. 639678-45-vol 61-19 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mon or some official of the Company if the individual claiming to be a Board representative again appeared. About an hour later, Hudson returned to the same area and observed Weigel again addressing remarks to employees as they passed him on their way toward the elevator lobby.1' Following a group of girls into the lobby, Hudson learned that Weigel had reminded employees concerning their identification cards for voting, a practice which he had, a short time earlier, agreed to abandon. Hudson again accosted Weigel and asked him if he were the man to whom Hudson had spoken earlier in the day. Weigel thereupon motioned to Salomon, who was standing a short distance away. Salomon approached Hud- son and asked him who he was and what he was doing in the store. Hudson replied that he was an agent of the Board, and Salomon asked for his credentials. , Salomon did not recognize Hudson as a Board representative with whom the Company had had dealings in the past, and Hudson, having had no previous dealings with repre- sentatives of the Company, did not identify Salomon as the manager of the store. Hudson questioned Salomon's identity and his au- thority to challenge Hudson's presence in the' store. According to Hudson, Salomon became boisterous, attracting the -attention of a great number of people, and denied Hudson's right to ask questions and ordered him from the premises. Angered by Salomon's noisy remarks accompanied by profanity, which Salomon denies, but whose denial we do not credit,20 Hudson, who had reached into his pocket for his credentials, decided not to proffer them for Salomon's in- formation, and told Salomon that he would not show his credentials, but would take Salomon, or anyone else whom Salomon might ap- point, to the voting place on the seventeenth floor of the building, where Hudson would be identified by a known Board representative. Salomon summoned a store policeman and told him to eject Hudson from the store unless he showed his credentials. After some con- versation with the policeman, Hudson left the store. Hudson's departure from the premises left the store approaches to the polls unattended by any Board representative. In the meantime the elections were proceeding. Employees, regular and part time, continued to vote. For their identification at the polls, a large percentage of the voters proffered envelopes or letters previously supplied to them by the Company for the purpose. Some employees presented May's letter of January 26; others, pay envelopes. Regular extra employees presented the post cards summoning them to work for the day, or the letter which accompanied the post card, 19 On this occasion Weigel was standing at a greater distance from the door and not in sight of the elevator lobby 20 Weigel a as not called as witness . Except that Salomon denies the use of profanity to which Hudson testified , Salomon substantially corroborates Hudson's version of the incident. THE MAY DEPARTMENT STORES COMPANY 271 or the envelope containing the post card and the letter. To'employees who had brought no identification to work with them, the Company supplied cards specially printed for the purpose. National Labor Relations Board election, January 28, 1943, Famous-Barr Company. Per ------------ The cards were signed by the assistant superintendent or another supervisor. 21 At the conclusion of the elections, the results were announced, and both unions lost the elections. B. Conclusions The A. F. of L. alleges (1) that the Company intimidated, coerced and otherwise threatened employees to vote contrary to their wishes; and (2) that immediately prior to the election the Company, through pressure, forced a decision for approval of a voluntary wage increase from the War Labor Board and announced such increase to counter- act union activities and influence the election. The C. 1. 0. alleges (1) that the Company directed its supervisors to set up a schedule of voting for the purpose of interfering with employees in their voting in the elections; (2) that the Company by letters, circulars, and public speeches coercive on their face influenced the balloting; (3) that the Company and not the Board conducted the election; (4) that during the election period supervisory employees engaged in surveillance and observation of employees while proceeding to the polls; and (5) that supervisory employees urged, warned, threatened, and persuaded em- ployees against voting in favor of the C. 1. 0. We are of the opinion that the facts above recited, and the entire record in the case, substantiate the unions' objections and establish that the elections cannot be regarded as reflecting the free and un- trammeled choice of the Company's employees. Beginning on Jan- uary 15 with an appeal to the employees on military leave to exert their influence on the voters at home, 22 and continuing with sustained 21 About 1 : 30 p. m., on the afternoon of election day, the Company distributed dis- count notices , indicating days when employees might purchase articles in designated departments at 20 percent savings. It was customary for the Company to distribute such circulars two or three times during the course of the year . Other discount notices submitted by the Company to show its practice in the matter indicate shorter discount periods, but there is nothing in the record to show that the distribution of this notice was not substantially in accordance with the Company's custom or that the issuance of the discount notice was untimely. 22 Although the Company 's representative testified that opinions "on both sides" were anticipated from the letter sent to employees absent on military service , we believe, viewing the whole course of the Company 's conduct, that the document was a shrewd device to stir such employees , normally apprehensive of the widely publicized, difficult adjustment period anticipated after the war, to prevent any change in employment conditions at home during their absence. 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD propaganda through January 28, the day of the elections itself, the Company engaged in a deliberate campaign to defeat the labor organ- izations at the polls. 28 To this end, it took upon itself, in effect, the conduct of the elections. It stirred, prodded, and impelled its em- ployees, especially those somewhat disinterested and apathetic, to cast a vote. By a series of written and oral communications, 24 wherein it manifested its hostility to unions, especially the C. I. 0., flaunted its unfair labor practices in connection with the wage increase, and ap- plied economic pressure in an admixture of clearly implied threats and promises, the Company made sure that its weight should tip the scales against the unions in the elections. The Company expended its time, energy, words, and funds to con- trol the mechanics of the elections and represent itself as the source of apparently "official" information pertaining thereto. At every turn, taking advantage of its intimate daily contact with the em- ployees and its mailing lists, it forestalled the Board's agents in publicizing the date, hours, and place of the polling and the procedure to be observed by voters, always ubiquitously stressing the Company's desire that even short-hour employees should vote during working hours at its expense. Thus, on January 22, 2 or 3 days before it posted the Board's official election notices, wherein prospective voters were warned to supply themselves with identification, the Company distributed specially printed identification material with the em- ployees' pay checks. On January 18, when, as we have noted, it distributed the first complete, and apparently authoritative detailed announcement of the elections, the Company personally notified each of the approximately 500 eligible extra employees of this right'to vote and the Company's urgent desire that he should do so. The extras received further special reminders of the election together with the summons to work mailed to them on January 25. It was not until January 26 that the Company forwarded to the Board its list containing the names of these persons, whose eligibility was de- termined by facts peculiarly within the Company's knowledge. In addition, the Company educated its supervisors to pass as informants concerning election details, and the supervisors carried out their in- structions, and the eleventh-hour agreement that the supervisors should not take the initiative in sending employees to the polls, or record the identity of voters, was violated in two departments. We think that this conduct justifies the C. I. O.'s allegation that the Com- 23 An employer's right of comment on unionism does not justify "an organized cam- paign or a protracted distribution of propaganda ." Peter J. Schweitzer, Inc. v. N. L. R. B., 144 F. ( 2d) 520, 525. 24 Note the three letters sent through the mail to several hundred employees ; the two telegrams ; the four items of printed material distributed in the store ; and the three loudspeaker- addresses in the space of 10 days. Voting schedules posted in departments throughout the store-on election day brought the Company's desire for votes immediately and insistently to the attention of all employees. THE MAY DEPARTMENT STORES COMPANY 273 pany, not the Board, conducted the election, at least from the em- ployees' point of view 25 This is the first case in which we have had occasion to consider officiousness of this type and its effect upon a Board election. We regard it as serious interference, for .in our judg- ment the chief and unique value of the representation polls conducted by our agents derives from the fact that the opportunity to vote is afforded, the exercise of that opportunity is protected, and the secrecy of the ballot is guaranteed by the disinterested agency of the Federal Government which exists for the express purpose of protecting em- ployees in the exercise of their right to self-organization and collective bargaining through freely chosen representatives. Any intermed- dling, by an employer or any other person or organization, willful or otherwise, which tends to create the impression that an agency other than the Board is sponsoring and conducting an election held in the course of proceedings under Section 9 (c) of the Act, negates the very purpose for which the election was directed. The Company's campaign to get out the vote-against the unions-is equally objectionable. We have held that an employer can properly encourage his employees to vote so long as he limits his encouragement to that end, and says nothing calculated to influence the employees in the way they should vote.26 That is not what happened here. Passing the question whether the term "encouragement" fairly characterizes the diverse tactics used by the Company here to force the franchise upon its employees, we are constrained to conclude that it exerted its utmost efforts to induce a vote against the unions, especially the C. 1. 0., which was competing against no union in the large unit. That the printed addresses of May and Salomon were anti-union in tenor is perfectly apparent.27 Both referred to the Company's adamant posi- tion on the subject of a union-security contract, clearly indicating that collective bargaining on' that important subject was foreclosed, so far as the Company was concerned.211 Both addresses contained a new familiar pattern 29 of rhetorical questions and comments suggesting ss The Company's references to the elections as "Labor Board" elections did not dis- sipate the effect of its officious domination of the preelection scene 20 "An employer may properly encourage his employees to vote, so long as he limits his encouragement to that end and says nothing which is calculated to influence his employees in the way in which they vote." Matter of Martin Food Products, Inc., 52 N. L. R. B. 1131. 21 In view of the Company's assertion of patient silence in spite of the allegedly continu- ing unfair attacks upon it by the C. I. O. over a long period of time, we find no merit in the Company's contention that the C . I. O. "provoked" its hostile attack immediately before the elections. 28 Matter of Elkland Leather Company, Inc., 8 N L. R. B 518 , enf'd 114 F ( 2d) 221 (C. C. A 3), cert den 311 U. S. 705, and Matter of Harbison-Walker Refractories Co., 43 N. L. R. B 711 , enf'd 135 F. ( 2d) 837 ( C. C. A ) , Matter of Julius Cohn, d/b/a Comas Manufacturing Company, 59 N. L. R B. 208 , Matter of Tampa Electric Company, 56 N. L. It. B. 1270; and Matter of Cameron Can Machinery Company, 57 N L R B 1768. 29 See the employer's letter in Matter of American Tube Bending Co , Inc., 44 N. L. R. B. 121; N. L. R. B. v. American Tube Bending Co, Inc., 134 F (2d) 993 (C. C A 2), which has been widely copied 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the C. I. O.'s leadership is unreliable; that the C. 1. 0. is interested only in the employees' dues and can do nothing to advance their wel- fare; that the cost of union representation compares unfavorably with the benefits voluntarily accorded by the Company; and that employees' membership or application for membership in the C. I. 0., need not inhibit them from casting their votes against it. The Company pro- claimed the recently approved wage increase as a gratuity it had secured for its employees-except the tailors represented by the C. I. O.-despite opposition imputed to the C. I. 0., thus repeating precisely the same offense which led us to hold that the original appli- cation for the wage increase and the Company's announcement thereof, constituted interference, restraint, and coercion within the meaning of Section 8 (1) of the Act.80 In conjunction with its repeated emphasis upon the wage increase, it expatiated upon other economic benefits which it had conferred upon its employees in the past and, further, twice assured the employees that it would continue to press for War Labor Board approval of wage increases and back pay for those employees who had not been included in the directive just issued. Salomon's remark, anent the forthcoming back pay 81 and the general increase, that he "would rather pay it than talk about it" exemplifies the subtle but highly effective manner in which the Company made certain that the War Labor Board's action should have the full impact of a cash bonus placed in the pockets of the employees on their way to the polls. _ The Company argues that, particularly in view of its assurances that the employees were free to vote as they liked and its avowed intention to continue a policy of "cooperation" with its employees, regardless of the outcome of the election, the addresses of its officials cannot be construed as threatening or coercive. We cannot agree. In the context of its elaborate, determined, and obviously expensive efforts to get out the vote, we view the Company's expressions of hos- tility toward the C. 1. 0., its firm repetition of the open-shop policy, its enumeration of substantial economic benefits conferred upon the em- ployees when, in Salomon's reiterated words, "nobody forced us," its promises of continued efforts to secure further wage increases, and 30 There is nothing in the record to indicate that the Company just at this time as alleged by the A. F. of L. in its objections "through pressure forced a decision from the War Labor Board." The Company contends that its duty to its employees required it to announce the decision promptly and that therefore the announcement of the increase prior to the elec- tions cannot constitute interference with the conduct of the elections. We do not agree, even if it were true (which it is not) that the Company strictly limited itself to an "announcement" of the increase, that the announcement of the increase does not constitute interference per se As we said in an earlier decision , "elements , regardless of their source or of their truth or falsity, which in the experienced judgment of the Board made impossible an impartial test, are grounds for the invalidation of an election " Matter of Continental Oil Company, 58 N. L. R. B. 169. Cf. Matter of Shreve and Company, 57 N. L. R. B. 1483 ; Matter of Seneca Knitting Mills, Inc , 59 N. L. R. B 754. is It was emphasized that checks covering back pay would be delivered "in just a few days." THE MAY DEPARTMENT STORES COMPANY 275 its emphasis upon the increase just announced, as an apt illustration of "pressure exerted vocally." 32 Despite the Company's declaration of a policy of continued liberality, the employees, considering the totality of its remarks and admonitions, must necessarily have questioned whether union representation would not result' in a detrimental altera- tion of their conditions of employment.33 This conclusion is con- firmed when the Company's utterances are weighed and interpreted, as the employees must have interpreted them, in the light of its past record of unfair labor practices. The Company suggests that, because of the waivers filed by the C. I. 0. with respect to the prior complaint cases, we should ignore that record in judging the effect of its preelection conduct. This posi- tion is untenable. The waivers are not, of course, available to the Company as a "defense," for the Company is not charged with unlaw- ful conduct in this proceeding,34 nor is it a party to, or beneficiary of, the waiver agreements. In accordance with our administrative policy, which is designed to solve a practical problem created by the inevita- ble delays attendant upon the litigation of cases involving unfair labor practices,35 the Board required the C. I. 0. here to agree that it would 82 N. L. It. B. v Virginia Electric and Power Co., 314 U. S. 469. 31 "It Is one thing to appeal to the gratitude of the employees in order to convince them that a union is not necessary. It is a different thing to suggest that the benefits of a liberal labor policy would be lost if a union is organized . The latter means of per- suasion is coercive in nature." Peter J. Schweitzer, Inc v. N. L. R. B ., supra; Matter of Big Lake Oil Company, 56 N L. R. B. 684; petition for enforcement granted January 29, 1945. $4 Thus, It is clear that the Company is in no way subject to legal prejudice by our action herein taken. Onan v. N. L. It. B, 145 F (2d) 328 (C. C. A. 8), wherein a petition for review was dismissed in respect to Matter of D. W. Onan and Sons, 52 N. L. R B 1421; 57 N. L. It. B. 68 85 As a general principle we hold that the continuing effects of unreniedied unfair labor practices tend to vitiate employees' free choice of bargaining representatives, and, if it were feasible , we would never conduct an election among employees of an employer charged with violation of the Act, until all issues pertaining thereto had been deter- mined by the Board and any ensuing remedial orders fully enforced . On the other hand, in a situation where employees desire to designate bargaining representatives during the pendency of an unfair labor practice case, we recognize that to postpone the conduct of an election in the representation case until the close of the long process prescribed in Section 10 of the Act, which must be observed in the complaint case, may obstruct and unduly delay collective bargaining , contrary to the purposes of the Act. In such a case, if we believe, and the charging union concedes , that it is in the circumstances prac- tically possible to conduct a fair election despite the employer' s past commission or al- leged commission of unfair labor practices, we will direct an election , provided that the charging union agrees by its "waiver" not to urge such unfair labor practices as a basis for seeking to have the election Invalidated. The waiver is simply an admission of re6ord by the charging union that certain past conduct of the employer, known to both the union and the Board, may properly be discounted as affecting the validity of the con- templated election . It has no prospective application and cannot relieve the Board of the duty to determine , in the light of all relevant circumstances , the effect of any con- duct by the employer on the eve of the election , which is claimed to have interfered with the conduct or the results thereof By this practice, designed to effectuate the policies of the Act, the Board avoids a dilemma growing out of its dual administrative processes. As a result of our practice, the employer' s failure to comply with the Board's remedial order or recommendation does not operate to bar employees from an opportunity to select a bargaining representative ; but the mere holding of a timely election among such em- ployees does not constitute a purge of unlawful conduct practiced by the employer. 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not seek to have the election set aside on the basis of the Company's conduct which was before us in the two prior unfair labor practice cases. We are, of course, concerned that this and all like promises made to the Board be faithfully performed. However, we do not regard our determination in this case as condoning any violation of either the letter or the spirt of the C. I. O.'s waiver agreements. We propose to set this election aside, not because of the Company's unfair labor practices which were the subject of the waivers, but because of its conduct during the 2 weeks prior to the elections. The effect upon the employees of certain aspects of that conduct, notably addresses made by the Company's officials which are not even rendered intelligi- ble except by allusion to past events, can be realistically determined only by reference to events lying in the past. The filing of the waivers did not obliterate the past unfair labor practices or create the fallacy of their non-occurrence; nor did we require the waivers to be 'filed for the purpose of indulging in such fiction. We find, on the basis of the facts and conclusions above set forth, that by reason of the Company's interference, the elections were not truly representative of the employees' free choice.',' We shall, there- fore, set the elections aside. We shall direct new elections, at such time as the Regional Director shall advise us that they may be appro- priately held. III. THE MOTION TO INTERVENE On January 1, 1944, in the original Decision and Direction of Elec- tions in this proceeding, the Board found two units appropriate for the Company's employees : (1) all regular and relief elevator operators and starters employed in the Company's St. Louis store and in the St. Charles Street warehouse, including escalator attendants, and (2) all selling and non-selling, clerical and non-clerical, regular and regular extra employees at the Company's St. Louis store and the St. Charles Street warehouse, but excluding all extra or "just extra" employees, elevator operators, starters, escalator attendants, general office employees, demonstrators, employees in leased departments, em- ployees represented by other unions and presently under contract with the Company, employees at the Pine Street warehouse, at the cus- tomers' garage, and at the Spring Avenue warehouse, and all em- ployees in the busheling department, all employees in departments 324, 325, 341, 342, 343, 345, 352, 379, 421, 422, 431, 381, 382, 443, 477, 541, and 561, and confidential employees. All supervisory employees within the Board's usual definition of that term were also excluded from the bargaining units. 36 As noted above, we find no support for the A. F. of L's objection No. 2 In its en- tirety ; nor, except as to the speeches and letters of Salomon and May, for the C. I. O.'s objection No. 5. THE MAY DEPARTMENT STORES COMPANY 277 On August 15, 1944, after elections had been held among employees in these units, and while these investigatory proceedings were pending concerning their validity, Female Cafeteria and Soda Fountain Em- ployees Union, Local No. 249, A. F. L., herein called Local 249, filed a petition for investigation and certification of representatives in Case No. 14-R-1041, alleging that employees in the Sixth Street tearoom at the Company's store constitute an appropriate bargaining unit apart from other employees in the larger group previously found appropriate for general store employees and requesting certification as their exclusive bargaining representative. In support of its petition to represent a majority of the approximately 45 employees in its pro- posed unit, Local 249 submitted 30 cards, 14 of which were undated, 1 dated July 1944, and the remaining dated August 1944. Being ad- vised by the Regional Director that the new petition was ill-timed because of the pendency of the instant proceedings and would be dis- missed, Local 249 thereupon filed a motion to intervene herein, urging that the Board find in the instant proceedings the unit set forth in its petition as an appropriate bargaining unit and direct an election among employees therein, in which Local 249 should participate. The Company and the C. I. O. each filed objections to the granting of the motion. Since the record clearly indicates that Local 249 organized employees in its proposed unit subsequent to the issuance of our Deci- sion and Direction of Elections on January 1, 1944, the motion to intervene herein filed by Local 249 is hereby denied.37 ORDER The National Labor Relations Board hereby vacates and sets aside the elections conducted in this proceeding on January 28, 1944. MR. GERARD D. REILLY, concurring specially : In view of the fact that the record shows an apparent misunder- standing between the Board's agents and Company officials with respect to the mechanics of the election, and also since more than a year has elapsed since the employees of this Company have had a chance to express themselves by secret ballot on their choice of a bar- gaining agent, I have no objection to the result of the majority's deci- sion. I do think, however, that many of the observations in the opinion accompanying the Order are not well taken. At the time this election was conducted, the Company had not com- plied, with the Board Order in Cases No. 14-C-872 98 or No. 14-C-596139 ordering it to cease and desist from certain enumerated unfair labor 97 Matter of The United Boat Service Corporation, 55 N. L. R. B. 671. 83 53N L R. B. 1366. ' 59 N. L.R.B 976. 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices. It is very probably that the coercive effect of these practices affected the result of the election. But this was a risk which the peti- tioning organization in the principal bargaining unit 40 in this election knowingly incurred, since it had waived these unfair labor practices in accordance with the rules of practice of this Board. One of these unfair labor practices related to a wage increase granted to the em- ployees, subject to War Labor Board approval, which was found to have been made under such circumstances that it was discriminatory. Consequently, I do not see how the announcement of this wage increase was anything more than another aspect to the unfair action which the Union had expressly waived, and since the occurrence of this event must have been within the contemplation of all the parties, it would not seem a valid ground for setting aside the election.41 As for the other speeches and announcements by the Company, it seemed to me that their primary emphasis was upon bringing out a heavy vote, and while their motivation was undoubtedly due to un- friendliness toward the Union, I find nothing in the language used which transgresses the permissible exercise of freedom of opinion, noted by the Supreme Court of the United States in its latest pro- nouncement on the subject.42 APPENDIX 1 THE MAY DEPARTMENT STORES COMPANY FAMOUS-BARB Co. ST. Louis JANUARY 15, 1944. To EVERY EMPLOYEE OF FAMOUS-BARR Co. IN THE ARMED FORCES OF THE UNITED STATES : On January 1, 1944, pursuant to petition filed by the C. I. O. and motion to intervene filed by the A. F. of L. the National Labor Rela- tions Board ordered an election to be held at which a large unit of about 3500 of the employees of this Company will choose between the C. 1. 0., the A. F. of L., or no Union. By express order of the Board employees "In the armed forces of the United States who present themselves in person at the polls" and who are in the "appropriate unit" may vote. 40 One election was conducted in a unit of elevator operators , in which 48 votes were cast ; in the residual unit, which comprised virtually the rest of the store , 2,710 votes were cast. The comment in the foregoing opinion relates to the election in the latter unit 41 In fact, this increase is not enumerated by the C. I. O. in its list of objections , although passing reference is made to it in the brief. 'a See opinion of Mr. Justice Rutledge in Thomas v. Collins, 323 U. S. 516 : "Accordingly, decision here has recognized that employers ' attempts to persuade to action with respect to joining or not joining unions are within the First Amendment 's guaranty." THE MAY DEPARTMENT STORES COMPANY 279 This notice is sent to you because you are in the "appropriate unit", and are entitled to vote. The time and place of the election will be announced in a few days. The purpose of this notice is to advise you that if you should be in or near St. Louis between this date and January 31, 1944, you should immediately upon arrival contact any employe of the store, or visit the store, in order to learn when and where you may cast your vote on this matter. If you have no expectation of being in or near St. Louis during this month, it may be that you will want to write to one or more of your co-workers to express your ideas on this important matter so that your associates will have an opportunity to be guided by your opinion. Such communications, naturally, should be mailed or tele- graphed at once as the election is almost sure to take place in the next few days. With every good wish for your good health and good luck from all your co-workers, we are Yours very truly, FAMOUS-BARR COMPANY. APPENDIX 2 Copy THE MAY DEPARTMENT STORES COMPANY FAMOUS-BARR CO. STORES St. Louis Cleveland Los Angeles Denver Akron Baltimore ST. Louis 1, Mo., January 26,1944. (Employee's Name) (Employee's Address) Dear Co-WORKER: This Friday, the 28th, you will have the oppor- tunity to cast your secret ballot in the Labor Board election to decide whether you will be represented in the future in your relations with this company by the CIO as your exclusive bargaining agent, or not. This is an extremely important question for you to decide and I ask that you consider it well. For nearly two and one-half years handbills have been passed out to us at frequent intervals as we entered the store. During this entire periol I have said nothing, although there have been many times when the temptation to answer some of the statements has been great. Now, however, as you prepare to go to the polls in this election, I believe that this expression from me as the head of our 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD f rn1 will be received by you in the same friendly spirit in which it is sent. I have the greatest pride in Famous-Barr'and in the prog- ress which the store has made with your cooperation and assistance. I hope that after Friday any dissension will be forgotten and that we will continue to work together for the common good of all. You should consider, when you decide how you will vote on Friday, whether or not you want the CIO, as you have had an opportunity to judge its actions and its policies during the last two and one-half years. Is its leadership the kind you want to follow? Would you gain anything? What would it cost? What control would you have over the cost in the future? What obligations might you be assum- ing? These are among the questions you must decide. Take time to talk them over with members of your own family, who have only your interest at heart. Bear in mind that anyone else who seeks to influence you may possibly have a selfish motive. In the end, decide for yourself what you think will really be best for you and rest assured that no one but you will know how you vote. Also please remember this : Whether or not the CIO represents you in the future depends upon how the majority votes-that is, a majority of those who actually vote and not a majority of the em- ployees who are eligible to vote. For example, if there are 3,500 employees eligible to vote and only 500 of them should vote, then 251 votes would decide whether the whole 3,5,00 employees would there- after be represented by the CIO or not. So you can see that every vote counts and that if you do not vote it is the same as a vote against what you want. Therefore, don't let anything prevent you from voting. Let me make it clear that you have the right to join any union or any other organization. Such membership will not affect your position with the store. On the other hand let me make it equally clear that it is not necessary for you to join any union or any other organization in order to protect your position with the store. No matter what you may have heard, such has been and will continue to be the policy of this firm. I know that the past few years have been difficult. Costs of living have increased, while salary increases are limited by strict govern- mental control. Our voluntary petition for the general salary in- crease filed last August was only one indication that we are conscious of your problems. The War Labor Board has now finally acted on our application so that we can now put into effect the increases which they authorized, and pay the accumulated back pay in the next few days. I am grateful to you for your help in making Famous-Barr the leader that it is in the retail field, and I ask only that you be sure THE MAY DEPARTMENT STORES COMPANY 281 to vote on Friday, and that you vote in accordance with your own individual judgment. Sincerely, [s] MORTON J. MAY, President. APPENDIX 3 REMARKS BY MR. FREI) Z. SALOMON JANUARY 27, 1944. LADIES AND GENTLEMEN : This is Mr. Salomon speaking. As I have walked through the store during the last few days, many employees, some of them old-timers, some of them new, have asked me, "Mr. Salomon, what do you think about this election?" I do have some personal views about this election and, like any other citizen, I have the right to express them. In doing so, I want to make it emphatically plain that I do not intend or desire to threaten or coerce any employee. You have the right to vote in this election in accordance with your own judgment. I ask merely that you listen carefully to the things which I have to say. There will be two elections. One will be among the elevator em- ployees-about 50 or 60 people. The other will be among a larger store wide group of 3,000 or more. It is about this larger election, in which most of you are eligible to vote, that I wish to speak to you. In the first place, what is this election about? It is simply to de- cide whether all of you who are eligible to vote are going to be represented in the future by the CIO, or not. The second question is-how will the election be decided? If a majority of those who vote, vote "Yes," then all who are eligible to vote will be represented by the CIO. If a majority of those who vote, vote "No," then you will not be represented by the CIO. But, in either event, the decision will be made by the majority of those who actually take the trouble to vote. Those who do not vote will have this most important question decided for them by those who do vote; and if they don't go to vote, it's the same as voting for what they don't want. So be sure to vote. The next question is whether or not anyone can find out how a person votes. I have made it my business to study that question very carefully in detail, and I can assure you that this election will be by absolutely secret ballot. There will be no identifying mark on your ballot such as there is in the regular city and state elections. The only mark on the ballot will be the "X" mark you put on it your- self to show how you vote. Then you will fold the ballot so that the 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mark does not show from the outside and drop it in the sealed ballot box yourself. That certainly guarantees secrecy in every respect. The polls are right up above us on the 17th floor of the Railway, Ex- change Building and you don't even have to put on your wraps or go out on the sidewalk. You walk right from the Main Floor of the Store into the Locust Street lobby of the Railway Exchange Build- ing, go up on the building elevators, get off at the 17th floor, turn to the right and walk into the polls, in Room 1730. The'all-important question is: Do you want the CIO? In deciding how you will vote you should consider all the facts. Here are some facts that you will want to think over. The CIO claims that it wants you to have more money. Then why did it do everything it could to prevent your getting the raise on the petition we filed last August? I know they say it wasn't enough, but did that justify their objections to your getting that much, and did it justify running the risk that you would lose the increase? Fortu- nately, they didn't have much success, except to delay it some, and you are going to get the increase and the back pay in just a few days even though the labor members of the War Labor Board in Kansas City voted against it. The CIO tried to create bad feeling between you and the Company by claiming that we didn't even apply for an increase but, of course, the records show that we did. When we applied for the increase for all the employees, we included the tailors in the petition. However, since the CIO represented the tailors, we specified that if the CIO should object, the tailors could be excluded from the increase. Sure enough, the CIO objected and accordingly the tailors were then excluded from the petition and won't get the raise and the back pay. You have all seen in the circulars which have been distributed at our doors, the attempts which the CIO has made to create dissension among our employees, and bad feeling between you and the Company. Not only that, but on several occasions the' CIO has distributed circu- lars to the public filled with statements of a character which were necessarily injurious to the business of the Company, although they knew that your positions and your earnings depend upon the goodwill of our customers, and that any injury to the Company was bound to injure you. You have all heard rumors that you would have to join the Union if the Union wins the election and that it will cost you a great deal of money to do so at that time. We can assure you that you need pay no attention to any such rumors. You will never have to join this or any other. union if you do not wish to do so. If, on the other hand, you do wish to do so, that is your privilege, but you should not join now' THE MAY DEPARTMENT STORES COMPANY 283 because of any threat that you will have to do so later, or that it will cost you a high initiation fee to join later. You also have seen statements in the circulars time after time for more than a year that the CIO represents a big majority of the em- ployees. You can judge, however, about how much truth there is to these claims when the Labor Board itself on January 1, 1944, said : "The record discloses that the organization of the Company's employees at St. Louis was begun more than two years ago and that the competing labor organizations interested in this effort have made slow progress in accomplishing their purpose." The CIO organizing campaign has been directed from Chicago, where the leaders of this Union in this part of the country live. You have seen a great deal in the CIO circulars about what they have accomplished in Chicago. All I know is that not one of the Chicago contracts which the CIO offered in evidence in our recent case, pro- vides for a 40-hour, five-day week. There is one difference, however, between the working hours under some of the Chicago contracts and the working hours at Famous-Barr, and that is that the employees in Chicago are charged with their relief periods, while you are not. These are some of the things which have come to my attention and which you may want to consider in deciding whether or not you want the CIO. But there is also another important side to the question. You should think of the things Famous-Barr has done voluntarily. I have no intention of reviewing my more than forty years with the Company, but let me recall a few things which the store has done in the last few years, not as a result of any force, but just as a result of our working -together. I have already mentioned the petition for the general salary increase which we filed voluntarily last August and I won't take your time to discuss it further. I would rather pay it than talk about it. Famous-Barr Company is the only large store in St. Louis that does not keep open one or more nights each week, and it is almost the only large store in the United States that doesn't. Nobody forces us to close our store every day at 5: 00 o'clock. On the contrary, we have been under enormous pressure from our competitors, as well as from local authorities and from governmental agencies to stay open Monday evenings. Nevertheless, we do not stay open, as you all know, and our primary reason for not staying open is that we know you don't want us to. Back in 1942 a lot of influential people in this city and in other cities thought it would be a good idea to stagger the street car trans- portation load by having the downtown stores stay open until 6: 00 o'clock every day. It didn't take long to find out that you folks didn't like the idea. I am not criticizing the people who proposed it. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD They sincerely thought it was necessary, and I respect them personally. But I was convinced the idea was not sound and I knew you didn't want it. I led the fight against it and it was really a fight. It was tough to have to oppose the City authorities and the street car execu- tives and officials of the Office of Defense Transportation who came out here from Washington. I was courageously and ably supported by the other downtown merchants. The CIO later tried to take credit for the fact that you don't now have staggered hours, but the Store owners are entitled to the credit.. Nobody forced us into this battle. We put up the scrap and won it because you wanted us to. Nobody forces us to establish the Employees' Service Office, where you can go with any complaint or personal problems and receive careful, courteous attention and consideration. Nobody forced us to put in our plan of Sick-Leave Pay in February, 1942, which is in addition to the Welfare Association benefits. Nobody forced us to pay the fees of two doctors, the salaries of two nurses and two social service secretaries and to dispense medicine free to our employees' hospital. (By the way, the Store furnishes these things and not the Welfare Association, as some of you may believe.) Nobody forced us to allow liberal vacations with pay or to pay Year-End bonuses. Nobody forced us to operate our employees' lunchroom at a loss of thousands of dollars a year. Nobody forced us to petition the State Auditor so that you don't have to pay Sales Tax on your meals there. Nobody forced us to allow employees to take liberal relief periods and shopping time off, with no loss of pay. Nobody forced us to give you 20% discount on new fresh merchandise many times each year just at the time when it is most needed. We did all these things and many more because we believed that you wanted us to do them, and because we felt, and still feel, that we want to cooperate with you. We expect to continue this policy in the future. I understand that some of the people in the store who have been identified with the Union's campaign are fearful of what may happen to them after the election. Nothing is going to happen to them. They have the right to join any union or any other organization, and such memberships do not affect their positions in the Store. How- ever, it is equally true, that it is not necessary for an employee to join any union or any other organization in order to protect your position in the store. That has always been our policy and it always will be. The only thing that counts is how you do your work. I want to emphasize the fact that each and every one of you has full freedom of choice as to whether you want to vote for or against the CIO and that you are under no obligation to vote for the CIO just because you may have signed a CIO card. THE -MAY DEPARTMENT STORES ' COMPANY 285 I have mentioned these things because .I thought that you might want to consider them in making your decision. The decision is for you to make freely without fear or compulsion. In any case, whether you favor the CIO, or whether you wish to continue on the old basis, you can only register your desire if you vote; therefore I urge you one and all- Decided for yourself . . . make up your own mind . . . and be sure to vote. I have heard that a few employees are thinking of staying home to- morrow to have an excuse for not voting. I simply cannot understand why anyone should have that attitude. No one can possibly know how you vote. No one will dare to bother, molest or annoy you either in the store or on the way to or from the polls. This is guaranteed by the United States Government. I am confident, therefore, that our absent list tomorrow will be the smallest that we have had in years. Thank you. [See infra, 61 N. L. R. B. 707 for Second Direction of Elections.] 639678-45-vol. 61=20