Hughes Hatcher Suffrin

1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hughes & Hatcher, Inc.; a/k/a Hughes Hatcher- Suffrin and Central States Joint Board, Retail and Department Store Em- ployees, Amalgamated Clothing Workers of America, AFL-CIO Hughes & Hatcher,- Inc.; a/k/a Hughes Hatcher Suffrin and Retail Store Employees Union Local No. 876, Retail Clerks In- ternational Association , AFL-CIO and Central States Joint Board, Retail and Department Store Employees , Amalgamated Clothing Workers of America, AFL-CIO, Party to Contract Hughes , & Hatcher, Inc., and its Wholly Owned Subsidiary, Oppenheim's, Inc. and Retail Store Employees Union Local No. 36, Retail Clerks International Association ; AFL-CIO and Central States Joint Board , Retail and Department Store Em- ployees, Amalgamated Clothing Workers of America, AFL- CIO, Party to Contract. Cases 7-CA-5171, 5205, and 5232. June $4,1966 DECISION AND ORDER On February 21, 1966, Trial Examiner Thomas S. Wilson issued his Decision 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 attached Trial Examiner's Decision. Thereafter, the Respondent and Amalgamated filed exceptions to the Trial Examiner's Decision and supporting briefs; and the General Counsel filed a brief in support of the Decision. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Members Fanning, Brown, and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made 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, briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. [The Board adopted the Trial Examiner's Recommended Order with the following modifications : Add the following to paragraph 1(c) of the Trial Examiner's Recommended Order : ["..., provided, however, that nothing herein shall require the Respondent to vary or abandon any wage, hour, or other substantive feature of its relationship with its employees which the Respondent 159 NLRB No. 118. , HUGHES HATCHER, SUFFRIN 1203 has established in- the .performance of such agreement,. or to preju- dice the assertion by the employees of any rights they, may have thereunder."] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge duly filed in Case 7-CA-5171 on April 19, 1965, by Amalga- mated; upon a charge in Case 7-CA-5205 duly filed by Local 876 on May 13, 1965; and upon a charge in Case 7-CA-5232 filed by Local 36 on June 4, 1965, and thereafter amended on July 12, 1965; the General Counsel of the National Labor Relations Board, hereinafter called the General Counsel' and the Board respec- tively, by the Regional Director for Region 7 (Detroit, Michigan), issued its first consolidated amended complaint in these consolidated cases dated October 8, 1965, against Respondent HHS and Oppenheim's. This complaint alleged that Respond- ent had engaged in, and was engaging in, unfair labor practices affecting commerce within the meaning of Sections 8(a)(1), and (2), and.(3) and 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, herein called the Act. Copies of the various charges, the amended complaint and order consolidating cases and notice of bearing thereon, were duly served upon Respondent, Amalga- mated, and Retail Clerks. Respondent duly filed an amended answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing thereon was held in Detroit, Michigan, on various dates between October 18 and 29, 1965, before Trial Examiner Thomas S. Wilson. All parties appeared at the hearing, were represented by counsel and afforded full opportunity to be heard, to produce, examine and cross-examine witnesses and to introduce evidence material and pertinent to the issues. At the conclusion of the hearing oral argument was waived. Helpful briefs were received from General Counsel, Respondent, and Amalgamated on January 24, 1966. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Hughes & Hatcher, Inc., a/k/a Hughes Hatcher Suffrin,2 is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of New York. Hughes Hatcher Suffrin is, and has been at all times material herein, a trade name used by Respondent in the operation of its 14 stores located in Detroit metro- politan area. Hughes & Hatcher, Inc., and its wholly owned subsidiary, Oppenheim's, Inc.,3 is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Michigan, wholly owned by Respondent. At all times material herein, Respondent HHS has maintained its principal office and place of business at 2301 Woodward Avenue in Detroit, Michigan, known herein as the Woodward store. Respondent HHS operates 14 stores in the Detroit metropolitan area and maintains other places of business in Pittsburgh, -Pennsyl- vania, where it is, and has been at all times material herein, engaged in the retail sale and distribution of clothing and other wearing "apparel and related products. During the calendar year ending December 31, 1965, which period is representa- tive of its operations during all times material herein, Respondent, in the course and conduct of its business operations, purchased and caused to be transported and delivered to its places of business operating under the HHS name in the State of Michigan, clothing, other wearing apparel, goods, and materials valued in excess of $1 million which were transported and delivered to its said places of business in the State of Michigan directly from points located outside the State of Michigan. 1 This term specifically includes the attorneys appearing for the General Counsel. 2 Referred to herein as HI-IS or Respondent. 8 Referred to herein as Oppenheim's or Respondent. 1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the calendar year ending December 31, 1965, Respondent, in the course and conduct of its business operations, operating under the name HHS, sold at retail, clothing, wearing apparel, and other related items valued in excess of $1 million. At all times material herein, Respondent Oppenheim's has been a wholly owned subsidiary of Respondent. It maintains its principal office and a retail sales store at 137 West Michigan Avenue, Jackson, Michigan, and a second retail sales store at Paka Plaza Shopping Center in Jackson, Michigan, at which locations it is, and has been at all times material herein, engaged iii the retail sale and_ distribution of clothing, other wearing apparel, and related products. During the calendar year ending December 31, 1964, which period is representa- tive of its business operations during all times-material herein, Respondent, in the course and conduct of its business operations under the Oppenheim's name, sold at retail, clothing, wearing apparel, and other related items valued in excess of $500,000. During this same period Oppenheim's, in the course and conduct of its business operations, purchased and caused to be transported and delivered to its places of business- in Jackson, Michigan, clothing, other wearing apparel, goods, and materials valued in excess of $50,000 which were transported and delivered to its places of business in Jackson, Michigan, directly from points located outside the State of Michigan. Respondent HHS and Respondent Oppenheim's, while being separate corporate entities, constitute integral parts of an overall retail sales operation and constitute a single integrated business enterprise; they have common owners, officers, direc- tors, and managerial policies, including a common labor relations policy affecting the employees of both companies, and they constitute a single employer. The complaint alleged, the answer admitted, and I find that Respondent HHS and Respondent Oppenheim's, individually and collectively, are now and have been at all times material herein a single employer engaged in commerce within the mean- ing of the Act. II. THE LABOR ORGANIZATIONS INVOLVED I Central States Joint Board, Retail and Department Store Employees, Amalga- mated Clothing Workers of America, AFL-C104 and Retail Store Employees Union Local No. 876, Retail Clerks International Association, AFL-CIO 5 and Retail Store Employees Union Local No. 36, Retail Clerks International Associa- tion, AFL-CIO 6 are and have been at all times material herein labor organizations admitting to membership employees of Respondent. M. THE UNFAIR LABOR PRACTICES INVOLVED A. The facts 1964, Amalgamated began an effort to organize Sometime in April or May, Respondent's 1,100 employees. Eighteen employees signed cards authorizing Amal- gamated to bargain on their behalf during the remainder of 1964. Even Amalgamated admitted progress was slow. Despite this, Amalgamated made this campaign its number one priority in January 1965, and assigned six organizers to it on a full-time basis. Progress remained 'slow. Amalgamated's organizers failed to secure any signed authorization cards until March and then only 10 during the month. When Respondent first learned of the drive in July, 1964, it reacted to Amalga- mated's efforts with a "Don't Join the Union" campaign of its own. Union leaf- lets were answered by Respondent leaflets. When union organizers were found attempting to solicit employees in the stores, they were promptly escorted off the premises by the store manager who reported immediately to Respondent's general manager located at the Woodward store. In January 1965,• when the Union stepped up its organizing campaign, Comp- troller Kenneth Bertschy invited employee Mrs., Malik into his office alone before work for a conversation which ultimately lasted an hour and a half. Bertschy started the conversation by saying, "You know, this is about the Union." Malik admitted that'she-had joined the Union the first day of her employment to which Bertschy answered, "Well, just because you signed the card, it doesn't mean that s Referred to herein as Amalgamated. - 5 Referred to herein as Retail Clerks or Local 876. 6 Referred to herein as Retail Clerks or Local 36. HUGHES HATCHER SUFFRIN 1205 you really have to join." During the ensuing conversation Bertschy asked if cer- tain new employees had joined the Union but Malik refused to say, "because of all this commotion going on, that every one was kind of afraid to say who did join iand'who did not." Bertschy then specifically asked if employee Beverly Ford had joined. Malik answered- affirmatively. Bertschy, then wanted to know if either Malik or Ford was a leader of the union movement or had any influence on the employees. ' After stressing the benefits of employment with Respondent, Bertschy ended the conversation. In January,? Bertschy also inquired of employee Joyce ,Krotiewicz if she had joined the Union and if employee Malik was a leader of the union movement. Krotkiewicz was noncommittal. In March Krotkiewicz was sent to see David G. Levine, Respondent's director of training and personnel relations, who asked if she had joined the. Union, saying that he had heard that Krotkiewicz had joined. After asking what, benefits she thought she could get from the Union, Levine told her that, if. the Union became the bargaining agent, her company insurance would be discontinued as would Respondent's profit-sharing plan. On March 8 employee Mary Alice Jackson was sent to Levine's office where he stated, "I know you've been approached by the Union," and then proceeded to tell her the benefits of her employment with Respondent: the discount, the life insurance plan, the Blue Cross plan, and profit-sharing. He then stated that under a union contract "we wouldn't have profit-sharing." Levine then asked if Jackson had signed a union card. Jackson answered. that she had not, yet signed one to which Levine answered,' "I can tell by the' expression on your face that you want the Union." On March 9 employee Joyce Moore signed an authorization card for the Amalga- mated. The next day she was sent to Levine's office where Levine asked her what she thought of the Union. He then inquired if the girls knew what'they were getting into if they signed up for the Union, and said that the Union did not recognize profit-sharing and that, "if we had the Union that more than likely we wouldn't be getting as much money as we were. getting before we had the Union" and cited the fact that the warehouse employees were not making as much money as they-had been before they joined the Union. Thereafter for the following month Levine' spent his time in conducting 10-15 minute interviews with individual employees not only at the Woodward store but at all stores throughout the Detroit metropolitan area. These interviews were similar to those described above.8, Levine estimated that he conducted some 600 such inter, views during this period. On March 17 Respondent posted over the signature of Martin Felder, Respond- ent's general manager, a memorandum to the employees that those full-time employ- ees who did not use up the 5 days of sick leave to which they were entitled during the calendar year would be paid for those unused sick leave days. Prior to this time such unused days had been forfeited. The new rule was made retroactive to January 1. I C, On the following day, March 18, the- Amalgamated over the' name of David Chaney, its president and'man.ager, sent Respondent'the following telegram : "Major- ity of your office clerical employees employed in your general offices located at 2301 Woodward, Detroit Michigan, have voluntarily selected' the Amalgamated, Clothing Workers of America, AFL-CIO as their collective bargaining `agent. Contact the undersigned at WO 1-3085 so that we can make arrangements ' to negotiate a labor agreement." The general office clerical employees constitute a well-recognized department of approximately 100 employees stationed- at the Woodward store and do general office clerical work for the whole chain of Respondent's stores. At or about this time, Amalgamated had been enjoying some organizational success among these employees and believed that a majority of such employees had-signed authorization cards. 7 All dates are in the year 1965 unless otherwise specified. 8 Levine denied having threatened that the insurance and profit-sharing would be dis- continued if the employees joined the Union. He readily admitted having discussed the benefits under Respondent 's employment plan as compared with those under a union con- tract. I find, despite his denial, that Levine either made the blunt statement or success- fully created ' the impression that the insurance and profit-sharing would be discontinued if Amalgamated became the bargaining agent. - 1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On March 23, Respondent refused to recognize Amalgamated as the bargaining representative of the central office employees. At this time Pincus suggested that Amalgamated's ultimate aim was to represent all of Respondent's employees. On April 9, Amalgamated, believing that it represented a majority of these gen- eral office employees, filed a petition for certification in an appropriate unit alleged to be "All general office employees employed at 2301 Woodward Avenue (Detroit, Mich.)" with the Regional Office. This representation case became known as Case 7-RC-6820. On this same day, April 9, Amalgamated called the general office employees out on strike. Forty such employees responded and began picketing the Woodward store and sporadically the other stores in Respondent's chain in the Detroit metropolitan area as well as at Oppenheim's stores in Jackson, Michigan and at Respondent's Cen- tral warehouse. This picketing which continued thereafter until May 8, at least, was conducted by outsiders as well as by employees of Respondent. On April 13, Respondent filed a charge against Amalgamated alleging that it was in violation of Section 8(b)(7)(C) in picketing Respondent with "an object thereof being to force or require [the employer] to recognize or bargain with" that Union. On April 16, the Acting Regional Director for Region 7 dismissed the charge in Case 7-CP-60 but arranged to hold an expedited election in the general office employee's unit on April 23. On April 19, Amalgamated filed another RC petition for certification in appropri- ate unit alleged to be "All non-selling employees employed in the Employer's retail store located at 2301 Woodward Avenue, Detroit, Michigan." Also on April- 19, Amalgamated filed its charge in Case 7-CA-5171 alleging viola- tions of Section 8 (a) (1) and (5) of the Act by Respondent. On Apnl,22, Amalgamated withdrew the 8(a)(5) charge in Case 7-CA-5171, leaving only the charges of interference; restraint, and coercion 9 about which the parties entered into an informal settlement agreement, approved by the Acting Regional Director on.April 23. This settlement provided that Respondent post the usual Board 8(a)(1) notice . It also contained the stipulation that "It is understood that the signing of this settlement agreement by the employer does not constitute an admission that it has violated the Act." Because of the filing of the charge in Case 7-CA-5171, and its belated settlement, the expedited election scheduled for April 23 had to be canceled by the Regional Office. On April 23, Respondent posted the following letter over the signature of Bernard E. Pincus, president, and Max J. Pincus, executive vice president. To the Employees of Hughes Hatcher Suffrin: April 23, 1965 The National Labor Relations Board cancelled the union representation elec- tion of our general office employees which was scheduled for today. Such cancellation was brought about by the Union's filing of an unfair labor practice, charge ^against, the company ... a charge which the company denies. The matters alleged by the Union were claimed to have • occurred several weeks ago. The Union, instead of filing charges at that time, waited until just three days before the election was to take place. This timing obviously was for the purpose of preventing the scheduled election from taking place. A NLRB hearing on the Union's charge would have been time consuming and we were informed no election would be held pending a decision. This, we were told, could be a year from now. In the interest of having as early an election as possible, the company signed what in legal terms is called a "Stipulation," approved by the NLRB, in which the Company states: 1. That it does not admit it was guilty of any unfair labor practice, as alleged by the union. 2. Agreed to post certain notices on the premises, which has already been done. This settlement agreement was signed by HHS in order that the charge by the Union will no longer be an obstacle to an election in which the general office employees may vote their choice by secret ballot. In the meantime, we shall do everything we can to have the election held as quickly as possible . . . an election, which, in our opinion, by its action the Union doesn't want. 0 These referred to facts heretofore found in this Decision. HUGHES HATCHER SUFFRIN 1207 On May 3, the,representation hearing began in Case 7-RC-6820 for the general office employees unit. While the representation hearing was still in session on May 3, Bernard Pincus from Respondent's executive offices telephoned Manager Chaney of Amalgamated and suggested a meeting. Chaney agreed. Chaney, the two Pincuses, and Respond- ent's attorney, Smith, met at 3 o'clock, at which time Bernard Pincus stated that the strike and picketing "had been dragging on for a very, very long time and there must be some way of settling the controversy." He added, "I know, Mr. Chaney, your ultimate aim is to be the bargaining agent for all of our employees." Chaney answered, "I represent your people, but I do not have them-a majority of them haven't signed membership cards with our Union and the reason for that, Mr. Pincus, you have waged a very vigorous [Don't Join the Union] campaign." Chaney explained further that "the campaign of fear, intimidation, which was conducted for years scared the people ... they are afraid to sign. We have no question ... once the fear is removed, that we can sign up quickly a majority of the employees." Pin- cus who was upset by the effect the picketing was allegedly having on Respondent's business, asked Chaney for suggestions. Saying that he wanted to consult others over the matter brought up by Respondent, Chaney left the meeting with the suggestion that they meet again the next day for further discussions. Chaney returned to his own office and put through a telephone call to Amalga- mated's general counsel, Sheinkman, with the urgent request that he come to Detroit immediately. Sheinkman agreed and did. On the morning of May 4, the aforementioned representation hearing was recessed at the request of Amalgamated. It was never to reconvene. At 10 o'clock that morning, May 4, Chaney accompanied by Attorneys Sheink- man and Firestone, appeared at Respondent's offices and met with the two Pincuses and their attorney§, Smith and Brody. Bernard Pincus opened the conference by repeating the fact that Respondent wanted the picket line dissolved. According to Chaney, Pincus seemed to be "very anxious" and "rather emotional" about the picket line. The talk throughout the conference centered upon the representation of all of Respondent's employees rather than upon the mere representation of the central office employees.10 While reiterating that he believed that Amalgamated represented all Respondent's employees, Chaney acknowledged that Amalgamated did not have a majority of them signed up, which he attributed to the fear engendered among the employees by Respondent's vigorous "Don't Join the Union" campaign of the past year but insisted it could sign them up in 48 hours if the fear were removed. There- fore, Chaney demanded the strongest possibly worded statement from Respondent telling its employees that they had committed unfair labor practices. Sheinkman produced a statement which he had drafted to this effect. Respondent refused to agree to any statement containing an admission that Respondent had committed unfair labor practices. Chaney then demanded that Respondent "tell in the strongest possible words to the employees that nobody will be discriminated against, nobody will be fired, nobody will be iatimidated in the slightest way for becoming active in our union-joining the Union, and becoming active and that this statement be given the widest possible distribution among the employees." This Respondent agreed to do and the attorneys and others began drafting a mutually acceptable communica- tion. Many hours later the parties finally agreed to the following statement of "neutrality," herein referred to as the "neutrality" letter: May 4, 1965 To the Employees of Hughes Hatcher Suffrin: Strikes and picketing never help a business and the continuance without an end in sight of the existing situation must hurt the company, our customers and our employees. For some time now, the Retail and Department Store Employees' Union, Amalgamated Clothing Workers of America, has been soliciting you and other employees to join their union. Your company opposed this solicitation. During this period, there were many differences of opinion between your com- pany and the union which resulted in strife and unrest which has affected all of our employees. This is not abnormal under this type of situation, however, the purpose of the company is to sell merchandise and to service its customers and not to engage in labor warfare. 1G Respondent candidly acknowledged that it was concerned over the possibility that segments of its employees might choose different unions to represent them. 1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We appreciate very. much your loyalty to the company, but after much thought and consultation and with no foreseeable end to the dispute, we have come to the inevitable conclusion that for the benefit of our employees and cus- tomers and our company, this strife should end as quickly as possible and busi- ness returned to a normal basis. The company is willing to recognize the union after the union has had an opportunity to freely. solicit our employees and obtain a proper showing of interest. When a majority of our employees sign these union membership cards, it then becomes established that they recognize the union as their legally appointed bargaining agent. The company will not interfere with the union's solicitation of membership, and the company will not look unfavorably upon any employee who signs a• card for the union. HUGHES HATCHER SUFFRIN (S) Bernard E. Pincus BERNARD E. PINCUS, President (S) Max J. Pincus MAX J. PINCUS, Executive Vice President While the lawyers were out of the room drafting this letter, Pincus asked Chaney if he felt that with such a letter, he could get "a majority of our people to sign membership cards" with Amalgamated. Chaney answered, "yes, I can, and I can do it in 48 hours." Pincus then proposed, "alright, will you agree that if you are unable to secure a majority of our employees, to have them sign membership cards in 48 hours, will clear out of this situation," or "will'you'give me your 'gentlemen's word that you will withdraw from the picture?" After a moment's hesitation Chaney answered, "make that 72 hours and you have' youiself a deal." Chaney and the Pincuses then agreed that'no one besides the three of them were ,to know of this "Gentlemen's agreement" on the "72 hour deal.". ' After the draft was accepted,' the parties agreed that the following morning Respondent would have its'store managers hold'meetings'of,Respondent's employees in all the stores where Respondent's, `.`change ,of position" would be explained and copies •of the neutrality, letter'distributed'to each employee. The last question to come up was, the question as to who would distribute Amal- gamated cards to the employees. Chaney asked that union organizers distribute the cards to the, employees, as a.further means of "disspelling the fear" among the employees ' This Respondent refused on the grounds that it had-a "no solicitation" rule in effect., It was finally agreed by the parties 'that each store manager would appoint two "impartial" employees who would 'distribute Amalgamated authoriza-' tion cards to the employees, collect the signed cards and turn them over to union organizers who would come to' the store for that purpose. With these agreements reached, the conference broke up. ' - At 5 p.m. Respondent's' officials'met in Max Pincus' office with the store man- agers from all Respondents' stores at "a specially called meeting. • The -"neutrality" letter was read to them. Then Bernard Pincus and Attorney'Smith explained why Respondent had decided on this sudden "change of position" as follows: (1) Respondent had been unsuccessful in getting the Board to hold an election. (2) By "fragmentizing" Respondent's operations, Amalgamated could continue picketing Respondent for a year or two or into the "unforseeable" future. (3) The picketing was having a serious and 'telling effect upon Respondent's business so that the Respondent could no' longer afford to fight the Union. Hence, they said, Respondent had decided to take a completely "neutral position," was going to allow the employees freely to decide on their own whether they wanted Amalgamated to represent them or not and Respondent'hoped for a "quick solu- tion" to the problem."' Felder and Levine then took over the meeting instructing the managers that they were to hold store meetings the next morning, read and pass out copies of the neutrality letter to the employees and explain Respondent's reasons for this sudden change of position and then have two "impartial" employees, selected by them, pass out Amalgamated authorization cards to the employees, collect them after they had been signed and turn them over to Amalgamated organizers who would come to "It is to be noted that no mention was made of the "gentleman 's 72-hour deal." HUGHES HATCHER. SUFFRIN 1209 the store to, collect -them. Levine made, a ,list of the !`,impartial",employees. selected -by the various managers and,handed the same to Amalgamated, so that Amalga- mated could get -the cards into their hands. After telling the managers that they .also were to remain "completely neutral," the meeting ended.. , Prior to the store meetings on May 5, the various managers approached the employees selected, explained the situation as it had been given to them at the managers' meeting and secured their consent to act. Some employees agreed readily but some agreed only as a "favor" to-the manager or because they con- sidered performing the manager's request to be "a part of the job." The store meetings were held on the morning of May 5 in each store. - These -meetings were, held meticulously in accordance with instructions, some more meticulously than others. In general the managers read the neutrality letter to ,the assembled employees and handed out copies thereof. They then reiterated the reasons for Respondent's change of position as explained to them the previous evening. They then stated that selected employees would distribute Amalgamated cards to the employees, collect them when signed and,turn them over to the orga- nizers. All such meetings were held on company time and property. The employees were all paid for their attendance. The above was the general format for these meetings. Variations naturally occurred. Some managers merely read and distributed the neutrality letter. The talks by the various managers in some instances were more explicit than in others. For instance, Levine, who conducted the store meeting of the central office employ- ees, first read the letter and then told' the employees that Amalgamated cards would be passed out to them by named company employees, that the employees were to sign these cards "as quickly as possible," that Respondent had reached this decision "reluctantly," but that business was bad; that business, was down "approximately -30 percent" and that "another union was trying to get in," that with possibility of "fragmentation". the pickets could remain outside Respondent's front door -for a •year or more, that with business such as it was due to the picketing "this seemed to be the only way the pickets could''be removed," that there was no other alterna- tive and that there was a possibility' of layoffs if the employees did not sign the Amalgamated cards `•`as quickly as possible." 12 Another example occurred at the Wonderland store where the employees were told, according to the manager's own testimony, that: A. Well, after reading the letter I told them that we realized we'were hurt- ing, we were losing business because of the picketing, the sales people were already feeling the pinch a little bit, is the pocketbook, that as explained that the law which permitted fragmentation made possible we could have' a picket line for a numbei of years and the 'solution to it was to get that picket line away from there . we could -allow the Union to try to get them to sign cards, and if they did enough signing, they would have the Union and the picket line would be gone, and if not, go on- froni there . . . 'W01" only if sufficient people signed there would be a Union which would remove the picket line and if enough didn't sign perhaps-they would go away, give up, or take some other action. - According to employee Taylor, Lunn told her, while securing her consent to pass out Amalgamated cards, that "the Company was losing the fight with the Union, and that they would eventually go out of business if they kept fighting the Union because they were losing something like one third of the business." There is other testimony that at least four managers of stores made the link between the removal of the pickets and the signing of Amalgamated cards explicit while other managers left it implicit as had the neutrality letter. Others referred to possible layoffs necessitated by the effect on business the pickets were having or, even, the possibility Respondent would be forced out of business. The same variations occurred regarding the activities of the "impartial" card distributors. Some handed out the cards without comment. Some urged employees to sign the cards by repeating the warnings given by the managers or implied in the neutrality letter. At central office one such impartial volunteer was calling employees into the manager's office where she urged them to sign-until objection was made thereto. At Wonderland distributor Taylor was told by Manager Lunn that, whereas he as manager, could not urge employees to sign, she as an employee 12This finding is based upon the testimony of employee Pauline Roberts who appeared to be an absolutely honest witness. Levine . denied having stated any , percentage to de- scribe how badly business was oft. 1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could do so. At another store where the distributor was meeting with opposition, the distributor was told to give the names of those opposed to signing to the man- ager who would take care of it thereafter. In some stores the managers gave out authorization cards themselves to employees who had not been present at the store meeting. In one store an Amalgamated organizer was distributing cards and solicit- ing signatures before being stopped by the store manager on orders from headquar- ters. All distributing and collecting of Amalgamated cards was done on company time and property. The result was, as Chaney had foreseen, 308 cards were signed and delivered to the organizers on May 5 and 164 more on May 6.13 In the early afternoon of May 6 Amalgamated notified Respondent that a min- ister would conduct "a card check." Beginning about 3 p.m. Reverend Lawrence E. Dunn checked the names signed on the Amalgamated cards against the names on Respondent's payrolls and about 8 p.m. that evening signed the following certificate to which William McClow for the Amalgamated and David Levine for Respondent also subscribed their signatures: The undersigned conducted a card check for the HUGHES-HATCHER- SUFFRIN 'division of HUGHES & HATCHER, -INC. and the RETAIL AND DEPARTMENT STORE EMPLOYEES, AMALGAMATED CLOTHING WORKERS OF AMERICA, AFL-CIO on May 6, 1965. All cards checked were initialed by me. The results of this card check were as follows: Number of employees on the Company's payroll in the unit____________ 841 Number of cards submitted by the Union___________________________ 566 Number of valid cards_ ___________________________________________ 521 Based upon the above results I hereby certify that the Retail and Department Store Employees, Amalgamated Clothing Workers of America, AFL-CIO repre- sents a majority of the Company's Metropolitan Detroit, Michigan, area selling and non-selling personnel including its general office employees. Rev. Lawrence E. Dunn Dated May 6; 1965 Immediately thereafter Levine for Respondent and McClow for Amalgamated signed the following document: RECOGNITION AGREEMENT WITNESSETH: WHEREAS a card check held today, May 6, 1965 disclosed that the RETAIL AND DEPARTMENT STORE EMPLOYEES CENTRAL STATES JOINT BOARD, AMALGAMATED CLOTHING WORKERS OF AMERICA, AFL- CIO represented a majority of the selling and non selling employees of HUGHES-HATCHER-SUFFRIN division of HUGHES HATCHER INC. em- ployed by the employer in the Metropolitan Detroit, Michigan Area to wit: Wayne, Oakland, Macomb and Washtenaw Counties in the State of Michigan. NOW THEREFORE the Company agrees to recognize the Retail Department Store Employees Central States Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, as the sole and exclusive collective bargaining agent for all of the above named employees except confidential employees, professional em- ployees, guards and supervisors as defined in the National Labor Relations Act as amended. IN WITNESS WHEREOF the parties hereto have executed this agreement this 6th day of May, 1965. (S) David G. Levine (S) W. McClow Retail Department Store Employees Central States Joint Board Amalgamated Clothing Workers of America, AFL-CIO 2 In contrast the organizers had secured four such signed cards during the first 4 days of the month. HUGHES HATCHER SUFFRIN 1211 On May 6, prior to the conclusion of the card check, Amalgamated called Bernard Pincus requesting a meeting that evening to negotiate an agreement. The meeting began about 9 p.m. at the Whittier Hotel with the announcement by Amalgamated that "the pickets would not be removed until the contract was signed." That evening the parties reached agreement on the majority of the wage proposals which the Union made to the Company as well as on vacations and insurance.'4 Respondent insisted upon a 5-year contract to which Amalgamated "ultimately" agreed. Felder also testified that the contract as ultimately consummated contained no provision for a wage reopener other than that wages would be "adjusted" in the event of any change in the wage hour law. This meeting broke up after midnight. The parties met again the next day and, using a copy of a recent agreement between Amalgamated and Federal Department Stores, agreed upon the language of of the contract. They also agreed upon the inclusion of regular union security and check-off provisions. By 8 o'clock the evening of May 8, according to the testi- mony, Respondent's attorney was having his stenographer type up the agreed-upon contract which was signed about 11 o'clock the following morning by Amalgamated and Respondent. During the negotiation meeting of May 7, Amalgamated brought up the fact that the Jackson stores were not covered by this contract. When asked what Amalga- mated would want as far as Jackson was concerned, Amalgamated said that it would accept the same terms as were in the Detroit contract. Respondent agreed. It was then decided between the parties that the same organizing procedure as had been followed in the Detroit stores would be used in the Jackson stores. , On May 10 Levine conducted meetings of the employees of the two Jackson stores similar to those held at the various Detroit stores previously. In fact Levine suggested to the employees that the Detroit employees had, signed Amalgamated cards more as a matter of loyalty to Respondent than to Amalgamated. Amalga- mated cards were passed out 'by employees of the stores, signed, and returned to the Amalgamated organizers. On May 10 Respondent received a telegram from Amal- gamated claiming majority representation in the Jackson store and requesting recog- nition. A similar card check was conducted that afternoon by a local attorney, Darrell Coon, who certified that of the 42 employees employed in the Jackson stores 32 had signed cards on behalf of Amalgamated. On the same afternoon that Attorney Coon certified to the Amalgamated's major- ity, Respondent and Amalgamated drafted and executed a one-page statement by which the Jackson employees were covered by the contract signed between the par- ties covering the Detroit employees of Respondent. All picket lines were then removed and business went on as usual. Beginning about a week or so later meetings of the employees were called at each of Respondent's stores. The general format for these meetings was for an official of Respondent to introduce Chaney or some other representative of Amalgamated who would read the contract previously agreed upon between Respondent and Amal- gamated. This was the first knowledge the employees had of any such agreements. Most of these meetings were held without incident. However, at the meeting for the general office employees at the Woodward store after Levine had introduced Chaney who was to read the executed contract, employee Pauline Roberts demanded the floor and said, "I want to know, do you mean to tell me that a contract has been signed with the Company without any representation from the personnel, and that we are to accept this without any say so on our part?" After Levine had answered, "Yes," Roberts said, "That's all, girls, let's get out of here." Levine managed to quell the revolt by pleading with the employees to hear Chaney and the contract. During the meetings in the Jackson store at which the contract was read, Levine explained the suddenness with which the contract had been executed on the ground that it was necessary in order to keep another union out. The evidence indicates that at least during the period between the "neutrality" let- ter and the meetings at which the contract was read that Retail Clerks' organizers had been soliciting some employees of Respondent to join that union. On May 13 Local 876 filed charges against Respondent on the ground that it had 14 Although the contract was never put in evidence and, in fact, I refused to take testi- mony on the contention of Retail Clerks that the contract was "substandard," Felder testi- fied that there were wage Increases In all departments and for both salaried and commis- sion personnel. 1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aided and assisted Amalgamated. On June 4 Local 36 filed similar charges against Respondent. On July 8 the Regional Director vacated ,and set aside the settlement agreement in Case 7-CA-5171. B. Conclusions 1. Interference, restraint, and coercion prior to "neutrality" As noted previously Case 7-CA-5171 is concerned with the charges of interfer- ence, restraint, and coercion by Respondent filed by Amalgamated on April 19, 19.65. In the light of subsequent events this phase of this consolidated case fades into relative insignificance except as it bears upon the claim by Amalgamated that Respondent was engaging in, in the words of Amalgamated, a "blitzkreig" and a "campaign of fear and intimidation" during its organizing campaign up to May 3, 1965, a claim which serves as the cornerstone for all events subsequent to May 3, according to Amalgamated. By its own admission Respondent vigorously opposed the organizing efforts of Amalgamated, which purportedly. began in April or May, 1964, when it learned of such efforts in July of that year. This,-within limits, was Respondent's right. However, the facts found supra, prove that Respondent exceeded these permissible limitations in at least the following instances during January and March, 1965: (a) Comptroller Kenneth Bertschy in his interrogation of central office employees Joyce Krotkiewicz, Loretta Malik, and Sue Mitchell; 15 and (b) Director of Personnel David Levine's interrogations of central office employ- ees Mary Jackson, and Joyce Krotkiewicz during March and April, 1965, when he was engaged in a- systematic series of individual interviews with, according to him, some 600 employees in Respondent's chain in an effort to convince them how much better the conditions of employment were under Respondent's present system than they would be' under a union contract. The facts show that in each of the aforementioned interviews Respondent illegally interrogated the employees not only as to their own membership in Amalgamated and their sympathies toward it but as to that of other employees and as to the "leadership" in the union movement of various named employees. In one such con- versation Levine at least impliedly; threatened the loss of remuneration to the employees'if'the Union succeeded, a prognostication which became a reality upon the execution of the contract with Amalgamated, as will be shown later. While these instances of violations of Section 8(a)(1) hardly justify the use of the terms "blitzkrieg" or "campaign. of fear and intimidation," as Amalgamated refers to them,'in view of subsequent events they cannot be dismissed, as Respond- ent would have done, as being "casual, isolated, and noncoercive." ' Consequently I find, as the facts prove, that by each of the aforementioned inter- rogations Respondent interfered-,with, restrained, and coerced its employees in'viola- tion of Section 8(a)(1) of the Act. It is true that on April 23, 1965, these violations were informally settled by the posting of the regular Board notice. However, subsequent events fully justified the Acting Regional Director in setting 'aside this informal settlement in July, 1965. Amalgamated also contended that Respondent's announcement of March 17, 1965, to the effect that,•retroactively'to January 1, Respondent would thereafter pay the employees for all unused sick days of the 5 each employee was permitted annu- ally in lieu of their being forfeited was a benefit granted employees to prevent them from joining Amalgamated. Respondent's announcement of this change in its sick leave policy was made the day before Amalgamated made its first overt claim to represent any of Respondent's employees. Furthermore there was a good business reason based upon past experience to explain this change in Respondent's sick leave policy, to wit, Respondent wanted its employees working instead of using up unused sick leave days, particularly at busy seasons of the year. V am convinced that this change in policy was dictated by business considerations rather than antiunion ones and, therefore, recommend that this portion of Case 7-CA-5171 be dismissed. 2. Interference and illegal support subsequent to "neutrality" The rest of this consolidated case (Cases 7-CA-5205 and 5232) is involved with the charges, of the' Retail Clerks that Respondent interfered with, restrained, and coerced its employees by forcing them to select Amalgamated as their bargain- u These conversations remained undenied as Bertschy was not called as a witness. HUGHES HATCHER' SUF'FRIN' 1213 ing agent, thus depriving said employees of their guaranteed right to freely select a bargaining representative "of their own choosing" and 'that Respondent illegally "contributed financial and other support" to Amalgamated in violation of Section 8(a)(1) and (2) of the Act. Thus we have now to consider the problem as to whether the majority representation which Amalgamated claimed based upon signed authorization cards was a coerced , or uncoerced, majority-or a proved majority at all. The facts on this part of the problem, like the 'facts involved heretofore, were mostly stipulated and are otherwise clear and, except in a few minor insignificant details, undisputed . The briefs filed by General Counsel, Respondent, and Amal- gamated are in almost complete agreement upon the facts and in equal disagree- ment as to the legal conclusions to be drawn therefrom. It is to be recalled that as of May 3, 1965, according to Amalgamated, it had for the past year been engaged in a strenuous campaign to organize all of Respond- ent's employees . Despite the fact that this HHS campaign enjoyed priority status in Amalgamated's plans, the campaign , until May 5 actually, had been notable only for its claimed tenacity and obvious futility. As of May 1, 1965, Amalga- mated had succeeded in securing signed authorization cards from, at most, between 90 and 100 employees out of a staff of over 800, or roughly between 10-15 percent of all Respondent's employees, and certainly far less than the 30 percent show- ing of interest required to secure a Board election. This lack of success Amalga- mated attributed to the "fear and intimidation" engendered by Respondent's "Don't Join the Union" campaign, which, from the facts adduced at the present hearing, appears to have been a slight exaggeration at least. However, the campaign was enjoying some success among the central office employees at the Woodward store. Amalgamated first claimed majority repre- sentation and requested recognition in that' unit on March 23, but it was not until April 9, and then with considerable 'trepidation, that it filed a petition for certifica- tion with the Board for that unit alone. On the same day it called its adherents out on strike and 40 of them, or 40 percent of the unit, responded by picketing the Woodward and, sporadically, Respondent's other Metropolitan Detroit stores. After the Regional Office arranged to hold an expedited election in this unit on April 23, but before it could be held, Amalgamated filed charges in Case 7-CA-5171 against Respondent which successfully blocked the scheduled election. On the very day of the scheduled election, these charges were informally settled by the parties too late to hold the scheduled election. By posting the usual Board-approved 8(a) (1) notice at Woodward as required by the settlement, Respondent declared its "neutrality." This declaration of neu- trality failed to speed up the organizing. Actually Respondent was right when it claimed on April 23 that Amalgamated did not want that expedited election held. But neither did Respondent-for Respondent had previously, on March 23, refused to agree to a consent election in the central office unit. Respondent wanted all its employees represented by one and the same union or by none. Amalgamated was willing to represent them all, if it could. So, on May 3, the very day the processes of the Board, slow though they might be, were grinding inevitably toward an election in the central office unit through the representation hearing that day, Respondent's'; Pincus and Amalgamated's Chaney got together for a short discussion. Pincus requested "suggestions" for a quick "solution" -for removing the picket line and covering all Respondent's employ- ees. Chaney, surprised, wanted to consult his associations before meeting again the following day. The next day, May 4, after having indefinitely postponed the Board's representa- tion hearing, Chaney, claiming that "all" of Respondent's employees wanted Amal- gamated but candidly admitting that he had no signed proof of any such desire, stated that under certain specified conditions such written proof could be obtained within 48 hours, later amended to 72 hours. Respondent agreed to the conditions. And then, in the absence of the others attending the conference, Chaney for Amalgamated and Bernard Pincus and Attorney Smith for Respondent entered into a "gentlemen's agreement" that, in the event Amalgamated failed to secure signed authorization cards from. the majority of all Respondent's 'employees within 72 hours, Amalgamated "would withdraw from the situation," including the removal of the picket lines. In the words of,Amalgamated's brief, "Chaney, while hesitant, agreed to the [72-hour] deadline after it was. extended until Friday evening and after he received assurances that no other company officials- would, be advised of this agreement.' , [Emphasis added.] , This agreement was kept religiously. It becomes the crux of this case. 1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD_- Amalgamated's first, condition was that Respondent notify all its employees "in the strongest possible terms" that it had become "neutral to our Union." 16 This became the so-called -"Neutrality letter." It was admittedly, despite many hours allegedly spent in its drafting, to all intents and purposes a verbatim, copy of a letter from a-prior Board case known as Gem International, citation infra. It' was more than a mere statement of "neutrality." 17 As drafted, this neutrality letter was an open invitation, if not an implied order, by Respondent to its employees to sign authorization cards for Amalgamated. Whatever may` have remained implicit in the letter the store managers made explicit to the employees at the store meet- ings the next morning. From May 4 on Respondent assumed all the responsibility and expense of orga- nizing its employees for and on behalf of Amalgamated. This it did on its own time and property, at its own expense and through its own officials, supervisors, and employee-agents together with utilizing its own authority and prestige as the employer for the. purpose. Through. its, use of the "captive audience" technique Respondent, conveyed to its employees how seriously the picketing was affecting Respondent's business, so seriously as to threaten the possibility of ultimate unem- - ployment,, and that the.only way. to remove •the, picket -line, was for a, majority 'of the employees to sign Amalgamated cards, as well as to deliver the joint "neutrality letter" in which these same arguments were at least implicit. A goodly portion of this organizing was done through this threat of ultimate unemployment caused by any further continuation of the picket line, an argument which Amalgamated could not use. In other words, Respondent did the organizing for and on behalf of Amalgamated and thus relieved Amalgamated of all the time, money, energy, and personnel required in conducting an organizing campaign. In its brief Amalgamated contends that its trained staff organizers with, as the brief describes it, their "built in predilection for exhorting and cajoling" could have done a better job than Respondent's did. As Respondent's did in 2 days what Amalgamated's had, failed to do in one year, history proves that this conten- tion "ain't necessarily so." As a complete defense to this type of extensive support by the employer and requiring the dismissal of this part of the instant case, both Respondent and Amal- gamated cite and rely almost exclusively on opinions of the Circuit Courts of Appeals for the Eighth Circuit and the First Circuit, respectively, in Gem Interna- tional, Inc.,la and Local 1325, Retail Clerks International Association v. N.L.R.B. (Topps-Kerrniill, Inc.).19 In fact, referring to the Gem case, Amalgamated's brief says: "If one thing is clear from a comparison of the summary of events hereto- fore stated [through five pages, of its brief] it is that if the activity in Gem does not constitute a violation of the Act, no violation can be found in the instant case." When the facts in each of those cases are ferreted out by diligent research among the many Trial Examiner's Decisions, Board's Decisions, and courts' opin- ions, they are strikingly similar to those of the instant case-so far as those cases go. Amalgamated's brief states further, "that it [Respondent's neutrality letter dated May 4] was based upon the Gem epistle cannot be disputed"-which is correct even to the inclusion in Respondent's letter of the phrase, "when the employees sign the cards, ..." a phrase soundly criticized in the Board's decision of the Gem case. With equal truth Amalgamated could have gone further and stated that its whole organizing campaign at HHS was patterned upon the organizing campaign in Gem. In fact it can truthfully be said that in the instant case Respond- ent and Amalgamated have organized by stare decisis.20 The adoption by Amalgamated of this "organizing by stare decisis" technique and its reliance upon the Gem case as a defense here is ironic. This is for the reason that in Gem, unlike in this part of the present case, Amalgamated was the aggrieved Charging Party protesting vigorously against the organizing technique there employed by the Retail Clerks, tactics now adopted here in full measure by Amalgamated to the present consternation of the Retail Clerks, their originator. Positions dictated, no doubt, by whose ox was being gored. 16 Chaney's description. 17 As part of the informal settlement of Case 7-CA-5171 Respondent had posted only 11 days before the usual Board 8(a) (1) notice at Woodward which the Board considers a satisfactory statement of neutrality-but which Chancy does not. Is 321 F.2d 626 (C.A. 8), reversing 137 NLRB 1343. 7s 325 F.2d 293 (C.A. 1), reversing 143 NLRB 694. 21 Respondent's brief makes indirect reference to this technique as a "sweetheart deal," a term of much longer use in labor parlance. - HUGHES HATCHER SUFFRIN 1215 It is hardly less ironic that Amalgamated and Respondent rely so absolutely for the dismissal of the present case bn , these two circuit court opinions which, in each instance, completely reversed contrary decisions of the Board , for these two parties know full well the many public pronouncements made in no uncertain terms by the Board that its Trial Examiners are bound by Board precedent until that precedent is reversed by the Supreme Court. Thus if Gem and Topps-Kerrmill are determina- tive here, as contended, then I am in a dilemma. It is, therefore , with considerable relief to discover that the opinion of each of these courts dealt almost exclusively with a question of illegal support by the employer based upon "disparate treatment" between two unions, a question which General Counsel, Respondent, and Amalgamated-and myself-all agree is non- existent here. Section 7 of the Act states : "Employees shall have the right . . . to bargain col- lectively through representatives of their own choosing, . . ." Thus the employees are guaranteed the right to select their own bargaining representatives free of inter- ference from any source. The truth is that the question to be decided here is far more basic and funda- mental,than that decided primarily in the cited cases, to wit , were the HHS employ- ees permitted to select a bargaining representative "of their own choosing" or did Respondent (and Amalgamated ) interfere in that selection of Amalagamted. In other words the issue here involves the fundamental right of the workers to select their own representative without interference from any source rather than, as was decided in the cited cases, ,the secondary or subsidiary rights of labor organizations derived from the fundamental rights of the employees. It is true that, while the fundamental rights of the employees were actually involved in the cited cases, the court decisions show that such fundamental rights were only inferentially considered. Consequently consider neither case determina- tive of the issue here . Dilemma solved. Hence we now turn back to the fundamental rights of the employees. Even if I am wrong as to this and these cases are, in fact , determinative on the facts so far discussed in these conclusions , there still remain here , yet to be dis- cussed, certain factors which are not to be found in either Gem or Topps-Kerrmill. The most important of these was the deliberate determination entered into by and between Respondent and Amalgamated that Amalgamated 's "gentleman's agree- ment"" to withdraw from the picture and remove its picket line if it failed to secure cards from a majority of Respondent's employees within 72 hours was not to be revealed. Thus Respondent and Amalgamated in effect conspired against the employees. The result of this concealment was twofold . It presented Respondent's employees with a Hobsor's choice as to whether to sign Amalgamated cards or not. It also raised the threat of ultimate unemployment unless the employees signed the cards. In other words through this concealment the apparent choice given the employees as to whether to sign Amalgamated cards or not was as follows: (1) If the employees signed the cards, then , of course , Amalgamated would remove its picket line so that Respondent's business and the employees ' jobs would be saved, or (2) On the other hand, if the employees failed to sign the cards, then apparently (due to .concealment) the picket line would continue as before with the foreseeable result (implied in the neutrality letter and explicated at a number of the store meet- ings ) that Respondent's business would be so seriously affected thereby as to result in layoffs or in the closing of the business entirely, i.e. ultimate unemployment for the employees. Thus as Respondent and Amalgamated succeeded in presenting the apparent prob- lem to them, Respondent's employees had no choice except to sign the cards in order to save their employment. By thus raising the threat of unemployment Respondent and Amalgamated forced Respondent's employees to sign the Amalga- mated cards in order to retain their employment regardless of whether they actually wished to be represented by Amalgamated or not. If Amalgamated had been doing the organizing instead of Respondent , it could not even have raised this threat of unemployment as an organizing technique, which may account for the fact that it "ultimately" permitted Respondent to do that job for it. This deliberate concealment actually deprived Respondent 's employees of making any meaningful choice as to whether they desired representation by Amalgamated or not. There is no way in the world that anyone can tell how many cards were 1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed to prevent unemployment and how-many to-indicate a',desire-to'liave Amal- gamated as his bargaining agent. The threat of"ultimate unemployment,deprived the employees of The right to select a bargaining representative "of their on choos- ing:" No employee is' deliberately going to vote himself out of -'a job. Amalga- mated and Respondent knew this. - - On the-other hand if there 'had been no, concealment-of -the 72! hour deal, then by signing cards the employees would have made a meaningful decision as to their desire to be represented by Amalgamated or not without the specter of unemploy- ment to becloud the issue. This Respondent and Amalgamated determined not to grant the employees. Thus Amalgamated, as bargaining representative, was the choice of Amalgamated and Respondent-not the choice of Respondent's employees. Corroboration of this is found in the stress placed upon the alleged adverse effects the pickets were having ' on Respondent's business, implied in the neutrality letter and said to be "approximately 30 per cent" in at' least one store meeting, whereas actually,'as Respondent's'attorney testified,' Respondent's quarterly report covering the strike period in 1965 showed that Respondent's sales were 20 percent above the corresponding quarter-of 1964, albeit the 1965, profits' were down an unspecified per- centage from those of 1964. Perhaps, Respondent and Amalgamated did not mis- represent but, at least, they, succeeded in implying more than the1'facts appear to' warrant. 'Further' corroboration; if necessary, can also be found in the results. ' Respondent secured its aim of having a single union represent all its employees and purchased "labor peace" for 'a- 5-year period. Amalgamated got' its union shop' and dues checkoff for the same 5-year period covering some 900 employees 'who, never before had paid dues'to it. - While the employees, supposedly represented by Amalgamated, were not even consulted in regard to the terms and conditions of their employment nor permitted to ratify the agreement reached. ' - Felder testified that each "of Respondent's departments received a wage increase upon the signing of the contract.- But, on the other hand, 'the executed agreement contains no provision for a wage reopener during this 5-year period except to 'make "wage adjustments" so that Respondent -could remain in compliance with any future changes in the Federal Wage and Hour Law. The' omission of this wage reopener, of course, also meant the elimination' of Respondent's customary practice of 'making semi-annual wage changes. In other words, the employees secured one wage increase in lieu of Respondent's customary 10.over the 5-year period. Thus the arrangement was a happy one for all parties concerned eicept'the employees, the only party not pres- ent'at the negotiations. -- " 2 , ' - " - ' - Finally in completing this organization by stare decisis, there had been a card' check in both Gent and Topps-Kerrnull so there was a "card check" here. However it was candidly admitted that neither individual conducting the card check here was requested to, or did, make any effort to'determine the authenticity of the signatures on the signed cards. All' that was done in the instant "card check" was to check the names signed on the cards against names on Respondent's payroll. This exercise hardly qualifies as a card check. ' In such a card check anything could happen. Consequently there is no' proof that Amalgamated ever had a majority, coerced or noncoerced. In the case of Oppenheim's there is still another additional element. The evidence as to Oppenheim's proves that Respondent and Amalgamated agreed upon the terms of the collective-bargaining agreement to cover the Oppenheim's employees before Amalgamated had a single authorization card signed and before this organizing by stare decisis even began. The evidence on this point as it relates to HHS is to the contrary. ` The facts here dictate, so I must, and hereby do, find Respondent contributed illegal financial and other assistance and support to Amalgamated in violation of Section 8(a)(1) and (2) of the Act by: (1) Organizing its own employees for and on behalf of Amalgamated on Respondent's own time and property at its own expense and through its own offi- cials, supervisors, and agents. (2) Using its own prestige and authority as the employer to organize its employ- ees into Amalgamated through the use of "the captive audience" technique and through the use of its own supervisors and employees. (3) Deliberately depriving its employees of the right to bargain through a repre- sentative of "their own choosing." (4) Forcing its employees into signing authorization cards for Amalgamated by threatening said employees' with unemployment unless they signed such cards by HUGHES HATCHER S1 FFRIN 1`217 delibe'iately;Jintentionally; and 'in' conjunction with Amalgamated concealing or exaggerating certain facts known to the Respondent. (5) Coercing a majority of" its' employees to sign authorization cards for Amalgamated. (6) Recognizing and bargaining with Amalgamated at a time Respondent well knew that Amalgamated did not represent an uncoerced majority of its employees. _;`(7) Enforcing the union shop and check-off provisions of the agreements signed With Amalgamated at -a time Respondent well knew' Amalgamated did not represent an uncoerced majority of its employees and paying over to Amalgamated such moneys exacted thereunder from its employees; and (8) Otherwise interfering'- with,' restraining, and-coercing its employees in the exercise of their rights guaranteed them in Section 7 of the Act. W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent and Amalgamated 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' obstruct- ing commerce and ,the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action which I deem necessary to effectuate the policies of the Act. It having been found that Respondent violated Section 8(a)(1) and (2) of the Act by unlawfully organizing its employees on behalf of Amalgamated and by otherwise unlawfully assisting Amalgamated by coercively obtaining authorization cards on its behalf from its employees, thus depriving the employees of their guar- anteed right to bargain through a representative "of their own choosing," I will order that Respondent cease and desist from such activities and, further, that it with- draw and withhold recognition from Amalgamated unless and until that Union shall have been certified by the Board'as the exclusive representative of the employees. It having been further found that, Amalgamated obtained the majority status which it claimed on May 6 and 10, 1965, only as a direct result of the unlawful and coercive acts of Respondent so that, on those dates, Amalgamated did not represent an uncoerced majority of Respondent's employees as Respondent well knew, Respondent had no lawful right to execute the union-security agreement or to collect the moneys made mandatory under, the check-off provisions ' ofthat,agreement, I will, recommend that Respondent cease giving any force or affect to the collective- bargaining agreements dated May 8 and 10, 1965, with Amalgamated unless and until Amalgamated be certified as the collective-bargaining agent by the Board. As the aforementioned agreements with the illegally assisted Amalgamated each contained union security clauses in violation of Section 8(a)(3) of the Act and also check-off provisions, under which moneys have been exacted from the employees, I will recommend, in order fully to remedy the unfair labor practices found herein and to establish an atmosphere in which the employees may exercise the right to select or reject a bargaining representative of "their own choosing," that Respondent reimburse all employees, present and former, who signed Amalgamated authorization cards on and after May 5, 1965 for all dues, fees, and other moneys exacted from them under the check-off clause by Respondent on and after the respective dates of such contract with interest thereon at 6 percent per annum and, in addition, to cease maintaining and enforcing these unlawful agreements 21 IL Amalgamated argues in its brief that this disgorgement order is inappropriate in this instance because a few of Respondent's employees have not yet been forced to join the Union under the Union 's security clause, and therefore, the employees "have not been forced to join the Union." The facts show, on the contrary, that all those employees who executed authorization cards for Amalgamated on and after May 5, 1965, were in fact forced to join the Union and, thus, are entitled to the reimbursement of the dues and other moneys exacted from them by reason of the check-off clause in the contracts they were never afforded the opportunity to ratify . Obviously, those few employees who had signed cards prior to May 5, 1965, joined the Union voluntarily and, therefore , are not entitled to a reimbursement of their dues. 243-084-67-vol. 159-78 1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the above findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondents Hughes & Hatcher, Inc., its division HHS and its wholly owned subsidiary, Oppenhiem's, are employers within the meaning of Section 2(2) and are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Central States Joint Board, Retail and Department Store Employees, Amalga- mated Clothing Workers of America, AFL-CIO, and Retail Store Employees Union Locals Nos. 876 and 36, Retail Clerks International Association, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. By rendering illegal financial and other support and assistance to Amalga- mated, and by recognizing and entering into, maintaining, and giving an effect to agreements with Amalgamated which imposed unlawful discriminatory conditions ,of employment at a time when Amalgamated was, not the freely chosen representa- ,tive.of, the majority of Respondent's employees,; Respondent-has engaged` in;, and-,,is .engagirrgt in. unfair, ,, labor, practices affecting commerce within' the meaning, of, Sec- tions 8(a)(1), (2), and (3) and 2(6) and (7) of the Act. 4. By interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed under Section 7 of the Act, Respondent has violated .Sections 8(a) (1) and 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, and conclusions of law and upon the entire record in this case, I recommend that Respondent Hughes & Hatcher, Inc., its division Hughes Hatcher Suffrin, and its wholly owned subsidiary, Oppenheim's, Inc., Detroit and Jackson, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Assisting and contributing financial and other support to Amalgamated, or to any other laboi,organization. , , (b) Recognizing Amalgamated as the representative of'any of its employees for the purpose of dealing with it concerning wages, rates of pay, hours of employ- ment, or other conditions of employment, unless and until such labor organizations shall have been certified by the Board as the exclusive representative of Respond- ent's employees. (c) Giving effect to those collective-bargaining agreements entered into on or about May 8 and 10, 1965, with Amalgamated, or to any extension, renewal, or modification thereof, or any other contract or agreement with such labor organiza- tion which may now be in effect. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization of their own choosing, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or 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 employ- ment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Withdraw and withhold all recognition from Amalgamated as the exclusive representative of its employees unless and until such labor organization has been certified by the Board as such representative. (b) Reimburse all of its employees in its various stores in Metropolitan Detroit and Jackson, Michigan, present and former, who signed Amalgamated authorization cards on or after May 5, 1965 for all moneys exacted from them under the terms of the illegal agreements on and after the date of its respective contracts with Amalgamated with interest thereon at 6 percent per annum in the manner and to the extent set forth in that portion of this Decision, entitled "The Remedy." HUGHES HATCHER SUFFRIN 1219 (c) Preserve, and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel, records and reports, and all other records necessary to determine the amounts-of reimbursement due under the terms of this Decision. (d) Post at each of its stores in Metropolitan Detroit and Jackson, Michigan, copies of the attached notice marked "Appendix A." 22 Copies of such notice, to be furnished by the Regional Director for Region 7, upon being duly signed by an authorized representative of Respondent, shall be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customar- ily posted Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 7, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.23 I further recommend that-,unless , within, 20 days, from , the date of the receipt of, this Decision' Respondent notifies`; the Regional',Director'that,it' will compljt with the foregoing , recommendations, the Board Will' issue" an order' requiring Respondent to take the aforesaid action. as In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order Is enforced by a decree of a United States Court of Appeals, the words, "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT interfere with, restrain, or coerce our employees in any way in their selection or rejection of a bargaining representative of their own choosing. WE WILL NOT force or require by threats or otherwise our employees to join or select Amalgamated as their bargaining representative. WE WILL NOT assist or contribute financial or other support to Amalgamated, or to any other labor organization. WE WILL NOT require as a condition of employment that employees become or remain members of the Amalgamated. WE WILL NOT give any force or effect to those collective-bargaining agree- ments entered into on or about May 8 and 10, 1965, with Amalgamated, or to any extension, renewal, or modification thereof. WE WILL withdraw and withhold recognition from Amalgamated or any successor, unless and until such labor organization shall have been certified by the Board as the exclusive representative of our employees. WE WILL reimburse all employees who signed authorization cards for Amalgamated on or after May 5, 1965, for dues, fees, and all other moneys exacted from them pursuant to the unlawful agreements entered into on or about May 8 and 10, 1965. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection or to refrain from any or all such activities. - 1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become or remain, or to refrain from becoming or remaining, members of a labor organization except to the extent that such rights. may be affected by an agreement conforming to the provisions of Section 8(a)(3), of the National Labor Relations Act, as amended. HUGHES & HATCHER, INC.; A/K/A HUGHES HATCHER SUFFRIN, Employer. Dated-------------------- By---------------------------------- (Representative) (Title) HUGHES & HATCHER, INC., AND ITS WHOLLY OWNED SUBSIDIARY, OPPENHEIM'S, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 500 , Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 226-3244. Hotel Conquistador, Inc., d/b/a Hotel Tropicana and American, Federation of Casino and Gaming Employees . Case 20-CA- 3278. June 24,1966 DECISION AND ORDER On March 4, 1966, Trial Examiner Maurice S. Bush issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed an answering brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made 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 this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, as modified herein.' 1 We correct certain minor Inadvertent errors In the Trial Examiner's Decision. 159 NLRB No. 105.