Sears Roebuck and Co.

226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix A To ALL MEMBERS OF UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA (AFL), LOCAL 106 Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify you that: WE WILL NOT engage in or induce or encourage the employees of Columbia- Southern Chemical Corporation, Mid-Valley Utility Construction Company, Layne-Louisiana Company, Inc., Sline Industrial Painters, R. E. Heidt Con- struction Company, T. E. Hudgens Company, Inc., Cyclone Fence Division of American Steel and Wire Company, or any other employer , to engage in a strike or concerted refusal in the course of their employment to use, manufac- ture, process, transport , or otherwise handle or work on any goods , articles, or commodities, or to perform any services for their employer where an object thereof is to force or require Columbia-Southern Chemical Corporation or any other employer or person to cease doing business with Westheimer Rigging and Heavy Hauling Company, Inc. UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA (AFL), LOCAL 106, Labor Organization. Dated---- ------------ By---------------------------------------------- (Agent or Representative) This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced, or covered by any other material. SEARS ROEBUCK AND COMPANY and SEARS ROEBUCK EMPLOYEES' COUNCIL, LOCAL 1635, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL. Case No. 1-CA-1402. October 5, 1954 Decision and Order On January 27, 1954, Trial Examiner Thomas S. Wilson 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 Inter- mediate Report attached hereto. Thereafter, the Respondent and the Intervenor filed exceptions to the Intermediate Report and briefs in support thereof. The General Counsel filed a brief in support of the Intermediate Report. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case,' and hereby adopts the findings, conclusions, and recom- ' The Respondent's request for oral argument is denied as the record , the exceptions, and the briefs , in our opinion , adequately present the issues and the positions of the parties. 110 NLRB No. 30. SEARS ROEBUCK AND COMPANY 227 mendations of the Trial Examiner only to the extent consistent herewith.' 1. We agree with the Trial Examiner that the Respondent, by its conduct as set forth in detail in the Intermediate Report, unlawfully interfered with, assisted, and contributed support to Sears Roebuck Employees' Council (unaffiliated), and thereby violated Section 8 (a) (2) of the Act.' We do not agree, however, that the Respondent's conduct constituted domination of the unaffiliated Council within the meaning of Section 8 (a) (2)." 2. We do not agree with the Trial Examiner that the Respondent violated Section 8 (a) (5) of the Act by refusing to bargain with the Charging Party, the Retail Clerks. In 1950, the Board conducted separate elections among the em- ployees in the Respondent's four stores in the greater Boston area to determine whether those employees desired to be represented for col- lective-bargaining purposes by the Retail Clerks or by the unaffiliated Council. In each case, the employees voted for representation by the unaffiliated Council. On January 5, 1951,5 the Board certified the unaffiliated Council as bargaining representative for the employees in each of the four stores. Thereafter, on April 14, 1952, the un- affiliated Council and the Respondent entered into separate but vir- tually identical collective-bargaining contracts for the employees in each of the four stores. These contracts were not scheduled to ter- minate before January 31, 1954, but they did provide for reopening on wage matters on February 1, 1953. Under circumstances set forth more fully in the Intermediate Re- port, the unaffiliated Council held a meeting in January 1953 at which a majority of the members present voted to affiliate with the Retail Clerks. Separate tallies of ballots were kept for the two constituent locals of the Councils Members of Local No. 1, who comprised em- ployees at the Fenway store, voted 215 for affiliation and 25 against; 2 The Respondent moved to remand this proceeding for a new hearing on the ground that the Trial Examiner had shown bias and prejudice . This charge of bias and prejudice is not based on any alleged statements of the Trial Examiner which might indicate that he prejudged this case nor upon the Trial Examiner 's conduct or rulings made at the hear- ing, but is directed to his findings and conclusions , and the analysis of the facts and law upon which they ale based , as set forth in his Intermediate Report. Possible errors of this sort are hardly sufficient to establish bias and prejudice Accordingly, we reject the charge of bias and prejudice and deny the motion to reopen this proceeding. 8 In view of our finding hereinafter that no question concerning representation was, or could have been, raised by the Retail Clerks "representation claim" of January 22, 1953, we do not regard the Respondent's continued recognition of Sears Roebuck Employees' Council ( unaffiliated ) thereafter as part of this unlawful assistance Roegelcin Provision Company, 99 NLRB 830; William Penn Broadcasting Company, 93 NLRB 1104. As set forth in the section herein entitled "The Remedy," however, we shall order that Respondent withdraw recognition from the unaffiliated Council. 4 See Wagner Iron Works, 104 NLRB 445. 5 The Trial Examiner inadvertently states the date of the certifications as 1952. 8 The record is confusing as to the number of locals in the Council . Apparently a Local No 3 (or Group No 3) existed, but no evidence appears relating to its participation in the affiliation meeting. 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members of Local No. 2, which consisted of employees at the Cam- bridge store, voted 53 for and 51 against the change of affiliation. On January 24, 1953, the Retail Clerks granted a charter to "Sears. Roebuck Employees' Council, Local 1635." This affiliated group had as officers the former officers of Local No. 1 of the unaffiliated Council. On January 22, 2 days before the charter was granted, Attorney Roit- man, who had previously represented the unaffiliated Council, wrote to the Respondent's area manager, McDermott, advising the latter of the affiliation of the Council with the Retail Clerks and requesting reopening of "the contract" on wages. The Respondent refused to. recognize or deal with the group affiliated with the Retail Clerks with- out some showing that it was legally required to do so. After a period of disorganization following upon the affiliation ac- tion, new officers of the unaffiliated Council were appointed. There- after, the Respondent bargained with these new officials as represent- atives of the unaffiliated Council, while refusing to deal with the representatives of the newly affiliated group. It is this bargaining with the unaffiliated Council and the refusal to bargain with the affili- ated group which the Trial Examiner, found constituted a violation of Section 8 (a) (5) of the Act. Certain factors must be kept in mind in determining the Respond- ent's bargaining obligation under the circumstances of this case. First, the Board had certified the unaffiliated Council as the bargain- ing representative of the employees in the Fenway store after an election in which the employees had voted decisively against represen- tation by the Retail Clerks. Second, the Respondent had a collec- tive-bargaining contract with the unaffiliated Council that was not due to terminate until January 31,1954. Third, the unaffiliated Coun- cil although battered was not defunct. In this posture, if, after the disaffiliation vote, the Retail Clerks had petitioned the Board for a change in the certification issued by the Board to show that the Coun- cil affiliated with the Retail Clerks was the bargaining representa- tive, the Board would have denied the motion.' If the Council affili- ated with the Retail Clerks had filed a representation petition seeking an election among the Fenway store employees, the Board would have dismissed the petition under its normal contract-bar rules because the existing contract with the unaffiliated Council was not due to expire for almost another year. This is not a case for the application of the Board's "schism" doctrine as an exception to the contract-bar rule," as the General Counsel concedes. He argues, and the Trial Examiner has found, that the present situation is governed by the Harris-Wood- 7 Gulf Oil Corporation, 109 NLRB 861. 8 Allied Container Corporation, 98 NLRB 580; Dick Brothers, Inc., 107 NLRB 1054 ; Barton Distilling Company, 106 NLRB 361; Boyle-Midway, Inc, 97 NLRB 895 SEARS ROEBUCK AND COMPANY 229 -son case,' in that the Retail Clerks "was the same as, or the successor -to" the certified unaffiliated Council , and that the Respondent was therefore obligated to bargain with the former organization. In the Harris-Woodson case, the Board found that the respondent -employer had unlawfully refused to bargain with an industrial union directly affiliated with the C. I. 0., and directed the employer to bar- gain with that union . Subsequently, the industrial union affiliated with Textile Workers Union of America, C. I. 0., as the result of a vote of an overwhelming majority of the employees in the old union. Thereupon, the Textile Workers moved to substitute its name for that of the industrial union in the Board 's bargaining order. The Board granted the motion , finding that , for the purposes of the bargaining order, the two organizations were the same in view of the fact that the bulk of the members and all the officers were the same . It is sig- nificant that after the change of affiliation, no organization remained which claimed to be the original labor union. The Harris-Woodson doctrine must be limited to the particular facts of that case.10 It was not intended to be a vehicle for undermin- ing the Board's contract-bar rule or for encouraging raids on an ex- isting bargaining representative during the life of a valid collective- bargaining agreement. In the present case , the certified bargaining representative did not disappear after the disaffiliation action. Some but not all members shifted to the new organization ; most but not all officers transferred their allegiance to the Retail Clerks . The certified unaffiliated Council continued to exist and to represent employees at the Fenway as well as at the Cambridge store 11 The Retail Clerks therefore stands forth not as the alter ego of the certified unaffiliated Council, but like any other union which , during the life of a valid bargaining contract, has succeeded in diverting to itself from the recognized bargaining representative the support of a majority of em- ployees in the bargaining unit . As, at the time the Retail Clerks made its request for bargaining, the Respondent 's contract with the unaffil- iated Council still had approximately 1 year to run , the demand cre- ated no question concerning representation . If, instead of making the -demand, the Retail Clerks had filed a representation petition, the Board would have dismissed it. For the same reasons, the Respondent was free to ignore the demand and to continue dealing with the bar- gaining representative recognized by the outstanding collective-bar- gaining agreement. 9 Harris-Woodson Co , Inc., 77 NLRB 819, amended 85 NLRB 1215, enfd. 179 F. 2d 720 (C A.4). 10 See the recently issued Gulf Oil case, supra. 118 (a ) (5) charges were filed by the Retail Clerks as to Respondent 's refusal to bargain with the Retail Clerks at the Cambridge store based on the same exchange of letters and the same set of events as is present here. The Regional Director dismissed those charges and the General Counsel upheld the Regional Director on appeal. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we find that the Respondent, by assisting the unaffili- ated Council, but not by bargaining with the unaffiliated Council, has- violated Section 8 (a) (1) and (2) of the Act. We find also, contrary to the Trial Examiner, that the Respondent did not violate Section & (a) (5) of the Act by its refusal to bargain with the Retail Clerks,, and we shall dismiss those allegations of the complaint. THE 11EMEDY As we have found that the Respondent unlawfully assisted Sears. Roebuck Employees' Council (unaffiliated), we shall, in order to ef- fectuate the policies of the Act, order that the Respondent cease recog- nizing that labor organization as the collective-bargaining representa- tive of any of the Fenway store employees unless and until it shall have been certified as such representative by the Board. The violations of the Act which the Respondent committed are per- suasively related to other unfair labor practices proscribed by the Act, and the danger of their commission in the future is to be anticipated from the Respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless our order is coextensive with the threat. In order, therefore, to make more effective the interdepend- ent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, we shall order the Respondent to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. - Order Upon the entire record in this case, and pursuant to Section, 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Sears Roebuck and Com- pany, Boston, Massachusetts, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Recognizing Sears Roebuck Employees' Council (unaffiliated) as the bargaining representative of any of its employees at its Fenway store in Boston, Massachusetts, for the purpose of collective bargain- ing with respect to grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment, unless and until said labor organization shall have been certified by the National Labor Relations Board. (b) Performing and giving effect to its agreement of April 14, 1952, or to any extension or renewal thereof or any superseding agreement SEARS ROEBUCK AND COMPANY 231 with said labor organization, unless and until such organization shall have been certified by the National Labor Relations Board.12 (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining, or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from Sears Roebuck Employees' Council (unaffiliated) as the representative of any of its employees at its Fenway store in Boston, Massachusetts, for the pur- pose of collective bargaining with respect to grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of em- ployment, unless and until said labor organization shall have been cer- tified by the National Labor Relations Board. (b) Post at its Fenway store in Boston, Massachusetts, copies of the notice attached hereto and marked "Appendix." 13 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by and other material. (c) Notify the Regional Director for the First Region, in writing, within ten (10) days from the date of this Order, what steps the Re- spondent has taken to comply herewith. AND IT is FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges (1) that the Respondent violated the Act by dominating Sears Roebuck Employees' Council (unaffiliated), and (2) that the Respondent violated the Act by refusing to bargain with the Charging Union. MEMBERS PETERSON and BEESON took no part in the consideration of the above Decision and Order. 22 Nothing herein shall be construed to require that the Respondent vary or abandon the terms or conditions of employment established in said agreement of April 14, 1952, or to prejudice the assertion by the employees of any rights they may have thereunder. v In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix 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, we hereby notify our employees that : WE WILL NOT recognize Sears Roebuck Employees' Council (un- affiliated) as the representative of any of our employees at our Fen- way store in Boston, Massachusetts, for the purpose of collective bargaining with respect to grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment, unless and until said labor organization shall have been certified by the National Labor Relations Board. WE WILL NOT perform or give effect to our agreement of April 14, 1952, or to any extension or renewal thereof or any supersed- ing agreement with said labor organization, unless and until such organization shall have been certified by the National Labor Rela- tions Board. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organiza- tion, to form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choosing, and to en- gage in other concerted activities for the purpose of collective bargaining, or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Sec- tion 8 (a) (3) of the Act. WE WILL withdraw and withhold all recognition from Sears Roebuck Employees' Council (unaffiliated) as the representative of any of our employees at our Fenway store in Boston, Massa- chusetts, for the purpose of collective bargaining with respect to grievances, labor disputes, wages, rates of pay, hours of employ- ment, and other conditions of employment, unless and until said labor organization shall have been certified by the National Labor Relations Board. SEARS ROEBUCK AND COMPANY, Employer. Dated----- ----------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. SEARS ROEBUCK AND COMPANY 233 Intermediate Report STATEMENT OF THE CASE This matter arises upon a complaint dated June 16, 1953,1 by the General Counsel 2 of the National Labor Relations Board, herein called the General Counsel and the Board respectively, through the Regional Director for the First Region (Boston, Massachusetts), against Sears Roebuck and Company, herein called the Respondent, which alleged in substance that the Respondent had: (1) On and after January 22, 1953, refused to bargain collectively with the Union as the exclusive representative of all its employees in the appropriate union; (2) from on or about January 23, 1953, dominated, assisted, contributed to the support of, and interfered with the adminis- tration of Sears Roebuck Employees' Council,3 hereinafter referred to as the un- affiliated Council and its Local No. 1; and (3) by various enumerated acts interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby violating Section 8 (a) (1), (2), and (5) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act. The Respondent and the unaffiliated Council duly filed their answers, each of which admitted certain allegations of the complaint but denied the commis- sion of any unfair labor practices. Copies of the various charges and amendments thereof, complaint, and notice of hearing thereon were duly served upon the Re- spondent, the Union, and the unaffiliated Council. Pursuant to notice, a hearing was held from July 7 to 23, 1953, in Boston, Massa- chusetts, before the duly designated Trial Examiner. The General Counsel, the Respondent, the Union, and the unaffiliated Council were represented by counsel. All parties participated in the hearing and were given full opportunity to be heard, to examine, and to cross-examine witnesses, to introduce evidence bearing upon the issues, and to present oral argument and file briefs and proposed findings of fact or conclusions of law or both. Briefs were received from the General Counsel, the Re- spondent, the Union, and the unaffiliated Council on October 6, 1953. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: - FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Sears Roebuck and Company is, and has been at all times material herein, a cor- poration duly organized under and existing by virtue of the laws of the State of New York. At all times material herein the Respondent has maintained its principal office in Chicago, Illinois, and a store at 201 Brookline Avenue, Boston, Massachusetts, hereinafter called the Fenway Store, at which store and its other several stores throughout the United States it is now and has been continuously engaged in the business of retail and mail order merchandise. At its Boston store annual purchases exceed $400,000, of which approximately 80 percent is shipped directly to said store from points outside the Commonwealth of Massachusetts; at its Boston store annual sales exceed $2,000,000, of which approximately 5 percent represents shipments made directly to points outside Massachusetts. The Respondent admits, and the Trial Examiner finds, that the Respondent is en- gaged in commerce within the meaning of the Act. If. THE LABOR ORGANIZATIONS INVOLVED Sears Roebuck Employees' Council, Local 1635, Retail Clerks International As- sociation, AFL, and Sears Roebuck Employees' Council unaffiliated and its Local "The complaint was based upon an original charge filed February 17, 1953, and sub- sequently amended, by Sears Roebuck Employees' Council, Local 1635, Retail Clerks Inter- national Association, AFL, hereinafter called the Union or the affiliated Council. 2 This term specifically includes the attorney appearing for the General Counsel at the hearing. 8 The Sears Roebuck Employees' Council, an independent labor organization and the certified bargaining representative of Respondent's employees at the Fenway store, is referred to herein prior to January 21, 1953, as the "Council." Subsequent to the above date two organizations claimed to be the "Council." Herein that organization which affiliated with Retail Clerks International Association, AFL, will be referred to as the "affiliated Council" while the other group will be known as the "unaffiliated Council." The unaffiliated Council's motion to intervene herein was granted prior to the hearing. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No. I are each labor organizations admitting to membership employees of the Re- spondent. III. THE UNFAIR LABOR PRACTICES A. The facts 1. Origin of the affiliated Council While this case actually deals with events beginning in January 1953, it is necessary to go back to approximately 1938-about the time when, as Respondent Counsel pointed out, company-dominated unions were being formed in great numbers- when one Roy Webber, an employee of the Respondent's Fenway store, succeeded in organizing the employees of said store into an organization known as the Sears Roebuck Employees' Council. From that time on until January 21, 1953, this Council dealt with the Respondent for and on behalf of the employees of the Fenway store in respect to -their wages, hours, and working conditions. Subsequently when employees of the Respondent's Cambridge store formed a similar Council, the Council at the Fenway store became known as Group or Local No. 1 and that at Cambridge became known as Group or Local No. 2. Under the constitution adopted each of these locals had its own chairman, vice chairman, secretary and treasurer, and representatives from various groups and classifications of employees in the store elected by the membership at an annual convention held each November. Superimposed above these groups or locals was a body known as the supreme executive council composed of the officers of the locals plus two representatives from each local. At an annual convention held in January of each year these members of the supreme executive council elected from among its own members the supreme chairman, the supreme vice chairman, and the supreme board's secretary and treasurer. This supreme executive board was the supreme body of the Council and responsible for its welfare between con- ventions. As a matter of fact, however, history indicates that the Council was pretty much of a "one man show" for the reason that from the time of the founding of the Council until January 13, 1953, Roy Webber was its one and only supreme chairman.4 Since its formation the Respondent has dealt with the Council on wages, hours, and working conditions as well as grievances and other matters. However until April 14, 1952, these negotiations resulted not in signed agreements between the parties but only in unsigned "statements of policy" issued unilaterally by the Respondent. In cases numbered 1-RC-1446 and 1-RC-1506 5 the Board decided in 1950 the question of the appropriate unit as follows: We therefore find that at each of the Employer's stores in Boston, Cambridge, Waltham, and Woburn, the following unit is appropriate for the purposes of collective bargaining: All selling and nonselling employees, including auditing department em- ployees, but excluding group office personnel, executives, personnel department employees, leased department employees, employee cafeteria personnel, service station employees, drivers and helpers, guards, professionals and supervisors as defined in the Act. As a result of elections ordered in said cases the Council was certified as the bargaining agent for the employees in each of these four appropriate units, including the Fenway store on January 5, 1952. The Retail Clerks Association had been the Council's unsuccessful opponent on these ballots. In December 1951 the Respondent and the Council sat down at negotiations lasting into early 1952 at which time they arrived at 4 separate, but almost identical, contracts involving the 4 appropriate units. On April 14, 1952, these contracts were executed by the parties. By the terms of these agreements each was to remain in force and effect until January 31, 1954, and each provided it could be reopened on wages on February 1, 1953. Not too long after the execution of these agreements Webber became convinced that the Council was becoming weaker and weaker, a feeling which he said had been growing upon him since the war. He had at least one exploratory meeting with John Lind, an organizer for the Union, regarding the possibility of the Council seeking affiliation with the Retail Clerks Union. 4 In addition Webber was also the only chairman of Local No. 1 until the year 1950 when he declined the nomination therefor 5 91 NLRB 1411, 1414. SEARS ROEBUCK AND COMPANY 235 At the July 1952 convention of the supreme executive board of the Council the 'question of affiliation with the Union together with certain proposed amendments to the Council's constitution to facilitate that objective were brought up for con- sideration but defeated by a vote of 5 to 2. This motion had been moved by employee Bill Bailey, the vice chairman of the executive board. It was opposed by delegates from Local No. 2 who included Edna Donovan, secretary-treasurer of the Supreme Executive Board, and Representative Dick Gannon. In November 1952, the annual Council election was held. Webber did not become a candidate to succeed himself so Bailey was elected chairman of Local No. 1. The unsuccessful candidate for the office of vice chairman was one Angelo (Angy) Giammasi. On January 13, 1953, the supreme executive board held its annual convention at which its new officers were elected. "Bill" Bailey who had been the vice chairman of the supreme executive board the previous year was elected supreme chairman in a contest against Humbert (Bert) Lodi, chairman of Local No. 2. Edna Donovan of Local No. 2 was elected treasurer and Dorothy Furlong of Local No. 1 became secretary. At this convention the new supreme executive board reversed its prior vote on the question of affiliation with the Union, voting 5 to 2 to seek affiliation with the Retail Clerks Union. Also by a vote of 5 to 2 the supreme executive board passed amendments to its constitution whereby any proposal for dissolution of the Council or affiliation of the Council with any other labor organization was to be decided by a majority vote of the entire membership present and voting at a ballot vote. The next day Bailey posted the following notice in the Fenway store on a poster approximately 20 by 30 inches: NOTICE MEMBERSHIP MEETING OF SEARS ROEBUCK EMPLOYEES ' COUNCIL MEMBERS CON- STITUTIONAL REFERENDUM MEETING HOTEL LENOX JANUARY 21 AT 6:30 PM BOSTON The Convention of the Council proposes Affiliation with Retail Clerks Int. Assn. A. F. of L. Supreme Executive Board Sears Roebuck Employees ' Council BILL BAILEY, Chairman. S. ADAMSON, Vice Chairman. Mrs. EDNA DONOVAN, Treas. D. FURLONG, Secy. H. BROIDE, Representative. D. CONOWAY. C. MONTGOMERY. Sandwiches & Coffee will be served A similar notice was posted at approximately the same time at the Cambridge and other stores. On January 20, McDermott 6 had the employees of the Fenway store as well as the other various stores and establishments of Respondent in the Boston area assembled, and addressed them on the subject of the affiliation vote to be taken January 21 in accordance with the above notice. The speech was repeated the following day. In a carefully prepared seven-page typewritten speech McDermott made a strong plea to the assembled employees that they reject affiliation with the Retail Clerks citing numerous economic and other reasons why Respondent thought the employees should oppose such affiliation. General Counsel conceded that this speech was protected under Section 8 (c), the so-called "free-speech" provision of the Act. However the employees could have labored under no illu- sions as to the Respondent's desire in the matter after the speech. In view of the defense raised here, it is interesting to note that nowhere in the speech did McDermott even suggest that the Council lacked the capacity to affiliate with the Union or that such affiliation would be unconstitutional. Indeed he urged all employees to vote so that the question would not be determined by a small minority. He stressed the importance of the decision before the employees. He stated at the beginning "I want to make it clear at the outset that the decision as to whom you want to represent you for purposes of collective bargaining is yours-and only yours." 4 McDermott as the Boston group manager of Respondent Is in charge of all of the Respondent's stores in the greater Boston area including all those mentioned herein. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is testimony, specifically contradicted by McDermott, to the effect that at the conclusion of his speech McDermott flatly stated that no matter which way the vote went, Respondent would "abide by it." Although this statement is not included in the typewritten version of the speech which McDermott claimed to have followed faithfully, the undersigned is inclined to believe he made such statement for the simple reason that such was implicit in the speech itself as well as in the fact that the speech was delivered at all. Under date of January 19, 1953, Bailey had written the Respondent on station- ery bearing the letterhead of the Union the following letter addressed to Thomas McDermott: The Retail Clerks International Association, A. F. of L. is now engaged in activity among the members of the Retail Stores for selection as collective bar- gaining agent of these employees. You are hereby advised that the Sears' em- ployees have already officially voted to select this union as it collective bargain- ing agent. In view of these facts, we request the opportunity to address the employees on company time and property concerning this important matter. We under- stand that you have seen fit to personally address the employees on the subject on company time and property and we are taking this occasion to request an equal opportunity for this organization. Will you please advise us as soon as possible when we can conduct such a meeting. After its receipt this letter was shown to the Respondent's attorney, Joseph Brand- schain, by Group Manager McDermott. At the urgent request of employee Gannon, Chairman Lodi hurriedly called a meeting of Group No. 2 on January 20, 1953, for the purpose of discussing the pos- sibility of affiliation of the Council with the Union. At this meeting Gannon read the above-quoted letter from Bailey to McDermott 7 during his plea against affiliation. As scheduled the Council held its meeting in the Lenox Hotel on January 21, 1953. In advance of the meeting, membership lists of both locals Nos. 1 and 2 of the Council had been prepared by the secretaries of the respective locals, Furlong and Donovan, in order that only persons whose names appeared thereon should be admitted to the hall. Furlong and Donovan also assisted with the admittance of members at the door. About 7 p. m. Bailey opened the meeting by introduc- ing his invited guests who appeared on the platform with him and Secretary Fur- long. Except for Harold Roitman, attorney for the Council, these invited guests were all officials of the Union, including Samuel Myers, international vice presi- dent; Fred Ammond, a local representative; a Miss O'Donnell, an official from the local union at Filene's store; and Pat Coleman, another local union representative. After the introduction each guest then said a few words urging the council mem- bers to vote in favor of affiliation with the Union. Bailey announced that these guests had been invited to answer any questions which the membership might have and that 1 question per person would be received from the floor through the 6 or 8 ushers who had been appointed for the meeting and who were wearing white arm- bands to signify their position. These questions would then be answered from the rostrum. Employee Gannon promptly "popped up," according to Giammasi's description, and began calling upon the chair for recognition in such a manner as to cause so much commotion and confusion that Bailey called upon the ushers and a policeman to restore order This they did when Gannon sat down as the police- man approached within 4 or 5 feet of him. Thereafter the employees asked numer- ous questions which were answered by Myers or others from the rostrum. Angelo (Angie) Giammasi succeeded in asking two questions, the second of which, de- scribed by Lodi as "outstanding," was to the effect that, if the affairs of the Coun- cil had gotten in such a precarious condition, why was the matter not taken to arbitration? Although Myers attempted to answer this question, Giammasi in- sisted that Bailey should answer and became incensed when Myers handed Bailey a note prior to the time when Bailey answered the question, an answer which proved unsatisfactory to Giammasi. During the question period Gannon again rose and on this occasion moved to adjourn. Although seconded, the motion was ruled out of order. But it created another commotion. 7 Of all those who knew about the above letter prior to the meeting only McDermott testified. He testified that he did not know how that letter happened to come into the hands of Gannon. It had returned to Respondent 's possession by the time of the hearing. SEARS ROEBUCK AND COMPANY 237 Following this question period Bailey appointed election tellers, among whom were Donovan and Furlong, who distributed to those employees listed as members ,of the individual locals ballots reading as follows: REFERENDUM BALLOT Are you in favor of strengthening the collective bargaining power of the Council by affiliating with the Retail Clerks International Association, A. F. of L. Check your choice Yes No q q The members voted by locals with tellers checking those eligible to receive bal- lots as well as those depositing their marked secret ballots in the election boxes. The vote in Local No. 1 was recorded and certified as being 215 in favor of affilia- tion to 25 against, and in Local No. 2 as 53 in favor to 51 against. Donovan and Lodi, who also acted as election clerks, were among those who signed the secretary's minutes certifying these results. With the announcement of the results the meeting ended about 11 p in. On January 24, 1953, the Retail Clerks International Association granted a char- ter to the Retail Clerks Union, Local No. 1635, Sears Roebuck Employees' Council of the Retail Clerks International Association. The charter members to whom this charter was granted were 18 employees of the Respondent including, among others, Nowell (Bill) Bailey, Roy Webber, Harry Broide, and Dorothy Furlong. Thereafter the officers of the affiliated local remained the same as they had been as Local No. I of the Council. The membership also remained practically identical. By February 11, 1953, 166 employees out of the 294 employed in the Fenway store unit had paid their individual dues of $2 per month to the affiliated Council. Of these 106 had paid their dues on or before January 31, 1953. In addition to all the officers of Local No. 1, all the officers of the supreme executive board of the Council abided by the majority vote of the Council's membership on January 21 except Donovan. 2. Affiliated Council's attempt to bargain Respondent learned the results of the January 21 meeting at the Lenox Hotel in two ways. Managers Kunz and Fick had made arrangements with employees Gan- non and Lodi to make a report to them regarding that meeting at the Somerset Hotel in Boston early in the evening of January 22. Just when and how these arrangements had been made was not disclosed in the record for that fact came out during the cross-examination of McDermott on the final day of the hearing. Neither Kunz nor Fick appeared as a witness. Gannon, Lodi, and 2 or 3 unidenti- fied employees gave a full report of the meeting to McDermott, Kunz, and Fick that evening. McDermott's memory, which was admittedly vague on the subject, was that the report was given in the hotel lobby rather than in one of the meeting rooms the Respondent regularly maintained at the Somerset. Following the making of this report to the Respondent's officials, Gannon tele- phoned Schumb regarding the Council. At the time this telephone call was made to Schumb's home, it was too late for Schumb to meet with Gannon. This. will be more fully detailed in a later section of this report. The Respondent's second source of information came through the following letter dated January 22 to McDermott from Roitman, then counsel for the affiliated Council: As attorney for the Sears Roebuck Employees' Council I wish to advise you that on Wednesday, January 21, the Council in accordance with its con- stitution conducted a referendum vote and affiliated itself with the Retail Clerks International Union, A. F. of L. In accordance with this decision the Council may in the future call in representatives from the Retail Clerks to assist it in carrying out its collective bargaining functions as representative of the employees in the Boston area stores. Let me take this opportunity to also advise you that the Council is reopen- ing the contract on the issue of wages as of February 1 in accordance with the provisions of the contract. Would you please advise me of the first avail- able time at which the Company can meet with respect to this contractual reopening. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To this McDermott replied on January 28 as follows: I have your letter of January 22, 1953, advising us that Sears Roebuck Em- ployees' Council has conducted a referendum vote and affiliated itself with the Retail Clerks International Union, A. F. of L. and calling upon us to meet with you to discuss the reopening of our agreement with the Council,, unaffiliated.8 Perhaps you feel that you have adequate legal authority for this seemingly unusual request. If you do, we would like to look further into the matter. Further correspondence between these two dated January 30 and February 5, 6, and 11, followed the pattern set above. The result of McDermott's tactics in these- letters together with the efforts of one James T. Guffey which began upon his arrival in Boston from Chicago on February 9, 1953, resulted in the fact that Re- spondent has never recognized the affiliated Council or bargained with it but instead has bargained with the unaffiliated Council whose origin will be considered now. 3. The origin of the unaffiliated Council As found heretofore within 24 hours after the holding of the affiliation meeting of January 21 at the Hotel Lenox, Bert Lodi, chairman of Local No. 2, and em- ployee Dick Gannon, also from Local No. 2, together with 2 or 3 unidentified employees went to the Hotel Somerset to report in full to the Respondent's top Boston management on the aforementioned meeting. After concluding this report and at a time too late to hold a conference that same evening, Gannon telephoned Attorney Joseph Schumb, a personal friend never previously connected with the Council, at Schumb's home informing him about the affiliation of the Council and seeking advice as to what the dissident few should do.9 Due to the lateness of the hour Schumb made an engagement to meet with Gannon at his office the following day and suggested the attendance of others also. It should be noted here that at this time Gannon held no office in either the Council or any local thereof. Schumb testified that Gannon purported to "employ" Schumb on behalf of the unaffiliated Council upon the verbal suggestion of Edna Donovan, the secretary-treasurer of Local No. 2 and the only officer of the supreme executive board of the Council who failed to abide by the wishes of the majority as expressed at the meeting of January 21, that Gannon "do whatever was neces- sary to further the interests of the Council [unaffiiatedl." Although everything done by Gannon, Lodi, and Giammasi after January 21 allegedly stemmed from the authority of Donovan in her supreme executive board position, it is noteworthy that Donovan herself was not called as a witness at the hearing nor was her failure to appear explained in any way. Despite his great prominence in the affairs lead- ing to the unaffiliated Council, Gannon also failed to take the stand. It should also be noted here that the two officers of the unaffiliated Council, Lodi and Giammasi, testified at length at the hearing as to their own and Donovan's great objections to the purpose and conduct of the meeting of January 21 which, according to both witnesses, were expressed loudly and widely both at and after that meeting. This evidence conflicts with uncontradicted documentary evidence produced at the hearing that: (I) Donovan and Lodi, after assisting with the voting on January 21, certified the results of that vote in the secretary's minutes without noting any objections thereto; and (2) Giammasi on January 23 requested and received two union authorization cards which he voluntarily executed.19 Neither of these acts tends to corroborate the oral testimony given by Lodi and Giammasi at the hearing which is another reason why the undersigned was forced to view the testimony of these two witnesses with skepticism, if not distrust. :This is the first occasion on which the word "unaffiliated" was used in connection with the name of the Council. Thereafter such use became general 9 Although the exact times of making the report and telephoning the attorney are not definitely set in the record, it appears from the lateness of the telephone call and from the fact that Gannon did not mention the appointment to Lodi until the morning of January 23, although the two had been together at the Hotel Somerset the evening before, that the telephone call occurred after the meeting at the Somerset. io At the hearing Giammasi attempted to claim that he was "coerced" into signing the union card But the facts adduced from Giammasi himself show that, after taking some bantering from fellow employees about joining the Union, Giammasi voluntarily sought out an employee with a union card and, after having spoiled the first card in attempting to execute it, voluntarily requested a second card which he filled out properly. SEARS ROEBUCK AND COMPANY 239 Gannon was the only person who really objected at the January 21 meeting. It must be recalled that it was he who insisted upon the meeting of Local No. 2 on January 20 to consider the question of affiliation prior to the Lenox Hotel meeting and that it was he who arrived there with the letter Bailey had written to Respondent on stationery of the Retail Clerks on January 19, which Gannon publicly displayed in his efforts at that meeting to secure a vote against affiliation. While the record fails to disclose how Gannon secured possession of this letter, the conclusion is irresistible therefrom that Gannon was in close touch with the Respondent's top management which had possession of that letter previously. About noon on January 23, Gannon kept his engagement with Attorney Schumb in his office as arranged the previous evening. He took Lodi with him. According to Schumb, due to the complexities of the case, all he was able to do at the time of this consultation was to suggest the appointment of an "administrator" for the Council and to engage in legal research. He admitted that his first overt effort to "maintain" the Council occurred on February 5, 1953, when he wrote to Harvard Trust Company in regard to the funds of Local No. 2, and to one Gerald Howell regarding the return of the books and records of Local No. 2. Thus at least his first overt efforts were in behalf of Local No. 2 and not of the Council. The next act occurred on January 28, as will be more fully set out in a subsequent section of this report, when Lodi wrote the Respondent on behalf of Local No. 2 requesting that the contract for the Cambridge store be reopened on wages as of February 1, 1953, as provided in that contract. On February 9, 1953, one James T. Gulley of Chicago, Illinois, registered at the Hotel Braemore in Boston where he remained through February 13.11 Activity on behalf of an "unaffiliated Council" promptly began. The first overt action by Local No. 1 of the unaffiliated Council was the following letter on plain stationery: February 10, 1953. Sears Roebuck & Company, 24 Fullerton St., Boston, Mass. DEAR SIR: As administrator of the Sears Roebuck Employees' Council Local I we would appreciate your setting a date at which time the management will meet with us to negotiate a wage increase for the Council members of Local 1. This is in accordance with existing agreements between the management of Sears Roebuck & Company of Boston, and the Sears Roebuck Employees' Council (Unaffiliated), calling for reopening of wage negotiations on February 1, 1953. (S) A. GIAMMASI, Administrator. cc: Mr. McDermott On the following day, February 11, about 4 p. m. Giammasi posted on'the bul- letin board at, the Fenway store the following notice which he had just received through the Respondent's house mail: NOTICE February 11, 1953. To: Members of Sears Roebuck Employees' Council This is to notify that the undersigned constitutional officer of your Council has this day appointed Angelo Giammasi as temporary administrator of Sears n Until the last day of this hearing James T. (Jim) Guffey remained a sort of "mystery man." The Respondent objected vigorously every time Guffey's name was mentioned in evidence on the ground that no agency had been shown to exist between the Respondent and Guffey and, later, on the ground that there had been no showing of authority in Guffey to speak for it on matters of labor relations. On the final day of the hearing, however, Group Manager McDermott admitted that he "knew" Gulley and that Guffey was employed by the "parent company" of the Respondent In Chicago in its department 707 which "aide In morale work, employee morale, employee relations," according to McDermott. It was stipulated that James T Guffey was registered at the Braemore Hotel in Boston February 16-19, February 24-28, March 2-5, and at the Kenmore Hotel in Boston March 17-25. It was also stipulated that one Herbert C. Melnick, also of Chicago, Illinois, was reg- istered at the Braemore Hotel February 9-13 and at the Kenmore Hotel March 6-13, 1953. According to McDermott, Melnick was also employed in department 707 of the parent company in Chicago.. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roebuck Employees' Council, Group #1, with full power, as such temporary administrator to administer all the affairs of said Group # 1. In such capacity as temporary administrator Mr. Giammasi has full authority and power to appoint any and all committees he may deem necessary for the proper conduct of the affairs of the said Group # 1. (S) EDNA DONOVAN 12 The exact date and method of the appointment of Giammasi as "administrator" of Local No. 1 are both highly confusing in the record. Admittedly the notice of appointment signed allegedly by Donovan was posted late on the afternoon of February 11 although the day before Giammasi had signed a letter to the Respondent as such administrator. Originally in his testimony Giammasi himself dated his appointment from the Donovan notice but subsequently came to the conclusion that the Donovan notice was merely the written confirmation of his earlier oral appoint- ment by Gannon who told Giammasi that he, Gannon, was "acting for Donovan" in offering the appointment. However, thereafter, Giammasi began to think that this oral appointment by Gannon for and on behalf of Donovan had been made consid- erably earlier than February 10 and probably as early as January 27 or earlier. Giammasi seemed unduly vague and contradictory on this as well as other matters. In fact Giammasi appeared to be a witness so self-satisfied and so self-confident as to believe that any story he chose to tell at any time would be accepted at face value. The Trial Examiner could therefore believe Giammasi only when corroborated. Therefore, the Trial Examiner finds that Giammasi was purportedly appointed admin- istrator of Local No. 1 of the unaffiliated Council on February 11 although oral arrangements therefore may have been made a day or two prior to the posting of said notice. About 3 p. m. on February 12, Alvin D. Larsen, who was then employed as a salesman under Edwin Gillespie, a department head and an admitted supervisor, re- ceived a telephone order to report to the store superintendent's office. Upon report- ing there Larsen was met by Gillespie and Leo Grue, merchandise manager under Group Manager McDermott. Also present was employee Hansson. Gillespie in- formed the men that they had been called because they "were loyal, trusted employees of the Company," that they would be asked to form part of a committee for an unaffiliated Council about which they would be given more information later. When the men stated that they were already committed to the Union, Grue stated that their "futures" remained with the unaffiliated Council and that the Union could do "nothing" for them, that the Union was not the type of organization the Company wanted in the store. The employees were then asked to meet with a "Mr. Guffey," who was described as a representative of the parent organization, from Chicago at the Braemore Hotel at 9 o'clock the following morning when they would be given more information as to what their duties were to be.13 They finally agreed to go as requested. About 3:30 or 4 p. m. that same afternoon Thomas Hession, an employee in the receiving room, received a similar telephone call to report to the personnel office. He was met there by Gillespie with whom Hession had been friendly for a number of years. After sitting down in one of the offices in the personnel department, Gil- lespie told Hession that he had been called there "about this AFL trouble" and asked Hession how long he had been working for the Respondent and, after receiving the reply "seventeen years," then asked him to get a couple of men in the store "to go along with" the unaffiliated Council. Hession demurred, stating that the receiving room was 100 percent for the affiliation but, being pressed, agreed to go to the Brae- more Hotel the next morning to see "a man from Chicago," who Gillespie said would be there. Gillespie ended the meeting by warning: "Now, whatever went on in this office, don't breathe a word about it." 14 13 It does not take a handwriting expert to determine that the signature "Edna Donovan" on this document does not appear to have been written by the same person who signed the name "Edna R Donovan" on Council's Exhibit No 14 or on the minutes of the meeting of January 21. Donovan did not appear as a witness and consequently did not identify her signature. 13 Gillespie, called as a witness by the Respondent, failed to deny any of this testimony. Grue did not testify. 14 Although Gillespie denied having reminded Ilession that his 17 years of service with Respondent entitled Hession to a large amount of profit sharing and that "this man" would be Hession's friend for life and protect him as well as a few other details of the meeting about which no finding has been made above, Gillespie did not deny having pressed Hession to assist the unaffiliated Council, requesting him to see "this man" at the Braemore Hotel or warning him not to mention their meeting SEARS ROEBUCK AND COMPANY 241 About 4:45 that same afternoon Grue came to Hesston in the receiving room and instructed him that the meeting was at 9 o'clock the next morning in room 152 of the Hotel Braemore . When Hession, whose shift began at 9 a. m., asked about his pay, Grue answered, "that will be taken care of." About 9 o'clock the next morning Hession, Larsen, and Hansson appeared sepa- rately at room 152 of the Braemore Hotel where they were met by a man who intro- duced himself as either "Guffey" or "Jim Guffey," and stated that he was from the "parent organization in Chicago." Guffey informed those present that the employees did not want such an organization as the AFL as it was "communist dominated" and, in fact, the Company would "never tolerate the AFL" as a bargaining agent of the employees but would spend countless sums of money to keep it out and would fight for years, if necessary, to prevent the Union from getting into the Company. He stated that Bailey was an "immoral man," citing especially a trip which Bailey allegedly had made into New Hampshire when certain acts were supposed to have occurred which Guffey stated were then being investigated, and so was not fit to lead the organization. He also stated that the election of January 21 was illegal because of a conspiracy on the part of Bailey and his friends to mislead the employees into joining the Union. Guffey stated that he wanted this committee to work with "Angie," 15 that he would have cards printed which he wanted the committees to have signed by the employees as evidence of the fact that they were remaining "loyal" to the unaffiliated Council. He also stated that this group was not the only committee being formed to assist the unaffiliated Council, as there were others in operation at that time who would also be given similar cards to distribute among the employees .16 After a meeting lasting about half an hour, Guffey took the employees to the dining room where they had breakfast which was paid for by Guffey. During breakfast the question of the dis- missal of employee James Correia came up . Guffey stated that that dismissal should never have happened but that the Respondent was going to reinstate him. Before the meeting concluded, Guffey told the employees that these meetings were "top secret, that they were in violation of the Taft-Hartley law, and no mention should be made of them to anyone." The meeting then broke up so that the men returned to the store by 11 : 15 a. m . Hession's pay was not reduced by reason of his absence from work for that period of time. Sometime prior to 2 o'clock on February 13, Giammasi approached employee Alice Hill in the store on working time, asked her if she had signed a union card and, upon learning that she had not, told her that he was "trying to reorganize the Council" and asked her to sign a "Declaration of Rights " card 17 for the Council. He then told 15 Nickname of Angelo Giammasi. 10 Employees Hession and Larsen were in disagreement on this point , Hession testifying that such cards were distributed and Larsen as found above. The Trial Examiner is inclined to believe that Hession was correct on the point , as this was the only meeting he attended with Guffey and because it is clear that Guffey did distribute cards to the employees although Larsen believed the distribution occurred at the next meeting of the group. The Trial Examiner believes that these cards had been printed by February 13, for it was on February 13 that Giammasi gave one to employee Hill in the store Giammasi testified that he had received his cards from Gannon on January 28 or February 4, and that he promptly began distributing them to employees although he could recall no particular individual to whom he had given a card before Hill on February 13. As usual Giammasi's testimony was, at best , indefinite and contradictory 17 These were mimeographed 3 by 5 inch cards reading as follows : Declaration of Rights These rights are guaranteed and protected by law and contract between the Council and Sears Roebuck, Boston, Mass The right to bargain with NLRB certification The right to be represented by members of the Council The right to reopen negotiations for a wage increase Feb. 1, 1953. The protection afforded by the contract now in effect The right to benefits as specified by contract I insist my rights be preserved This is my wish in spite of any conflicting cl.ums or representations. Date Name Sears Roebuck Employees' Council (unaffiliated). As the total expenditures to the date of the hearing of Local 1 of the unaffiliated Council consisted of $5 spent for flowers , it is clear it had not paid for the mimeographing of these cards 338207-55-vol 110 17 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her that she could become either a silent member or an officer of the unaffiliated Council and asked her to attend a meeting at 2 o'clock in Store Manager Romizer's office. Hill asked for time to think the matter over. Subsequently Hill agreed to do as Giammasi requested and, in company, with Giammasi and employee Jean Moriarity , attended the meeting in Romizer's office At this time 6iammasi stated that he was representing the unaffiliated Council and brought up the grievance concerning Correia. Romizer stated that he would look into the matter and let Giammasi know the decision later. On the following day Correia was reinstated even as Guffey had predicted prior to the Romizer meeting. On February 16, Giammasi again met with Romizer to discuss numerous griev- ances. He was again successful . The results of these and the Correia grievances were posted by Giammasi on the bulletin board. Also on February 16, Guffey again checked in to the Braemore Hotel where he remained to February 19. On February 17 the Union filed charges of refusing to bargain against the Re- spondent. - On February 18 about 9.30 or 10 o'clock Giammasi, Lodi, Donovan, Gannon, and a group of employees, including Hill, gathered in Schumb's office where Schumb was introduced to the employees and thereafter Guffey was introduced as "Schumb's assistant." It is undisputed that Guffey remained throughout the entire course of the meeting, although he stepped out of and returned to the meeting room several times. Guffey told the employees that they were preparing a case against the Union,is that the employees should get the "Declaration of Rights" cards signed and should set a date for the election of officers. At this point Lodi stated that, as all the employees were then present, they might just as well elect officers. This suggestion was accepted and officers were "elected," one such officer elected, at least, not being present at the time of the election. These elections included officers of Local No. 1 as well as the officers of the supreme executive board Following the election of the officers, Guffey produced non-Communist affidavits required by the Act which the officers executed The group decided to request the Respondent to bargain over wages, an issue which by contract had been reopenable on February 1. The meeting recessed for a period while the employees went out for coffee and while Guffey and Gannon, who had been elected "coordinator," drew up some kind of a document. The meeting then adjourned and the employees returned to their work at the store.19 is On February 20, 1953, Attoiney Sehumb filed it suit against the Union on behalf of various officers of the unaffiliated Council. iD The above findings are made on the credited testimony of employee Alice Hill, who appeared to be an honest witness The witnesses for the unaffiliated Council admitted the presence of Guffey at this organ- izational meeting but attempted to minimize the incriminating effect of this by testifying that, after being introduced as "Mr Guffey," he just sat in the office or wandered in and out of the conference saying nothing and contributing nothing This inactivity just does not jibe with the undenied activities of Guffey during this period Attorney Sehumb attempted to explain Guffey's presence by testifying that on the previous day, Februaiy 17, Guffey had telephoned him saying that he, Gulley, was "doing some fork for Sears" and understood that Schunib was attorney for the unaffiliated Council so that he, Gulley, would like to come and talk AN ith Sehumb , that upon Schumb's invita- tion, Guftey appeared at his office the following day, February 18, shortly before the time of Schumb's previously arranged conference with the unaffiliated Council, and told Sehumb that he was working on the "very badly lowered morale" at the store so Schumb, thinking to assist Gulley in his "work" by introducing him to some of the employees, informed Guffev that he, Schunib. was about to have a meeting with "some of the employees" and "if [Gulley] wanted to stay, lie was at liberty to do so " The Trial Examiner finds this attempted explanation of Gulley's presence and inactivity at this organizational meeting singularly unconvincing, if not so incredible as to be unbe- lievable An attorney does not invite a stranger to participate in a legal conference between himself and his client-much less a known official of the Company with whom that client anticipates engaging in collective bargaining in the near future-unless that stranger, or official, is present for the purpose of assisting with the business of the conference Guffey's undenied activities in the Boston area, both prior and subsequent to this, con- clusively prove that a purpose, if not the purpose, of his presence in Boston was to organize an "unaffiliated" Council Therefore the Trial Examiner is constrained to accept the testimony of Hill that Guffey pursued that same purpose by his presence and activities at the meeting of Februai y 18 as found above SEARS ROEBUCK AND COMPANY 243 On the evening of February 18, Guffey held another meeting in his room at the Braemore Hotel. The employees present were Larsen, Hansson, Jean Moriarity, and Alice Swift, the last having been elected an officer of the unaffiliated Council in Schumb's office earlier that day.20 After reviewing the labor situation, Guffey handed out "Declaration of Rights" cards for the committee to get executed by employees and then to return to him or Gillespie. He repeated that Respondent would never tolerate the Union and it was just a matter of time until the unaffiliated Council would be the sole bargaining agent. After praising the excellent work being done by Giammasi, Guffey said "We need a lot more good employees like that who would really stick by the Company and do of it, do well by it." After arrange- ments had been made to meet again on February 25, the meeting adjourned. Upon stationery of Sears Roebuck Employees' Council and under date of Feb- ruary 19, 1953, the following notice was posted in the Fenway store by Giammasi: TO THE MEMBERS OF SEARS ROEBUCK EMPLOYEES' COUNCIL LOCAL NO. 1, BOSTON, MASS. At a recent meeting of members of Sears Roebuck Employees' Council, the following were appointed to serve as officers to fulfill the present standing contract OFFICERS LOCAL NO. 1 A. Giammasi, Chairman J. Trask, Vice Chairman F. Barker, Treasurer M. Beston, Secretary A. Swift, Rep.-at-large H Colbath, Rep. office emp. W. Hall, Rep. big ticket A. Hill, Rep small ticket SUPREME BOARD OFFICERS Lodi, Chairman Giammasi, Vice Chairman Donovan, Treasurer Barrett, Secretary Colbath, Delegate Burpee, Delegate Hall, Delegate Hill, Delegate Coordinator, Dick Gannon Guffey again registered at the Hotel Braemore on February 24 and remained to February 28. About 7 o'clock on the evening of February 25, Guffey held another meeting at his room in the Braemore Hotel at which employees Hansson, Larsen, Trask, Maglio, and Carmucion were in attendance. Gulley asked if there were any signed cards and collected the few which had been signed. After stating that things appeared to be going along very well and the employees appeared to be less discontented than previously, Guffey asked the opinion of those present as to whether or not there should be certain correspondence between Schumb and McDermott at this time. The group advised against such correspondence at that time.21 One of the employees brought up the disturbance caused by the demotion of employee Cahns. Guffey stated that this situation should never have been allowed to arise as this was not the time to create any disturbance among the employees and stated that he would see to the matter. Guffey then informed the group that "warrants" were being prepared to serve upon certain officers of the Union and upon the Harvard Trust Company which "would slow them [the Union] down a little." Guffey further indicated that Schumb was doing good work in regard to these warrants. After arrangements had been made to meet again on March 4, the meeting adjourned. On March 2, Guffey reregistered at the Braemore and remained until March 5. 20 Hession was absent having already informed Gillespie that he could no lone' r attend. When Gillespie again sought to influence Hession to attend, he quoted Guffei is saying, titter learning of Hession's decision • "Hession will be dangerous Be careful of him " 21 Despite this recommendation, this correspondence was published in bulletin form over the name of the unaffiliated Council on February 27 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The next meeting of the employee committee was held in Guffey's room at the Braemore Hotel on March 4 and was attended by Hansson, Trask, Magho, Car- mucion, and Larsen. Again Guffey requested the signed cards and remarked that great progress was being made, that it was just a matter of time before the AFL was out and finished. In announcing that Calms had been reinstated, Guffey stated that "Sears takes care of its employees." After some discussion regarding the outspoken advocates of affiliation, Guffey suggested that the group consider "various means of punishing those employees who were reluctant to go along with the unaffiliated Council, those who were outspokenly opposed to the unaffiliated Council." After making arrangements for another meeting on March 11 at the Braemore, the last hotel meeting attended by Guffey adjourned. However, on March 6, one Herbert C. Melnick, also from Chicago, Illinois, registered at the Hotel Kenmore where he remained to March 13. On March 11, employees Hansson, Larsen, Alice Swift, Jean Moriarity, Maglio, and Carmucion, in accordance with instructions given to them during the day at the Fenway store by Moriarity that they were to meet at the Kenmore Hotel instead of at the Braemore Hotel, met at Melnick's room about 7 o'clock that evening. At this time Melnick introduced himself as being from the personnel department of the parent corporation in Chicago. He asked for any signed cards and told the group that things were going well. He specifically stated that the failure of the AFL to picket the store was a good sign as it showed that they were "weakening." This was the last of these hotel room meetings presided over by a representative of the parent corporation. On March 19, Giammasi posted an announcement upon the Council's bulletin board in the Fenway store that the Respondent had agreed that any wage in- crease negotiated would be retroactive to February 1. These negotiations will be discussed in the following section of this report. At some indefinite date late in March or early in April a dinner "gathering" of the officials of the unaffiliated Council took place at the Hotel Continental in Cambridge. Schumb and Guffey were in attendance 22 According to Schumb, Guffey made a few remarks at dinner about what a fine bunch they had, but made no speech. Hill testi- fiec3 positively that Guffey paid the bill for the "gathering." Although each had it in its power to produce direct positive testimony to contradict this testimony of Hill if it had been in fact erroneous, neither the Respondent nor the unaffiliated Council chose to do so, apparently preferring to rely upon the testimony of Schumb that he "did not think" Guffey paid the bill. Therefore the Trial Examiner finds, in accord- ance with Hill's testimony, that Guffey, and consequently the Respondent, paid the bill for this gathering of the unaffiliated Council. Toward the end of March another meeting was held at Schumb's office attended by Schumb, Guffey, Giammasi, and several other members and officers of the unaffili- ated Council. At this time Guffey stated, "There would be a man from the Labor Relations Board that might come to see us [the employees]. He might come to our home or he might come to the store . we would tell him nothing from nothing, and they [anyone so contacted] were to get in touch with Mr. Gannon, the coordi- nator, who would get in touch with Mr. Schumb, who knew what to tell them." Sub- sequently, when a subpena was served upon employee Hill by representatives of the Board by mail at her sister's home where Hill lived, Hill so informed Giammasi who promptly took her to Attorney Borax for advice. Borax advised Hill to take the subpena back and give it to her sister because "legally you haven't accepted it, you haven't seen it" and so she did not have to obey it. Subsequently when Hill informed Borax that she was supposed to begin her vacation on July 7, the date upon which her subpena called for her to appear at the present hearing, but that she did not know where she could go on this vacation, Hill was "laughingly" offered the keys to a cot- tage on the cape. However, Hill kept her appointment with Attorney Kowal and re- sponded to the subpena. Sometime in the middle of April, Hession received a letter from Roitman, then attorney for the Union, requesting an interview with Hession. Hession promptly told Gillespie of Roitman's request Gillespie instructed Hession not to do any- thing about Roitman's request until he got instructions as to what, if anything, Hession was to tell Roitman. The following day Gillespie instructed Hession that under no circumstances was he even to mention Guffey's name, that it would be better to tell Roitman that Manager Romizer, instead of Guffey, had done certain things. Following his interview with Roitman, Hession informed Gillespie that Roit- 22 Again, according to Schumb, he just "heard" that Gulley happened to be in Boston and, still wanting him to have the opportunity "to meet the, people involved in the situa- tion-a rather silly excuse in view of the many hotel meetings Gulley had had with the same individuals-took it upon himself to invite Guffey to the dinner SEARS ROEBUCK AND COMPANY 245 man had known all the facts and about Guffey so that there had been no need for Hesston to tell Roitman anything. After learning that Hession had made a state- ment for Rottman, Gillespie told him not to sign the statement. However, Hession executed statements for both Roitman and, later, for Shooer, field examiner. 4. Bargaining between Respondent and unaffiliated Council On February 10 the following letter without letterhead was sent to the Respondent: February 10, 1953. Sears Roebuck & Company, 24 Fullerton St., Boston, Mass. DEAR SIR: As Administrator of the Sears Roebuck Employees' Council Local # 1 we would appreciate your setting a date at which time the manage- ment will meet with us to negotiate a wage increase for the Council members of Local # 1. This is in accordance with the existing agreements between the management of Sears Roebuck and Company of Boston and the Sears Roebuck Employees' Council (Unaffiliated), calling for the reopening of wage negotiations on Feb- bruary 1, 1953. (S) A. GIAMMASI, Administrator.23 cc: Mr. McDermott Although the record indicates no response to the above request, on the afternoon of February 13 Giammasi and a committee purporting to represent Local No. 1 of the unaffiliated Council met with Manager Romizer over the grievance relating to the discharge of employee Correia, the exact matter which the group, whom Gillespie and Grue had sent to see Guffey on February 12, had discussed with Guffey over the breakfast table at the Braemore Hotel and which Guffey had stated would be promptly corrected. To this grievance committee Romizer stated that he would study the Correia matter. The following day Romizer reinstated Correia and so notified Giammasi, who thereupon posted a notice in the Fenway store regarding the successful prosecution of this grievance by the unaffiliated Council. The composition of the grievance committee on this occasion is of interest. Giammasi was, of course, handpicked by employee Gannon who, as found above, had obviously been working with the Respondent at least since January 20. Em- ployee Alice Hill was invited by Giammasi to be a member of the committee earlier on the afternoon of February 13 on the selling floor during working hours after he had learned that she had not signed a union card but would sign a "Declaration of Rights" card, and after he had told Hill that he was "trying to reorganize the Council" and had offered to let her become either "an officer or silent member" thereof. Hill finally accepted and accompanied Giammasi to the meeting as part of this committee. Sometime later Romizer stopped Hill in the store and thanked her for "all the help [she had given] in the labor dispute." Jean Moriarity, the other member of this grievance committe on February 13, did not testify but the undisputed facts show her to have been in frequent attendance at the Guffey- Melnick meetings at their various hotels. None of these three had ever been an officer of the Council prior to February 18, 1953. The disposition of the Correia grievance by Romizer again proves the close cooperation between the Respondent's top store management and Guffey. The public announcement crediting the unaffiliated Council with the successful prosecu- tion of the Correia matter was designed to assist the cause of the unaffiliated Council. 13 This is the first request by Local No. 1 of the "unaffiliated" Council to reopen the con- tract. The addition of the word "Unaffiliated" follows the practice first started by Re- spondent on January 28 It should be noted that this letter was executed by Giammasi the day after Guffey's arrival in Boston and the day before Donovan executed her notice of February 11 upon which Giammasi's authority as "administrator" is reputedly based. On January 28, Lodi on behalf of Local No. 2 had requested the contract at the Cambridge store be opened, to which McDermott replied as follows on February 5: This is in reply to your letter of January 28, 1953 relative to opening the agreement. I presume you ate speaking for the Sews Roebuck Employees' Council (Unaffiliated) which is a party to the signed agreement we have pertaining to the Cambridge store. If this is the case, we will meet with you at a mutually convenient date and we suggest that you contact Mr. Kunz in this connection . [Emphasis supplied.] 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Again on February 16 and on numerous succeeding days Giammasi processed a number of grievances with Romizer and promptly thereafter posted public notices of his success in those matters. The reinstatement of employe Cahns, which had been discussed with Guffey prior to its attaining the stature of a grievance handled by Giammasi, was another grievance for the successful conclusion of which Giam- masi subsequently claimed public credit for the unaffiliated Council. The record fails to show any hesitation on the part of the Respondent to recognize and deal with Giammasi, a direct contrast to the position it had previously taken in regard to the affiliated Council. As found heretofore, it was voted at the organizational meeting of the unaffiliated Council in Schumb's office on February 18 to reopen immediately the wage clauses of the existing agreements, and on February 19 Lodi wrote the Respondent for that purpose. McDermott replied by the following letter dated February 20, 1953: DEAR MR. LODi : Your letter of February 19th requesting the reopening of the existing agreement between Locals # 1 and #2 of the Sears Roebuck Employees' Council (Unaffiliated) independently representing the employes of the Fenway and Cambridge Stores and Sears, Roebuck and Company received this day. Arrangements have been made to meet with you and such other members of the Sears Roebuck Employees' Council (Unaffiliated) as you desire at the Hotel Shelton on Tuesday, February 24, 1953. If it is agreeable to you we can schedule the meeting for the Fenway discus- sion at 3:00 o'clock and the meeting for Cambridge at 4:00 o'clock that date. It is requested that you notify the undersigned if the above arrangements are satisfactory. The arrangements proved satisfactory and the parties met February 24 at the Hotel Shelton with the Respondent being represented by its officials Hooke, Romizer, and Rodenz ,24 and the unaffiliated Council by Attorney Schumb, Lodi, Giainmasi, Burbee, Barrett, Swift, Hill, Donovan, and Glasser. The negotiations were limited to wages-with the unaffiliated Council proposing a 15-cent -per-hour increase for the hourly paid employees and a 1-percent increase for the commission salesmen. Respondent stated that it would study the situation and the meeting ended. On March 12 the parties met again at the Hotel Shelton . When asked what an- swer the Respondent had to the wage proposal, the Respondent stated that the prob- lem needed more study. Thereupon the request was made that whatever increase was agreed upon should be retroactive to February 1, the contract date for the wage reopening. To this Hooke stated that he could make no commitment but that the Respondent would subsequently send an answer to the request. On March 19, Giam- masi did receive notice from the Respondent that any wage increase granted would be retroactive to February 1. He thereupon posted a public notice to that effect. The next negotiation meeting was had on May 22, being attended only by Gannon, Lodi, and Giammasi for the unaffiliated Council and the usual three representatives for the Respondent . At this meeting the Respondent proposed a 5-cent-per-hour increase for the hourly paid employees only. Subsequently and under conditions not revealed in the record , except that the offer could not have been ratified by the unaffiliated Council at a membership or employees' meeting for none such was ever held by the unaffiliated Council , this 5-cent offer was accepted. Thus has the Respondent bargained with the unaffiliated Council without, so far as this record shows, having once demanded any proof of the unaffiliated Council's authority to do so other than , as assumed by McDermott on February 5, that it was "unaffiliated." B. Conclusions The facts of this case are in almost every instance unchallenged. However, the opposite can be said about the contentions of the parties as to the law applicable thereto. The General Counsel contends that by reason of the affiliation of the Council with the Retail Clerks, the affiliated Council is the same identical labor organization as the Council and, as such , succeeded to the certification of the Council and to the right to administer the existing contract at the Fenway store. He also contends that the Respondent refused to bargain with the affiliated Council as such represent- ative and further that the Respondent dominated and interferred with the formation and administration of the unaffiliated Council for the purpose of bargaining with it rather than with the affiliated Council. 24 Also spelled "Rohrdanz" in the transcript. SEARS ROEBUCK AND COMPANY 247 The Respondent's answer is twofold : First, it contends that in the instant case no actual affiliation took place because of certain alleged deficiencies in the meeting of January 21 which it outlined in its brief; and second, it contends that during the contract period of the agreement made with the certified Council, the Respondent was by law prohibited from bargaining with any union other than the Council due to a policy determination of the Board known as the "contract-bar rule," a rule which the Board has for many years held prevents the holding of an election for bargain- ing representatives during the existence of a contract between a certified or recog- nized union and the employer provided that the term of this contract is a reasonable one. The Respondent goes further and maintains that by law it was duty bound to assist the certified bargaining agent during the contract term . Thus the Respondent argues that the General Counsel is here attempting to change the certified bargain- ing agent in a complaint proceeding where such a change would be prohibited by the Board in a representation proceeding due its contract -bar rule. The first defense is obviously a factual matter while the second is legal and, at least , ingenious. It will be well to consider these matters in the above order. 1. The affiliation In its brief the Respondent outlined the claimed deficiencies of this meeting of January 21 as follows: a. The meeting of January 21st was not a meeting of the Council (1) Bailey was an agent of the Retail Clerks. (2) Meeting was dominated by Retail Clerks' officers. ( 3) Procedure at meeting was foreign to Council. (i) Intimidating ushers. (ii) No opportunity for discussion or debate was permitted. (iii) Discussion by opponents of affiliation was suppressed physically. (iv) The presiding officer acted in a highhanded and arbitrary manner and proper minutes were not made. (v) No affiliation motion was ever made. (vi) The proposal to affiliate did not receive the calm and dispas- sionate consideration that such a drastic measure merited. A mere reading of this outline naturally raises the question as to whether the Re- spondent has any standing to raise questions concerning the internal affairs of the Union, a matter seemingly of no concern to it. Without deciding that question, how- ever, the points raised will be considered on their merits. The first three items on the outline raise the question whether the meeting of January 21 was in fact a meeting of the Retail Clerks rather than of the Council. The only "proof" in tl,e record that Bailey, president of the Council, was a member of the Retail Clerks is the fact that he favored affiliation and wrote the letter of January 19 to the Respondent on stationery of the Retail Clerks. But it must be recalled that this letter was written after the supreme executive board of the Coun- cil had on January 13 recommended affiliation to a membership vote. Whether the affiliation occurred upon the action of the supreme executive board or upon the mem- bership vote would be a nice legal question which the Trial Examiner believes need not be decided here. But the action of the supreme executive board clearly explains the letter. In either event the Trial Examiner concludes that this "proof" is insuffi- cient to prove that Bailey was a member of the Retail Clerks prior to the meeting of January 21. The Respondent points to a constitutional provision of the Council reading: "No person shall hold membership or office in more than one local group or in any other labor organization having the same or similar jurisdiction." From that the Respond- ent contends that Bailey had forfeited or abdicated his Council membership because of his alleged membership in the Retail Clerks. However, the bona fides, or lack thereof, of the Respondent in this argument are clearly seen by its own willingness, if not eagerness, to bargain with Giammasi as an officer of the unaffiliated Council despite his having signed an authorization card for the Retail Clerks on January 23 and thus had, according to the Respondent's argument, "lost" his Council member- ship under the identical constitutional provision. The Respondent argues from the presence at the meeting of Samuel Myers, inter- national vice president of the Retail Clerks, Fred Ammond, and two officers of local unions of the Retail Clerks that the meeting of January 21 was a meeting of the Retail Clerks and not of the Council. The fact of the matter is, of course, that these officials of the Retail Clerks were guests of the Council's president, brought to the meeting for the purpose of answering whatever questions the members of 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Council might have regarding the topic of the evening-affiliation of the Council with the Retail Clerks. This objection comes with poor grace from this Respondent after it had required its employees to listen to the Respondent's arguments against the affiliation of the Council with the Retail Clerks at two lectures on company time and property on January 20 and 21 and after it failed to grant permission to the Retail Clerks to solicit under like circumstances. If, as the Board has recently held,25 the object of speeches made prior to an election is to provide the voters with full information on all sides of the question pending, then the answering of questions by Retail Clerks' officials at a privately held meeting of the Council, especially after the Respondent's speeches and refusal of similar privileges to the Retail Clerks, would seem to be in order.26 Contrary to Respondent's argument, the facts show that the meeting of January 21 was a meeting of the Council, called by its supreme executive board, paid for by the Council, held in a neutral place selected by the Council and presided over by the Council's officers for and on behalf of its membership. The next series of objections raised by Respondent are largely procedural in nature-and untenable. It is a bit startling after hearing that Respondent's agent, Guffey, referred to the AFL as a "Communist" organization to read in the Respond- ent's brief about the "Fascist-like armbands" the ushers wore. This appears to be running the gamut of propaganda terms. These armbands were made of white ribbon and attached to the arms of the ushers as a means of identification to assist members in the audience in asking questions. These so-called "Fascist-like armbands" failed to intimidate Gannon who returned to order after his obvious attempt to disrupt the meeting only when a uniformed policeman approached within 4 or 5 feet of him. Thus, this charge appears to be more propaganda than fact. Although the Respondent had -dealt happily with Roy Webber for some 15 years as the president of the Council, in its brief it turns upon him following his expressed desire for affiliation as a "believer in force and violence"-while it continues to argue for the right to bargain with the organization Webber had formed and led for those many years. Calm consideration leads to the conclusion that the Respondent is more than slightly inconsistent in its positions due to its reluctance to bargain with an affiliated union. Its respect for the individual appears to be conditioned by his stand on affiliation. The Respondent also charges that the presiding officer prevented calm and dis- passionate discussion by force and refused to permit opponents of affiliation the right to the floor. Neither charge is sustained for the only person physically pre- vented from talking was Gannon, whose tactics were obviously designed to disrupt any possibility of a calm dispassionate consideration of the problem. It is to be recalled that Gannon was the individual who came into possession of the January 19 letter from Bailey to McDermott under mysterious, and still unexplained, circum- stances and used that letter the same evening in order to attempt to persuade Local No. 2 of the Council to vote against affiliation. This strange relationship between Respondent and Gannon would almost classify Gannon as a sort of undercover agent for the Respondent. His subsequent activities corroborate this belief. Otherwise, the opponents of affiliation at that meeting fared well in their ability to ask more than the one question per member which was the rule established at the beginning of the meeting, a rule, incidentally, objected to by the Respondent although a rule of reason if the business at hand were to be concluded before the stores opened the following morning. The fact, if it be a fact, that so few opponents of affiliation were heard from the floor can be more logically explained by the size of the vote for affiliation which proved quite conclusively that few opponents of affiliation existed among the members of the Council. The Respondent argues further that the constitution and bylaws of the Council were not followed in the calling of the meeting of January 13 in that the notification that the question of constitutional amendments would be considered was received, but not recorded, by Secretary Lydotis.27 This is true, due to the fact that Lydotis was suddenly and fatally stricken after receipt of the notice but prior to its being recorded as required by the constitution. However, the obvious purpose of such a w Peerless Plywood Company, 107 NLRB 427 28 The Trial Examiner does not consider the rule of the case aforementioned as binding in this instance for a number of reasons, of which the following are but a few: (1) This vote was not a representation election by the Board ; (2) it was a private, internal union meeting, and (3) the vote was held nearly a year prior to the promulgation of the present 24-hour rule which cannot be made retroactive in effect. (See Board Member Murdock's special dissent in Checker Taxi Company, 107 NLRB 266.) 11 Sometimes referred to as "Otis" in the record. SEARS ROEBUCK AND COMPANY 249 constitutional provision was to be sure that notice was given to all parties. Such actual notice was had. Moreover, the Board has stressed in numerous cases that compliance with all constitutional provisions is not required in cases of this sort.28 The Trial Examiner, therefore, finds that said meeting was held in substantial, if not actual, compliance with the constitution and bylaws of the Council. No constitu- tional objection to anything connected with this affiliation move was ever made by any officer or member of the Council until this case came on for hearing. The Respondent's last objection was that no motion of affiliation was ever made. In view of the action of the supreme executive board on January 13 in referring the question of affiliation to the membership for vote, no motion of affiliation from the floor would appear to have been required. Everyone in the store, including Group Manager McDermott, knew that the question of affiliation had been referred to the membership by the supreme executive board. The Lewittes and Sons case, cited by the Respondent and cited with approval by the Board in the Budd Company, 107 NLRB 116, sets forth the decisive factor in an affiliation case like this when the Board stated: What is important is whether the disaffiliation meeting was held under circum- stances in which the vote taken could have been the true expression of the desires of the membership of the union. If this is to be the true test, as it should be, then there is no question but that the membership was able to, and did, express its true desire to affiliate with the Retail Clerks on January 21. The affiliation of the Council to the Retail Clerks was accomplished in substantial, if not actual, compliance with the constitutional provisions of the Council. The supreme executive board of the Council recommended the affiliation of the Council with the Retail Clerks on January 13, 1953, subject to the approval of the member- ship. In accordance with that recommendation the Council caused public notices of the meeting, stating its purpose, to be posted throughout the stores approximately a week prior to the date of the meeting. The fact that at least 268 out of 314 em- ployees in the Fenway store unit were present and voting on that date, as well as the Respondent's obvious knowledge of the meeting and its purposes as shown by Group Manager McDermott's speeches, attest to the efficacy of these posted notices. The hall was procured by the Council in a neutral location, a well-known Boston hotel. The meeting was presided over and supervised by the Council's officers with particular attention being paid to prevent the admission of any but members of the Council, except, of course, the invited guests. The voting, which was supervised by the Council's attorney and showed unmistakable evidence of his knowledge of Board-approved voting techniques, was by secret ballot with officers of the Council, both proponents and opponents of affiliation, supervising the distribution, casting, and counting of the ballots The results of this vote, over 9 to 1 in Local No. 1 and 4 to 1 in the whole Council in favor of affiliation, were certified by the ballot com- mittee which included Lodi and one "E R. Donovan," 29 both opponents of affiliation. The only possible objectional feature of the vote was the presence of Retail Clerks' officials at the beginning of the meeting for the purpose of answering questions from the membership of the Council. The record is silent on whether these officials re- mained throughout the meeting, including the voting. It is clear from the fact that no witness, including the most severe critics of the meeting, even mentioned their presence after the question period, that they played no part in the voting procedure. To hold that the mere presence of these 4 or 5 officials of the Retail Clerks at the meeting had an intimidating effect upon the 350-odd employees present would require the Trial Examiner to find that the American workingman and workingwoman is such a weakling that the mere presence of a union official having no economic control over him or her would prevent that workman from being able to express his own untrammeled desires on the question of affiliation even by secret ballot. In the absence of economic control, the experience of this Trial Examiner in this, as in other cases, is to the contrary, and hence he can make no such finding as would 18 Beniamin Air Rifle Company, 107 NLRB 104 at footnote 6. See also the following sentence omitted in the Respondent's quotation from Lewittes and Sons, 96 NLRB 775: "It is true, the Board is not concerned with whether disaffiliation meetings which are urged as the basis for an alleged schism comport with the constitution or bylaws of the union " 11 Edna it. Donovan admittedly worked on this committee. This signature of Donovan on the secretary's notes very closely resembles that on the undated notice purporting to appoint Lodi "Administrator of Local 2," but is totally dissimilar to that purporting to be her signature on the similar notice of appointment of Giammasi. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be required above. Even Respondent's economic power failed to make its argu- ments against affiliation effective here . The Trial Examiner is convinced , and there- fore finds, that the meeting of January 21 was a meeting of the Council at which its members not only could but in fact did give true expression to their desires for affiliation in accordance with democratic techniques. This finding is buttressed by the fact that by February 11, 1953, 166 of the 294 employees of the Fenway store had paid their dues to the Retail Clerks thus showing by the voluntary payment of money to the Retail Clerks their true desires for affilia- tion. A number of others who merely signed cards for the Retail Clerks, such as Giammasi, are not counted in the figures above , as those figures themselves prove that by February 11, at least , a substantial majority of the employees in the Fenway store unit had confirmed by very practical means their desire to be represented by the Retail Clerks. This continuity of membership plus the continuity of the officers of Local No. 1 of the Council as members and officers of the affiliated Council constitute positive proof of the continuity of the existence of the Council in the affiliated Council. This finding is buttressed by the further facts that the slate of officers "elected" by the un- affiliated Council on February 18 shows not one who had previously been an officer of the Council, that the largest number of signed cards claimed even by Guffey was 50, and that admittedly no dues were received by the unaffiliated Council until some- time in March. The Respondent argues, and its whole case is premised upon this argument, that the affiliation of the Council with Retail Clerks created a new labor organization and thus prevented the continuity of the Council with the affiliated Council . This con- tention has not been sustained by the Courts. See N. L. R. B. v. Harris-Woodson Co., Inc., 179 F. 2d 720 (C. A. 4), where the court said: There is as little substance in the second question [ whether it was proper to direct the company to bargain with the local union after its change of affiliation] raised. It was the local union which the employees chose as their bargaining representative ; and the fact that they desired it to represent them in collective bargaining was not af}ected by its change either of name or affiliation. On the contrary, it is perfectly clear that the only purpose of these changes was that it might be enabled thereby to bargain in behalf of the employees . Metaphysi- cal arguments as to the nature of the entity with which we are dealing should not be permitted to obscure the substance of what has been done or to furnish a smoke screen behind which the company may with impunity defy the require- ments of the statute that it bargain with the representative that its employees have chosen . The identity of that representative, composed entirely of the com- pany's employees, was not changed either by its change of name or its change of affiliation. See Continental Oil Co. v. N. L. R. B, 10 Cir., 113 F. 2d 473, 477. [Emphasis supplied.] Therefore, the Trial Examiner must conclude that the affiliated Council was the same as, or the successor to, the Council on and after January 21 , 1953, and that, at all times on and after said date , was, and now is, the representative of a majority of the employees in the appropriate unit in the Fenway store. 2. The refusal to bargain The appropriate unit consisting of the employees of the Fenway store has been previously determined by the Board and is unquestioned here by any of the parties. The question of majority representation as of January 21, and thereafter, was estab- lished by the vote of affiliation of January 21, both numerically and by reason of valid vote of affiliation, all of which was reported to the Respondent officially as well as unofficially the following day. The majority was demonstrated thereafter in even more concrete form through the payment of dues to the affiliated Council. That brings us to the demand for bargaining made upon the Respondent. Under date of January 22, 1953, the following letter by Harold B. Roitman was sent to McDermott, Boston group manager: As attorney for the Sears, Roebuck Employees' Council I wish to advise you that on Wednesday, January 21, the Council in accordance with its constitution conducted a referendum vote and affiliated itself with the Retail Clerks Inter- national Union, A. F. of L. In accordance with this decision the Council may in the future call in representatives from the Retail Clerks to assist it in carry- ing out its collective bargaining functions as representative of the employees in the Boston area stores. SEARS ROEBUCK AND COMPANY 251 Let me take this opportunity to also advise you that the Council is reopening the contract on the issue of wages as of February 1, in accordance with the pro- visions of the contract. Would you please advise me of the first available time at which the company can meet with respect to this contractual reopening. At the hearing and in its brief the Respondent raised the issue of the sufficiency of the above letter as a demand upon the Respondent on the ground that the letter failed to specify in explicit and clear language the exact unit involved. As this issue was never raised by McDermott during the entire correspondence on the subject, the rais- ing of this point at the hearing makes it appear to have been an afterthought. Espe- cially is this so in view of the correspondence on the subject wherein the Respondent made it clear and definite that it did not intend to bargain with any but an unaffiliated union in the Boston area, regardless of the unit involved. This became clear in McDermott's letter to Roitman, dated February 5, wherein he said: As far as we know now, no one except the union with which we have signed written agreements can properly claim to represent a majority of the Sears em- ployees in question in an appropriate unit in the Boston area. . . . and, if further clarification be necessary, in his letter to Lodi, which reads in part as follows: I presume you are speaking for the Sears, Roebuck Employees' Council (unaffiliated) which is a party to the signed agreement pertaining to the Cam- bridge store. If this is the case, we will meet with you. . . . Regarding the sufficiency of this demand to create a duty to bargain with the unaffiliated Council in the Fenway unit, it is agreed that in the past the Respondent had bargained with the Council or a local thereof at each of the four appropriate units on an individual basis, resulting in the execution of individual agreements for each unit which were almost identical but contained minor individual variations. Thus, historically, the negotiations had been on an individual unit basis. It is true that both Roitman, in his demand, and McDermott, in his response, spoke of reopening the "agreement" in the singular and Roitman referred to the "Boston area." Historically, the use of the singular would indicate the intent on both sides to refer to the agreement in each of the four appropriate units, which necessarily included the Fenway store unit. Common sense dictates the same re- sult. Following the vote of the Council, Roitman's intent must have been to reopen all four contracts. While McDermott testified that he was "confused" in some in- definite and inscrutable manner, which he was unable to explain, by the demand, such confusion had to be deliberately self-imposed for both history and semantics would lead any reasonable man to the conclusion that the affiliated Council de- sired to reopen the wage question in all the appropriate units in the Boston area, including the Fenway store unit. McDermott had not risen to his high position in the Respondent by becoming "confused" over the use of singulars or plurals. When Lodi, on behalf of Locals Nos. 1 and 2 of the unaffiliated Council, asked to reopen "the agreements," in the plural, McDermott suffered no confusion-after he had once "assumed" the one point that interested him: that the Respondent would be dealing with an unaffiliated union. It should also be noted that McDermott set separate conferences with the unaffiliated Council for separate units in obvious recognition of past history. If and when the sufficiency of a request to bargain becomes dependent upon whether a word is stated in the singular or the plural, the mere addition or subtrac- tion of one letter, a possible typographical error, then all common sense and reason has departed this Act, whose purpose of creating and maintaining industrial peace will be better served by its repeal. Good employer-employee relations are based on common sense and not rigid technicalities. As a matter of fact, the letters of McDermott and the action of the Respondent prove conclusively that the Respondent had no intention of bargaining in any unit at any time with the affiliated Council The Respondent's real defense to this refusal-to-bargain charge was as stated in McDermott's letter of February 5 to Roitman, quoted above. Respondent's brief expands upon McDermott's conclusion. Respondent argues that the Board's well- established "contract-bar rule"-that no representation election will be ordered dur- ing the life of an agreement of reasonable duration between an employer and the certified, or recognized, union,30-prevented the making of any change in the cer- tified Union at this time because its contract with the Council was by its terms to 30 Respondent cites numerous representation cases of which Saginaw Furniture Shops, Inc, 97 NLRB 1488, is typical. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD run until January 31, 1954, and, furthermore, that the Respondent was prevented by the Act from bargaining with any but the certified Union, which the Respondent claimed to be the unaffiliated Council. The Respondent carries this argument to the extent of contending that "the Board is without power under Section 10 to affect the contract or the representation status of the Council," citing for this proposition such cases as Consolidated Edison V. N. L. R. B., 305 U. S. 197, and N. L. R. B. v. Scullin Steel Co., 161 F. 2d 143 (C. A. 8). The Respondent further maintains that it was also legally bound to assist the certified Union during the contract pe- riod and cites the Intermediate Report in Ashland Crafts, Inc.,31 as its authority. However, all the parties agree that there is an exception to the "contract-bar rule" which is referred to as the "schism doctrine" because the Board does and will order elections during the life of a contract under certain circumstances where a true schism exists in the certified bargaining agent, so that it is impossible to de- termine which faction actually represents the certified union. Surprisingly enough, all parties hereto agree that the "schism doctrine" is not applicable here. The un- dersigned also agrees for the reason that no true schism existed in the present case- at least until the Respondent created what appeared to be a schism on February 18. It is now necessary to consider the origin and administration of the unaffiliated Council after which the Respondent's legal argument can be more understandingly considered. 3 Creation and domination of the unaffiliated Council As found heretofore, the Council, as such, became defunct and incapable of ad- ministering its contract with the Respondent following the vote of affiliation of January 21. It had no members and no officers thereafter, although its organiza- tional continuity was maintained through the affiliated Council. Despite the fact that Gannon telephoned Attorney Schumb soon after making his report on the January 21 meeting to the Respondent's officials at the Somerset Hotel and that the following day he and Lodi, who ultimately became the leading officers of the unaffiliated Council, conferred with that attorney, the Council re- mained in the above condition until the arrival on the Boston scene on February 9 of James T. (Jim) Guffey of department 707 of the Respondent's parent organ- ization in Chicago which had something indefinite to do with "employee morale, employee relations," according to McDermott. Until that time what opposition to the affiliation there was had been limited to the dissident few who grumbled, if at all, among themselves There had been and was no organized opposition or a single overt act of opposition at the Fenway store until after Guffey arrived to organize it. In other words, undercover operators like Gannon had proved incapable of implementing the opinions expressed by Group Manager McDermott in his speeches of January 20-21. Gannon did, however, locate Angelo Giammasi among the dissenters. Immediately after Guffey registered at the Braemore Hotel things began to happen and organized opposition to the affiliated Council appeared to form. The day after Guffey's arrival, Giammasi, purporting to act as "Administrator of Local 1" of an unaffiliated Council, requested the Respondent to reopen the existing agreement on wages. This request was 10 days too late as the agreement provided for such reopening on February 1. On the second day after Guffey's arrival, notice of Giammasi's purported appoint- ment as such "Administrator" was posted in the Fenway store. On the third day after Guffey's arrival, Respondent's supervisors were selecting "loyal and trusted" employees whom they sent outside the store to Guffey, who formed them into committees at "top secret" meetings-"top secret" because, as Guffey himself stated, they were in violation of the Taft-Hartley Act-to reorganize and revive an unaffiliated council. Guffey was not stupid, he knew when he was violating the Taft-Hartley Act. On the fourth day after Guffey's arrival, Giammasi picked up a "grievance com- mittee" and purported to discuss a grievance with the Respondent' s management- but this grievance had already been reported to and, more important, had been decided by Guffey prior to the alleged grievance meeting between Giammasi and Respondent. And when the store management's decision, which turned out to be identical with that previously and privately announced by Guffey, was given, public notices regarding the "successful" prosecution thereof by the unaffiliated Council were posted, thus giving an appearance of substance to that organization. This same routine was repeated again on February 16 and thereafter. ' 32 LRRM 1412. SEARS ROEBUCK AND COMPANY 253 But the affiliated Council filed charges of refusing to bargain against the Respond- ent on February 17. - It happened that Guffey was back in Boston again . So on February 18, a group of these selected "loyal and trusted" employees met in Attorney Schumb's office where, at the suggestion and under the direction of Guffey, they elected or appointed officers of this unaffiliated Council. Gannon was rewarded with the office of "Coordinator," an office nowhere to be found in the constitution and bylaws of the Council. In addition, these officers executed the non-Communist affidavits required by Section 9 (h) of the Act as a condition precedent to the right of a union to bargain with an employer, affidavits which Guffey produced. They then decided to move immediately to reopen the contract with the Respondent- some 18 days after the contract reopening date of February 1. A mere reading of the facts leaves no question of doubt but that there would have been no Local No. I of an unaffiliated Council if it had not been for the ever present-except at the hearing-Guffey and, therefore, the Respondent. Respondent selected the personnel for an unaffiliated Council and sent them to Guffey who organized them into an unaffiliated Council and thereafter dominated its administra- tion. In fact it was McDermott himself who named the new organization when he added "Unaffiliated" to the name of the Council. At the hearing, the Respondent originally objected to any testimony regarding "a Mr. Guffey," referring to it as a "side excursion," on the ground that no relation- ship between Guffey and the Respondent had been shown. This objection was subsequently changed and became that no authority had been proved for "Mr. Guffey" to speak for the Respondent on labor matters. The facts, however, speak to the contrary. The Respondent's supervisors, who selected and dispatched these employees to Guffey to be formed into committees to help recreate an unaffiliated council, not only permitted those employees to leave their work at will, contrary to store rules, but, in fact, paid them for the time so spent. Signed declaration of rights cards were to be given to Store Supervisor Gillespie in the absence of Guffey. The cooperation and coordination between the Respondent's store supervisory staff and Guffey throughout the period of the formation of the unaffiliated Council leaves no doubt but that Guffey had and exercised, with the Respondent's consent and approval, authority to speak for the Respondent on labor matters. In truth and in fact the Respondent hardly denies the findings made above as, in its brief, it contends that "an employer may legally assist a contracting Union in a raid during a term of the contract" citing the Intermediate Report in Ashland Crafts, Inc., supra, as its authority. However, even in the cited case, the assistance, said there to be permissible, did not go to the extent of creating, forming, paying for, and dominating a labor organization. The Respondent's argument, here made, reaches the absurd result of nullifying Section 8 (a) (2) of the Act, if once an employer has executed a labor agreement with a certified union. Such is not the law.32 The Respondent also argues that its own and Guffey's activities are protected under the "free-speech" section of the Act. Section 8 (c) of the Act is carefully limited to "the expressing of any views, argument, or opinion" which does not encompass the activities and financial assistance given the unaffiliated Council by the Respondent, Gillespie, Grue, Guffey, Melnick, et al. The unaffiliated Council was not a continuation or successor of the Council. It was a new organization. The only similarity existing between the unaffiliated Council and the Council was the fact that neither was an affiliated union which, incidentally, was the only assurance of authority Respondent demanded prior to negotiating with the unaffiliated Council as the "bargaining agent" for the employees in the Fenway store unit. The officers of the unaffiliated Council "elected" under the direction and supervision of Guffey were 100 percent different from those of the Council, while the membership thereof was to all intents and purposes non- existent as the greatest number even Guffey claimed to have on cards was 50. The unaffiliated Council made no attempt to comply with the constitution and bylaws of the Council. Even the name bestowed on it by Respondent was different. No dues were collected until March and few, if any, then. No expenses could be, or have been, paid by the unaffiliated Council. In fact, Guffey and Respondent succeeded in creating a facade of an unaffiliated labor organization in order that the Respondent could appear to bargain with it. Even this facade became dormant as soon as Guffey left Boston. Its last meeting was the dinner paid for 1" Guffey. The undenied facts prove, and the Trial Examiner finds, that the Respondent has dominated and interfered with the formation and administration of the unaffiliated 32 N L R B v. L Rooney & Sons Furniture Mfg Co , 206 F 2d 730 (C. A 9). 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Council and contributed financial and other support to it in violation of Section 8 (a) ( 1) and (2) of the Act. That brings up the question of the applicability of the schism doctrine and the contract-bar rule again . As shown by the cases cited by Respondent , neither of those rules purports to apply in a situation where 1 of the 2 allegedly competing labor organizations is company dominated . A holding to the contrary would not be good law as it would amount to granting an employer carte blanche to commit any unfair labor practice he might care to commit after once signing a labor agreement with a labor organization and thus nullify the guarantees of the Act. Although the un- affiliated Council has been found to be a new and distinct organization from the Council, the result would be the same if it had been found to be the same organiza- tion for, in that event, the Respondent, by its own actions in dominating its admin- istration, would have disqualified the unaffiliated Council under Section 8 (a) (2) of the Act from continuing to act as the bargaining agent of the employees. Thus if the contract-bar rule were permitted to operate for the duration of the existing agree- ment, it would merely mean that the employer had succeeded by its own unfair labor practices in disfranchising its employees for the remainder of the contract term thus further nullifying the Act. The present is a case where the Board 's certification of the Council could have been amended by the substitution of the name of the affiliated Council in the place and stead of that of the Council, as has been done in cases without number heretofore. Respondent's precipitate action in organizing , recognizing, and bargaining with the unaffiliated Council, however, made the pursuit of any such course of action a purely futile act. By its actions Respondent nullified the right of the affiliated Council to represent the Fenway unit employees, a right gained both by the affiliation move of January 21, 1953, and also by reason of the employees' even more concrete expression by way of dues payments of their desires to be represented by it. Respondent's correspondence proves that it was not going to bargain with the affiliated Council in any unit at any time. As a more affirmative step to achieve the same result, the Respondent had its agent , Guffey, form another labor organization so that the Respondent could purport to bargain with it instead of having to bargain with the affiliated Council. By so doing the Respondent also violated Section 8 (a) (5) of the Act as well as8 (a) (2). Therefore the Trial Examiner finds that the Respondent refused on January 22 and February 1, 1953, and at all times thereafter, to bargain with the affiliated Council as the representative of the majority of its employees in the appropriate unit at the Fenway store in violation of Section 8 (a) (1) and (5) of the Act. 4. The defense of conspiracy Almost from the commencement of this hearing, the Respondent charged that this proceeding resulted from a conspiracy between the personnel (unnamed) of the Regional Office and the officials of the Retail Clerks, aimed at forcing the Respondent to recognize and bargain with the Union as the bargaining representative of its employees. In accordance with his own personal rule following the enunciation of such a charge of wrongdoing against any Board agent , the Trial Examiner permitted Respondent unfettered liberty of examination and cross-examination in its efforts to prove such charge. The result was that untold amounts of the time of the hearing were spent in cross- examining witnesses regarding their prehearing interviews with, and statements given to, Field Examiner Shooer and Attorney Kowal. On one occasion , Respondent's attorney even made a statement regarding settlement suggestions made by Attorney Kowal in a prehearing settlement conference . The time so consumed produced evidence that statements taken by Attorney Roitman were turned over for the use of the General Counsel, that Roitman was present during parts of some of the interviews by Board personnel , all of which appears perfectly proper as Roitman was then attorney for a recognized party to the proceeding. It also produced an answer by the witness Hession, which the Respondent has misinterpreted to imply that Roitman wrote Hession's statement for Hession to memorize . Even assuming Respondent's misinterpretation to be correct, the corroboration of Hession's testimony by the Respondent's witness Gillespie proves that Hession was telling the truth. Otherwise, it proved that Shooer and Kowal were scrupulously and conscientiously performing the duties imposed upon them by the Act and by the Rules and Regula- tions of the Board. Furthermore, it showed that what Respondent chose to refer to as a "persecution" developed from a divergence of opinion between the Respondent and the General Counsel as to the law applicable, a not uncommon phenomenon in any legal proceeding. SEARS ROEBUCK AND COMPANY 255 The Respondent also points to a letter dated February 18, 1953, over the signature of Bernard L. Alpert, Regional Director, dismissing a petition for decertification at one of Respondent's stores in the following language: It does not appear that further proceedings are warranted inasmuch as the collective bargaining agreement currently in effect between the Company and Local 1635, Retail Clerks International Association , AFL, constitutes a bar to investigation of representatives at this time. And, dehors the record, it also points to the fact that, since the conclusion of the instant hearing, the Regional Director has dismissed the cases brought by the Retail Clerks in the other three appropriate units in the Boston area similar to the present one, citing this act as proof that the Regional Director did not consider the evidence herein sufficient to sustain the allegations of the complaint. Under the Rules and Regulations of the Board, it is the duty of the Trial Examiner -not the Regional Director-to pass upon the sufficiency of the evidence presented in the instant case, so that the opinion of said Regional Director on that matter, if he intended to express any such by dismissing the other three cases , is completely immaterial . As those 3 cases are not before the Trial Examiner for decision, it would be highly injudicious, if not impertinent, for the writer to express any opinion regarding the dismissal of those 3 cases. As to the quoted portion of the letter dated February 13, assuming the facts of that case to be identical to those presented here, it is obvious from the conclusions reached in this report that the author could not quarrel with the legal conclusion regarding the contract reached by the Regional Director therein 33 This again shows that the fundamental difference between the Respondent and the Regional personnel was one of law-and not, as charged by the Respondent, a conspiracy or a persecution. Therefore, the Trial Examiner finds this alleged defense of conspiracy to be with- out merit. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III , above, occurring in connection with the operations of Respondent 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 Respondent has engaged in certain unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent initiated , sponsored, interfered with, dominated the formation and administration of the unaffiliated Council, and con- tributed financial and other support to it, it will therefore be recommended that the Respondent cease and desist from all interference with and support of the unaffiliated Council , and further, that the Respondent disestablish said unaffiliated Council as the representative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, hours of employment, or other conditions of em- ployment, and that the Respondent refrain from recognizing the unaffiliated Council, or any successor thereto, for any of the foregoing purposes. 33 Charles Beck Machine Corporation, 107 NLRB 874 This case was decided by the Board after the above had been typed on stencils As this case is a representation case having almost identical facts to those of the instant case, it appears to be decisive of Re- spondent's main contentions here In that case the Board said The Board , with judicial approval , has held that a mere change in affiliation does not change the identity of the bargaining agent 3 As the Petitioner , by virtue of the affiliation action , has become in fact the collective bargaining agent, and as such con- tinues to be bound by the terms of the existing contract for the remainder of its term, we find that the contract serves as a bar to the present petition Accordingly, we find that no question concerning representation exists and we shall dismis' the petition 3 Harris -Woodson Co, Inc, 77 NLRB 819; 85 NLRB 1215; enfd 179 F 2d 720 (C A 4, 1950 ) ; Michigan Bell Telephone Co, Inc , 85 NLRB 303 In the Harris- Woodson case , the court said of a union which, like the Association herein, had changed its affiliation : "The identity of that representative , composed entirely of the Com- pany 's employees, was not changed either by its change of name or its change of affilia- tion ' Cf Pepper & Potter, In,c v Local 977, 103 F Supp . 084 (S D N Y , 1952) 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It having been found that the Respondent has failed and refused to bargain collec- tively with the affiliated Council as the exclusive representative of its employees in the appropriate unit at the Fenway store, it will therefore be recommended that the Respondent, upon request, bargain collectively with the affiliated Council as the rep- resentative of such ;employees, with respect to their rates of pay, wages, hours of employment, and other conditions of employment and, if an agreement is reached, embody its terms in a signed agreement. Since the unfair labor practices found to have been committed by the Respondent go to the very heart of the Act and indicate an intent to interfere generally with the rights of the employees guaranteed by the Act, the preventative purposes of the Act will be thwarted unless the order is coextensive with the threat. Therefore, in order to make more effective the interdependent guarantees of Section 7 and to prevent a recurrence of the unfair labor practices which burden and obstruct commerce, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the above findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Sears Roebuck Employees' Council, Local 1635, Retail Clerks International Association, AFL (the affiliated Council), and Sears Roebuck Employees' Council (unaffiliated) (the unaffiliated Council), and its Local No. 1 are each labor organiza- tions within the meaning of Section 2 (5) of the Act. 2. All selling and nonselling employees employed at the Respondent's Fenway store excluding group office personnel, executives, personnel department employees, lease department employees, cafeteria personnel, service station employees, drivers and helpers, guards, professionals, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Sears Roebuck Employees' Council, Local 1635, Retail Clerks International Association, AFL, has been at all times since January 21, 1953, and now is, the exclusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By failing and refusing to bargain collectively on January 22, 1953, and at all times thereafter, as found above, with Sears Roebuck Employees' Council, Local 1635, Retail Clerks International Association, AFL, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) (5) of the Act. 5. By dominating and interfering with the formation and administration, by con- tributing financial and other support to, and by recognizing and dealing with the unaffiliated Council, as found above, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) (2) of the Act. 6. By interfering with, restraining, and coercing its employees, as found above, in the exercise of the rights guaranteed to them by 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. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of Vie Act. [Recommendations omitted from publication.] MONTGOMERY '"TARD & Co. and INTERNATIONAL BROTHERHOOD Or, TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, WAREHOUSE, MAIL ORDER AND DISTRIBUTION WORKERS' LOCAI, No. 838, AFL, PETITIONER. Cases Nos. 17-RC-.1753 and 17-RC-1788. October 5,1954 Decision and Direction of Elections Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before William J. 110 NLRB No. 29.