Retail Clerks, Locals 698 and 298

RETAIL CLERKS, LOCALS 698 AND 298 709 duly signed by an authorized representative of the Respondent , shall be posted by the Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 13, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith 13 11 In the event that this Recommended Order is adopted by the Board this provision shall he modified to lead "Notify said Regional Director, in writing, within 10 days from the date of this Ordei, what steps the Respondent has taken to comply herewith " APPENDIX 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 instruct employees not to sign anything for the Union, coercively question employees covering union matters, offer benefits to employ- ees to induce them not to support the Union, or threaten employees with wage cuts or other harmful consequences because of their union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to engage in union or concerted activities. PORAY, INC, Employer Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of post- ing, 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, 881 U S Courthouse & Federal Office Building, 219 South Dearborn Street, Chicago, Illinois 60604, Telephone 828-7597 Retail Clerks International Association , AFL-CIO, and Locals 698 and 298, Retail Clerks International Association , AFL-CIO (Skornian 's Inc., and Skorman Bros., d/b/a Skorman's Miracle Mart) and Anne Bates. Case 8-CB-977. An/ust 26. 1966 DECISION AND ORDER On .Jane 17, 1966, Trial Examiner George J. Bott issued his Deci- sion in the above-entitled case, finding that the Respondents, Retail Clerks International Association, AFL-CIO, and its Local 698, had engaged in and were engaging in certain unfair labor practices, and M Z71 recommending that they cease and desist therefrom and take certain nflirinaftce action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that these respondents had not engaged in other, and Local 298 had not engaged in any, unfair labor practices, and reeomnlendecl that such allegations be clisnilssed. 160 NLRB No. 73. 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, the General Counsel filed exceptions to the Trial Exam- iner's Decision and a brief in support thereof. The Respondents did not file exceptions. 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 General Counsel's exceptions and brief," and the entire record in this case , and, hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner, with the fol- lowing exceptions and additions. The Trial Examiner , found, and we agree, that both Respondents, by maintaining surveillance over the activities of a deauthorization group, and that Respondent Local 698, by questioning employees about their deauthorization activities and threatening to keep them under surveillance, violated Section 8 (b) (1) (A) of the Act. We find merit, however, in the General Counsel's exception to the Trial Exam- iner's failure to find that the Respondents, who induced an employee to spy on a meeting held by the dissident group with a Board agent, furnished this employee with a radio transmitting device, and parked two cars with radio receiving equipment outside the home in which the meeting was taking place, thereby interfered with Board proc- esses, in further violation of Section 8(b) (1) (A) of the Act.2 We shall modify the Trial Examiner 's Recommended Order accordingly. [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Substitute a semicolon for the period at the end of paragraph 1(a), and add the following: [and interfering with Board processes by maintaining electronic surveillance of a meeting of employees with a Board agent. [2. Substitute a semicolon for the period at the end of the first indented paragraph of the Appendix attached to the Trial Examiner's Decision and add the following : [or interfere with Board processes by maintaining electronic surveillance of employee meetings with Board agents.] [The Board dismissed the complaint insofar as it alleges unfair labor practices not found herein.] 1 We find no merit in contentions by the General Counsel that various credibility findings of the Trial Examinee are erroneous, as the clear preponderance of all the relevant evidence does not demonstrate that the credibility findings are incorrect Standard Dry Wall Prod- ucts, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (CA 3). 1 See Grand-Ccatral Chrysler, Inc , 155 NLRB 185. RETAIL CLERKS, LOCALS 69 8 AND 298 711 TRIAL EXAMINER'S DECISION STATEMENT OF. THE CASE Upon a charge of unfair labor practices filed by Anne Bates against "Retail Clerks Union, AFL-CIO" on October 4, 1965, and an amended charge filed by her against Retail Clerks International Association , AFL-CIO, and its Locals 698 and 298 (herein collectively the Union), on November 5, 1965, the General Coun- sel of the National Labor Relations Board issued a complaint and notice of hear- ing dated November 19, 1965, alleging that Respondents had engaged in unfair labor practices in violation of Section 8(b) (1) (A ) of the National Labor Rela- tions Act, herein called the Act. Respondents filed an answer on November 27, 1965, admitting certain allegations of the complaint but denying others including the commission of any unfair labor practices . The hearing in this matter was held before Trial Examiner George J. Bott in Akron , Ohio, on January 24 and 25, 19661 Subsequent to the hearing, General 'Counsel and Attorney Shuff filed briefs which I have carefully considered Upon the entire record in the case, and from my observation of the witnesses, I make the following. FINDINGS OF FACT 1. THE JURISDICTION OF THE BOARD Skorman's Inc is an Ohio corporation engaged in the operation of seven retail department stores under the name of Miracle Mart in various cities in the State of Ohio. The annual gross sales of each of the seven stores exceed $500,000, and the annual purchases of materials which . have their origin outside the State of Ohio and which are shipped directly to a Skorman 's, Inc., warehouse in Ohio exceed $9 million. Skorman Bros is a partnership consisting of Albert, Milton, and Theodore Skorman, operating a retail department store in Akron, Ohio. Its annual sales exceed $500,000, and its purchases from outside the State of Ohio, approximately $700,000. I find that Skorman 's Inc and Skorman Bros. are employers engaged in com- merce within the meaning of Section 2(6) and (7) of the Act.2 1 In the answer filed on November 27, 1965 , over the signature of Attorney Robert E Shuff, the first paragraph made it clear that the answer was filed on behalf of all three Respondents , for it reads , "Now comes the Retail Clerks International Association, Local 698, and Local 298, AFL-CIO , hereinafter refeired to as the Union, and for answer to the complaint filed In this case , avers and alleges as follows " At the commencement of the hearing, however , Shuff stated that lie was appearing only on behalf of Respondent Local 698. No appearance was entered on behalf of Respondent International Union or Respond- ent Local 298. The answer , which was filed for all three Respondents , denied that the original charge was served upon "the Union" and that the amended charge was served upon "the Union ," as alleged in the complaint It appears from the exhibits In evidence that a copy of the original charge was sent by the Regional Office of the Board by registered mail to Retail Clerks Union, AFL-CIO, at 2800 Euclid Avenue , Cleveland , Ohio, and the return receipt is signed by one N. A. Efta . It also appears from the exhibits that the amended charge was served by registered mail on Retail Clerks International Association, AFL-CIO, Washington , D C , and upon the two Local Unions, and return receipts are at- tached to an affidavit of service It was conceded that Local 698 was properly served, and I find that there also was proper service upon Respondent International Union and Re- spondent Local 298 . Assuming that the oiiginal charge , sent to Cleveland , Ohio, did not reach the International in Washington , the amended charge was properly directed and was well within the statute of limitation period in Section 10 ( b) of the Act In addition, since the answer was filed on behalf of all three Respondents , it was proper to proceed with the hearing under all the circumstances even though Local 298 and the International Union were technically unrepresented, particularly because there was no explanation of the shift in legal representation or request for time to secure other counsel I also note in this connection that Donald Knapp , an International representative of the International Union , testified in the hearing s Findings based upon the testimony of Albert Skorman , treasurer and managing officer of Skorman's Inc , and partner in Skorman Bros , Board's Decision and Director of Elec- tion in Case 8-RC-4052 and Regional Director ' s Decision and Direction of Election in Case,8-UD-15. 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the answer admits, and I find that Respondent Retail Clerks International Association, Respondent Local 698, and Respondent Local 298 are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The setting and the issues Skorman's Inc.,,and Skorman Bros., d/b/a as Skorman's Miracle Mart, herein called the Employer, have been parties to a collective-bargaining contract with Respondent Local 298 and Respondent Local 698 since July 16, 1965, covering the employees in their various retail stores in Ohio.3 The Employer's grant of statu- tory recognition to the Respondents preceding the execution of the labor agree- ment was pursuant to a check of union cards. The contract between the Employer and the Union contains, in article III, a union-security clause which is valid on its face. Briefly summarized, it provides for maintenance of membership in the Union for present employee-members and a requirement that nonmember employees and newly hired persons join the Union not later than the 31st day following the effective date of the contract or their beginning of employment as the case may be .4 Some of the employees covered by the contract were not members of the Union when the contract was executed and did not join within the grace period provided in the agreement and in the Act. It also appears that there was some employee activity looking toward recision of the Union's union-security authority occurring at or about the time the contract was signed, and this activity resulted in the filing of a petition under Section 9(e) of the Act, on August 8, 1965, to revoke such authority.5 On the',day the contract was executed, and again on September 11, 1965, admit- ted agents of Respondents visited certain stores and sought, to sign nonmembers for the unions. The complaint- alleges, and General Counsel contends, that during these visits the Respondents threatened employees with loss of employment, loss ,of insurance benefits, and other reprisals because they had refused to join the appropriate local union, "and or because they, had participated in the filing of the union shop deauthorization petition." Respondents concede that their agents visited the stores and talked with employees but contend, -in substance, that ,the Union did only what it had a right to do under its valid agreement, that is, advise employ- ees who had refused to abide by the terms of the agreement that they would be discharged and lose benefits under the contract. The complaint also contains an allegation that Respondents engaged in surveil- lance of a meeting place and activities of employees of the Employer who were engaged in concerted activities and who were at the time presenting evidence to an agent of the National Labor Relations Board. The Union denies that the con- ,duct engaged in was coercive in the circumstances, and it also denied that 'one of its agents interrogated an employee about the identities of other employees who were engaged in concerted activities, as the complaint alleged. B. Alleged threats of reprisal at the Employer's Warren, Ohio, store On September 11, 1965, Donald Knapp, International representative of Respond- ent International, and George Hennigin, organizing director of Respondent Local 698, visited the Warren store to talk with the approximately 18 employees who had not joined the Union.6 What was said during their visit is in dispute. Theresa Cartwright, an employee at the Warren store who was working in the office at the time, testified that Hennigin came into the store, withdrew her time- card from the rack and asked her where he could find Theresa Cartwright. She 3 The copy of the contract In evidence appears to be ' with Skorman ' s Inc ,' but it Is 693, that the emploveea of Skorman Bros are covered too . It also appears that Local 698, that the employees of Skorman Bros , are covered too. It also appears that Local No 31 Is a party to the agreement , but that Local Is not, however, involved In this proceeding. 4 Accoiding to section a, for the purpo.e of article ITT. the execution date of the agree- ment shall be considered as its effective date. The record shows that the contract was executed on July 16. - 6 Case 8-UD-15 - ' 6It appears that there were about 60 persons employed at Warren and 300 in the overall unit RETAIL CLERKS, LOCALS 698 AND 298 713 asked him why he wanted her, and she said he replied that he came ". . . to fire her." Cartwright said she thought the incident was "funny." According to Cart- wright, Hennigin also said he had come "to fire" all employees whose names were listed on a paper he had in his hand. Cartwright was not a member of the Union, although she had been solicited previously by Hennigin. She said that she had no intention of joining the Union or ". . . signing his hospitalization card or any other card that he had in mind . . .," although she knew she had to be employed to be insured. No representative of the Employer had ever told her that she was required to join the Union, and Carl Leveto, manager of the Warren store, told her and other employees, during Hennigin's appearance at the store, that the Union could not "fire" them and that Hennigin's remarks were just "union talk." Mary Cooley testified that Hennigin asked her ". . . if she had made up her mind about signing . . ." and she replied that she had not. Then Hennigin told her that "As of then I was fired. Technically I was fired." He also stated, she said, that her insurance was expired as of . . ." then. Cooley had attended the meeting at which the contract was ratified, and she conceded that she knew that she was required to join the Union within 31 days as a condition of employment and had been asked to do so previously by a union representative. She also agreed that Hen- nigin reminded her of the expired grace period and stated that her insurance "was terminated," because she ". . . would no longer be an employee " James Elko, employed at the Warren store, said that Knapp told him that he was fired ..." and that ". . . each day (he) came to work was a new day of work ." for him. He also said that Knapp told him that the Union had filed a law suit to enforce the contract and that Elko had no hospitalization insurance. Elko had attended the contract ratification meeting and was aware that he was required by the terms of the contract to join the Union as a condition of employment. Employee Medve testified that Hennigin asked him whether he "... still refused to sign up." When Medve said he did, Hennigin told him that ". . . as of that day (he) was no longer employed by Skorman's " There was no other conversation, according to Medve, and he walked away. He knew there was a contract in existence because he had attended the ratification meeting. Anna Ryder testified that Hennigin asked her if she would join the Union when he visited the Warren store on September 11. She said that she asked Hennigin if she had to join and he told her she did not. Ryder then said she would not join and, according to her Hennigin laconically commented, "Well, you are dismissed." She recalled no other significant remarks and was uncertain about the existence or status of the union contract. No one from management had ever told her about her obligations, and, after Hennigin told her that she was dismissed, she asked Leveto, the store manager, if it were true, and he told her it was not. Store Manager Leveto was present when Hennigin and Knapp talked with some of the employees on September 11, 1965. Asked what he recalled having been said to the employees, he replied, "The exact words of course I don't know. But the mean- ing was this; that they were fired. They had no union hospitalization. And that as (of) Monday following there would be a Court Order from Cleveland for their dismissal." Some of the employees asked Leveto what they should do after Hen- nigin talked with them and he told them to go back to work. Leveto was familiar with the terms of the contract, of course, and he said he was instructed by higher authority to follow its terms, but with respect to the union-security aspects of the contract, however, he said, in effect, that management took a neutral position and did not advise employees to join or not to join the Union. The labor relations affairs of the Warren store would normally be attended to by Hyman Jacobson, business representative of Local 298, but Jacobson was unavailable, and Knapp asked Hennigin, of Local 698, to accompany him to the Warren store on September 11, 1965. Knapp testified that he entered the store and the first person he-met was Cartwright with whom he had a conversation about holiday pay for employees. He then asked to see Carl Leveto, the store manager, and was told by Cartwright that he was not there. According to Knapp, while he was talking with Cartwright, Hennigin was talking with another employee and explaining why the union representatives were there. He said that Hennigin stated that they were present to explain to those who had not joined the Union why they should sign an application card, a dues deduction authorization, and a certain document related to the insurance program; and to give them an opportunity to join the Union in case they had not been contacted by Jacobson. Hennigin also told the employee that the Union intended to file a complaint under Section 301 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act for enforcement of the contract on the following Monday. According to Knapp, while Hennigin was talking with the employee, Ann Bates, the Charging Party in this case and Petitioner in Case 8-UD-15, appeared and entered into the conversation. During the conversation, Bates asked that Leveto be summoned, and he appeared in 5 or 10 minutes. When Leveto arrived Knapp told him that the Union would file suit to enforce its agreement on the following Monday and that he wished to talk with the employ- ees who had not yet joined the Union to tell them about the contemplated legal action, which would affect them directly, and to give them another opportunity to become members of the Union. Knapp told Leveto that he did not know the employees, but only had a list of their names, and he suggested that Leveto direct him to the employees by department. Leveto objected to this proposal, and sug- gested that employees be called from work to talk with Knapp and Hennigm. Knapp testified that when he asked Leveto to arrange for him to see employees, Bates stated that "They don't want the union," and Knapp told her to keep "her mouth shut." He also said that, while Hennigin was talking with another employee who had been summoned by Leveto, Bates again interrupted to state that the employees did not have to talk with anyone and "did not have to join the Union." Again Knapp told Bates to "restrain" herself and "shut up." 7 At some point during the discussions with employees there were six or seven employees present and some confusion, according to Knapp. He said that, while he was discussing the health and welfare provisions of the contract with another employee and the consequences of his failure to join the Union, Bates told the employee not to worry, because Skorman's would take care of him. Knapp said he told Hennigin that they were wasting their time and left the store. Knapp also testified that he had told Leveto that certain employees may not have . had the opportunity to sign authorization-applications, dues checkoff or insurance benefit applications . . ." and that he had come "to explain the union's position." Asked if he did not tell Leveto that he intended to tell employees that unless they were members they would not be eligible for insurance, he replied that "this came up while I was talking to some of the people but not at the initial dis- cussion with Mr. Leveto." Knapp also conceded that he told employees that since the Union had ". . . no application from them, even insurance application, we couldn't pay off because we wouldn't know who they were to begin with." He also said that he told them that the ". . . way to become members (was) that they had to sign a membership card, . . . the insurance card (and the checkoff card)." George Hennigin, Local 698 representative who accompanied Knapp to the War- ren store at his request, did not specifically deny any of the statements attributed to him by the employee witnesses, but he did deny that his purpose in going to the store "on that particular occasion stemmed from certain difficulties that the Union was experiencing with respect to the UD petition . . ." filed by Anne Bates. He conceded that, in talking with Leveto about why he wanted to talk with employees who had not yet joined the Union, he stated that one of his reasons was that . up to now they had only been getting advice from Belkin 8 and Bates." Although I have no reason to disbelieve the testimony of the employee witnesses that Knapp or Hennigin told one employee that they had come "to fire" her, another that her insurance was "terminated" and another that he was "no longer employed" and had no seniority or insurance, this was not the entire story, because I also find that the union agent's remarks were not as bald at that, and I credit the substance of Knapp's testimony. Even if the language used by Knapp and Hennigin to explain the Union's position may not have been quite as formal or restrained as a quick reading of his testimony would lead one to believe,9 I find on the basis of it, read in the light of the employees' testimony and the whole labor relations situation existing at the time, that the full meaning of Knapp's and Hennigin's statements to employees was that the Union was filing a lawsuit seeking enforcement of its agree- 7 Knapp admitted that when he was explaining to Leveto why he wanted the employees to hear the Union's position he stated that " . . the employees should be apprised of the situation because they had heard so much boloney from Bates . " Bates seems to have been present during Knapp's and Hennigin's conversations with Leveto and the employees, but it is not clear whether she heard this remark She did not testify 6 Counsel for the Charging Party O He conceded that there was confusion and "chaos" at the time As set out earlier, he resented Bates' advice to employees, and according to Hennigin, when Leveto resisted Knapp's request that he be permitted to talk with employees one at a time at their work stations, Knapp and Leveto had a "vehement argument." RETAIL CLERKS, LOCALS 698 AND 298 715 ment with the Employer which would effect the discharge of those who had not joined the Union, that, as far as the Union was concerned, those employees were no longer employees and had no seniority, and, because they were not employees, they were not covered by the health and welfare provisions of the contract. I also find that Knapp and Hennigin forcefully reminded the employees that all such dire consequences flowed from their failure to join the Union io But even if the language used by Hennigin and Knapp was forceful, intimidatory, or even coercive," I find that, in the circumstances of this case, it did not constitute a violation of Section 8(b) .(1) (A) of the Act for the following reasons: It must be stressed that the Union and the Employer were parties to a valid union-security agreement under which all employees were required to join the Union within the statutory grace period. Obviously, the Employer was not cooper- ating with the Union in enforcing the contract, and the grace period had long expired, and everyone knew it, when Knapp and Hennigin spoke with employees. No one contends that the Union's civil action to enforce its agreement under Sec- tion 301 of the Act violated Section 8(a)(1)(A) of the Act, no one argues that it would be improper for the Union to inform the delinquent employees that it was seeking their discharge, and General Counsel concedes that it would have been proper for the Union to attempt ". . . by proper and lawful means, and at proper times and proper places . to persuade nonmembers to join." 12 The existence of a contractual right, the failure to honor it, due regard for the right of unions and employers to freely and in good faith express and explain their legal positions, lead me to conclude, however, particularly in the absence of cases to the contrary, that the Union's threat to do or have done that which would have been legally permis- sible if effected is not the kind of conduct outlawed by the Act. I have suggested that there are no cases that require a contrary result. Cases like Gunble Brothers, Inc,13 are not actually in point and, it seems, to me, do not help solve the problem of adequately protecting and fairly balancing the contrac- tual rights of the parties to a valid agreement and the rights of employees to use the provisions of Section 9(e) of the Act or otherwise dissent from the policies of the incumbent, because in Gimble Brothers there existed no contractual provision requiring membership in the union. In that case, the respondent union put on what was referred to as a "blitz" to force employees to join the union or prevent them from working because they wished to refrain from assisting the union. Physical force was also involved, and the situation was otherwise unlike the occurrences in the present case. But the basic legal difference in the cases is the presence here of the union-security provision, because, in Gimble and cases like it the right of employees under Section 7 of the Act to refrain from assisting the union was vir- tually unrestricted, while here, because of the existence of the valid union-security provision in the agreement, their right to remain nonmembers of the Union is cir- cumscribed by the Act itself,14 and this fact must not be disregarded in determining 10 Employee testimony supports this finding crediting Knapp in the following respects: Cartwright admitted that she knew she must be employed to be insured and that she had no intention of signing anything at any time Cooley said Hennigin told her that "techni- cally" she was fired and that her insurance "was terminated" because she "would no longer be an employee " Elko knew he was not fired, because he was told that "each day lie came to work was a new day of work for him," meaning his seniority was gone in the Union's view, as it would have been if he were actually discharged He also admitted being told about the suit to enforce the agreement. 11 Section 8(b) (1) (A) of the Act does not interdict all acts or statements by labor organizations which "restrain or coerce" employees, but only those which restrain or coerce them in the exercise of the rights guaranteed in Section 7 of the Act 12 General Counsel's brief. 13 Uimble Brothers, Inc, 100 NLRB 870, in Dora Corporation, 153 NLRB 592, the union had no majority and the union-security provision was illegal It violated Section S(b) (1) (A), therefore, by threatening employees with loss of employment unless they signed glues checkoff authorization cards. 14 Supra. RIGHTS OF EMPLOYEES SEC 7 Employees shall have 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 purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a) (3) 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what statutory right of employees, if any, was infringed on by the conduct of the Respondents in this case. Implicit in what I have said about balancing the rights of nonmember employees with those of the Union and evaluating what was said and done in the Warren store on September 11, 1965, in the light of the whole Act, is my determination that the Union does have the right, regardless of the existence of the deauthoriza- tion movement under Section 9(e) of the Act, to insist on full compliance with the union-security provisions of its contract, at least until certification to the Union and the Employer of the results of an election under the Act, and I reject the con- tention to the contrary in General Counsel's brief that, if I read it correctly, the Union had no right to prevent the employees from working ". . . if they chose to refrain from joining until the questions raised by the `UD' petition had been resolved." 15 No case is cited which holds that a valid union-security provision is suspended pending processing of a petition to deauthorize the union's authority, and the cases construing Section 9(e) of the Act clearly point the other way, in my opinion.16 In the Andoi and Monsanto cases, the Board held that ". . if employ- ees cast an affirmative deauthorization vote, it shall be taken to mean that the effec- tiveness of the union-security clause in the contract between the Union and the Employer shall be suspended immediately upon certification of the results of the election to the Union and the Employer." 17 In the Penn Cork case, the Board com- mented that ". . . the deauthorization election, however, had the effect, when certi- fied by the Regional Director, of immediately suspending the union shop provision of the contract (and) after that it was no longer necessary for any employee in the unit to remain a member of the Union as a condition of employment." The Board concluded "when there has been an affirmative deauthorization vote, outstanding checkoff authorizations originally executed while a union-security provision is in effect become vulnerable to revocation . . . ... It is the certification by the Board, therefore, that gives employees the right to resign from the union and cease paying dues. Since the nonmember unit employees were obligated by the agreement but had failed to join the union and pay dues, the lunion could seek their discharge with impunity and the employer could discharge them without legal liability, provided that no union may seek an employee's discharge where his membership has been denied or terminated on some ground other than failure to tender dues and initia- tion fees, and no employer may discharge an employee for nonmembership in a labor organization for reasons other than his refusal to pay dues and initiation fees.18 If a discharge is attempted to be justified on the ground of nonpayment of dues, but the record shows that it was based upon some other consideration, such as the employee's exercise of a statutory right, for example, then the discharge is "pretextual" and illegal even though the ostensible ground for discharge or request- ing the discharge is a lawful one.19 General Counsel contends that Respondents' "true motive" in visiting the Warren store and talking with the employees was to break ". . the backbone of the deauthorization movement ." at the Warren store. This theory of violation is stated in the complaint as being restraint and coercion of the employees of the Employer ". . . in the exercise of their rights guaranteed in Section 7 of the Act, by threatening them with loss of insurance benefits and coverage, loss of employ- ment and/or other reprisals if they refused to join Respondent Local 698, and/or because they sought the assistance of the National Labor Relations Board, and/or because they had participated in the filing of a union shop deauthorization petition." The facts relied upon to support this theory and to reveal the Union's "true motive" essentially are: the nature of the Union's conduct at the Warren store; Knapp's statement that the employees had heard only the "baloney" of "UD" peti- 15 It may be that the contention actually is that the Union could take legal action, or engage in "peaceful persuasion" to enforce its agreement but that its conduct in entering the store in the circumstances was illegal. 16 Great Atlantic cC Pacific Tea Company, 100 NLRB 1494; Andor Company, Inc, 119 NLRB 925 ; Monsanto Chemical Company, 147 NLRB 49 , Penn Cork f Closures, NLRB 411 156 17 Andor Company, supra, 929 , Monsanto Chemical, supra, 51 1s Section 8(b) (2) and 8(a) (3) of the Act. 19 Radio Officers' Union (A. H. Bull Steamship ) v. NLRB., 347 U.S. 17, 41, 42, 43; NLRB. v. Mechanics Educational Society, 222 F.2d 429 (C.A. 6) ; Local Union No. 18, Opeiating Engineeis (Earl D Creager, Inc ), 141 NLRB 512. RETAIL CLERKS, LOCALS 698 AND 298 % 1"r tioner Bates and the petitioner's lawyer; that Warren was the only store visited and that Respondents believed it was the heart of the deauthorization movement. Assuming the validity of the theory, I do not think the facts will support it, partic- ularly because every fact is equally consistent with Respondents' avowed purpose of seeking full compliance with its labor agreement and giving employees one last opportunity to join the Union as with the theory that Respondents were seeking the discharge of employees because they had joined together and petitioned the Board for a deauthorization election. In the first place, contrary to General Coun- sel's contention, I find nothing significant in the place and time of the Warren visit to support the reprisal theory. Almost 60 days had passed since the contract was executed, and a substantial group of employees were knowingly nonmembers of the Union, contrary to the terms of the agreement. The Employer, it is clear, was not cooperating with the Union in enforcing the agreement as is evident from Leveto's reluctance to permit the interviews in the store and his testimony, in effect, that the Employer took no position about the need to join the Union in conversation with employees.20 The lapse of time since execution and lack of employer cooperation are extenuating circumstances which must be considered in assessing the propriety of the Union's trip to the store, if any extenuation is needed. In addition, the union agent's statements and conduct at the Warren store are equivocal, and it does not appear, as General Counsel contends, that they were designed to "harass" and "humiliate" employees in -the "presence of other employees and customers." Knapp first asked Leveto to permit him to talk with employees at their work stations, one at a time. Leveto demurred, and it was then decided to talk with them in groups. Some confusion obviously resulted, as Knapp readily admitted, but his 'testimony that he was interrupted by advice from Bates' to employees that they did not have to join the Union is undenied. I can not infer from the record that the visit was so arranged that it disclosed a purpose to embarrass, intimidate, harass, and drive from employment those who were supporting the deauthorization petition. I have also found earlier that although Knapp's and Hennigin's explanations about the contract and employee status were probably not so formal and low keyed as Knapp would have it, neither were their remarks as bald, blunt, or laconic as the employees' first indicated, and so I find nothing in the union agents' demeanor, conduct, or state- ments as such on September 11 meaningfully pointing to an improper motive on their part. And although I am in agreement with General Counsel that the appro- priate test of unlawful conduct, especially 'threats to occasion loss of employment, is whether the statements are reasonably calculated to have an effect on the listener without regard to the union's ability to carry them out, it cannot be overlooked that, so far as this record is concerned, no employee has been fired or otherwise discriminated against. Leveto, who was acting as a buffer between the Union and the nonmember employees, was present during all the interviews, as was apparently Bates, the petitioner in the UD case. Leveto told the employees that the Respond- ents' remarks were "just union talk" and to go back to work, and Bates told both the union agents and employees that employees did not have to talk with them or join the Union. When it is considered that the Respondents were present, talking and acting at least under the color of right, namely, as the statutory representative of employees, recognized as such by the Employer and a party to a valid labor agreement containing a union-security clause, the actual impact of the Union's conduct cannot be realistically ignored in considering its legal significance. Finally, in the pretext area, Respondents' visit to the Warren store alone is not especially significant. Although Bates, the UD petitioner, worked at Warren, and 17 or 18 other employees at that location had not joined the Union, Warren was the only logical place for the Union to visit under its contentions, because all but 2 or 3 employees at other stores had joined the Union by that time. If the Union had a right to have employees join the Union, it had a right to seek them out where they were, it would seem. If it could not do so without its actions being evidence against it, then it would have less than it was legally entitled to under its agreement. General Counsel also contends that Respondents, by their statements and con- duct on September 11 in the Warren store, demonstrated that they ". . freely intended to exact an unlawful condition precedent to honoring their obligations under the insurance and welfare program, that is, the absolute requirement of membership in good financial standing." He concludes that such conduct is pro- hibited by Section 8 (b) (1) (A) of the Act, because welfare benefits may not be administered on behalf of members only or curtailed as a reprisal against dissident or "rebel" employee members. Here again, I am in agreement that the withholding 2D Employee Allison said Store Manager Battista's position was the same. 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, of welfare payments , or any other benefits due employees , on the basis of member- ship as such is illegal, but , in my opinion, the contention misreads the records and misapplies the cited cases. I have found earlier that Knapp 's and Hennigin's state- ments, realistically viewed, meant , and were understood by employees to mean, that they would lose their insurance benefits or seniority because they would no longer be employed under the terms of the agreement . In Local 138, International Union of Operating Engineers, AFL-CIO v. N.L.R.B., 321 F.2d 130 (C.A. 2), cited by General Counsel, the court held that a restriction in a welfare fund's coverage to, men who maintained their financial standing with the union discriminated against nonmembers in violation of the Act, but in that case it appeared that the union was operating a discriminatory hiring and referral system under which it also discrimi- nated against a dissident member. Since it was not operating under a valid union- security agreement , its discrimination with respect to welfare payments on the basis. of membership as such was apparent . But the court also pointed out that, "Of course where a valid union-security agreement is in effect and is enforced, the bene- fits of a welfare fund are properly limited to those who alone may be employed consistently with the agreement." 21 It would seem therefore that, in determining the legal effect of a reduction of benefits or loss of status, the existence of a union- security agreement and the right of affected employees to be employed under the- agreement and benefit from its provisions are relevant factors to be considered. When employment is lost under a valid union-security contract it would appear that benefits which flow from employment as such rather than membership may be affected whether the employee is a member or not. In any case, whatever the state- of the law, I find and conclude that, in the circumstances of this case , Respond- ents' statements to employees about loss of insurance benefits, tied in as they were with Respondents' reliance upon its contract , which, if enforced , would result in loss of employment, at least in the Union 's view, did not violate Section 8(b) (1) (A) of the Act.22 C. Alleged violations of Section 8(b) (1) (A ) at the Akron store The contract was executed on July 16, 1965, and on that day Paul Bowman and James Sabo , business representatives of Respondent Local 698, went to the Employ- er's Akron store # 8, in BowMan's words , for the purpose of signing employees for the Union under the terms of the agreement. There is a dispute about what he and' Sabo told employees about their obligations. Employee Doris Dennis said Bowman told her she had to join the Union. She stated that she protested that employees had a certain length of time in which to, enroll, but Bowman told her he was "here today" and did not intend to return, so she could either join then or be discharged . Dennis said she signed all the docu- ments presented her after Bowman told her she need not bother to read them.- 21321 F 2d 130, footnote 6; similarly , in Indiana Gas & Chemical Corporation, 130 NLRB. 1488 and Northeast Coastal, Inc , 124 NLRB 441 , there existed no valid union-security clause. 22 Article III, section 2 of the labor agreement contains a dues checkoff clause which is valid on its face General Counsel contends in his brief, however, that Respondents violated the Act by insisting that employees sign a dues checkoff authorization as a condition of employment rather than pay dues voluntarily as the Act permits . I find that this issue is not in the case and not ripe for decision First, there is no allegation in the complaint that employees were threatened because they refused to sign checkoff authorization, al- though the complaint specifically alleges threats because of refusal to join the Union. and the matter was not actually litigated Second , if the issue is in the case by implication, the facts show that it was never a real issue as far as the employees and the Union «eie con- cerned and never jelled into a dispute clear enough for intelligent decision The Union did insist upon an application card , a checkoff authorization and an insurance form being executed , but no employee testified that his reluctance or refusal had anything to do with the checkoff, and there is no way of determining what the Union 's position would have, been about voluntary payments if the subject had been raised In this connection , I note, that in the Union 's visit to the Akron store an employee was told that if she did not sign a checkoff card she would have to pay her dues directly to the Union at the union office Third, there may be some existing uncertainty in the state of the law relating to this subject, which is an added reason for insisting upon a clear delineation in the pleadings See Salant & Salant, Inc , 88 NLRB 816 ; American Screw Company, 122 NLRB 485, 489;- General Motors Corporation, 134 NLRB 1107, 1117; Aristocrat Inns o f Amerioa, Inc, 146 , NLRB 1599, 1613. RETAIL CLERKS, LOCALS 698 AND 298 719 Dennis attended the contract ratification meeting and was aware that employees had 31 days to join the Union. Millie Allison testified that Bowman handed her three documents for her signa- ture and, in a 15-minute conversation with her, explained certain union benefits. She said that she too protested that George Hennigin, union agent, had told all employees at the ratification meeting that they had 30 days to make up their minds about the Union, but that Bowman replied, "sign . . . or be without a job within 24 hours." She said she signed all cards after she was given an opportunity to read them. June Smith signed all three documents given her by Bowman, but she said he told her that this was the last time that he would be at the store and she could either sign or be terminated. She asserted that Bowman did not tell her that she had a grace period in which to join the Union, but she said she learned about it the next day. She conceded, however, that she was present at the contract ratification meeting, and she also agreed under cross-examination that Bowman also told her that if she did not sign the application, dues checkoff, and insurance application at that 'time she would have to go to the Union's office later to do so. Jean Smith, also employed at Akron, testified that she was called to a desk in the store where Bowman and Sabo were sitting, and Sabo asked her to sign certain cards. She refused and told Sabo that she understood that employees had 31 days to make a decision, but, according to her, Sabo answered, ". . . sign them today or out the door you go." She asked if that mean "fired" and Sabo said "that is right" and you "won't be back any more." She said she asked Sabo if she could read the documents before she signed them, but that he told her that he saw "no sense in reading them" because he could explain them to her. Smith also attended the con- tract ratification meeting, and she also recalled that Hennigin told all employees at that meeting that they had 31 days to join the Union. Paul Bowman testified that he went to the store with a list of employees to enroll them in the Union. The store manager provided him with a table and chairs, and, employees were released from work to talk with him and Sabo. He told employees that he was present to sign them for the Union under the labor agree- ment, and he said he showed each one his business card and said that, as their business representative, he would try to explain anything that was unclear to them. He told all employees that they had 31 days under the contract to join the Union. He also testified that he told them that he was present as a convenience to them, and that if they refused to sign he must mark them on his list as "refused," but, in that case, "At such time as they wanted to they could come down to the office- and sign if they didn't sign that day." Bowman said he discussed with employees the meaning of the dues deduction authorization card and the insurance card. He told them that they would have no, dues deducted for July, but they would for August, and that the insurance enroll- ment card was necessary because a copy,of it containing the name of the benefici- ary designated by the employee was sent to the Union's insurance department. Some f mployees asked Bowman what would happen to them if they did not sign the cards, and he said he told them that, "Under the terms of the agreement they wou d be terminated after 31 days ... ." He denied telling anyone that he would be terminated if he did not sign immediately or that this was his last trip to the stc 'i. He said, that, to the contrary, since he was their business representa- tive, he g..ve them his card and told them to call his office if they had any problems. James Sabo testified that he explained the membership application, dues check- off authorization, and insurance form to the employees he talked with on July 16. He stated that some of the employees asked him if they had 31 days to join and he told them they did. He remembered Jean Smith making a protest about signing a card, and he told her she did not have to. According to him, Smith called him a Communist. He admitted that he told some employees that this was his last trip to the store and that, if they did not sign then, they would have to do so at the union office later.23 I credit the testimony of Bowman and Sabo, and I find that no employee at the Akron store was told by them that he had to join the Union immediately or be discharged. The employees testified that they had attended the contract ratification meeting, which had occurred only a day or so before, and that they were told by 13 The record shows that Sabo spends most of his time working for the Union's credit union. 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Business Representative Hennigin at that time that there was a period of 31 days before membership in the Union was required. That Bowman or Sabo would run counter to this advice so soon is unlikely. In addition, June Smith, admitted that she was told that if she did not sign that day she would be required to go to the union office later, which is contrary to Dennis' testimony that Bowman told her that she must sign immediately under pain of discharge. That Bowman would tell one employee that she could sign at the union office and immediately tell another something else is also unlikely. Dennis also said Bowman told her that she need not bother to read the documents but just to sign them. Allison, on the other hand, said Bowman spoke for 15 minutes with her, explaining the benefits to be derived from signing, and that she had an opportunity to read the cards. These inconsist- encies and the better recall of the union representatives are additional reasons for crediting them. The union-security provisions of the contract were effective by its terms on its date of execution, which was July 16 provided the appropriate grace period required by the Act 24 The incidents and conversations at the Akron store described above occurred on the day the contract was executed and effective, as far as union security and checkoff are involved, contrary to General Counsel's suggestion in his brief, but, nevertheless, if the Union had insisted upon membership as a condition of employment before the grace period in the contract and the Act had expired, it would have violated Section 8 (b').(1) (A), as General Counsel contends.25 Since I have found that such was not the case, I find and' conclude that Respondents did not violate the Act on'July 16, 1965, at store #8 in Akron, Ohio, as alleged in the complaint. D. Allegations of surveillance in violation of Section 8(b) (1) (A) of the Act The complaint alleges that Respondent Retail Clerks International and Respond- ent Local 698 kept under surveillance the employees who were supporting the deauthorization petition and presenting evidence to the Board; and that Respond- ent Local 698 questioned employees about the identities of those who were support- ing the deauthorization petition,. stated that it had kept their meeting under sur- veillance and threatened to continue to do so. I find that these allegations were established by a preponderance of the evidence. It appears from the record that a meeting of employees who were supporting the "UD" petition was scheduled for October 12, 1965, at the home of Mrs. Miller, and that Respondents knew or believed that Miller and her step-daughter, Pat Goudy, were supporters of the petition. Another employee, Joan Hereford, who had originally supported the dissident group, had been won over to the Union a short time before the meeting and had given the Union what information she had about those who were for the deauthorization petition. Hereford Was invited to the meet- ing at Miller's home and was told that Board Agent Enright would be present at the meeting. Hereford told Ronald Marcoletti, agent of Respondent Local 698, about the meeting, and she testified that she was told to make her own decision about attending, but she also said that she felt that the union agents wanted her to attend and actually asked her to try to discover who was paying the legal fees of Attorney Belkin. Hereford attended the meeting, and the Respondents gave her a radio trans- mitter to take with her, allegedly for her protection. She stayed at the meeting until around 10.30 p.m., and then left with Pat Goudy for a bar. Present at the meeting were a group of employees and Enright, the Board agent. Marcoletti told Hennigin, of Local 698, what Hereford had told him, and arrangements were made for Hennigin, Marcoletti, Knapp, of Respondent Inter- national, and Sylvester, another agent of 698, to park close to Miller's home dur- ing the meeting in automobiles equipped with receivers which could pick up signals from Hereford's transmitter.26 While the union representatives were parked near Miller's home during the meeting, they were observed by employee Douglas McDonald who was attending the meeting. Board Agent Enright, who was also attending the meeting, also appeared, and asked the union representatives what they were doing there. Sylvester iArticle III, section 3. The other terms of the agreement, such as wages and other benefits, were effective as of July 19 15 Cadillac Wire Corp , 128 NLRB 1002, enfd. 290 F.2d 261 (C A. 2) ; compare Keller Plastics Eastern, Inc., 157 NLRB 583. 10 Hereford testified that she couldn't get the "walkie talkie" to work until she got home that night. RETAIL CLERKS, LOCALS 698 AND 298 721 said he told Enright he was watching the home of a girl friend to see if she were cheating on him. Hennigin said Enright also spoke to him and told him that his conduct in keeping the meeting under surveillance was a clear violation of the Act. Hennigin denied that such was his purpose, claimed that some one had asked them to be present, and refused to leave. The men remained there in accord with previous arrangements with Hereford to follow her when she left and met her and Goudy in a bar. This they did, but they were unable to talk with Hereford until she reached home that night when Hennigin telephoned her and arranged to have coffee with her at some other place. Respondents contend, and Hereford - testified, that they were present outside Miller's home at Hereford's request, because she feared for her physical safety. I discredit this testimony. Hereford wasn't convincing in her testimony on this point, and she readily admitted that she had a "feeling" that the union agents wanted her to attend. She conceded that she had no fear of Miller or of Goudy, Miller's stepdaughter, and she knew a Government agent would be present. It also appears undenied in the record that Marcoletti told employee McDonald, in early November, that the Union had a "fink" at Miller's home that night and that there would be a "fink" at the next meeting or any other meeting that the group held. He also told Goudy that he was outside the house and asked her who was at the meeting. Hennigin also admitted that Respondent Local 698 caused a tape record- ing to be made of the November [October] 12 meeting of the "UD" group. All of Hereford's and the paid union representatives' actions, as described, were consistent with the allegation that they were keeping the "UD" group under surveillance, even when they knew that they were consulting an agent of the Board I find and conclude that Respondent International Union and Respondent 698 kept under surveillance the activities of the deauthorization group as alleged in the complaint, and that Respondent Local 698 questioned employees about their deauthorization activities and threatened to keep them under surveillance. By such conduct Respondents violated Section 8(b) (1) (A) of the Act.27 VI. THE REMEDY Having found that Respondents Retail Clerks International Association, AFL- CIO, and Local 698, Retail Clerks International Association, AFL-CIO, have engaged in the unfair labor practices set forth above, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Skorman's Inc., and Skorman Bros., d/b/a Skorman's Miracle Mart is an employer engaged in commerce within the meaning of the Act. 2. Respondents are labor organizations within the meaning of Section 2(5) of the Act. 3. By keeping under surveillance the meeting place, meeting, and activities of employees who were engaging in concerted activities for their mutual aid or pro- tection, Respondent Retail Clerks International and Respondent Local 698 engaged in and are engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. 4. By questioning employees as to the identity of those employees who were engaging in concerted activities-for their mutual aid or protection, by threatening employees that it had engaged in surveillance of their meeting and meeting place and by threatening that it would continue to do so, Respondent Local 698 engaged-in and is engaging in unfair labor practices within the meaning of Section 8 (b)(1)(A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 6. Respondent Retail Clerks International and Respondent Local 698 engaged in no other unfair labor practices in violation of Section 8(b) (1) (A) of the Act, and Respondent Local 298 engaged in none of the unfair labor practices alleged in the complaint. 97 See Grand-Central Chrysler, Inc., 155 NLRB 185; Checker Taxi Company; 131 NLRB 611. 257-551-67-vol. 160-47 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED, ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that Respondent Retail Clerks International Association, AFL-CIO, and Local 698 thereof, their officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining and coercing employees of Skorman's Inc. and Skorman Bros. by keeping under surveillance the meeting places, meetings, and activities of employ- ees engaging in concerted activities for their mutual aid or protection ; questioning employees as to the identity of other employees who engaged in concerted activities for their mutual aid or protection, and threatening employees that it had engaged in surveillance of their meetings and would continue to do so. (b) In any other like or related manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by a valid agreement requiring membership in a labor organization. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Post in conspicuous places in the Respondent Retail Clerks International's and Respondent Local 698's business offices, meeting halls, and places where notices to their members are customarily posted, copies of the attached notice marked "Appendix." 28 Copies of said notice, to be furnished by the Regional Director for Region 8, after being duly signed by an authorized representative of each of these Respondents, shall be posted immediately upon receipt thereof, and be maintained by them for a period of 60 consecutive days thereafter. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director signed copies of the aforesaid notice for posting by Skorman's Inc. and Skorman Bros., if willing, in places where notices to employees in the unit covered by Respondents' labor contract are customarily posted. Copies of said notice, to be furnished by the Regional Director, after being signed by the Respondents, as indicated, shall be forthwith returned to the Regional Director for disposition by him. (c) Notify the Regional Director, in writing, within 20 days from the date of receipt of this Decision, what steps Respondents' have taken to comply herewith 29 28 In the event that this Recommended Order is adopted by the Board , the words "a Dec!-, sion 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 Respondents have taken to comply herewith." APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 698, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO, AND TO ALL EMPLOYEES OF SKORMAN'S INC. AND SKORMAN BROS. 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 you that: WE WILL NOT restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act by keeping under surveillance the meeting places, meetings, and activities of employees engaging in concerted activities for their mutual aid or protection. WE WILL NOT question employees as to the identity of other employees who engage in concerted activities for their mutual aid or protection , or threaten employees that we have engaged in surveillance of meetings and will continue to do so. PALMER ASBESTOS & RUBBER CORP. 723 WE WILL NOT in any other like or related manner restrain or coerce employ- ees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by a valid agreement requiring membership in a labor organization. RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) LOCAL 698, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO, Labor Organization. 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 members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 4415, Telephone 621-4465. Palmer Asbestos & Rubber Corporation and American Federa- tion of Grain Millers, AFL-CIO, Local 33. Case 9-CA-3767. August 26, 1966 DECISION AND ORDER On June 3, 1966, Trial Examiner Max Rosenberg issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, 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 filed exceptions to the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers 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, Respondent's exceptions and its brief to the Trial Examiner incorporated therein, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. i We find no merit in Respondent's contention that its letter to employees, setting forth alleged company policy as to status of strikers and replacements, "refutes allegations of statements made by Supervisor (Ferring)," as the letter was distributed before the state- ments were made, and, In any event, contains no reference thereto 160 NLRB No. 50.