Atlantic Thrift Center

884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT offer to deal directly with our employees or to make adjustments and improvements in employee benefits and working conditions for the purpose of discouraging membership in United Shoe Workers of America, AFL-CIO. WE WILL NOT request employees to engage in surveillance of union meetings or activities, nor will we convey the impression of surveillance of union meetings by statements to employees. WE WILL NOT interrogate our employees about their union activities or the union activities of other employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the National Labor Relations Act, and to refrain from any and all 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, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All of our employees are free to become or remain, or refrain from becoming or remaining, members of United Shoe Workers of America, AFL-CIO, or any other union. GOTHAM SHOE MANUFACTURING CO., INC., Employer Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York, Telephone No. Ti. 6-1782, if they have any questions concerning this notice or compliance with its provisions Atlantic Mills Servicing Corp. of Wisconsin d/b/a Atlantic Thrift Center and Retail Store Employees Union, Local 400, affiliated with Retail Clerks International Association, AFL- CIO Amalgamated Clothing Workers of America, AFL-CIO and Re- tail Store Employees Union , Local 400, affiliated with Retail Clerks International Association, AFL-CIO. Cases Nos. 5-CA- 2566 and 5-CB-563. November 19, 1964 DECISION AND ORDER On May 5, 1964, Trial Examiner James V. Constantine issued his Decision in the above-entitled consolidated proceeding, finding that Atlantic Mills, herein called Respondent-Company, had engaged in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Amalgamated Clothing Workers, herein called Amalgamated or Respondent-Union, had not engaged in the unfair labor practices alleged in the complaint, and recommended dismissal of that portion 149 NLRB No. 81. ATLANTIC THRIFT CENTER 885 of the complaint.' Thereafter, counsel for the Respondent-Company filed exceptions to the Trial Examiner's Decision and a supporting brief, counsel for the General Counsel and Charging Party each filed cross-exceptions, and counsel for the Charging Party also filed a sup- porting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Members Fanning, Brown, and Jenkins]. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases. The Board finds merit in the exceptions of the Respondent-Company and adopts the findings of the Trial Examiner only to the extent consistent herewith. We are of the opinion that the Trial Examiner erred in concluding that the Respondent-Company entered into a conspiracy with the Central States Joint Board which was designed to install the Joint Board as collective-bargaining agent at Alexandria, and that pur- suant thereto, the Company transferred employees Crist and Taylor to Alexandria at its own expense for the purpose of soliciting union membership on behalf of the Joint Board in violation of Section 8(a) (2) and (1) of the Act. As the Trial Examiner himself acknowledged, the record does not yield direct evidence of a conspiracy between the Respondent- Company and the Joint Board to install the Joint Board as the collective-bargaining agent at the Alexandria store. Contrary to the Trial Examiner, we believe the facts and circumstances on which he relies to find the unlawful purpose and design do not, on the record as a whole, support a finding of a conspiracy on the part of the Respondent-Company and the Joint Board to violate the Act. Since we are presented with no alternative basis for finding a violation of the Act, we shall dismiss the complaint in its entirety. [The Board dismissed the complaint.] 'The Trial Examiner based his recommended dismissal on his finding that the record fails to establish direct participation by Amalgamated in the alleged unlawful activity, and his conclusion that although Amalgamated 's affiliate, Central States Joint Board, did en- gage in unlawful conduct , such conduct is not imputable to Amalgamated under applicable principles of agency law. In view of our disposition herein , we find it unnecessary to pass upon either the Trial Examiner's recommendation or the exceptions of the General Counsel and Charging Party relating thereto. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE A charge was filed in Case No. 5-CA-2566 against Atlantic Thrift Center by Retail Store Employees Union , Local 400, affiliated with Retail Clerks International Associa- '886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -lion, AFL-CIO (herein called Local 400) on August 30, 1963. It was amended on November 29.1 A separate charge was filed in Case No. 5-CB-563 against Amal- gamated Clothing Workers of America, AFL-CIO (herein called Amalgamated) by Local 400 on November 29. Upon these charges the General Counsel of the National Labor Relations Board, by the Regional Director for Region 5 (Baltimore, Maryland), issued his consolidated complaint dated December 31 against said Respondents. Said complaint, in substance, accuses Respondent Atlantic Thrift Center of violating Sec- tion 8(a)(1) and (2) of the National Labor Relations Act, and Respondent Amal- gamated of transgressing Section 8 (b) (1) (A) of the Act, and that such conduct affects commerce as defined in Section 2(6) and (7) of the Act. Both Respondents have- severally answered denying the commission of any unfair labor practices, as set forth in the complaint. Pursuant to due notice, this consolidated case came on to be heard and was tried before Trial Examiner James V. Constantine from February 11 to 14, 1964, both inclusive, at Washington, D.C. All parties had full opportunity to adduce evidence, examine and cross-examine witnesses, submit briefs, and offer oral argument. Briefs have been received from the Charging Party and both Respondents. At the close of the General Counsel's case, and again at the close of the hearing, both Respondents severally moved to dismiss the complaint. Those motions were denied on the ground that it could not be ruled as a matter of law that the General Counsel had failed to make out a prima facie case.2 A motion has been submitted by Respondent Amalgamated to correct the transcript. For want of opposition thereto, said motion is hereby granted. Upon the entire record in this case, including the stipulations of the parties, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT, ATLANTIC THRIFT CENTER Atlantic Mills Servicing Corp. of Wisconsin, Respondent herein, is a wholly owned subsidiary of Atlantic Thrift Center, Inc. It operates a department store at or near Alexandria, Virginia, under the firm name and style of Atlantic Thrift Center. Atlantic Thrift Center, Inc., formerly called Virginia Dare Stores Corporation, also wholly owns the stock of several other corporations, each of which subsidiaries oper- ates a store under the firm name and style of Atlantic Thrift Center in various States. The record' discloses that the labor relations policies of such subsidiaries are deter- mined by Atlantic Thrift Center, Inc., and that the officers and directors of Respondent and Atlantic Thrift Center, Inc., are the same. As to Respondent Company only, I further find that it opened for business on August 21, and that it will gross more than $500,000 and will receive goods valued at more than $50,000 directly from States other than Virginia in the year ending August 20, 1964. Since the parent controls subsidiaries in several States, I find that the parent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I further find that Respondent, as an integral part of the parent's operations, is part of a single enterprise; and that Respondent also is engaged in commerce not only as part of this single enterprise but also from facts relating to direct inflow found above. The finding as to inflow does not apply to Respondent Amalgamated because it denied commerce facts in its answer and no evidence was received on that issue. H. THE LABOR ORGANIZATIONS INVOLVED Respondent Amalgamated, Central States Joint Board of the Amalgamated, and Local 400 of the Retail Clerks Union (the Charging Party) are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Atlantic Mills Servicing Corp. of Wisconsin (herein called Respondent Company or the Company) operates a store in Alexandria, Virginia. It is a wholly owned subsidiary of, and has identical officers with, Atlantic Thrift Center, Inc. Another wholly owned subsidiary of Atlantic Thrift Center, Inc., whose officers also are iden- All dates mentioned herein relate to 1963 unless otherwise Indicated. 2 The motions were granted to the extent that Taylor was alleged to be an officer of the Amalgamated. ATLANTIC THRIFT CENTER 887 tical with those of its parent, operates a store at Knoxville, Tennessee ; and another wholly owned subsidiary operates a store at Norfolk, Virginia. All such stores do business under the firm name and style of Atlantic Thrift Center. At all times mate- rial, the employees at the Norfolk and Knoxville stores have been represented by a Joint Board of the Amalgamated as their collective-bargaining agent. Each Joint Board is composed of several affiliated local unions. Prior to April 1963, the above store at Alexandria, Virginia, had been owned by an unidentified, but nonaffiliated, corporation which also owned eight other stores in the Philadelphia, Pennsylvania, area. These nine stores were operated under the firm name and style of Bargain City. The employees of the Bargain City store in Alex- andria and four of the Bargain City stores in the Philadelphia area were represented by Retail, Wholesale, and Department Store Union during the time of their operation by Bargain City. The other four Bargain City stores in the Philadelphia area were represented by Retail Clerks International Union. B. The purchase of Bargain City stores by Atlantic Thrift Center, Inc. Harold Gottfried is vice president and treasurer of Atlantic Thrift Center, Inc., with offices in New York City. Among other tasks as such, he handles personnel and labor matters for all the Atlantic Thrift Center stores. In April 1963 Atlantic Thrift Center, Inc. signed contracts to acquire the above-mentioned nine Bargain City stores, includ- ing that at Alexandria. The owner of Bargain City continued to operate these stores until late in June, when the various subsidiaries of Atlantic Thrift Center, Inc , took possession thereof. In the last week of June the Alexandria Bargain City store was closed and Respond- ent took possession of it. Preparations commenced about July 1 to reopen it. These included rebuilding and remodeling the premises, selecting and training sales and other personnel, stocking inventories, and appointing Robert Perothers 3 as store manager. The name of the store was changed from Bargain City to Atlantic Thrift Center. Dalton Reilly, the supervisor of this and several other Atlantic Thrift Centers in a designated area, also appeared on the premises about this time. As supervisor, Reilly superintended store managers in his area, including Perothers. In May or June, Gottfried discussed with Sidney Mittelman, Respondent's president, what "the possible developments might be" as to what union would organize the Alexandria store. At that time Bargain City's owner, which still was operating the store, had a collective-bargaining contract with the Department Store Union covering its employees at the Alexandria Bargain City store and four other Bargain City stores in the Phila- delphia area. From late June to August 21, the Atlantic Thrift Center store in Alexandria was occupied by Respondent Company. During this period preparations were made by Respondent for the opening thereof on August 21 as Atlantic Thrift Center. It was closed to the public while preparations were made. Certain conduct by Respondent Company and the Amalgamated during this preparation period, and some thereafter, is complained of as unlawful. To the evidence relating thereto we now turn. C. Chronology of events 1. The Joint Board learns of the sale of Bargain City stores to Atlantic Thrift Center, Inc. David Chaney is president of Central States Joint Board, Amalgamated Clothing Workers of America, AFL-CIO. The Joint Board has collective-bargaining contracts with about 30 Atlantic Thrift Center stores. Chaney read in a trade journal that the nine Bargain City stores had been sold to Atlantic Thrift Center, Inc. As a result, Chaney and McClow 4 directed Max Ungar, the Joint Board's chief organizer, to report on the status of unionism at these stores. Upon receiving Ungar's report, and after telephoning the president of the Union representing the Alexandria store, Chaney directed McClow to organize the Alexandria store. But the record discloses that McClow did nothing to organize the Alexandria store until Suthard, the business agent of the Baltimore Joint Board of the Amalgamated, called him to ask a question about Taylor, and Anne Crist, an employee of a Knoxville store, called to ask some ques- tions. (These questions are recited below.) Then McClow did no more than to ask Crist to solicit membership when she was transferred and asked Suthard to request Taylor to aid Crist if Taylor also was transferred. At this time Suthard did not know whom McClow meant when he mentioned Anne Crist's name. The details of the fore- going transfers are narrated below. $ Perothers was actually designated in June but arrived at the store early in July. 4 Executive vice president of the Joint Board. 888 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD 2. The transfer of Anne Crist Crist is assistant manager of the shoe department of the Atlantic 'Thrift Center in Knoxville, Tennessee. That department is owned and operated by John Pilling Shoe Company as a concessionaire under a lease with Atlantic. Pilling operates the shoe department concession in all Atlantic Thrift Center stores. Mr. Thaler is president of Pilling. Employees at the Knovville Thrift Center are represented by a local of the Amalgamated, of which local Crist is president. Until last year Crist also served as a delegate from the local to the Central States Joint Board of the Amalgamated. Because the shoe department at Alexandria was running behind schedule prior to the anticipated opening to the public, Gottfried telephoned Thaler about this and requested help in a hurry. Thaler promised immediate action. Among other things, Gottfried also sets labor policies 5 for all concessionaires at Atlantic Thrift Center stores, including those of shoe departments run by Pilling. Sometime in early August Ronnie Linhaers, the manager of the shoe department in Knoxville, told Crist that Thaler had called him to report that Thaler needed an experienced person to help set up a shoe department at the Alexandria Thrift Center store. Linhaers then asked Crist to accept this assignment. Crist promised to con- sider it and let him know. Before making up her mind Crist called McClow collect, in Detroit, to ascertain "if I had to go." McClow told her she did not have to. A few days later, about August 8, Grist informed Linhaers that she would go. On August 9 McClow called Crist to ascertain whether she had decided to go to Alexandria. Upon hearing an affirmative answer, McClow asked her if she would be interested to help organize the store while there, and, if so, to call him after she arrived. Grist promised to call him if interested. On Saturday, August 10, Linhaers instructed Crist to report to a Mr. Oliver, mana- ger of the shoe department in the Alexandria store, on the following Monday, and gave her some transportation and expense money. Grist went directly to the Holiday Inn when she arrived in Alexandria on August 11, as that was the place at which a reservation had been made for her by her employer. On August 12, she reported for work at 9 a.m. to Oliver. On that day Grist solicited two or three to membership in the Joint Board when on a break. On August 13, Grist called McClow in Detroit, as requested by him in their pre- vious telephone conversation of August 9, telling him that the people she talked to were "interested in the Union." McClow asked her if she had any application cards and, learning that she had, told her she "could go ahead and sign up a few," that he would try to see her the next day, and informed her that he was mailing to her, by airmail, a few additional books and other materials needed to solicit. McClow also told her "somebody from Norfolk was supposed to be in." Crist testified that she signed up 10 or 15 on this day during her two breaks of 15 minutes each and at lunchtime, and 4 or 5 on August 14. According to Grist, Eva Taylor did not sign up anyone on August 14, because Taylor had no application cards and Grist did not give her any. On August 14 Manager Perothers of the Alexander store told Grist he understood she had been talking union in the store, but Crist defended her action because it occurred "on my lunch hour and worktime." Perothers warned her not to engage in it on company time, and Grist so promised. On August 14 McClow called on Grist and Taylor at the Holiday Inn' in the eve- ning and spoke to them on the status of their organizing efforts. Grist claims she signed up 40 employees on August 15, of whom 15 or 20 worked on the night shift. Those on the night shift reported for work shortly before 5 p.m.,6 but, at the suggestion of McClow, Grist and Taylor returned about 8 p.m. to sign up more at the store. Grist and Taylor got past the guard by-displaying their passes and proceeded to sign up girls during the evening breaktime. Grist insisted that she did not sign up any night-shift girls when they clocked in because she would have to do that on her working time. On August 16 Grist and Taylor signed up an additional 30 or 35 employees. Dur- ing the break that afternoon, Grist telephoned McClow. As hereinafter found, I find that this call was made during the noon lunch hour. At 5 p.m. McClow met Grist and Taylor at the store entrance after he spoke to Riley, as hereinafter nar- rated. McClow told them that he had talked to management about the cardcheck and that he was reasonably sure it would be held on the morning of August 17.7 5 Hence, S A.G E., Inc. of Houston and its Licensees, 146 NLRB 325, is not applicable. 6 Crist's day ends at 5 p.m. 7 Crist testified that she and Taylor did not turn over any cards to McClow until the night of August 16. 1 credit her on this aspect of the case 'ATLANTIC -THRIFT `CENTER 889 'Later that night Crist turned: over 121 -cards to McClow.8 Crist signed up two more the next day and also 'turned over rthose -two 'to McClow at 'about 10:30 a.m. This would make a'total'of 123 cards. After the cardcheck on August 17, McClow'told'Crist'to arrange for a meeting of union members on August 27, so that somedne'from'the`Central States Joint Board would be there to "explain the Union." (Some days later Crist did so.) He -left later in^the day for Detroit. Crist's return expenses, including transportation, were paid to -her by Reilly. In addition, Reilly paid her 'Holiday Inn bill and'her expenses while in Alexandria. 3. The transfer of-Eva Taylor Edmund T. Poplawski •at all times material was manager of the Atlantic Thrift Center at Norfolk, Virginia. About August 9 Harold Gottfried, vice-president and treasurer of Atlantic Thrift Center, -Inc., telephoned Poplawski from his office in New York City. Normally Gottfried does not communicate with Poplawski; the latter usually receives orders -from William Hakim, a superior supervising the opera- tion of several Atlantic Thrift Centers, including that -at Norfolk. Reilly is, like Hakim, supervisor ,of a .,group of Atlantic Thrift Centers. Reilly's group includes that at Alexandria. Telling Poplawski that Reilly had asked Gottfried to send experienced help to the Alexandria Thrift Center to train employees before it opened, Gottfried asked -Poplawski for someone in the latter's store experienced in clerical, operations in the warehouse. •Poplawski assured Gottfried that such a girl worked in the Norfolk store and ,promised to send her to Alexandria. Her name was not mentioned. As -a result Poplawski asked Eva Taylor to accept this assign- ment, as more fully recounted below. Eva Taylor was. employed at all times -material as a 'stock clerk at the Norfolk, Virginia, Atlantic Thrift Center. Sometime in 1961 she was elected by the employ- ees there to be a -member of the board of directors of Amalgamated's local union at this Norfolk store. About August 9, 1963, Edmund Poplawski, manager of the Atlantic Thrift Center at Norfolk, called Taylor to'his office. Informing Taylor that Gottfried had telephoned him from New York that Reilly needed an experienced person on temporary duty -in the Alexandria stockroom to train employees before opening day, Poplawski asked Taylor if she would undertake this assignment with all expenses paid.9 Taylor expressed concern about her minor children being left at home and also that this -arrangement might cause he to lose seniority and other benefits, but promised to inform Poplawski of the decision soon. Poplawski stated that he was not sure of the effect of the transfer on such benefits but assured her that he would discuss it with Suthard, -the business representative serving Norfolk. He did so. Poplawski and Suthard agreed, between them, that Taylor would not be prejudiced. Nevertheless, Suthard called the 'Central States Joint Board and was assured that Taylor would not lose any benefits. John Suthard is business agent for the Baltimore Joint Board, Amalgamated Clothing Workers of America, AFL-CIO. This Joint Board has jurisdiction over Norfolk, Virginia, whereas Alexandria is cov- ered by the Central States Joint Board Local 780 of the Amalgamated represents the employees of the Atlantic Thrift Center store in Norfolk and is an affiliate of the Baltimore Joint Board of the Amalgamated. The next day Suthard came to the Norfolk store on one of his regular visits and told Taylor that she would not lose any company or union benefits by going to Alexandria. Suthard also suggested that Taylor accept this transfer so that Taylor "could help with organizing the Union up there." On August 12 Suthard again came to see Taylor at the store. Taylor told him she had decided to go to Alex- andria. Suthard then informed her that Ann Crist 10 would also be there and asked Taylor to help in organizing at Alexandria. Taylor did not know who Crist was nor did Suthard otherwise identify Crist; but Suthard nevertheless told Taylor to get in touch with Crist at Alexandria. On August 13 Taylor notified Poplawski that she would accept the transfer 'td Alexandria. She left that -afternoon. Upon her arrival at Alexandria the same day, she checked in at the Holiday Inn. Since no rooms were available, Taylor went to 8 Crist counted 138 timecards in racks Thus 123 out of 138 employees were signed up at that time - 6I do not credit Taylor's testimony that she was offered a choice of a permanent job at Alexandria if she liked it there, because Poplawski and Gottfried, whom I credit on this aspect of the case, testified that Taylor was needed for temporary help and was offered a temporary job only. 10 Suthard added that Crist "works for the store." 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Crist's room and introduced herself to Crist. Although Crist did not "indicate any familiarity with [Taylor's] name at all" when Taylor announced herself, Crist never- theless asked Taylor to enter and to wash up. Taylor claims they did not discuss union organizing that night. Taylor slept in Crist's room that night, at Crist's sug- gestion, after Taylor mentioned that she had been unable to engage a room. (Tay- lor testified that she did not discuss the Amalgamated with Crist until after McClow had spoken to them on Wednesday evening, August 14. Then, according to Taylor, Crist explained to Taylor that the two of them were to sign up employees for the Amalgamated.) The next day, August 14, Taylor reported to Robert Perothers, the manager of the Alexandria store, who introduced her to the stockroom employees and directed her to train these employees. On the evening of August 14 McClow called on Taylor and Ann Crist 11 at the Holiday Inn in Alexandria where Taylor and Crist were staying. McClow told Taylor and Crist that he wanted them to help organize the Alexandria store by sign- ing up girls at that store and that he would send more forms to them for that purpose if needed. Actually, Taylor, on her own testimony, had already begun such solicitation prior to this without any forms, by informing "the girls what our Union had to offer and the benefits they would have by it and the insurance and all." Taylor intensified her organizing efforts after the forms arrived on August 15. Taylor succeeded in signing up several employees. Prior to coming to Alexandria, Taylor had never solicited on behalf of the Joint Board or any other union: Crist and Taylor, according to Taylor, signed up about 112 out of a total of 150 employees by August 17. Crist thought it was 123. I accept Crist's count since she was in charge of the organizing project. Taylor testified that she signed up employees during her two "breaks" 12 which last 15 minutes each, at lunchtime, and "after we got off from work." Her hours were from 9 a.m. to 5 p.m. However, a night shift started work at 5 p.m. On breaktime and at lunch Taylor signed up employees at the snackbar, according to her testimony. She signed up those after work in the lounge behind the snackbar; some of them worked on the night shift. The store was opened for business on August 21. Taylor returned to Norfolk on August 30; Crist to Knoxville on September 1. Taylor's expenses, to, at, and from Alexandria, including transportation, food, and lodging, were paid by Respondent Company. In signing up employees, Taylor told them that by signing "they would have an insurance plan." Taylor also testified that she told employees "it was a fact they would get insurance immediately if the [Union] would come in." 4. The cardcheck William McClow is executive vice president of the Central Joint Board, Amal- gamated Clothing Workers of America, AFL-CIO. After learning of the sale of Bargain City stores to Atlantic Thrift Center, Inc., McClow and Chaney dispatched the Joint Board general organizer, Max Ungar, to survey the situation. Thereafter, Ungar reported to McClow and Chaney the extent of organization at- the various Bargain City stores. Following this, Chaney ascertained from President Greenberg of the Department Store Union that it was no longer interested in the Alexandria store. Soon there- after Chaney instructed McClow to organize the Alexandria store. Sometime after that, but before McClow did anything about organizing Alexandria, Ann Crist called McClow to ascertain whether she had to accept a temporary assignment to Alex- andria. McClow told her she was not obliged to do so, but suggested that she "cooperate" by going. Following this, about August 9, McClow called Crist and, upon learning that she was going to Alexandria, requested her to sound out senti- ment for a union and to report to him thereon. On August 13 Crist called McClow from Alexandria to report that it would not ,be too difficult to obtain members for the Amalgamated at Alexandria. In this con- versation, McClow asked Crist "to look up . . . a girl coming from Norfolk" for possible help in organizing. No name was mentioned. By afternoon of August 16, McClow "figured I had a majority in my opinion" after Crist reported to him on the telephone "about noon or 12:30." Crist placed 11 Crist's role is recounted in detail supra. Crist, an employee of the Atlantic Thrift Center in Knoxville, was transferred temporarily to Alexandria to work in the latter's shoe department. 22 Everybody did not go on breaks at the same time. ATLANTIC THRIFT CENTER 891 this call about 3 o'clock when she took her afternoon break.13 Neither Crist nor McClow testified as to the actual number of cards signed as of that specific time. In fact, McClow never saw any signed cards until that night. After Crist's call, McClow telephoned Gottfried in New York about 2 p.m. and, claiming a majority, asked for recognition.14 Gottfried demanded, and McClow consented to, a card- check. Gottfried soon called Dalton Reilly in Alexandria to arrange for a card- check. Reilly is a district supervisor, operating and supervising Atlantic Thrift Centers in New Jersey and Pennsylvania. In July and August the Alexandria store was also under his jurisdiction. Reilly was out when Gottfried telephoned but Gott- fried left a message with Manager Perothers that Reilly proceed with a cardcheck. Shortly after 2 p.m. on August 16, Reilly received Gottfried's message to conduct a cardcheck. After some effort Reilly induced the Reverend Woods, a local minister, to carry on such a check on the morning of August 17. Then Reilly called McClow at the Holiday Inn and invited McClow to meet him at 5 p.m. at the store to discuss cardcheck procedures. When McClow arrived at the appointed time, Reilly asked him if the next morning suited him for a cardcheck in the store office by Reverend Woods. McClow consented to this. As he went out after this meeting, McClow met Crist and Taylor outside the store, and informed them of the cardcheck. About 10 o'clock that night Crist and Taylor turned over the signed applications to McClow. About 9:30 a.m. on August 17, the cards were checked by Reverend Woods in the bookkeeping office of the Alexandria store. Also present were McClow, Reilly, and Distler, a company comptroller. Upon completing it, Woods announced that the Joint Board represented a majority of the employees. Reilly testified he thought over 100 cards were in favor of the Joint Board. The record is silent as to how many cards Woods found to constitute a majority. After this McClow returned to Detroit on August 17 and also sent a letter to Gottfried claiming a majority. On August 19, while in New York on other business, McClow called Gottfried to see him about negotiating a contract. Gottfried consented. Then Gottfried and McClow negotiated a contract after bargaining for 1 i hours or less thereon. It was patterned after the contract recently negotiated at Atlanta for 19 Atlantic Thrift Center stores. McClow then went to Detroit and from his statements to union counsel there a contract was typed on August 20 by the counsel's office. Several copies were made. McClow and Chaney signed them and mailed them to Gottfried for his signatures. Gottfried signed them. Among other things, the contract con- tained a checkoff clause. This was the first time McClow alone bargained with Gottfried. 5. The membership meeting of August 27 A membership meeting of employees at the Alexandria store was scheduled by the Central States Joint Board for August 27 at the Holiday Inn. The arrangements were made by Crist, at the direction of McClow. About 30, including Chaney, attended. Although the Alexandria store is not under the Baltimore Joint Board, Suthard went to the Alexandria local's membership meeting on August 27 at the Holiday Inn. Suthard was directed to come to that meeting because Chaney and Suthard's supervisor at the Baltimore Joint Board, Nocella, had an arrangement for Suthard to "service" the Alexandria Local. At this meeting Chaney, among other things, "went over the contract paragraph by paragraph," and suggested the election of stewards and officers for the local at Alexandria. Chaney met Taylor at this meeting for the first time and also saw Anne Crist whom he had known before this. Crist had previously been a delegate to the Central States Joint Board. Pearl Liwosc worked at the Alexandria Thrift Center from about July 17 to some- time in November. Liwosc attended the August 27 membership meeting at the Holiday Inn, at which she was elected a stewardess. From August 27 to about October she served as chief stewardess of the Amalgamated's Local Union at the store. Liwosc testified that after the meeting Chaney told her, among other things, that as stewardess she "might be asked to go from one store to another, and espe- cially when they open stores they usually pull the chief stewardess out to help set up the other store, and also to organize the Union " Chaney further told her, she claims, that Taylor and Crist went to Alexandria because "the reason was for [them] to go and help the store and to organize the Union." I do not credit the foregoing testimony of Liwosc, not only because I credit Chaney's denial thereof, "I find that Crist is mistaken as to the time of the call, especially since both McClow and Gottfried placed McClow's subsequent long distance call about 2 p in. is McClow also telephoned Chaney that the Joint Board had a majority and that a local minister would check the cards . According to McClow, he made this call "some time in August." 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but also because Liwosc made a poor witness on cross-examination, sometimes had -a very faulty memory of what actually transpired , and her demeanor was poor when cross-questioned on this segment of her testimony. At the time she was hired Perothers told Liwosc, among other things, that, if the store becomes unionized, the employees will receive higher wages, that he assumed it will be unionized "because all Atlantic Thrift Stores do have a union." 15 How- ever, Perothers added he did not know if the store would be union. I credit Liwosc on this aspect of her testimony since Perothers substantially confirms it. On Au- gust 15 , in the presence of Liwosc, employee Regina Bolling asked Perothers whether she should join the Union . Perothers replied that it was "all right because we have it in the other stores." I credit Liwosc on this also , because she stood up on cross- examination in this area of her testimony. Liwosc testified that she observed Taylor and Crist signing up second-shift employ- ees as they came to the employees' lounge before the 5 p .m. quitting time of the first shift on August 15 or 16. This would mean Taylor and Crist were soliciting on company time. Although I have rejected the testimony of Liwosc on another aspect of the case, I accept it on this issue. I do so because there is other evidence from Heard, which I credit, that Taylor solicited during working hours and Heard's testi- mony tends to corroborate Liwosc that other soliciting occurred during the working hours of Crist and Taylor. 6. Methods of soliciting by Crist and Taylor In addition to the above, Taylor and Crist also used other arguments. Pursuant to instructions from McClow, Taylor and Crist told employees that an initiation fee would be waived if they signed up then rather than later. They also mentioned insurance and other benefits if the Joint Board obtained a majority, and that the pay would be higher if a union came in. Before the Alexandria store opened, an employee told Perothers that Crist had solicited her to join a union. Perothers testified that he then told Crist that there would be no soliciting or talking about unions except upon her own time in the snackbar or in the employees' lounge. Crist corroborates this but claims that she did solicit on her own time. - About 3 days before the store opened, Eva Taylor solicited a signature from Richard Heard and about 11 or 12 other employees in the stockroom during work- ing hours, according to him. Four or five did sign at this time. I do not credit Taylor's contrary testimony by reason of my observation of her demeanor. Heard placed the opening of the store as in September or October. Manifestly he is wrong and I do not accept his estimate of the date of the store's opening. The actual opening occurred on August 21. However, I credit him (1) as to the hap- pening of the events he testified to, and (2) as to the fact that these events took place about 3 days before the store opened. I so credit him because of demeanor 16 and also because General Counsel's Exhibit No. 3 shows that Heard signed an authorization card on August 15 and thus corroborates him in his statement that he signed about 3 days before the store opened. 7. Other pertinent events Louis W. Cole is an International representative of the Retail Clerks' Union. About August 26 he visited the Alexandria store and asked Assistant Manager Walker for permission to solicit employees for membership in the Retail Clerks. Although permission was denied, Cole, and his colleagues accompanying him, com- menced soliciting union membership for the Retail Clerks. About 2 hours later Manager Perothers, who had just arrived at the store, ascertained from Cole the nature of Cole's mission. Perothers then left, returning in about 15 minutes, and told Cole that he, Perothers, had contacted the Joint Board in Detroit and that Cole "could go ahead and have a ball, everything was wrapped up." When Cole returned to the store in the afternoon to resume soliciting, Perothers ordered him to leave "because the Company has got a no-solicitation rule." Nevertheless Cole persisted in 19 Liwosc signed a Joint Board card upon the solicitation of Anne Crist. A conversa- tion between Crist and Liwosc at the time is not here repeated because I find that nothing therein discloses or tends to disclose any violation of the Act 16 Heard made a good witness judging from his demeanor and I credit him . His error as to the date is an honest mistake and does not detract from the veracity of his other statements. ATLANTIC THRIFT CENTER 893 soliciting. A half hour later a policeman arrested Cole for illegal trespass, after Cole refused to leave the premises, on a warrant sworn out by Perothers. However, the charges were dropped on the return day of the warrant. About August 27 Cole spoke to Reilly at the store , stating that he would continue to solicit membership in the Retail Clerks. Reilly replied, "the Company has got a no-solicitation rule, and you will be arrested." Sometime in October, Cole encountered and spoke to Perothers at a supermarket in Alexandria. During the conversation Cole stated to Perothers "that ACW [the Amal- gamated] planted those people in there. . . . You know that they were in there." Perothers said nothing. I do not construe the silence as an admission. While there may be occasions when the failure to respond to accusations may amount to an admis- sion, I am of the opinion that such a rule of evidence is not operative on these facts. A so-called vicarious admission by the silence of an agent will bind a principal only when the agent had expressed or implied authority to speak, and then only when there was an obligation to refute the accusation . See 4 Wigmore, Evidence §§ 1071, 1072, 1078 (3d ed.). These conditions have not been met on the record before me. See 2 Jones, Evidence §§ 355, 366, 388 (5th ed.). Accordingly, I find that this conversation may not be considered as evidence of any unfair labor practice. Concluding Findings and Discussion As to Respondent Amalgamated , the evidence is insufficient to show that it com- mitted any acts-whether lawful or unlawful-in connection with the events unfolded by the record. Indeed, all the evidence adduced at the hearing discloses that the Central States Joint Board of the Amalgamated engaged in the conduct contended by the General Counsel to be illegal . But the Joint Board has not been made a party to these proceedings. The question then is whether the Amalgamated may be held accountable for the conduct of the Joint Board either on the theory of expressed or implied agency, or ratification , or both. The record does not contain affirmative evidence that the Amalgamated affirmed or ratified any of the Joint Board's activities Nor does the evidence warrant the draw- ing of any inference of ratification or affirmance. Further, substantial evidence is lacking that the Joint Board acted as an agent for the Amalgamated . At most, the evidence shows that the Joint Board is a creature of the Amalgamated and subject to, and regulated by, the latter's constitution and bylaws.17 But this is inadequate to beget an agency relationship. It follows that I am of the opinion , and find, that subor- dinate, separate units of an International union are not agents thereof without further proof that they have bee expressly or impliedly invested with agency powers , or that they are but an arm of the International. See United Construction Workers, et a!. V. Haislip Baking Company, 223 F. 2d 872 (C.A. 4), cert. denied 350 U.S. 847; International Brotherhood of Electrical Workers, AFL-CIO, and International Brotherhood of Electrical Workers, Local 5, AFL-CIO (Franklin Electric Construc- tion Company and Utilities Lines Construction Company, Inc.), 121 NLRB 143, 146-149; New Orleans Laundries, Inc., 114 NLRB 1077. Accordingly, I shall recommend that the complaint be dismissed as to Respondent Amalgamated. As to Respondent Company, the record does not yield direct evidence of a con- spiracy or cooperation between it and the Joint Board to install the Joint Board as the collective-bargaining agent at the Alexandria store. But this does not dispose of the matter. The question then is whether reasonable inferences drawn 18 from the facts warrant the conclusion that such conspiracy 19 or cooperation existed and whether such warranted conclusion should be made.' It is my opinion, and I find, from reasonable inferences drawn from the facts found, that Respondent and the Joint Board entered into a conspiracy, or mutual agreement, or cooperative effort, to install the Joint Board as the collective-bargaining agent at the Alexandria Atlantic Thrift Center store; that pursuant thereto, Taylor and Crist 17 The constitution and bylaws in evidence does not, in my opinion , set up the Joint Board as an arm or agent of the Amalgamated , and I so find 'B Drawing reasonable inferences is within the province of the Trial Examiner , subject to review by the Board . Wonder State Manufacturing Company v. N.L R B., 331 F 2d 737 (C A. 6) 19 The word "conspiracy " as used herein is not meant to connote any criminal acts. Rather, it is intended to imply no more than an agreement , harmonious understanding, or mutual arrangement. 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were temporarily transferred to said store at Respondent Company's expense; 20 that Crist and Taylor solicited membership in the Alexandria local of the Joint Board while at Alexandria, sometimes on company time and in working areas ; 21 that the Company knew or was aware of such solicitation and either acquiesced therein or at least took no steps to prevent it ; 22 and that such conduct transgresses Section 8(a) (1) and (2) of the Act. This ultimate conclusion or finding is based upon the whole record and the following factors which I find as subsidiary facts: 1. It is significant that although a staff organizer , Ungar, was assigned to appraise the situation, no regular organizer of the Joint Board-whether experienced or other- wise-took part in the campaign to organize the Alexandria store. Thus the actual organizing was conducted by only two temporary employees-Grist and Taylor- without any direction, counsel, or supervision by the Joint Board. Taylor had not previously signed up anyone in her life. This is most unusual and signifies an unusual confidence in ultimate success by the Joint Board not justified by the record . It also signifies that the Joint Board anticipated no competition from a rival union and no opposition from a willing employer, for no other reasonable explanation accounts for the lack of an active , or at least experienced , organizer on the scene . While it is true that McClow arrived at Alexandria on the evening of August 14, it is equally true that he did not counsel, direct, or supervise the efforts of Crist and Taylor; at most he wanted to learn how they were faring. 2. Although of minor significance, I have considered the fact that Gottfried accepted the Joint Board's majority status without ascertaining from the incumbent union whether it still insisted upon recognition . While such failure to inquire is not of paramount importance , it manifests some degree of willingness to cooperate with a rival union of the incumbent union. In my opinion Gottfried should have sought to ascertain whether the Alexandria store's contract with the Department Store Union still was in force, and his failure to do so indicates , and I find , a desire to aid the Joint Board. This is strengthened by Gottfried's testimony that in May he discussed with Mittelman what, if any, union would organize the Alexandria store; yet the incumbent had not then disclaimed at Alexandria. 3. It is significant that, before Crist and Taylor were transferred to Alexandria, long-distance telephone calls were made to the Central States Joint Board to apprise it of their impending departure. Crist herself called to ascertain, as she claims, whether she "had to go," although on her own testimony she stated that she was requested, and not ordered , to go by her employer. Suthard called the Central States Joint Board to ascertain Taylor's rights although both he and Poplawski testified that they agreed that Taylor would lose no rights. Moreover, Suthard was employed by the Baltimore Joint Board, and no reason 23 was given why he should call the Central States Joint Board for an interpretation of a contract signed by the Norfolk store and the Balti- more Joint Board. 'These two telephone calls suggest the inference-and I find-that the calls were made to alert the Central States Joint Board of the forthcoming transfers of Crist and Taylor. I 4. Of significance also is the fact that the employees selected for temporary assign- ment to Alexandria are more than just union members, but , rather, occupy responsible positions in their respective locals. Thus Taylor is a member of the board of directors of the Norfolk local and Crist is president of the Knoxville local and was a delegate to the Central States Joint Board . It is more than coincidence that the Atlantic Thrift Centers involved,chose,to transfer union officials to the Alexandria store. 0 As herein found , only Crist's expenses at Alexandria and from there back to Knoxville were paid by the Company . Her expenses from Knoxville to Alexandria were contributed by John Pilling Shoe Co. This does not affect the ultimate conclusion set forth in this paragraph. 211 do not credit Taylor and Crist that they solicited only on their time and in non- working areas because I have credited other witnesses on this issue ( Heard and Llwosc) and because it is almost physically impossible to sign up over 100 employees in 2 days only at breaktime ( 2 periods of 15 minutes each ), lunchtime , and clocking-in time. 22 1 do not credit Respondent Company's contrary evidence because Perothers and Reilly, who were constantly at the store , must have observed Crist and Taylor's solicita- tion efforts and because Perothers actually knew thereof. It is difficult to understand how Perothers and Reilly were blind to a whirlwind campaign which resulted in obtaining more than 100 signatures in 2 days, at times in working areas on company time. 211t is true that Suthard testified that Alexandria had been placed under the jurisdic- tion of the Central States Joint Board , but Taylor's rights arose under a contract between the Baltimore Joint Board and the Norfolk store. ATLANTIC THRIFT CENTER 895 5. 'Implausible and inconsistent reasons have been advanced as to the necessity for transferring Crist. Thus Gottfried testified that the work of the shoe department was behind and experienced help was necessary to expedite matters. But Thaler testified such help was required solely to teach those in that department. Yet Thaler also testified that the work of teaching was being carried on by Oliver, the Alexandria shoe department manager. No necessity is apparent for dispatching another instructor to teach four or five employees how to tie, awl, and shank the shoes together. Moreover, Thaler testified that the work which progressed so slowly related to remodeling of aisles ordered by the fire marshal. Patently, this involved work by construction employees, and not by workers tying, awling, and shanking shoes. Nor is any special competence as a construction remodeler by Crist discernible in the record. Hence I conclude and find that Crist and Taylor were transferred for reasons other than those testified to at the hearing. I further find they were so transferred to aid the Joint Board's organizing. 6. It is significant that Suthard told Taylor to call upon Crist when Taylor arrived in Alexandria. It is reasonable to infer that Suthard had been informed that Crist's mission was to organize or he would not have asked Taylor to call upon Crist. And it is equally significant that when Crist departed for Alexandria, she expected someone from Norfolk to assist her in organizing. This combination of circumstances, together with the entire record herein, suggests, and I find, that the Central States Joint Board and Atlantic Thrift Center, Inc., had, by prearrangement, provided for the temporary transfer of Crist and Taylor to Alexandria for the purpose of soliciting membership in the Central States Joint Board. Since the Company paid for the expenses of such transfers (except for Crist's transportation to Alexandria), such payments constitute aid, support, and assistance proscribed by Section 8 (a) (1) and (2 ). 7. Finally, I find that Crist and Taylor engaged in some soliciting on company time and in working area. Although I find that the direct evidence is insufficient to ascribe company knowledge 24 of these specific activities, I nevertheless find that Respondent is accountable for such conduct since it occurred during the course of activities con- templated by the above-found conspiracy or harmonious understanding. Further, since over 100 employees were signed up in 2 days, it is inconceivable that management was not aware of its occurrence on company time and in working areas when Perothers and Reilly were constantly at the store during the period of preparations for opening it 25 However, I find no Retail-Clerk animus in the refusal to grant Cole permission to solicit on the premises nor in causing his arrest. Local 1325, Retail Clerks Interna- tional Association, AFL-CIO (Topps Kerrnill, Inc) v. N.L.R.B., 54 LRRM 2748 (C.A. 1). Accordingly, I have disregarded those incidents in arriving at findings of fact and conclusions of law in this Decision. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of the Respondent Company which have been found to be unfair labor practices, set forth in section III, above, occurring in connection with the operations of said Company as set forth 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 free flow of commerce. V. THE REMEDY It having been found that Respondent Company has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom, and that it take specific affirmative action, as set forth below, designed to effectuate the relevant poli- cies of the Act. Having found that said Respondent Company has rendered illegal assistance and support to the Central States Joint Board and also, at a time when it 2+ The so-called small plant rule does not cover this situation where at least 138 em- ployees were working ` 251 find that the precipitate action in executing the contract, while suspicious, does not establish a desire to head off some other union (cf Local 1325, Retail Clerks International As8oeiation, AFL-CIO (Topp8 Kerrmill, Inc ) v. N.L R B., 54 LRRM 2748 (C.A. 1) ) , nor does it amount to aid, assistance, or support to the Joint Board This is so because the con- tract, with minor or, incidental variations, is patterned after a regional area contract negotiated in July for several Atlantic Thrift Center stores by the same parties. Hence, I have disregarded the circumstances touching upon the negotiations leading to the con- summation of the contract covering the Alexandria store in arriving at any findings that Respondent Company incurred 8(a) (1) and (2) liability. 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD knew that. said Joint Board's majority was obtained unlawfully, entered, into an illegal , collective-bargaining contract,26 it will be recommended that said contract be denied any force or effect, and that said Company withhold recognition from said Joint Board unless and until the Joint Board has been certified by the Board. Although I have found that Respondent Company entered into an illegal contract containing a checkoff clause, I am unable to find that this clause was enforced or that employees were coerced to execute checkoffs .27 Hence it will not be recommended that employees be reimbursed for any sums which may have been deducted pursuant to the checkoff involved. Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et al. (Mechanical Handling Systems) v. N.L.R.B., 365 U.S. 651. Cf. Lykes Bros. Inc. of Georgia, 128 NLRB 606; Galveston Maritime Association, Inc., et al., 139 NLRB 352, 354. Since the unfair labor practices found do not go to the very heart of the Act, it will be recommended that an order of limited breadth be entered. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Amalgamated, Retail Clerks, and the Central States Joint Board are labor organizations within the meaning of Section 2 (5) of the Act. 2. Respondent Company, Atlantic Mills Servicing Corp. of Wisconsin d/b/a Atlan- tic Thrift Center, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By rendering illegal assistance to the Central States Joint Board and by contribut- ing financial support to said Joint Board , by recognizing the Joint Board, and by entering into, maintaining, and giving effect to an illegal contract with said Joint Board, whose majority was unlawfully obtained, Respondent has engaged in and is engaging in unfair labor practices forbidden by Section 8(a)(1) and (2) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. 5. Respondent Amalgamated has not committed the unfair labor practices ascribed to it in the complaint. [Recommended Order omitted from publication.] 28 The checkoff under consideration Is lawful on Its face . Although the contract is illegal because obtained as a result of unfair labor practices, I am of the opinion that the checkoff provision thereof is not per so unlawful and that such clause falls only because the entire contract is vitiated. 17 No evidence was elicited that any checkoffs had been executed by employees. Tom Joyce Floors, Inc. and Local No. 567, Brotherhood of Paint- ers, Decorators and Paperhangers of America, AFL-CIO. Case No. 20-CA-2477. November 00, 1964 DECISION AND ORDER On June 27, Trial Examiner Herman Marx issued his Inter- mediate Report in the above-captioned 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 attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with 149 NLRB No. 88.