Bonwit Teller, Inc.

608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD BON WIT TELLER, INC. and AMALGAMATED CLOTHING WORKERS OF AMER- ICA, CIO, PETITIONER and RETAIL CLERKS INTERNATIONAL AssoclA- TION, AFL BONWIT TELLER, INC. and RETAIL CLERKS INTERNATIONAL ASSOCIA- TION, AFL. Cases Nos. 2-RC-1026 and £-CA-1052. October 2, 1951 Decision and Order . On December 19, 1950, Trial Examiner Charles W. Schneider 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. The Trial Examiner also rec- ommended that the election held in Case No. 2-RC-'106 on September 15, 1949, be set aside. Thereafter, the Respondent and Retail Clerks International Association, AFL, hereinafter called RCIA, filed ex- ceptions to the Intermediate Report and supporting briefs. The request of the RCIA for oral argument is denied, because in our opinion, the record and briefs, adequately set forth the issues and the positions of the parties. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts. the Trial Examiner's findings, conclusions, and recommendations, with the following modifications and additions:- 1. The hearing in this matter was held from September 14 to 27, 1950. On September 18, 1950, Mr. Denham resigned his office as General Counsel of the Board. His successor, Mr. Bott, was appointed on September 28, 1950. At the close of the hearing the Respondent moved to dismiss the complaint on the ground that, as Section 3 (d) of the amended Act gives the General Counsel exclusive authority to prosecute complaints, there was no statutory authority to proceed. The Trial Examiner denied this motion, and the contention is re- newed in the Respondent's brief before us. We agree with the Trial Examiner's conclusion on this issue, al- though we do not adopt all of the reasoning by which he reached that conclusion. Mr. Denham, while in office, had issued the complaint on which the hearing was held, and had delegated to his representative at the hearing the authority to prosecute the complaint. The hearing was already in progress when he surrendered office. The Respondent 96 NLRB No. 73. BO1VWIT TELLER, INC. 609 does not contend that it was deprived of a fair hearing, or otherwise prejudiced by the fact that part of the hearing was conducted during the temporary vacancy in the office of the General Counsel which followed Mr. Denham's resignation. The Respondent's argument that this proceeding should be set aside is based solely on a very literal reading of Section 3 (d). But it is clear on its face that the language of that Section was not directed at, or drafted with a view to, the special and unusual circumstances present here; and neither in that Section nor elsewhere in the Act do we find any expression of an intent by Congress to reach the result which the Respondent urges. Nor has the Respondent demonstrated in what respect the general aim of Section 3 (d) to achieve a separation between the prosecutory and adjudicative functions of this agency would be served by such a result, or in what respect a contrary result would conflict with that purpose. We are satisfied that Section 3. (d) of the Act does not require that this proceeding be set aside, and that the purposes and policies of the Act will best be effectuated by deciding the case on the record now before us. 2. We agree with the Trial Examiner that the announcement of the pendency of wage increases in President Rudolph's speeches of September 9 and 10, and in the departmental meetings, constituted a promise of benefit to employees, which was reasonably calculated to deter them from voting for the RCIA in the runoff election of Sep- tember 15, 1949, thereby violating Section 8 (a) (1) of the Act, and interfering with their freedom of choice in the election. It is imma- terial that the Respondent did not expressly condition the granting of wage increases on RCIA's losing the election. It is sufficient that the purpose, and natural effect, of the announcement was to convince the employees that they did not need a union in order to obtain wage increases or other improvements in their conditions of employment.2 U A A majority of the Board 3 believes, contrary to the Trial Exam- iner, that Section 10 (b) of the Act bars a finding that the Respondent violated the Act by withholding the February wage increases. The charge in this case was not served upon the Respondent until Decem- ber 1, 1949. The Respondent's semiannual February wage review, which would normally have resulted in the granting of selective wage increases, was discontinued in February 1949. It was this action which the Trial Examiner found to violate Section 8 (a) (1) of the ' See Queen City Valves, Inc., 93 NLRB 1576 ; Wyman-Gordon Company, 62 NLRB 561, 583; F. W. Woolworth Co. v. N. L. R. B., 121 F. 2d 658 (C. A. 2) ; N. L. It. B. v. Jones Foundry & Machine Co , 123 F. 2d 552 (C. A. 7). 2 We do not agree, however , with the Trial Examiner's finding that Rudolph's speeches contained a threat of reprisal We find nothing in those speeches to suggest that the pending wage increases would be withheld beyond the date of the election, or that they would not be granted if the RCIA won the election. 3 Chairman Herzog, Members Reynolds and Murdock. 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act. While recognizing that under Section 10 (b) of the Act no finding of unfair labor practices could be based on any action taken by the Respondent before June 1, 1949,4 the Trial Examiner found that the Respondent violated the Act by maintaining, after June 1, 1949, its policy of not reviewing wages during RCIA's organizational cam- paign. Assuming, without deciding, that the initial decision of the Re- spondent in February to discontinue the processing of the wage reviews violated the Act, we do not believe that the mere failure of the Respondent during the 6-month limitation period to modify or rescind that decision may be regarded as a continuing violation of the Act. Any other view would tend to nullify the purpose of Congress in enacting Section 10 (b) .r, Accordingly, the complaint will be dismissed insofar as it alleges that the withholding of the February increases violated the Act. As Section 10 (b) applies only to unfair labor practices, it would not, of course, preclude a finding that the withholding of the February increases interfered with the employees' freedom of choice in the election of September 15, 1949, so as to require that the election be set aside. However, because we find ample reason for setting the elec- tion aside without considering the withholding of the February in- creases, a majority of the Board finds it unnecessary to consider that question.6 4. We agree with the Trial Examiner's finding that the Respondent violated Section 8 (.a) (1) of the Act by the statement of Niemark, a representative of the Respondent, that wage increases would be further deferred by the Respondent if RCIA won the election, and by Super- visor Burchett's statement that the Respondent would change its wage, promotion, and layoff policies if it had to bargain with a union 7 We 4 Section 10 (b) prohibits the issuance of a complaint based on unfair labor practices occurring more than 6 months before charges have been filed and served . As the charge in this case was served on December 1, 1949, the 6-month period began to run on June 1, 1949. ° See Goodall Company, 86 NLRB 814. ° Members Houston and Styles, contrary to the majority of the Board, would affirm the Trial Examiner's finding that by continuing to withhold the February increases after June 1, 1949, the Respondent violated Section 8 (a) (1) of the Act, and thereby inter- fered with the election. They are of the opinion that the conduct involved exerted its coercive effect in a continuing manner and that the statute of limitations is therefore no more of a barrier to the finding of violation of Section 8 (a) (1) than was true under similar circumstances in Superior Engraving Co. v. N. L. R. B., 183 F. 2d 783 , 790 (C. A. 7). a As these statements were made by representatives of management , whom the employees could reasonably consider to be speaking for management, and related to matters which were to some extent, at least, within the control of management-i. e , the course of the Respondent's negotiations with RCIA if it won the election-we find that these statements were threats of reprisal, and not merely privileged predictions as to matters over which the Respondent had no control , or mere prophecies by one who had no "authority or power to change [ the] prophecies into realities." Cf. N. L. R. R. v. Mylan-Sparta Co., 166 F. 2d 485 (C. A. 6). BONWIT TELLER, INC. 611 agree, also, that by these statements the Respondent interfered with a free choice in the election. . 5. There remains for consideration the question whether the Re- spondent violated the Act by failing to grant RCIA's request of Sep- tember 12, 1949, for an opportunity to speak to the employees in the Respondent's New York store under conditions similar to those at-, tending Rudolph's speech in that store on September 9. Like the Examiner, we find that in denying RCIA an opportunity to address the employees under conditions similar to those under which the Respondent made its speech of September 9, the Respond- ent violated Section 8 (a) (1) of the Act. We find also that the Re- spondent thereby interfered with a free choice in the election of Sep- tember 15. In reaching these conclusions, we rely upon the following considerations : Particularly persuasive in the instant case is the fact that the net result of the Respondent's denial of the Union's request was to apply a no-solicitation rule discriminatorily. The Respondent had for- bidden the solicitation of employees by union organizers on the selling floors of its department store, both during working and nonworking time. This it had a right to dog But despite the existence and en- forcement of this rule, the Respondent chose to utilize its premises and compensated time to campaign against the RCIA and denied that union an opportunity to reply under the same circumstances. This Board has long held-with judicial approval-that an otherwise valid no-solicitation rule violates the Act where it is enforced and applied in a discriminatory manner, as, for example, (1) where it is enforced against union solicitation although other forms of solicita- tion are permitted or (2) where it is enforced against solicitation by one union although another union is permitted to solicit .9 We see no real distinction in the effect upon the rights of employees guaranteed in Section 7 of the Act between such forms of discrimi- natory enforcement of no-solicitation rules and the situation now be- fore use, in which the employer prohibits the use of his premises for union solicitation, while itself utilizing such premises as a forum for solicitation against the union. Indeed, the result reached in those cases is particularly compelling in the present case because of the scope of the no-solicitation rule itself. Here the Respondent has prohibited union solicitation on the selling floors of its store even where it in- volved employees' nonworking time. As noted above, because of special considerations arising from the fact that the Respondent oper- 8 See for example, May Department Stores Co., 59 NLRB 976; J. L. Hudson Company, 67 NLRB 1403 ; Goldblatt Bi os., Inc., 77 NLRB 1262. ° See the cases cited by the Trial Examiner on this point in section F . 3 of the Interme- diate Report. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ated a retail department store, it was privileged to, promulgate and enforce a rule go broad. Yet it cannot be denied that, while the rule was justified and lawful, the organization of the Respondent's em- ployees had to be conducted under a practical disadvantage which we have not sanctioned in other types of business operations. We believe the special privilege of department stores to promulgate the broadest type of rule against union solicitation gives rise to an equal obligation to assure that such rules are enforced with an even hand. For an employer, in the face of such a rule, to utilize its premises for the purpose of urging its employees to reject the Union, and then to deny the Union's request to present its case to the employees under the same circumstances, is an abuse of that privilege which, we believe, the statute does not intend us to license. There is, in addition, an even more fundamental consideration- wholly apart from the Respondent's disparate use of the no-solicita- ,tion rule-which justifies the result we reach. We believe that the right of employees, guaranteed by Section 7 of the Act, freely to select or reject representation by a labor organization necessarily encompasses the right to hear both sides of the story under circum- stances which reasonably approximate equality. That is not to say that an employer is proscribed from addressing his employees and urging that they reject a union unless he invites a union representative to come into his plant and make an appeal for support of the union. Nor does it mean that' under any and all circumstances an employer is under an obligation to accede to a union's request that it be granted an opportunity to address the employees on the employer's premises. It is to say that an employer who chooses to use his premises to assemble his employees and speak against a union may not deny that union's reasonable request for the same opportunity to present its case, where the circumstances are such that only by granting such request will the employees have a reasonable opportunity to hear both sides. What the particular circumstances are which give rise to the obliga- tion to grant such request is a matter the Board must face on a case- to-case basis. We are satisfied that those circumstances were present in the case now before us. The employees were about to vote in an election to determine whether they wished RCIA to represent them. Whatever opportunity that Union may have had to solicit employees outside of the store or at union meetings, it is clear that the Respond- ent's broad no-solicitation rule had deprived RCIA of the most effec- tive means of contact with employees-namely, solicitation, of em- ployees while they were in the store. Moreover, in this period the Respondent committed serious unfair labor practices, which interfered with the employees' freedom of choice. Against this background Rudolph made his antiunion speech to the employees assembled in the s BONWIT TELLER, INC. 613 store during working hours on September 9, only a few days before the election. Thus, in addition to the limited opportunity that the union had had to contact employees before that speech, the proximity of the speech to the day of the election imposed a practical limitation on out-of-the-store contact by the union of ter the speech. In these circumstances we conclude that the only reasonble opportunity the employees could have had to hear the Union's reply was by the Re- spondent's granting the Union's request to address the employees under the same advantageous circumstances as the Respondent had made available to itself 10 We hold that, in denying the Union's request, the Respondent violated Section 8 (a) (1) of the Act, and created condi- tions incompatible with a free, uncoerced choice in the election. We believe this conclusion to be in accord with the decision of the Court of Appeals for the Second Circuit in the Clark Bros. case.'1 There, the Court stated : The Board argues that one of the rights guaranteed employees by Section 7 of the Act is the right to be free to determine whether or not to receive aid, advice and information concerning their self-organization for collective bargaining, and that this right is violated whenever the employer utilizes his power to compel them to assemble and listen to speeches relative to matters of organization. But the present case does not call for laying down so broad a rule. An employer has an interest in presenting his views on labor relations to his employees. We should hesitate to hold that he may not do this on company time and pay, provided a similar opportunity to address them were accorded representa- tives of the union. * * * But in the case at bar the respondent 10 Our dissenting colleague emphasizes the fact that the events herein occurred in a large metropolitan center , and suggests that in such circumstances, a union always has a sufficient opportunity to contact employees outside of the employer 's premises. We agree that the geographic location of the plant involved is a factor to be-consid- ered, and we have done so in this case But there are other circumstances which must be weighed against this in determining-and that is the real issue here-whether there was a reasonable opportunity, short of granting the union 's request , to answer Rudolph's speech of September 9. We believe that the limitations under which the union operated before the speech and the timing of the speech with respect to the election , outweigh, in this particular case, the mere fact that the Respondent's premises were located in a metropolitan center. Nor do we read the Stowe Spinning case, cited in the dissent , as conflicting with such conclusion. The only issue in that case was whether the employer , operating in an iso- lated mill town , had violated the Act by discriminatorily denying to a union the use of the only available meeting place in the town , which was controlled by the employer. There was no evidence that the employer in that case had addressed the employees on company premises and time on the eve of an election In affirming the Board 's finding of a viola- tion in that case, the court , it is true, intimated that it might have reached a different result, if the case had arisen in a metropolitan center where there is no dearth of meeting places However, this language clearly may not be construed as a holding that merely because it has access to a meeting hall , a union is to be regarded under all circumstances as having a means of reaching employees comparable to those availed of by the em- ployer. - 31N. L R . B. v. Clark Brothers Company, Inc , 163 F. 2d 373, 376 (1947 ), enforcing 70 NLRB 802. 974176-52-vol. 96-40 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not only engaged in unfair labor practices already discussed but entered upon an aggressive antiunion campaign which wound up with the president's speech at the compulsory meeting one hour before the voting began. In these circumstances we believe the Board was justified in finding that the respondent's conduct was coercive and an interference with the employees' right to self- organization, despite the generally unexceptionable character of the president's remarks. [Emphasis supplied.] . Thus, while rejecting the Board's view in the Clark Bros. case that a speech by an employer to a compulsory audience is per se violative of the Act,- the Court in that case found the employer's speech to be unlawful because, as in the instant case, the union had no similar opportunity to address the employees 13 The parallel between the instant case and the Clark Bros. case, in the posture in which it was considered by the Court, is heightened by the fact that here, as there, the employer's speech was delivered in the context of an aggressive antiunion campaign, in the course of which the Re- spondent violated the Act by coercive statements, including some of the remarks contained in the speech itself. •We cannot agree, as our dissenting colleague contends, that our conclusion on this issue does violence to the free speech guarantee pro- vided for in Section 8 (c) of the Act.'' On the issue we have just 12 This view was subsequently held by the Board to have been rejected by Congress in enacting Section 8 ( c) of the amended Act. See Babcock & Wilcox, 77 NLRB 577. While the legislative history of Section 8 ( c) contains adverse comment upon the Board's decision in Clark Bros., that a captive audience is per se unlawful, the view of the Circuit Court that such a speech is unlawful only if the union has not had a similar opportunity to address the employees was not before Congress. The Court's decision did not issue until July 29, 1947, after the passage of the amended Act and after issuance of the Senate Report mentioned in the dissenting opinion. To the extent that our decision herein may be deemed to be inconsistent with the Board's decision in S & S Corrugated Paper Machinery Co., Inc., 89 NLRB 1363, that decision ,is hereby overruled, but Babcock & Wilcox is adhered to. 13 We do not agree with the view of our dissenting colleague that the italicized portion of the above excerpt from the Court 's opinion was mere dictum . It is clear from the next sentence in the excerpt that, in sustaining the Board 's finding of unfair labor practices , the Court relied on the fact that , in addition to other unfair labor practices , the employer's antiunion campaign had culminated in the President's speech delivered "one hour before the voting began." It is thus clear that the Court based its decision, at least in part, on the fact that the employer 's speech was delivered under circumstances which precluded any opportunity for effective reply by the union. This conclusion is borne out emphatically by the fact that the final decree of the Court in the Clark Bros . case, enforcing the Board 's order, contained a provision re- quiring the employer to cease and desist from : "Compelling its employees during working time to listen to speeches relating to self- organization and the selection of a bargaining representative , without according similar opportunity to address them to the Union." [Emphasis added.] It can hardly be said that the language in question was dictum when a separate por- tion of the Court's final decree turned on it 14 To the suggestion of our dissenting colleague that our decision does not accord a proper respect for the Respondent 's property rights, it is sufficient to state, as the courts have held, that inconvenience "or even some dislocation of property rights" may be neces- sary in order to safeguard the rights of collective bargaining . N. L. R. B . v. Cities Service Oil Co, 122 F. 2d 149, 152 (C. A. 2 ) ; see also Republic Aviation Corp . v. N. L. R. B., 324 U. S. 793, 802 ; N. L. R. B . v. Stowe Spinning Co., 336 U. S. 226, 232. BONWIT TELLER, INC. 615 discussed we do not proscribe, nor find illegal what the Respondent said, or the manner in which it assembled its audience. We are con- cerned with what the Respondent refused to do. We have held that by such refusal the Respondent enforced its no-solicitation rule in a discriminatory manner and denied to its employees a reasonable op- portunity to hear both sides of the issue of union representation. We leave the Respondent free to exercise fully its right of free speech. We say only that when it chose to speak under the circumstances in- volved here, then, within the limitations set forth above, it could not lawfully deny the Union's reasonable request for an opportunity to reply under the same circumstances. 6. As we have found that the Respondent interfered with the em- ployees' freedom of choice in the selection of a bargaining representa- tive, we shall order that the election of September 15, 1949, be set aside. We shall direct a new election at such time as the Regional Director advises of the existence of conditions permitting a free choice. 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, Bonwit Teller, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from : Interfering with, restraining, and coercing its employees in the ex- ercise of their right to self-organization, to form labor organizations, to join or assist Retail Clerks International Association, AFL, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, by any of the following conduct : (a) Announcing wage increases, or threatening to withhold or with- draw benefits fdr the purpose of influencing employees with respect to union activity, affiliation, assistance, or designation. (b) During an organizational campaign by a labor organization, making antiunion speeches to the Respondent's employees during working hours and on the Respondent's premises, without according, upon reasonable request, a similar opportunity to address the em- ployees to the labor organization against which such speeches are directed. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Post at its White Plains and New York stores, copies of the notice attached hereto and marked "Appendix A." 15 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by'the Respondent, be posted by it im- mediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. ,. (b) Notify the Regional Director for the Second Region, in writing,, within ten (10) days from the date of this Order, what steps the Re- spondent has taken to comply therewith. IT IS FURTHER ORDERED that the complaint herein be dismissed in all other respects. IT IS FURTHER ORDERED that the September 15, 1949, election be, and it hereby is, set aside. MEMBER REYNOLDS, concurring and dissenting in part 1. I disagree with the finding of the Board that the statement of Niemark, a representative of the Respondent, concerning a delay of 6, months in the granting of wage increases if the RCIA won the election was violative of Section 8 (a) (1) of the Act. Niemark made it clear to the employees that such a delay would be necessary "because it would take that long to negotiate a contract." In my opinion, these statements merely reflect an awareness of the realities of contract ne- gotiations and of the Respondent's duty under the Act to refrain from granting any wage increase without consulting the selected bargaining representative. 2. I also disagree with the finding of the Board that in denying the RCIA an opportunity to address the employees in Respondent's New York store on company time as did Rudolph, president of the Respond- ent, the Respondent violated Section 8 (a) (1) of the Act.. In my opinion it is erroneous to hold that this action constitutes a discrimina- tory application of the Respondent's no-solicitation rule. In the past the Board has not held that an employer's privilege of fair comment to, all his assembled employees concerning a forthcoming election was circumscribed by the restrictions inherent in no-solicitation rules. Now to limit that privilege, which is in essence the right of free speech, does violence to the language and the intendment of Section 8 (c) of the Act 16 The legislative history attendant the enactment of If this Order is enforced by a decree of a United States Court of Appeals , there shall be inserted before the words, "A Decision and Order ," the words, "A Decree of the United States Court of Appeals Enforcing." 16 Section 8 (c) states that the expressing of any views , argument, or opinion, or the dissemination thereof,, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit. BONWIT TELLER, INC. 617 Section 8 (c) is replete with assurances that its passage would guaran- tee free speech to employers in labor disputes. That this freedom of speech encompassed the right to address employees in the plant, as did Respondent's president, is beyond question 17 Nowhere in the Act ,or in its legislative history, however, does it appear that a concomitant ,of this right is the obligation to provide a forum of debate for unions. Indeed, hinging an employer's right to speak upon his readiness to make available the means by which his arguments, views, and opinions can be nullified, effectively emasculates Section 8 (c) as it applies to the right of an employer to address his employees. Because the RCIA request in this case involves an invasion of the -Respondent's property rights, the Board is faced with the not un- familiar problem of balancing these rights with those of employees to self-organization. In those cases involving employer-owned mining, lumber or boat properties upon which employees live, a "company" town, or a geographically isolated plant, the Board has found the em- ployees' rights paramount where by the refusal of access to, or utili- zation of, such employer premises, the employees' rights to self -organ- ization would be "seriously impeded." This is not such a case. The Respondent's business is conducted in Metropolitan New York City, where facilities for union organization and meetings are abun- dant. In considering a related problem, the Supreme Court stated "We ,cannot equate a company-dominated North Carolina mill town with the vast metropolitan centers where a number of halls are available within easy reach of prospective union members." 18 Hence the justifi- cation for the majority's decision in this case, i. e., that the RCIA had no comparable means of bringing its arguments home to the employees, is not persuasive. To require that in a metropolitan area an employer must furnish to a union the comparable means of communicating with employees is to require him to subsidize a campaign for the election of a union to which he may be opposed. Such a rule is unheard of in ,election contests. As this rule is predicated upon the superior election campaign advantage of one party over another, the rule should encom- pass the accompanying rights of an employer in some instances to use -union halls to address its employee union members. Yet there is nothing in the majority decision to indicate that the Board so intends to extend the rifle. This is understandable as it is well-established under the Act that employers engage in surveillance in violation of the Act by attendance at union halls. ", Senate Report No. 105 on S 1126, 80th Cong, 1st Sess . (1947), where, in discussing Section 8 (c), the Report condemns the Board 's holding in the Clark Brothers case (70 NLRB 802) that an employer violated the Act by making a speech in the plant on working time. See Babcock & Wslcoo, 77 NLRB 577. 11 N. L. R. B. v. Stowe Spinning Co., 336 U. S. 226, 230. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is not a case of first impression. On at least two occasions, the Board has held that employers did not run afoul of the statute by refusing to permit unions to address employees on company premises as the employers themselves had done 19 These decisions reflect a proper respect for employers' rights vis-a-vis employees under the Act as well as for employers' property rights under the Fifth Amend- ment; neither in those cases nor in any other case has the Board held that an employer must curtail its plant operations to accommodate union organizational activities. Nor does the decision of .the Court of Appeals for the Second Circuit in the Clark Brothers case 20 com- mand a reversal of those salutary Board decisions. The only issue before the court in that case was whether the employer's speech was unlawful; the refusal of the employer to provide an opportunity to- the union similarly to address the employees was not alleged as an unfair labor practice nor was it an issue in the case. The statement of the court on the.employer's failure to accord the union an oppor- tunity to address its employees is therefore dietum.21 Moreover, in the Clark Brothers case the controversial speech occurred but 1 hour before the election-a fact emphasized by the court in finding the speech coercive; here the speech was delivered 6 days before the elec- tion, giving ample time for RCIA to reply-if opportunity to reply be deemed imperative-through usual union channels of communi- cation, namely, campaign leaflets or union-hall addresses. In addition to the foregoing extremely important differences between this and the Clark Brothers case, it should be borne in mind that the court's decision in Clark Brothers was rendered approximately 7 weeks before the effective date of the amended Act; at a time therefore when Section 8 (c), discussed above with its appropriate legislative history, was not the law. - If Section 8 (c) were then the law, it may well have tempered the court's dictum. On the basis of the foregoing, ' I would therefore find that the Respondent did not violate Section 8 (a) (1) of the Act by refusing the RCIA an opportunity to address the employees under conditions. similar to those under which Rudolph made his speech on September 9. Nor would I find that by such conduct the Respondent thereby interfered with a free choice in the election of September 15.22 I' S & S Corrugated Paper Machinery Co., Inc., 89 NLRB 1363; Anchor Ronne Mills,. 86 NLRB 1120. 20 The relevant position of the court 's decision appears in the text of the majority - opinion. See also footnote 17, supra. 21 But even as dictum , I am not at all sure that the court's decision is properly inter- preted by the Board . The court most emphatically did not find that the employer's speech was unlawful because the union had no similar opportunity to address the em- ployees. The court found that the Board was justified in finding that the employer's conduct was coercive because the employer "not only engaged in unfair labor practices already discussed but entered upon an aggressive antiunion campaign which wound' up with the president 's speech at the compulsory meeting one hour before the voting began. " 22 See my dissenting opinion in the General Shoe case, 77 NLRB 124. BONWIT TELLER, INC. 619 Except for the findings with respect to Niemark's statements and the RCIA request, I otherwise agree with the findings of the majority. 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 interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL, or any other labor organization, to bargain 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. WE WILL NOT announce wage increases, or threaten to withhold or withdraw benefits, for the purpose of influencing employees with respect to union activity, affiliation, assistance, or designation. WE WILL NOT, during a union organizational campaign, make antiunion speeches to our employees during working hours on our premises without according, upon reasonable request, a similar opportunity to address our employees to the labor organization against which such speeches are directed. BONWIT TELLER, INC., Employer. Dated------------------ By-------------------------- (Representative ) (Title) This notice must remain posted for 60 days after its date and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon objections by the Retail Clerks International Association, AFL, filed September 22; 1949, to the effect that the Respondent herein, Bonwit Teller, Inc., New York, New York, had interfered in a Board-conducted bargaining election held among employees of the Respondent, the National Labor Relations Board ordered that a hearing be held. On October 30, 1949, the R. C. I. A. filed a charge of violation of Section 8 (a) (1) of the National Labor Relations Act by the Respondent, based substantially on the conduct previously asserted as constitut- ing interference with the election. Upon this charge the General Counsel caused his complaint to be issued. The cases having been consolidated, and the Re- spondent having denied interfering in the election and having filed an answer denying the unfair labor practice allegations of the complaint, a hearing upon due 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice was held in New York, New York, from September 14 to 27, 1950, inclusive, before the undersigned Trial Examiner, Charles W. Schneider. The General Counsel, the Respondent, and the R. C. I. A. were represented by counsel and participated in the hearing. All parties were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence relevant to the issues. During the course of the hearing, on September 18, 1950, the then General Counsel resigned, at the same time withdrawing all authority vested in the Regional Office to issue complaints. No successor had been appointed at the time the hearing closed, though one has since. The hearing had in the meantime proceeded without objection. At the conclusion of the hearing the Respondent moved to dismiss the proceedings on the ground that, because of the vacancy, there was no statutory authority to•proceed. I find no authority in the statute, how- ,ever, for the conclusion that an action authorized and initiated by the General 'Counsel and upon his complaint must abate as a matter of law if, during the course of hearing thereon, the General Counsel's office becomes vacant by reason of resignation, death, or other circumstance. Once a hearing is begun, it is under the direction of the Board and its Trial Examiner, not the General Counsel. The latter has no power to conduct or terminate it. Consequently, it is imma- terial that he may resign his office during its course. The motion is therefore -denied. Other motions by the Respondent to strike or to dismiss portions of the complaint, denied at the hearing with leave to renew, and renewed at the close of the hearing, are disposed of by the following findings and recommenda- tions. Opportunity was afforded for oral argument and the filing of briefs. Briefs were filed by the Respondent and the R. C. I. A. on November 10 and 13, 1950, respectively ; a reply brief by the Respondent on November 17 and an answering memorandum by the R. C. I. A. on November 24. Upon the entire record in the case and observation of the witnesses, I make the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Bonwit Teller, Inc., the Respondent, is a New York corporation and a wholly owned subsidiary of Roving Corporation, a Delaware corporation. Bonwit Teller, Inc., maintains its principal office and place of business at 721 Fifth Avenue, New York, New York, where it operates a retail store. It also operates branch stores in White Plains, New York, and in Boston, Massachusetts, and Palm Beach, Florida. Only the New York City and White Plains stores are in- volved in these proceedings. At those locations the Respondent is engaged in the retail sale of women's wearing apparel, accessories, and kindred products. During the past year, in the course and conduct of its business operations, the Respondent caused to be purchased, transferred, and delivered to the New York State stores women's apparel, accessories, and kindred products valued at in excess of $1,000,000, of which approximately 25 percent was transported to said New York State stores in interstate commerce from States of the United States other than the State of New York. During the past year, in the course and conduct of its business operations, the Respondent caused to be sold at its New York State stores products valued at in excess of $2,000,000, of which approximately 33 percent was transported from BONWIT TELLER, INC. 621 said New York stores in interstate commerce to States of the United States other than the State of New York. It is found that the Respondent is engaged in, and that its activities affect, commerce. IL THE ORGANIZATION INVOLVED Retail Clerks. International Association, AFL, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Background Upon petitions for collective bargaining elections the Board on June 20, 1949, ordered elections among the employees of the Respondent's Boston, White Plains, and New York stores. There were two election units, one consisting of the em- ployees of the New York and the White Plains stores ; the other of employees of the Boston store. On the New York and White Plains ballot were the R. C. I. A. and Amalgamated Clothing Workers of America, CIO. The present proceedings concern only the New York-White Plains election, herein referred to as New York. The Boston election is not involved. The New York election, held June 30, 1949, being inconclusive, but the Amal- gamated not having polled sufficient votes to warrant its further participation, the Board directed a runoff election with only the R. C. I. A. on the ballot. This election was held on September 15, 1949. The R. C. I. A. lost the election and thereupon filed objections alleging company interference and, subsequently, charges of unfair labor practices based substantially on the same alleged com- pany conduct' Upon the objections the Board directed a hearing, subsequently consolidated with a complaint issued by the General Counsel upon the unfair labor practice charges. The issues thus raised relate to alleged company conduct preceding or in connection with the runoff election. No question is raised with respect to the June 30 election. While the R. C. I. A. on February 1, 1949, filed charges of violation of Section 8 (a) (1) and (3) of the Act by asserted company coercion of employees to support the Amalgamated, these charges were settled by written agreement between the parties on February 21, 1949, a settlement approved by the Regional Director. Pursuant to the settlement the Respondent posted the customary Board notice informing employees that it would not interfere with their self-organizational rights. According to a statement by the General Counsel, Board records disclose compliance by the Respondent with this settlement agreement and there is no charge that the Respondent has violated it. A charge of discriminatory discharge of an employee, filed by the R. C. I. A. on May 12, 1949, was dismissed by the General Counsel without hearing. The results of the two elections, in summary , were as follows : June 30 election: Challenged Ballots------------------------------------------------- 17 Votes for Amalgamated--------------------------------------------- 156 Votes for R. C. 1. A------------------------------------------------ 446 Votes Against Both Unions------------------------------------------ 305 September 15 election: Challenged Ballots----------------------------------------------- 18 Votes for It. C. I. A------------------------------------------------ 225 Votes Against----------------------------------------------------- 668 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The speeches and leaflets The Respondent, during all material times herein, had a rule forbidding union activity by employees during working hours, which it sought to enforce. The substantially uncontradicted testimony also establishes that the Respondent's supervisors and protection force followed union organizers in the store and on a number of occasions summarily ordered' them out and forbade them to return. On these occasions the organizers were either engaged in union solicitation or were bent on it if the opportunity was presented. Beginning the week before the runoff election the Respondent's president, Roy Rudolph gave a series of talks to the employees of the New York and White Plains stores, in large and small groups; talks concededly designed to influence the employees to vote against the R. C. I. A. in the forthcoming election. No similar action had been taken before the June election. The first of these was a speech given to all employees of the New York store on Friday, September 9, 1950. Ordinarily the New York store closes at 5: 30 p. m. On September 9, however, the store closed at 5 p. m., customer's entrances locked, and employees were directed by their supervisors to go to the main selling floor, where Rudolph addressed them. There is evidence by witnesses for the General Counsel and the Union, denied by Respondent's witnesses, to the effect that employees were compelled to attend this meeting; indeed, that several were physically restrained from leaving the premises. For reasons adverted to here- inafter, it is unnecessary to resolve this conflict. In his speech Rudolph informed the employees that he did not think the R. C. I. A. "a good union" for the Respondent's employees, cited reasons in sup- port of that opinion, and sought to persuade the employees to his view. He made his opposition to the R. C. I. A. clear. In addition he told the employees that salary increases had been waiting for them since February. In discussing the issues in the election, he said : Now for the other issue : Money. As you know, twice a year your salary is reviewed and raises are recommended. Raises have been waiting for you since last February. Now, with our fall review in process, additional raises are being recommended. These raises could not be put through then and cannot be put through now before the election, lest we be accused of an unfair labor practice by R. C. I. A. You don't have to pay dues to a union to get a raise at Bonwit's. At the end of the address, employee Manfred Jacobson, an R. C. I. A. supporter, who was standing some distance away, called to Rudolph several times saying that he wished to speak. Rudolph left, however, without acknowledging Jacob- son, possibly because, in the applause, he did not hear. On the following day Rudolph delivered a similar address to the employees of the White Plains store. On the same day copies of the speeches were mailed to employees of both stores. On September 12, 1949, the R. C. I. A. wrote to the Respondent requesting an opportunity to address the employees under conditions comparable to those under which Rudolph's speech was delivered. The Re- spondent did not acknowledge this letter. At White Plains, President Rudolph also visited various store departments and spoke to groups of employees in about the same vein as in his address. On several days just prior to the elections the Respondent also distributed leaflets among the employees reiterating the Respondent's previous assertions that the R. C. I. A. was not a good union for its employees, containing arguments in support of that conclusion, and soliciting them to vote against the R. C. I. A. in the election. BONWIT TELLER, INC. C. The Departmental Meetings 623 Beginning on Monday of the week of September 12 and-extending over a period of several days, President Rudolph also visited' the various departments of the New York store and 'spoke to groups of employees, assembled for the occa- sion. His remarks followed the pattern of his September 9 speech. The gen- eral theme of the talks was that the R. C. I. A. was not a good union for the employees ; that it could do nothing advantageous for them, and that they should therefore vote against it. These meetings were held during working hours. Rudolph's statement in a typical departmental meeting may be summarized about as follows : whatever the R. C. I. A. could do for the employees the Re- spondent could also do ; the atmosphere at the Respondent's was that of a "nice" and "happy" family ; wage increases had been waiting for the employees since February and there would be another in September ; the increases would have been forthcoming before but for the fact that the R C. I. A. would have charged ,the Respondent with unfair labor practices ; suggestion that the R. C. I. A. would seek the discharge of employees not in its favor ; working conditions with the Respondent were superior to those at other similar establishments; criticism of the R C. I. A.'s policies ; invitations to employees to air complaints ; and promises by Rudolph to improve or to look into conditions in the recreation room, the cafeteria, and the medical plan, which employees criticized. D. The Stock Employees Meeting One of these departmental meetings, that composed of stockroom employees, was held in a conference room adjoining Rudolph's office, to which 35 to 40 employees were summoned. Rudolph's remarks to that group were in a large measure the same as to the other groups. In addition, however, he made other statements. Thus he told the stockroom employees that a shorter working -schedule had been devised for them. During a discussion by Rudolph of the benefits the Respondent had voluntarily given the employees, 1 employee, Carol Barnes, asked Rudolph if he would help the employees if the Union came in. Barnes' undenied testimony is that Rudolph said that he could not make any promises ; but that they would get their wage increases after the election was "over with."' Following one of these departmental meetings on the fifth floor, Ira Niemark, a representative of the Respondent, approached the employees as they were dis- -cussing Rudolph's statements and asked if they had any questions. Niemark told the group, to quote the undenied and credited testimony of employee Dorothy Dercole, that "if the Union was voted out" the employees would "get the increase immediately," but if it was "voted in" the increase would not be forthcoming for from 6 months to a year, "because it would take that long to negotiate a contract." 2 Barnes also testified that Rudolph "asked in general what we thought of the Union, whether we wanted It or not." This testimony Rudolph denied. This was not individual questioning, according to Barnes, but "just a general question to the group." There is no indication to Barnes' testimony that any employee responded. No such question appears in employee accounts of the other departmental meetings, whose tenor, in general, followed a similar pattern. No other employee in the stock group testified. There is no written record as to statements at these departmental meetings Though Barnes impressed me, in general , as a truthful witness, I believe it quite possible that she misunderstood or mistakenly recalled some of Rudolph's statements. In view of Rudolph's categorical denial and the absence of corroboration, I do not find the evidence substantial that Rudolph interrogated employees about the Union. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. Burchett's Talks with Employees Prior to the runoff election, Harry Burchett, head of the Respondent' s alter- ation department and supervisor of about 200 employees, talked to a number of groups of employees concerning the election. Burchett's undenied testimony is that these groups came in on their own initiative to discuss the issues raised by the union campaign, particularly with respect to wages and other working conditions. Some related the union "promises with respect to wage increases, to which Burchett responded that the union could not "deliver." Asked by em- ployees for his advice, Burchett gave it as his opinion that they should vote against the R. C. I. A., saying that he did not think it a good union either for the employees or the company. Burchett also testified with candor that he was opposed to unions and that he sought to make that opposition clear to the employees. In addition Burchett told each group that the Respondent's prevailing prac- tices with respect to promotions, wage increases, and layoffs would be discon- tinued under union conditions ; promotions would no longer depend on ability, and merit would no longer be a factor in wage increases ; because, he said, of union practice of insisting on general wage increases. As to layoffs, he told them, the existent practice was to make layoffs on the basis of family responsibilities, and not seniority,3 that this would have to be changed under the union ; and thus, if employees voted for the union they could no longer expect year-round employ- ment. As to this, Burchett testified : . . . We have this setup there where we take care of everybody when they are in trouble. We take care of every man that has a family, every woman who has a responsibility which she alone can take care of. Those people never lose a day out of the year. As you know, our business is a seasonal business. We must make payroll savings twice a year in a dull, period. In that time of the year we take care of every man or every woman who has a responsibility. They work 12 months out bf the year. Q. Did you tell these workers that if they voted for a union that no longer could the employer take care of them? A. That is right, in that particular respect ; yes. - The election was held on September 15, 1949, and the Union 'was defeated. About 2 weeks thereafter the Respondent gave wage increases to many, if not most, of its employees. These increases were retroactive to the week after the election. None were retroactive to February. Though the Respondent's undenied testimony is that the failure to receive an increase in February was considered in determining the September increases, there is no evidence that the employees were so informed. F. Conclusions 1. The speeches, the leaflets, and the wage increases Except for the statements concerning wage increases-these are discussed later-the September 9 and 10 speeches of Rudolph fall into the category of speech, normally protected. An employer is entitled to persuade his employees to vote against a union, to air his opinions, and to argue his cause, so long as he refrains from threatening reprisal or promising benefit. See- Section 8 (c) of the statute; American Tube Bending Co. v. N. L. R. B., 135 F. 2d 993 (C. A. 2), 3 On the other hand, William T. Leonard , the Respondent's treasurer, testified that the, Respondent attempted to follow a seniority policy in effecting layoffs. BONWIT TELLER, INC. 625 cert. den. 320 U. S. 768. Likewise, the leaflets distributed to the employees were permissible argument and, in general, most of the statements made by Rudolph to the employees in the departmental meetings. This is not true, however, of all parts of the September 9 and 10 speeches, nor of all the conduct at the departmental meetings. It will be noted that in the September 9 and 10 speeches Rudolph told the employees that "raises have been waiting for you since last February. Now, with our fall review in process, additional raises are being recommended. These raises could not be put through then and cannot be put through now before the election, lest we be accused of an unfair labor practice by R. C. I. A." [Emphasis supplied.] The withholding of these increases and the announce- ment of them just prior to the runoff election are alleged as unfair labor practices. The evidence establishes that in 1947 the Respondent instituted a policy of having supervisors rate employees twice yearly, in February-March and August- September, on the character of their performance, and making recommendations as to individual or merit wage increases. Generally some increases are granted, though not necessarily to everyone, as a result of these reviews and recom- mendations. Burchett, head of the Respondent's alteration department, testified, for example, that all the employees in his department could expect at least one wage increase each year, and that his recommendations were usually followed. This procedure, except in some instances where a department head, in violation of instructions, failed to acquaint employees with it, was generally known to the employees.' In February 1949, while the representation proceeding was pending, the super- visors began to process the merit ratings and wage recommendations. Accord- ing to Treasurer Leonard a large number had been completed or partially com- pleted when management issued instructions to supervisors to discontinue proc- essing them. The reason for this action, Leonard testified, was that "we decided that we did not want to grant any increases at that particular time because of the pending labor situation." Of the ratings and reviews processed up to that time, 250 to 300 contained recommendations for wage increases. Some, though not all, of the employees were aware of the.stop order. Thus in March or April 1949, a group of tailors asked Department Head Burchett what had hap- pened to the spring wage reviews. Burchett responded : "I told them that I could not pass any increases. That was an order from the personnel depart- ment. Because of the labor situation at that time and union activities, and so on, we could not pass increases at that time." It was to this situation that Rudolph referred in his September 9 and 10 speeches, and in the departmental meetings. The Board has held that it is not unlawful for an employer to announce or grant economic benefits to his employee during a union organizational campaign or pending a Board-directed election, so long as it is not done for the ,purpose of influencing employees in the matter of self-organization or their vote in a Board election. Thus in the case of Fisher Governor Company, 71 NLRB 1291, 1296, where a wage increase was announced by the employer in the midst of a union campaign, it was found not to be an unfair labor practice because, the Board said, it was "given for business reasons in accordance with the then pre- vailing practice in .the industry." See also Mallinkrodt Chemical Works, 79 NLRB 1399; Aurora Wall Paper Mill, Inc, 72 NLRB 1036. Where, however, th4 purpose of the announcement is to induce employees to reject collective representation, the benefit or promise is no more protected than * A number of employee witnesses for the General Counsel and the R. C. I A. conse- quently were unaware, as they testified, of the policy. These, however, were exceptions. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is any other act devised to exert coercion . An employer is clearly free, in the absence of a collective representative , to grant wage increases at his pleasure, provided he does it without being motivated by union considerations. But -equally clear is that he may not give such increases as an inducement to employ- ees to forestall collective representation. As the Board said in the case of Hudson Hosiery Co., 72 NLRB 1434, decisions to take wage action based on general economic conditions and business policies unrelated to a union organ- izational drive are not unlawful, but to time the announcement so as to effect the employees' decision with respect to union representation is unlawful The Board said : . . . the presentation of economic benefits to employees in order to have them forego collective bargaining is a form of pressure and compulsion no less telling in its effect on employees because benign. . . . We can perceive no logical distinction between threats to withdraw economic benefits, for the purpose of thwarting self-organization of employees, and promises of better things to come, for the same objective. [Citing cases.] It is fundamental that the Act precludes employers from utilizing their economic power in any manner for the purpose of discouraging their em- ployees from becoming or remaining members of a labor organization, or of interfering with their selection of bargaining representatives. By this we do not mean that an employer is foreclosed from announcing or granting economic benefits during a union's organizational campaign or during the pendency of a Board-ordered election. What is unlawful under the Act is the employer's granting or announcing such benefits (although previously determined upon bona-fide) for the purpose of causing the employees to ac- cept or reject a representative for collective bargaining. And see J. H. Rutter-Rex. Co., 86 NLRB 470, 471, 485-7; Joy Silk Mills, Inc. v. N. L. R. B., 85 NLRB 1263, enfd. 185 F. 2d 732 (C. A. D. C.). It is thus clear that processing and granting of the February 1949 wage increase in the usual course of business would not have constituted unfair labor practices. It is evident from the tenor of Rudolph's addresses, and in fact con- ceded, that his purpgse was to influence the employees to vote against the R. C. I. A. The announcement of the wage increases was consequently a promise of benefit intended to affect the employees' decision as to representation. That the announcement could legally have been made if its purpose had been legiti- mate does not make it less an unfair labor practice. For 6 months the Re- spondent made no announcement either of the prospect of increases or of the withholding and then made it at a time when it deemed it would be effective. It is no answer to say that the employees were aware of the facts. In the first place all did not know, as the testimony discloses, and in the second place, Rudolph would scarcely have made the point unless he supposed that it would have an effect. In the third place the asserted facts were not completely accu- rate. Raises had not been waiting since February. At most some recommen- dations had been made. These required approval of higher management and that stage was never reached in February. This is underscored by the fact that none of the subsequent increases was retroactive to February. Finally, it is immaterial what the employees knew, since the Respondent's purpose in making the announcement at the time it did was to influence the election. . It is consequently found, that the announcement of the wage increases in Rudolph's September 9 and 10 speeches and in the departmental meetings con- stituted a promise of benefit to employees to induce them not to designate the R. C. I. A. as their collective bargaining representative. It is further found that BONWIT TELLER, INC. 627 by this action the Respondent interfered with the election and violated Section 8 (a) (1) of the Act. In addition to the September announcement, however, the withholding of the February increases was additional interference with the election and 8 (a) (1) conduct. As President Rudolph's speeches, and Alteration Department Head Burchett's testimony concerning inquiries by employees discloses, the employees were vitally interested in wages A more potent method of discouraging union activity could scarcely be devised than the denial or deferment of an expectable wage increase because of the existence of union activity. This is not, of course, the situation where there is a recognizable majority representative entitled to bargain on the subject. As has been indicated, wage review was due in Febru- ary under the Respondent's established practice. Pursuance of that or any other usual business practice without reference to union activity, would not, as the Board's decisions establish, have been an unfair labor practice. Failure to pursue it, because of the union activity or the pendency of the election, is, however, an unfair labor practice per se. It would seem self-evident that if upon the mere occurrence of union activity, an employer may deny or defer due and expectable benefits, collective representation would become a hazard or luxury which few employees would care to risk or indulge. The Respondent's asserted fear of being charged with unfair labor practices does not justify im- posing penalties upon the employees. As has been found, any such charges would have been groundless. Apprehension of unfounded litigation, an ever-present hazard, is not a cognizable defense. To be sure, this may at times present an employer with what he honestly deems to be a difficult choice. The standard of conduct required is not, however, an onerous one. All that is demanded is that he pursue his usual legal course of business without reference to union activity ; and without attempt to influence its direction. Finally it is to be observed that in the instant case the Respondent's fear .of unfair labor practice charges, while assertedly sufficient to cause it to withhold the increase from the employees, was not so weighty as to deter it from publishing the reasons therefor and the promise of imbursement on the eve of the election. Concern for the statute, as well as for the employees, would seem at least to have suggested equivalent apprehension that deprivation of the increases was itself illegitimate. Having withheld the wages because of the union activity, the Respondent capitalized upon that discouragement by promising to restore them. The employees and the Union were thus effectively whipsawed. Concern of the employees respecting the wage question is evident, not only from the fact that Rudolph adverted to it as an issue in his talks, but from other evidence, such as Burchett's accounts of the various discussions he had with employees. In addition, the withholding itself caused disappointment among the employees. The inquiry of the tailors in early 1949 and Burchett's response to them has already been adverted to. Burchett testified that, "I know that everyone in my department knew that raises were coming to them in February, and they were all terribly disappointed when they found they were not going to get them." In this context the statement of Niemark, related heretofore, to the effect that if the R. C. I. A. was voted out the increases would be forthcoming immediately, but that if it was voted in they would not be had for up to a year, cannot be interpreted as anything other than a threat to further defer any consideration of wage action until a complete contract was negotiated. Similarly, Burchett's statements to the employees to the effect that the Respondent's policies with respect to promotions, wage increases, and layoffs, would be discontinued under union conditions, where violative of the Act. While the Respondent urges that these were merely predictions of consequences -628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attendant upon designation, they seem, in the context, otherwise. An employer's mere prediction of adverse economic effects flowing inevitably from union conduct is, of course not unlawful. Electric Steel Foundry Co., 74 NLRB 129; Mylan-Sparta Company, Inc., 78 NLRB 1144; Cleveland Plastics, Inc., 85 NLRB 513; The Linde Air Products Company, 86 NLRB 1333. But in the instant case the declarations import more than mere prophecy . Implicit in them is the incorrect suggestion that the union alone, and not the Respondent , would decide those matters, and adversely to the employees ; and, further, that the Respondent would not lift a hand in protest of the abolition if the employees voted for the Union. These suggestions can scarcely have been lost on the employees. They already had had one demonstration, which they were still experiencing, of the Respondent's readiness, upon its own initiative, to alter its wage practices to the detriment of the employees as a result of union activity . In the existent context Burchett's statements could only have been construed as threats of further altera- tions. It will be recalled that around the same time employee Carol Barnes was asking President Rudolph whether he would help the employees if the Union came in, and receiving the equivocal and scarcely quieting response that Rudolph could not make any promises. It is consequently found that the withholding of the February wage increases by the Respondent also constituted unfair labor practices and interference with the election. There is no substantial evidence, however, to the effect that the September wage increases were withheld , as the complaint alleges. It will there- fore be recommended that this allegation be dismissed . Rudolph's speech, how- ever, contains a statement that they would be withheld . That declaration con- stitutes a threat of reprisal. Though the complaint generally alleges the commission of unfair labor prac- tices beginning September 9, 1949, it also specifically alleges that the withholding of the February increases was an unfair labor practice , and the issue as to the circumstances and reason for the withholding was litigated . Findings of unfair labor practices on the February withholding may therefore be made as far back as Section 10 (b) of the Act ( requiring charges to be filed within 6 months after the acts alleged ) will permit. The charge upon which the complaint is based was filed on November 30, 1949, and served on the Respondent on December 1, 1949. The finding of unfair labor practices on the February withholding is there- fore made from June 1, 1949. That the charge did not specifically refer to the matter is not controlling. Cat hey Lumber Co., 86 NLRB 157. Nor is it arguable that the unfair labor practice occurred in February only, and that therefore no finding of violation can be made in the absence of a charge served within 6 months thereafter. The nub of the unfair labor practice is not the mere order in February to discontinue processing recommendations , but lies in the policy thereby established not to review wages while the union activity was pending. This policy was maintained until after the election. Its existence in the meantime, if otherwise doubted, was affirmed in Rudolph's speeches and talks in September . During the entire period from the stop order until after the election the employees were being continuously denied a wage review because of the existence of the union activity . Consequently the maintenance of that practice, and not merely its creation , constituted the unfair labor practice. 2. The "captive audience" issue The General Counsel and the Union contend that employees were physically compelled to attend the September 9 speech, and that such action, in conjunction with the Respondent's failure upon demand to accord the Union opportunity to BONWIT TELLER, INC. 629 address the employees, and in combination with the other alleged unfair labor practices, was also an unfair labor practice. The Respondent contends first, that attendance was not compelled, and secondly, that even if it were, such action is lawful. Principal cases involving the issue are N. L. R. B. v. Clark Bros., 70 NLRB 802, 163 F. 2d 373 (C. A. 2) ; Merry Bros. Co., 75 NLRB 136; The Babcock cE Wilcox Co., 77 NLRB 577; Fontaine Converting Works, Inc., 77 NLRB 1386; Na- tional Plastic Products Co., 78 NLRB 699; S & S Corrugated Co., 89 NLRB 1363; cf. Merrimac Hat Corp. 85 NLRB 329. Since the Clark Brothers case, Board decisions are to the effect that "compulsory" or "captive" audiences do not form the basis for a finding of unfair labor practices or interference with an election. It is unnecessary, however, to consider the captive audience concept here, or to determine whether employees were compelled to attend the September 9 meeting. - The speech given by Rudolph to the September 9 audience containing promises of benefit, was thus unprotected by Section 8 (c) of the statute, and Rudolph's action in delivering it has consequently been found to constitute an unfair labor practice. That being so, it is unnecessary to make any finding as to whether the assembly itself, apart from Rudolph's other action, constituted a separate unfair labor practice ; either because, as is asserted, the audience was "captive," or because it was an assembly for an unlawful purpose, and therefore illegal. A finding of unlawful assembly on September 9 will not add substantially either to the character of the unfair labor practices, or to the scope of the remedy. See National Plastic Products Company, 78 NLRB 699, where the Board did not rely on a Trial Examiner's finding that a compulsory assembly at which the employer's speech contained unfair labor practices, was violative of the Act. No finding Where made with respect to the alleged compulsory assembly. 3. The Respondent's failure to accord the R. C. I. A opportunity to address the employees The Respondent forbade union activity by employees during working hours and also on occasion excluded from the premises union representatives bent on or engaged in union solicitation. The validity per se of the no-solici- tation rule and the exclusion of organizers are not attacked in the com- plaint a The complaint alleges, however, that the failure of the Respondent to give the R. C. I. A. opportunity to address an assembly of employees, upon request, was unlawful ; the contention being that this constituted a discrimina- tory application of the Respondent's no-solicitation rules. In connection with this contention, evidence relating to the charges involved in the unattacked settlement stipulation has not, for policy reasons, been considered. Following Rudolph's speeches of September 9 and 10 at New York and White Plains, the R. C. I. A., on September 12, 1949, requested the Respondent, by letter, to permit it to address the assembled employees of the New York store under similar conditions This letter was not acknowledged. No request was made concerning the White Plains store; nor for permission to address the em- ployees in departmental meetings, nor for general access to the store for union organizers ; nor for relaxation or modification of the rule against union solicita- tion. The Respondent's failure to respond to this letter is alleged as an unfair labor practice. It is not contended that the letter was not received. I find this allegation of the complaint to have merit. Validity of such rules has been considered by the Board in the following retail store cases, among others : May Department /Stores, 59 NLRB 976, enfd . 154 F. 2d 533; J. L. Hudson Co, 67 NLRB 1403; Marshall Field, 34 NLRB 1; Goldblatt Bros, Inc., 77 NLRB 1262; Meier & Frank, 89 NLRB 1016. 974176-52-vol 96-41 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For lack of pleaded issue I assume the legitimacy of the Respondent's ex- clusion of union representatives and prohibition of union solicitation on working time. Nevertheless, while forbidding the employees and the Union general use of the premises for the expression of union sentiment, the Respondent per- mitted itself use of the property and assembly of employees on company time in order to solicit votes against the Union. That an employer may dedicate company premises and time to express and justify to employees his opposition to a union cannot be questioned. But, in my opinion, if he chooses to do so he may not refuse the opposed Union similar opportunity. In the case of N. L. R. B. v. Clark Bros., .163 F. 2d 373, the Second Circuit Court of Appeals said: An employer has an interest in presenting his views on labor relations to his employees. We should hesitate to hold that he may not do this on company time and pay, provided a smuilar opportunity to address them were accorded representatives of the Union. [Emphasis supplied.] 6 At the outset it seems wise to delineate clearly the precise problem presented. No right of speech is involved. At issue is the act of the Respondent in refusing the request of the Union for access to the employees for union propagandizing equivalent to that which the Respondent permitted itself for antiunion propa- gandizing. Nor is the Respondent's right to convoke or address its employees in issue. These he may do at his pleasure, whatever the answer to the instant question, so long as he does not threaten employees with reprisals or promise them benefits to refrain from or engage in union activity or support. Nor does the allegation of the complaint under discussion contest the right of the employer to promulgate rules prohibiting union solicitation on his premises. The ques- tion is merely whether he may discriminatorily enforce such rules. Nor is the so-called "captive audience" concept involved, though it is asserted that it is. The answer to the question should not and in my judgment does not, hang on the noose of involuntary assembly. In fact, if employees have any rights in the matter, it cannot. If compulsory convocation of employees for the exposition of antiunion sentiment is unlawful, a similar round-up for prounion purposes would equally be so. If any right is involved it is that of the em- ployees. If, as is asserted, that right is trangressed by involuntary subjection to exhortation against unions, it is equally traversed by unwilling congregation for union harangue. The cure for one trespass against employee freedom is not the imposition of another. Thus, whether the employer's audience was volun- tary or involuntary is immaterial as far as the instant issue is concerned. The question being the equivalence of rights to solicit employees, the asserted com- pulsory character of the meeting not only does not advance the solution ; it all but prevents it. Neither does the question involve the adequacy of other means of union com- munication with employees, nor the answer hinge on an absolute right of com- munication. Cf. N. L. R. B. v. Le Tourneau Co., 324 U. S. 793; N. L. R. B. v. Stowe Spinning Co., 336 U. S. 226. I assume that if the Respondent had not employed its selling floor to address a convocation of employees against the Union, the latter would have had no perceivable claim to address them there in favor of it. Employees have a statutorily guaranteed right of free labor organization and activity. There are necessary limitations on that right. In the interests of efficient and orderly business operation, an employer may, under appropriate circumstances, prohibit union activity on company time and property. As the 6 Though the immediate issue in that case was the "captive" or "compulsory" audience concept, the quoted language appears to be of general application. BONWIT TELLER, INC. 631 Board has summed up the employees' obligation : "Working time is for work" and not union activity. Peyton Packing Co., Inc., 49 NLRB 828. In department or retail stores, because of the semipublic nature of the conditions under which work is carried on, even greater latitude is permitted in inhibiting union ac- tivity on the premises. Thus an employer may forbid it altogether on the selling floors, even on off-duty time ; or in restaurants on the premises ; and he may exclude professional solicitors from the selling floors. See cases cited supra, in footnote 5. The purpose of these limitations on the organizational right is two-fold : (1)To insure that union activity will not interfere with efficient business opera- tion; and (2 ) in order to protect the neutrality of an employer caught in the cross-fire of prounion and antiunion groups in his establishment , or of rival unions seeking the allegiance of his employees. An employer may, however, voluntarily inject himself into the union activity, and so long as he confines himself to noncoercive, nonsupportive, and nondiscriminatory conduct, he is within his rights. If, however, in the process he chooses to dedicate company time and property to his campaign, he can scarcely claim efficiency or neutrality as grounds for resisting similar use by employees or unions. If there is any business interference it is his own. If his neutrality has been breached, the breach is his. If there are other factors warranting employer restraint of similar union activity, they are not immediately apparent or cited. The property right alone has been held to be insufficient. N. L R. B. v. Le Tourneau Co, 324 U. S. 793; Republic Aviation Co. v. N. L. R. B., 324 U. S. 793; N. L. R. B. v. Stowe Spinning Co., 336 U. S. 226. The Board and various courts of appeals have consistently held that rules regulative of solicitation, even though valid if uniformly applied, may not be discriminatorily enforced. See Peyton Packing Co., Inc., 49 NLRB 828, enfd. 142 (C. A. 3), cert den., 323 U. S. 774; N. L. R. B. V. American Furnace Company, 158 (C. A. 3), cert den., 323 U. S. 744; N. L. R. B. V. American Furnace Company, 158 F. 2d 376 (C. A. 7) ; N. L. R. B. v. Harbison-Walker Co, 135 F 2d 837 (C A.. 8) ; N. L. R. B. v. Winona Knitting Mills, Inc., 163 F. 2d 156 (C. A. 8). Among recent Board pronouncements to this'effect, is the case of Goodall Co., 86 NLRB 814. In that case the Trial Examiner, affirmed by the Board, said : The issue presented by the foregoing evidence is not whether an employer has a right to prohibit union activity during working hours or to make speeches to employees during that time or to engage in antiunion propa- ganda. The question is whether he may reserve such rights to himself, while at' the same time interfering with, or preventing, employees from talking about a union and soliciting members for it. It is well established that discriminatory conduct of that nature violates the statute. The Examiner finds that in engaging in antiunion activity during working hours and in authorizing and permitting supervisors and employees to do so, while prohibiting employees from soliciting memberships for the Union and interfering with discussions concerning it, during working hours, the Respondent has discriminated against its employees and thus violated Section 8 (a) (1). Logic would seem to require that an employer cannot, consistently with the statute, frame one rule respecting union activity on his premises for one group, including himself, and another and quite different rule for all other groups. If he may dedicate his premises and time to opposing a union, or to the support or permission of activities of one union, while denying similar privileges to certain employees or unions, the guarantees of Section 7 and the prohibitions 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Section 8 (a) (1) and' (2) of the Act would be substantially nullified. That. it is the right of union organizers to address the employees that are directly involved, and not the right of individual employees to do it, does not seem to be a significant distinction. N. L. R. B. v. Stowe Spinning Co., 336 U. S. 226. Nor is there any persuasive ground for distinguishing between the situation where the employer prohibits individual solicitation of employees while en- gaging in it himself, and that where he engaged in mass solicitation while pro- hibiting it by others. It is found that by prohibiting the R. C. I. A. from addressing and soliciting, and employees from soliciting, on behalf of the R. C. I. A., on the Respondent's time and premises, while engaging in such action itself, the Respondent dis- criminatorily enforced its rules respecting union activity, in violation of Section 8 (a) (1) of the Act. The Respondent contends that the decision of the Board in the S,& S Corrugated- Paper Machinery case, 89 NLRB 1363, casts doubt on this conclusion. In that case, the employer delivered speeches, not containing any threats of reprisal or promise of benefit, on his premises and on his time, to a "captive audience" of employees. The union requested an equal opportunity to answer, which was denied. The union, losing the election, filed objections based on the refusal to permit it to address a "captive audience." These were dismissed by the Board, which said : ... the "captive audience" aspect of the Employer's speeches, otherwise protected by Section 8 (c) of the amended Act, cannot form the basis for a finding that the Employer, by denying the. Petitioner an equal opportunity to use its facilities and time, has interfered with the employees' free choice of a bargaining representative. While the Respondent's reply brief. suggests that the S d S case overrules the Goodall case, I think them distinguishable. The S d S case, as the decision clearly states, involved a protected noncoercive speech ; the instant case does not. Secondly, so far as the S d S decision reveals, there were no plant rules prohibiting union activity, and consequent discrimina- tory application, as here and in Goodall; third, the extent of the employer's activity in the S d S case was to address two assemblies of employees. Here and in Goodall, the employer's conduct was more widespread, Fourth, the basis of the S d S objection was the captive nature of the audience, and, as the Board said, "The `captive audience' aspect of the employer's speeches . . . cannot form the basis for a finding" of interference. Here the aspect of the audience is immaterial. Finally, sustaining of the objection in the S d S case would have required a declaration that, in order to avoid a finding of interference based on one com- pulsory audience, the employer must convene another. I have adverted before to the considerations against such a result. Interference or unfair practices are not cured by repetition of them. Unlawful acts do not cancel each other out, and if employees are protected from compulsory propaganda they are pro- tected from both ends of the scale. They have as much right to be free of union as employer argument, if they are free from either. The Act does not conceive employees as pawns in a struggle between employer and union ; to be shunted about at the whim of the contestants. In the rush to capture his allegiance, the dignity of the principal should not be forgotten. That captive audiences may be legal does not meet the issue. Lawful or not, the prospect of employees being herded into involuntary audiences and forced to listen to union propaganda is scarcely an appealing remedy in our day and time ; particularly under a statute guaranteeing them freedom of organization. BONWIT TELLER, INC. 633 For the reasons cited I do not interpret the S & S decision as modifying the Goodall case, or as authorizing the discriminatory application of no-solicitation rules. That being the essential issue here, as I view it, I find this case to be ruled by the Goodall decision. 4. Summary of findings It is found that by the announcement of the pendency of wage increases for the purpose of influencing employees in voting in the September 15, 1949, elec- tion ; by threatening to withhold customary and normal wage increases during the pendency of union activity ; by Niemark's statement to the effect that wage increases would be further deferred by the Respondent if the R. C. I. A. won the election ; by withholding the February 1949 wage reviews and increases ; and by Burchett 's statement to employees to the effect that the Respondent would change its wage, promotion , and layoff policies if the Union came in ; the Re- spondent had interfered with, restrained, and coerced its employees in the exer- cise of rights guaranteed in Section 7 of the Act ; and also interfered with the election of September 15, 1949. The Respondent contends that, because of the established policy of the Board not to pass upon the merits of objections to an election , and to dismiss them without prejudice to the filing of a new petition for election , in any case where more than a year has elapsed since the disputed election, the objections here should be dismissed. See Continental Limes, 91 NLRB No. 209; W. C. Nabors Co., 89 NLRB 538; Barnhart Davis Company, 80 NLRB 917; Neptune Meter Co., 74 NLRB 390 ; F. A. Smith Co., 74 NLRB 544 ; Desmond's Inc., 75 NLRB 1242; Edo Aircraft Corp., 76 NLRB 447. In the instant case, however, the Board has directed that a report upon the merits of the objections be issued by the Trial Examiner and served upon the parties . In addition, the allegations of the com- plaint require the consideration of issues and evidence identical with substantial portions of the objections . Consideration of the merits of the objections there- fore is unavoidable here ; and dismissal out of hand by the Trial Examiner with- out warrant and lacking apparent useful result. 5. Alleged unfair labor practices A number of other incidents relied on by the General Counsel and the R. C. I. A. to establish unfair labor practices, or interference with the election, have not been adverted to herein because not supported by a fair preponderance of the credible evidence. Among these are the . following : ( 1) An incident in which President Rudolph is alleged to have stated that the Respondent would not bar- gain with the R . C. I. A. if it won the election ; ( 2) one in which Burchett is as- serted to have told an employee, in substance , that the withheld wage increases would be forthcoming only if the R. C. I. A. lost the election . Each of those issues has been resolved in favor of the Respondent. I find no substantial evidence of the following allegations of the complaint and will recommend their dismissal: (a) Interrogation of employees concerning union affiliation; (b) Threatening employees with discharge if they joined , assisted or voted for the R. C. I. A.; (c) Withholding of September 1949 periodic wage increases; (d) Failure and refusal to advise employees whether they would receive the February and September wage increases if the R. C. I. A. won the election ; (e) Stating to employees that the Respondent would not bargain with the R. C. I. A. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in Section III, above, occurring in connection with its operations described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, it will be recommended that it cease and desist therefrom and take certain affirmative action, adverted to in this section or hereinafter in the Report, necessary to effectuate the policies of the Act. It has been found that by withholding its periodical wage review, due in the spring of 1949, because of the pendency of the union organizational campaign, the Respondent was acting in violation iof Section 8 (a) (1) of the Act after June 1, 1949. It seems likely that at least some employees would have received wage increases in February if the Respondent had followed its normal practice ; and possible also that some incurred loss of income as a result. As has been noted, though increases were subsequently granted, after the election at, the time of the usual September review, they were retroactive only to the week after the election. While the Respondent's testimony is that the failure to receive increases in February was taken into account in determining the September raises, there is no indication that there was any attempt to reimburse employees for probable February to September wage losses. Nor do employees seem to have been informed even of that limited attempt at imbursement. They were thus left in the position, so far as the record discloses, of concluding that the union activity had deprived them of increased income over a period of 6 months ; and with the expectation that if union activity ever made a reappearance, it would happen again.' Under such circumstances an order merely requiring the Respondent to cease and desist from withholding its periodical review during periods of union activity would be inadequate to remedy or dissipate the effects of the unfair labor practice. In order that the employees can again feel free to engage in union activity without apprehension of loss of earnings, it is necessary that they be reimbursed for any deprivation of wages incurred. Even that remedy will not be completely adequate ; since charges were not filed and served until Decem- ber 1, 1949, the order must be limited to the 6 months' period preceding that date. Consequently it will be recommended that the Respondent reimburse employees for any loss of wages incurred from and after June 1, 1949, as a result of the withholding of action on the February wage review. Admittedly this will create computation problems such as determining which, if any, employees would have received increases, and in what amounts ; and to what extent, if any, the Septem- ber increases may have tended to offset losses. These, however, are matters to be determined subsequently. The parties may be able to arrive at a satis- factory settlement among themselves. If they cannot, the necessary facts can be ascertained in compliance proceedings. It is recommended that the Board 4 The likelihood of actual loss is apparent from several facts among others : ( 1) Leonard's estimate that 250 to 300 recommendations had already been recommended when the stop order was issued ; (2) Burchett's testimony that his recommendations were usually accepted ; ( 3) Burchett's testimony that the September increases took into account the February omission; (4) Leonard 's testimony that 50 to 80 percent of employees with 1 year's service receive an increase at least once a year. L. J. WILLIAMS LUMBER COMPANY 635 retain jurisdiction of the matter so as to permit it to amend, interpret, or apply the remedial order, as circumstances not presently foreseeable may require. It having been found that the unfair labor practices interfered with the em- ployees' free choice in the election of September 15, 1949, it will consequently be recommended that the election be set aside. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Retail Clerks International Association, AFL, 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 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 (a) (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 did not engage in the following unfair labor practices : (a) Interrogation of employees concerning union affiliation. (b) Threatening employees with discharge if they joined, assisted, or voted for the R. C. I. A. (c) Withholding September 1949 periodic wage increases. (d) Failing and refusing to advise employees whether they would receive the February and September wage increases if the R. C. I. A. won the election. (e) Stating to employees that the Respondent would not bargain with the R. C. I. A. [Recommended Order omitted from publication in this volume.] L. J. WILLIAMS, D/B/A, L. J. WILLIAMS LUMBER COMPANY AND ADA W. WILLIAMS D/B/A VARNVILLE WOOD PRODUCTS COMPANY and PLYWOOD AND VENEER WORKERS LOCAL UNIONS No. 3130 AND 3135, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, A. F. L. Case No. 10-CA-993. October 2, 1951 Supplemental Decision and Order On April 24, 1951, the Board issued its Decision and Order 1 in the above-entitled proceeding, finding, among other things, that by evict- ing James Henderson from a rent-free house,2 the Respondents dis- criminated with respect to his hire or tenure of employment to dis- courage membership in the Union, in violation of Section 8 (a) (3) of 193 NLRB 1672. 2 In its Decision, the Board inadvertently referred to the house from which Henderson was evicted as being "company-owned." The record shows that the house in question was not owned by the Respondents at the time of the eviction ; that the house had been owned by the Respondents but had been sold to a third party, and that, at the time of the eviction and thereafter, the Respondents were acting in a managerial capacity as care- takers of the house. 96 NLRB 82.