Dee's of New Jersey, Inc.

204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sec- tions 8 (a)(1) and 2(6) and (7) of the Act. 6. Respondent has not violated Sections 8(a)(3) or 8 (a)(5) of the Act, nor has Respondent violated the Act in any way other than as found above. [Recommended Order omitted from publication.] Dee's of New Jersey, Inc. and'Retail Clerks International Asso- ciation, Local 1360, AFL-CIO. Cases 4-CA-3790 and 4-RC- 6528. October 20,1966 DECISION AND ORDER On June 7, 1966, Trial Examiner John F. Funke issued his Deci- sion 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 Deci- sion. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices. and recommended that such allegations of the complaint be dismissed. Thereafter, the Gen- eral Counsel, Respondent, and the Charging Party filed exceptions to the Decision and supporting briefs. 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 and briefs, and the entire record in these cases, and hereby adopts the findings,' conclusions, and 17n adopting the Trial Examiner 's findings herein , we are not to be considered as approving the Trial Examiner's extensive commentary on precedents he considered ap- plicable to the 8 ( a) (5) aspects of the case. ( See the Trial Examiner 's Decision , infra ), We also correct certain statements in the Trial Examiner 's report which are not sup- ported by the record However , these corections do not affect our agreement with his ultimate findings herein* ( a) The Trial Examiner stated that employee Ranagan at- tempted to get employee Lind to sign a card on September 19, 1965 , whereas the testimony revealed that such attempt took place on September 9, 1965 ; ( b) the Trial Examiner stated that Ranagan' s card was dated July 7, 1965 , but that Ranagan testified, that he signed his card the last week in August , whereas the record reveals that his card' Is dated 7/18/65 and lie testified that he signed his card on August 18 , 1965; ( c) the- further finding that Respondent ' s secretary-treasurer , David Dion , admitted on cross- examination concerning the missing television set, that they had called in a part-time garden supply salesman , Leon Henderson , who admitted that he loaned the television set to the cook at the Varsity Drug Store to watch a ball game , whereas the record shows that this was the testimony of employee Leon Brown who was informed of this incident by, President Lewis Dion and Leon Henderson. 161 NLRB No. 18. DEE'S OF NEW JERSEY, INC. 205 recommendations of the Trial Examiner, with the following modifications : . The Trial Examiner found, and we agree, that the respondent vio- lated Section 8(a) (1) of the Act by interrogating employees for the purpose of ascertaining why they wanted a union in the plant; by offering employees a reduction in hours to discourage union member- ship; and by threatening an employee with demotion because of his union activity. We also agree with the Trial Examiner's finding that Respondent violated Section 8(a) (1) and (3) by discharging em- ployee James Vence because of his union activity, and by offering him reinstatement conditioned upon his signing a statement repudiating the Union. However, contrary to the Trial Examiner, we are of the opinion that the Respondent also violated Section 8(a) (5) of the Act by its refusal to recognize and bargain with the Union. As we read the Trial Examiner's Decision, his failure to reach a similar conclusion was predicated on his findings that adequate grounds did not exist for set- ting aside the election, which the Union lost, and therefore under the Board's holding in Irving Air Chute Company, Inc.,2 no bargaining order could issue. In the Trial, Examiner's view, Respondent's conduct in conditioning Vence's reinstatement upon his signing a statement repudiating the Union, the conduct alleged as a ground for setting aside the election, did not have a sufficient impact upon Respondent's employees to warrant a finding that such conduct had a substantial effect on the employees' freedom of-choice. It is on this ground that we differ with the Trial Examiner. The Respondent had a total of 14 employees eligible to vote in the election at the time the Union demanded recognition. At that, only 12 employees ultimately voted in the election. It is true that the Respond- ent's conditional offer to reinstate Vence is the only instance of unlaw- ful conduct which occurred after the filing of the representation peti- tion. But this particular act of the Respondent was the culmination of a series of unlawful acts including Vence's discriminatory dis- charge which clearly manifested a disregard of the employees' rights. While we are not looking to conduct preceding the filing of the repre- sentation as a ground for setting aside the election, we believe that a more serious view must be taken of the one incident which occurred after the filing of the petition, particularly as it involved a discrimi- natory denial of employment, the kind of conduct which is most likely to impress upon employees the disfavor with which the employer regards his employees' organizing activities. The Respondent's refusal to reinstate Vence, except upon unlawful terms, was known to at least two other employees, Brown and Ranagan, who were also active union 2149 NLRB 627, affd. 350 F.2d 176 (C.A. 2). 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD adherents. It is reasonable to infer that Respondent's conduct in ques- tion could well have been instrumental in influencing the votes cast in the election. We therefore find that by unlawfully denying Vence re- instatement, the Respondent interfered with the election. Accordingly, we shall set aside the election and dismiss the petition herein. We also find on the basis of the record as a whole that the Respondent vio- lated Section 8(a) (5) of the Act by refusing to recognize and bar- gain with the Union as majority representative of the employees.3 THE REMEDY We have found in agreement with the Trial Examiner that the Respondent violated Section 8(a) (1) and (3) of the Act. To that extent, we shall adopt the remedial provisions recommended by the Trial Examiner. However, contrary to the Trial Examiner, we have found that the Respondent violated Section 8(a) (5) of the Act by refusing to recognize and bargain with the Union. We shall there- fore order the Respondent to cease and desist from engaging in such unfair labor practices and take certain affirmative action in order to effectuate the policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Dee's of New Jersey, Inc., Bridgeton, New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Interrogating employees for the purpose of ascertaining why they want a union in the plant; by offering employees a reduction in hours to discourage union membership; and by threatening employees with demotion because of their union activity. (b) Discriminating against any employee to discourage member- ship in Retail Clerks International Association, Local 1360, AFL- CIO, or any other labor organization, by discharging him or by offering him reinstatement conditioned upon his signing a statement repudiating the Clerks, or any other labor organization, or by otherwise discriminatively affecting his terms and conditions of employment. (c) Refusing, upon request, to recognize and bargain collectively with Retail Clerks International Association, Local 1360, AFL-CIO, as the exclusive representative of its employees in the appropriate 3 The Trial Examiner found , and we agree, that on the date of demand , September 10, 1965, the Union represented a majority of 11 in a unit of 14 employees. DEE'S OF NEW JERSEY, INC. 207 unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. The appropriate unit is : All selling and nonselling employees employed at the Employer's Bridgeton, New Jersey, store, but excluding managerial employ- ees, guards, and supervisors as defined in the Act. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the Union, or any other labor organization, 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 employment, as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting'and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will' effectuate the policies of the Act : (a) Offer full and immediate reinstatement to James Vence to. his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination prac- ticed against him in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Upon request, bargain collectively with Retail Clerks Interna- tional Association, Local 1360, AFL-CIO, as the exclusive bargain- ing representative of all employees in the aforesaid appropriate unit, with respect to the rates of pay, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Post at its store at Bridgeton, New Jersey, copies of the at- tached notice marked "Appendix." 4 Copies of said notice, to be fur- nished by the Regional Director for Region 4, after being signed by an authorized representative of the Company, shall be posted by the Company 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 Company to insure that said notices are not altered, defaced, or covered by other material. (f) Notify the Regional Director for Region 4, in writing, within 10 days from the date of this Order, what steps have been taken to -comply herewith. IT IS FURTHER ORDERED that all allegations of the complaint not spe- ^cifically found to be violations of the Act be dismissed. IT IS FURTHER ORDERED that the petition for certification of repre- sentative, filed in Case 4-RC-6528, be, and it hereby is, dismissed, and -that all prior proceedings held thereunder be, and they hereby are, vacated. * In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "a Decision and Order " the words "a Decree of the United States Court of Appeals Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT interrogate employees for the purpose of ascer- taining why they want a union in the plant, or offer employees a reduction in hours to discourage union membership, or threaten employees with demotion because of their union activity. WE WILL NOT discriminate against any employee to discourage membership in Retail Clerks International Association, Local 1360, AFL-CIO, or any labor organization, by discharging him or by offering him reinstatement conditioned upon his signing a statement repudiating the Clerks or any other labor organization or by otherwise discriminatively affecting his terms and condi- tions of employment. WE WILL NOT refuse, upon request, to recognize and bargain collectively with Retail Clerks International Association, Local 1360, AFL-CIO, as the exclusive representative of its employees in the appropriate unit with respect to rates of pay, wages, hours ,of employment, and other terms and conditions of employment. WE WILL NOT in any other manner interfere with, restrain, or .coerce our employees in the exercise of their right to self- DEE'S OF NEW JERSEY, INC. 209 organization, to form labor organization, to join or assist the Union or any other labor organization, 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 employment, as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer to James Vence immediate and full reinstate- ment to his former or substantially equivalent position, without any prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered as a result of the discrimination against him. WE WILL, upon request, bargain collectively with Retail Clerks International Association, Local 1360, AFL-CIO, as the exclu- sive bargaining representative of all employees in the appropri- ate unit, with respect to the rates of pay, hours of employment, and other terms and conditions of employment and, if an under- standing is reached, embody such understanding in a signed agreement. The appropriate unit is : All selling and nonselling employees employed at the Em- ployer's Bridgeton, New Jersey, store, but excluding mana- gerial employees, guards, and supervisors as defined in the Act. DES'S OF NEW JERSEY, INC., Employer. Dated---------------- By------------------------------------- (Representative) (Title) NoTE.-We will notify the above-named employee if presently serv- ing in the Armed Forces of the United States of his right to full rein- statement upon application, in accordance with the Selective Service 'Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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 compli- ance with its provisions, they may communicate directly with the Board's Regional Office, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania 19107, Telephone 597-7617. 264-188-67-vol. 161-15 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed October 11, 1965, and an amended charge filed Decem- ber 14, 1965, by the Retail Clerks International Association, Local 1360, AFL- CIO, herein the Clerks, against Dee's of New Jersey, Inc., herein Dee's or the Respondent, in Case 4-CA-3790, and upon a Supplemental Decision on Objection issued February 11, 1966, referring the Clerks' objections in Case 4-RC-6528 to hearing, the General Counsel issued an order consolidating the cases and an amended complaint alleging Respondent violated Section 8(a)(1), (3), and (5) of the Act. The answer of Respondent denied the commission of any unfair labor practices. This proceeding, with all parties represented, was heard before Trial Examiner John F. Funke on March 29 and 30, 1966, at Bridgeton, New Jersey. At the conclusion of the hearing the parties were given leave to file briefs, and briefs were received from all parties on May 4, 1966. Upon the entire record in this case and upon my observation of the witnesses including their demeanor while testifying, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent is a New Jersey corporation having its principal place of business at Audubon, New Jersey. It is engaged in the retail sales of appliances and operates three stores for that purpose, located at Audubon, Pennsauken, and Bridgeton,' all in New Jersey. Respondent's sales during the past year were in excess of $500,000. During that year Respondent received goods valued in excess of $50,000 from States other than New Jersey. Respondent is engaged in commerce within the meaning of the Act. II. LABOR ORGANIZATION INVOLVED The Clerks is a labor organization within the meaning of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Background 1. On August 17, 1965,2 William Campbell, organizer for the Clerks, met with five employees of Dee's at the home of Leon Brown, an employee, where each of the five signed cards applying for membership in the Clerks. (General Counsel's Exhibits 10-14.) 2. On August 30 the Clerks demanded recognition as exclusive bargaining agent for the employees at all three Dee's stores in New Jersey in a letter from David Selinger, of the law firm representing the Clerks, to Lewis Dion, president of Dee's. (General Counsel's Exhibit 7.) 3. On September 10 Albert Plone, an attorney in the same firm, made a tele- phonic demand for recognition for the Clerks as bargaining agent for the Bridge- ton store to Fred Lowenschuss, attorney for Dee's. It is not clear whether Lowen- schuss was still thinking in terms of a three-store unit but in any event the demand was refused. The Clerks did not represent employees at Audubon and Pennsauken. 4. On September 16 the Clerks demanded recognition as agent for the employ- ees at Bridgeton in a letter from Plone to Lowenschuss. (General Counsel's Exhibit 8.) No answer to this letter was received. 5. On September 17 the Clerks filed a petition for a Board election at the Bridgeton store in Case 4-RC-6528. (General Counsel's Exhibit 2.) 6. On November 12, following a hearing on the issues, the Regional Director for Region 4 issued a Decision and Direction of Election among the employees at Bridgeton. (General Counsel's Exhibit 3.) 7. Respondent requested Board review (undated) of this Decision. (General Counsel's Exhibit 4.) ' The Bridgeton store is the only one involved In this proceeding. 2 Unless otherwise stated all dates refer to 1965. DEE'S OF NEW JERSEY, INC. 211 8. On December 7 the Board denied review. (General Counsel's Exhibit 5.) 9. On December 9 the election was held. The tally of ballots showed eight votes cast against the Clerks, one for the Clerks and three challenged ballots. The Clerks filed timely objections to the election. 10. On February 11, 1966, the Regional Director issued a Supplemental Decision on the Objections directing that a hearing on the objections be consolidated with the hearing in Case 4-CA-3790. 1. The discharge of James Vence --James Vence 3 testified, and unless otherwise, indicated his testimony is uncontra- dicted, that he contacted the Clerks in August and that he and Leon Brown, another employee, met with the Clerks' organizer, William Campbell, at the Varsity Drug Store on either August 15 or 16.4 On August 17 a meeting was held at Brown's house with Campbell, attended by five employees. (Vence, Brown, Jimmy Johnson, Fred Regehley,5 and Dona Woodside.) All five signed applications for membership cards in the Clerks following a general discussion of union benefits. The chief com- plaint of the employees was directed to the number of hours worked at Dee's. Vence testified that he was the prime organizer among the employees and that Leon Brown was second, a fact not contested. A few days after this meeting Byron Spindler, a former manager of the store. vis- ited the store and told Vence that Dee's wanted him to return as manager and added that he knew "what you fellows are up to." In a second visit to the store, Spindler saw Vence and repeated in substance this first conversation adding that he knew what was going on and did not want "to get in the middle of anything " On the Sunday following the meeting at Brown's house Spindler visited Vence at his home, again told him that "they" wanted him to manage the store and asked Vence if he would work with him. He told Vence he knew the Union was trying to get in and that he did not want to get "tangled up in the middle of anything." Dur- ing the week preceding Labor Day Vence was on vacation, scheduled to return to work Tuesday, September 7. On the Sunday preceding Labor Day (September 5) Spindler again came to Vence's home and told him that he (Spindler) had been instructed to lay him off for lack of work but added that "you and I know that's not the reason . it's because of trying to get a union in there." 6 There followed a discussion of the strength of the Union and Spindler told Vence he could call Ellis Siegal 7 and have his job. Vence told him not to do him any favors. When Vence reported to work on Tuesday, Spindler met him at the door, called Brown and a truckdriver identified as Pedro as witnesses, and took them all to the cashier's^deskwhere he told Vence he was laid off for lack of work. Vence was then paid off and left the store. On Sunday, September 19, Spindler telephoned Vence at his home and asked him if Brown had talked to him about signing a paper "to come back to work " 8 Vence admitted that Brown had mentioned it to him but told Spindler he did not like it but that he would probably sign it. (At this time the "paper" had not been drafted.) Spindler then warned Vence that he should not relate their conversation to the Union and that he did not want it to get back to the Union or to Dee's or the Labor Board. Spindler told him the paper had not yet been drafted but that "it will more or less say. that you don't want to be represented by a certain local." Spindler added that he had already cleared it (Vence's return to work) with the Dions at Audubon.9 8 Vence was employed by Dee's at Bridgeton from July 1964, to September 7, 1965, in the camera department * The Varsity Drug Store was located next to Dee's and was used by its employees for coffee breaks and lunches. 5 The spelling of this employee's name varies throughout the transcript. He was not a witness. 8 This testimony was corroborated by Billie Ann Vence, Vence's wife, who was present. 4 Ellis Siegal was identified as the son-in-law of Lewis Dion Lewis was president of Dee's, his son David was secretary-treasuier Siegal's title is not identified but the three constituted the top managerial hierarchy. 8 Vence testified that he had had a conversation with Brown the preceding day in which Brown had told him they were "getting together a paper at the store" and if Vence would sign it the employees would "Jump out of the union" and Vence could come back to work. Vence said lie was not too much interested 0 This is disputed by David Dion who said he told Spindler he would not take Vence back. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Following this telephone conversation Spindler met Vence and his wife as they were leaving their home that afternoon. Spindler told Vence he had just received a call from Dion's lawyer who told him he could be fined $5,000 for "mingling in union affairs." Spindler and Vence again discussed the paper Vence was supposed to sign and Spindler told him that while Dee's would not rehire him as photo man, he would be put to work sellmg.io Vence then went to Brown's house where he told Brown he had told Spindler he would sign the paper but had changed his mind and was forgetting it. He then called Spindler from Brown's house and told him he would not sign and that if the other employees wanted to get out of the Union that was their business. A "couple of months" after Vence was terminated Spindler called Vence and asked him what he had told the Labor Board in his affidavit. Vence went to Spind- ler's house and told Spindler he had told the Board the truth and advised Spindler to do the same thing. (Spindler was to meet a Board agent the next day.) Spindler was not called as a witness by Respondent. Leon Brown 11 testified, with respect to Vence's discharge, that Spindler was man- ager at the time. On a Sunday, apparently September 19, after Vence's discharge, he called Spindler, responding to a call from Spindler, and was told by Spindler that Vence could have his job back. Brown then told Spindler that on Monday he would draft a letter to the Dions and get the fellows to sign it and mail it. The letter was to be drafted by a lawyer and would state that the employees no longer desired rep- resentation by the Clerks. Brown then had two conversations with Vence in one of which Vence told Brown he would go along with the idea (of the letter withdrawal) and in the other Vence stated he had changed his mind. Brown then talked with Spindler again and told him he (Brown) would not be in on Monday. The letter of withdrawal was never drafted by Brown. Brown's entire testimony with respect to Vence's reemployment was evasive but it does not contradict Vence's in any substan- tial particulars but rather serves to corroborate certain aspects of it.- Respondent, which had originally given lack of work as the cause for the discharge of Vence, shifted to other reasons at the hearing. The first defense charges Vence with dishonesty in ringing up (or having the cashiers ring up) his cash receipts. Dona Woodside, one of the employees who had attended the August 17 meeting at Brown's house, was called by the General Counsel to testify to the signing of her card. Counsel for Respondent then made her his witness. Woodside was employed as a cashier and stated that the usual practice was for a salesman to make out a ticket when he made a sale and the customer would give the ticket to the cashier when he made his payment, a familiar practice in retail stores. As to Vence, however, Woodside stated that she did not always collect on his sales. She said Vence would pocket the money given by the customer and the customer would walk past her with the sales slip and the merchandise.12 She reported this to a fellow cashier named Denise Switzler, to Jimmy Johnson, and to her parents The witness, who was obviously reluctant in this part of her testimony, could not state how often she observed this, but she did not tell Gaskill or Spindler and could not remember telling either Dion. Since the witness was first employed in June the inci- dents must have taken place in June, July, and August. The first time she was inter- rogated about the alleged thefts was the night before she appeared at the hearing when she was questioned by Lowenschuss. She had discussed this failure to report sales with Vence who told her it was either an exchange or an order "the people had already paid." Denie Switzler, also a cashier, was likewise made Respondent's witness after she testified to the signing of her card. She testified that she saw Vence write up slips but that every time she saw him take money he brought it to the counter with the slip. Richard Lind, employed at both Audubon and Bridgeton, testified that on one occasion when he and Vence were the only ones in the store who could ring the register he saw a slip with a small amount of change on Vence's counter He was 10 The testimony was also corroborated by Billie Ann Vence. 11 There is testimony to indicate that Brown was acting manager at Bridgeton (he wag manager at the time of the hearing) for a period of 4 days during August. This was the period between the resignation of Gaskill and the employment of Spindler. I do not find that this temporary assumption of managerial duties affected his status as employee. 12 Why she permitted this is not explained. DEE'S OF NEW JERSEY, INC. 213 called to the telephone. He testified that he did not hear the cash register ring and did not know what happened to the money. He reported this to Lewis Dion, see infra. David Dion testified that he and this father first suspected Vence when they noticed shortages of film in the camera department some months prior to Vence's termination. Frank Pasquarella, camera manager at Audubon, said he was shipping large quantities of film and Dion stated there was a variance between the amount of goods shipped and the sales receipts. Dion asked Woodside if she knew of any regu- larities in the camera department. Woodside then told him Vence was writing up slips and she was not receiving the money and that she saw Vence putting money in his pocket.13 David reported this to his father and they decided to keep a closer watch on the camera department. Just how or by whom a closer watch was kept was not disclosed, nor were the results of this closer watch revealed. Vence was not confronted with the charge. About 2 or 3 weeks prior to Vence's discharge Lewis Dion told David that he had driven to Bridgeton with Richard Lind and Lind told him he had seen Vence fail to ring money up that was left on the counter.14 Vence was not confronted with this charge. The Respondent also charged that Vence was connected with the disappearance (temporary) of a television set. Investigator Frank Shaner of the New Jersey State Police testified that in the latter part of the summer of 1965 he was asked by Mag- istrate Serrata, of Bridgeton, to investigate the theft of a television set at Dee's. He found that a television set had been passed out the back door at Dee's to the cook at the Varsity Drug Store. (Record erroneously refers to this as the Pharmacy Drug Store.) Based on what the cook told him Shaner reported to Magistrate Serrata who called Lewis Dion and in a three-way telephone conversation Shaner told Dion that Jim Vance and Fred Regehly had passed the television set to the cook and that there were irregularities in the camera department in that Vence and Regehly were not making out charge slips for the full amount of all sales and were pocketing the difference.15 He wanted to know if Dion wanted a full investigation because he did not have a case to take to court. Dion said he would handle it in his own way. As to the offer of reinstatement made by Spindler to Vence on September 19, David Dion testified that Spindler asked to have Vence back and David said he would talk to his father and Ellis Siegal. He then told Spindler they would not take Vence back under any circumstances. As to the television set, Dion admitted on cross-examination that he and his father had discussed its disappearance and that they had called in a part-time gar- den supply salesman, Leon Henderson. Lewis Dion took Henderson into the color room and when they came out Lewis told David that Henderson had "loaned" the set to the cook at the Varsity Drug Store to watch a ball game, one of the few rational reasons conceivable for borrowing a television set. This knowledge was acquired before the decision to discharge Vence was made. Why the disappearance of the set was alleged as evidence of Vence's dishonesty is not explained. Vence, recalled as a witness, admitted to some rather slipshod methods of account- ing at Dee's. Sales were sometimes rung up by the cashier immediately and on other occasions the salesman would wait until he had finished with other customers. Vence testified that he collected rent from certain of his tenants at the store and, naturally, put this money in his own pocket. The lengthy testimony as to the system of collect- ing for sales given by Woodside, Dion, and Vence contributes little but confusion. 2. Violations of Section 8(a)(1) The amended complaint alleges four separate violations of this section; (a) reduc- tion in working hours to discourage union membership; (b) interrogation of employ- ees as to their union membership and a threat of job demotion for joining the Union; (c) participation in the circulation of a petition revoking union authority; and (d) an offer of reinstatement to an employee conditioned upon his rejection of the Union. In her testimony Woodside could not remember talking to Dion about Vence and his alleged irregularities, although she recalled talking to Switzler and Jimmy Johnson. 14 Lind's testimony is that he did not hear Vence ring up the money. Since he was on the telephone at the time this is not the ultimate in convincing evidence. '5 Shaner received this information from another State policeman . While hearsay, no motion was made to strike it. It has not been considered by me. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Allegations (a) and (b) are interrelated and will be considered as one. Leon Brown testified that a few days after the meeting at his home on August 19 he was approached by Lewis Dion at the store and asked if he had ever seen a union man in the store. When Brown said he had not Dion told him the employees should not be interested in a union because the pay rate was high. Brown told him the chief complaint of the employees was the length of the hours worked (approxi- mately 51). Dion said he was considering giving them "a little less time." William Ranagan, an appliance salesman who had signed a union card, testified that he was present during this conversation and confirmed Brown's version. Dion then told Ranagan to prepare a schedule giving all employees 1 night a week off. (The employees had been receiving 1 morning and 1 day off each week.) Ranagan prepared such a schedule and about 1 week later it went into effect. On September 19 Ranagan attempted to get Lind to sign a card and he refused. The next day Ranagan had a conversation with Lewis Dion in which Dion asked him if he was an instigator for any outside organization, asked him if he did not appreciate moving up from small appliances to major appliances and asked if he would like to be put back on small appliances. Ranagan then testified to a conversation with David Dion about 1 or 2 weeks after he signed a card in which David (in the backroom) asked if he had signed a card and said he did not see why anyone wanted a union since it could do noth- ing for anybody. About an hour later David told him he knew he had signed a card; asked Ranagan if he knew what he had done; said it would give the men the right to picket the store and that some time the employees would find men picket- ing and would not be allowed to enter the store. He also told Ranagan he knew everyone had signed. 3. Allegation (c) The abortive effort to draft a petition repudiating the Union and to have Vence sign as a condition of employment has. already been exhaustively discussed. A sec- ond petition (General Counsel's Exhibit 18) was, however, circulated and signed by a majority of the employees. Lind, who circulated the petition, was first employed at Bridgeton and in August and September he was employed at both Audubon and Bridgeton. He worked in small appliances at Bridgeton but at this time he was only going there "to clean up." Lind had never joined the Union, per- haps because so much of his time was spent at Audubon, but he had heard of it from Vence and Regehley.16 As to the statement of repudiation dated September 27 (General Counsel's Exhibit 18), Lind stated that he wrote it but the language was not entirely his own. It was handwritten and read: We the undersigned do not wish representation from Local 1360, Retail Clerks International Association, AFL-CIO, at this time. It was signed by 11 employees including Brown, Ranagan, Woodside, and Jimmy Johnson 17 Lind testified, and this is not contradicted, that the suggestion for the petition came from the employees themselves and originated with the small appliance employees. After Lind prepared it, it was passed around the store and signed in the store. Either that day or the next it was sent to Audubon and Lind testified he did not see it again until the hearing.18 The General Counsel, while he does not contend that Lind was a supervisor, does contend that he enjoyed peculiar status with Dee's and acted as its agent in pre- paring and circulating the withdrawal petition. It may be true, and this is far from clear, that Lind performed certain duties not performed by all the other 3e Lind did not attend the meeting at Brown's house on August 17. (Vence thought it might have been his day off.) There is no evidence that he was excluded because he was not considered an employee. 11 Only Vence and Regehley, of the employees at the August 17 meeting failed to sign. Both had terminated employment on September 7. "There is evidence that the petition was returned to Bridgeton from Audubon and that for a time it was on Spindler's desk. There is also evidence that Brown and Ranagan did not sign until some time after the date of the petition. There is no evidence that they were asked to sign by Spindler. If employees chose to send a petition of withdrawal to their employer the employer can hardly be charged with an unfair labor practice for having It in his possession. DEE'S OF NEW JERSEY, INC. 215 employees 19 but this does not constitute him an agent for the employer in the circulation of the petition. There is nothing to indicate and, since I find Lind a credible witness, it is rather conclusively established that Lind told neither the Dions nor Siegel of the circulation of this petition. Whether Spindler knew of it or not, there is no evidence that he suggested it or participated in it. General Coun- sel in his argument on this issue merely rests on the ipse dixit statement that the circulation of such documents by an employer is a violation of the Act, a statement of law which cannot be denied. Counsel for the clerks in his brief asks me to rely on circumstantial evidence that Spindler drafted the petition. His entire argument is based on speculation and contains no citation supported by the record 20 It is recommended that this allegation of the complaint be dismissed and this objection to the election be set aside for lack of evidence. This is a factual, not a legal, determination since it is so well established as to require no citation that an employer's participation in revocation of union designation is a violation of Sec- tion 8(a)(1). B. Conclusions 1. Violations of Section 8(a)(1) I do not find the interrogations in this case innocent or for a lawful purpose. Both Brown and Ranagan were interrogated to find out what the employees wanted and when it was determined, as a result of this interrogation, that shorter hours were the major issue shorter hours were put into effect. Nothing could be clearer than that the Dions' purpose was to defeat the organization of their employees by granting them the concessions before the Union could complete organization. Since the purpose of the interrogation was to discover what concessions should be made I find it unlawful, although standing alone it might have been ragarded as casual and isolated. As to the decreases in hours I can only find that, while it may partake of bureau- cratic irrationality to hold that a concession to employees desired by them is an unfair labor practice, the motive of the employer exercising such generosity is the determinative factor. A common means of discouraging union membership is the conferring of benefits and under the circumstances of the case I find that the motive in this decrease in hours, following on the heels of knowledge that this was the dominant complaint of the employees, was discriminatory. It immediately destroyed the impetus of the union campaign and removed the chief motivation of the employees for joining or continuing in the Union. Satisfaction of their demands having been accorded, the employees, being of the kind they were, no longer felt the need of the Union which had indirectly gained them these benefits and withdrew. I also find that Lewis Dion's call to Ranagan in which he asked him if he was the instigator for an outside organization coupled with a threat to demote him from major to minor appliances a violation. I find this violation so rudimentary as to require no citation. The Respondent has engaged in violation of Section 8(a)(1) by interrogating employees as to their reasons for wishing union representation, by granting shorter hours to discourage union organization, threatening an employee with demotion to discourage union activity, and conditioning an offer of reinstatement upon the employee's formal repudiation of the Union 21 19 Ranagan testified that while Lind was at Audubon he visited the Bridgeton store and "helped set up a display and helped change something around " In Case 4-RC-6528, at hearings held October 8 and 25, David Dion testified that the stores did not require sepa- rate managers for the departments and that while Lind might buy materials on occasion "normally there is always a principal present" and that any salesman might check inven. tories. In fact there is nothing in the record to indicate that Lind performed any duty that any salesman might not have been called upon to perform. Clearly he was not authorized to speak for management in labor relations In the direction of election in Case 4-RC-G528 it was stated that the duties and permanent station of Lind at Bridgeton were insufficient to determine his eligibility and he was permitted to vote a challenged ballot. m Brown testified that, while he saw the document on Spindler's desk, Spindler did not ask him to sign it and that Brown asked Ranagan to sign it. Brown and Ranagan were the last two names on the petition. a Only because it is not alleged in the complaint do I not find that Dion's statement to Ranagan that he knew everyone had signed with the Union unlawful as giving the im- pression of surveillance of union activity. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Violations of Section 8(a)(3) It is hard to come by a case these days in which evidence of discriminatory motive in effecting discharge is as clear and convincing as in the case of Vence. He was told by Spindler before Spindler became manager that Spindler knew the employees were organizing and that Spindler had misgivings about the situation. On Sunday, September 5, he was told by Spindler that he would be laid off with- out notice when he returned from his vacation on September 7 and he was also told the real reason was his union activity . He was laid off by Spindler when he returned on the 7th. Since it is evident from previous testimony that the Dions knew of union activity at the store and that David Dion admitted he knew that everyone had signed for the Union it is reasonable to infer that Dion knew Vence was the leader in the movement. This conclusion of discrimination is fortified rather than weakened by the effort to establish that Vence's dishonesty, never proved, was a moving cause. After receiving information that there were serious discrepancies between shipments and receipts of film at Bridgeton no effort was made to check the discrepancies, no shortages were submitted at the hearing , and Pasquarrella, who allegedly reported the discrepancies, was not called as a witness . Since most employers exhibit a more than casual interest when dishonesty among their employees is supected it borders on the incredible that no investigation of any kind was made and that no watch was put on Vence and Regehly.22 Woodside's is the only testimony which can be considered damaging to Vence but her testimony is so inconclusive as to preclude any finding. That she could not remember whether she had reported these irregularities to either Dion is a rather fantastic failure of memory. It is inconceivable that any employee would not recall reporting another employee to management for dishonesty . Based on this testi- mony, and on the fact that neither Dion pursued this matter, so important to the proper management of the store, by independent investigation , I discredit Dion's testimony that she did so inform him . I consider Lind's testimony that he believed Vence failed to ring up a sale lacking in probative value, and the failure of the Dions to act on this report is incompatible with normal operating procedure. Vence, I find, was discharged in violation of Section 8(a)(3) and ( 1) of the Act, a finding supported not by a fair preponderance of the credible evidence but by all the evidence which I have found to have probative value. I also credit Vence's uncontradicted testimony that Spindler offered him rein- statement conditioned upon his signing a petition withdrawing from the Union. Brown's testimony, evasive as it was,23 supports the finding . I find that by this refusal to reinstate, except upon an unlawful condition, Respondent violated Sec- tion 8 (3) and ( 1) of the Act. 3. Violations of Section 8(a)(5) and the objections in Case 4-RC-6528 The skeletal facts respecting Section 8 (a)(5) and the objections to the election have been set forth, supra, and need not be repeated here. They are correlated and will be considered together. The appropriate bargaining unit found by the Regional Director, after hearing in Case 4-RC-6528, was: All selling and nonselling employees employed at the Employer's Bridgeton, New Jersey, store, but excluding managerial employees , guards, and super- visors as defined by the Act. This unit finding is not subject to relitigation in this proceeding. The Clerks obtained 12 cards,24 all dated prior to September 10,25 the date 21 While David Dion testified that a closer watch would be kept on the camera depart- ment the Dions visited the store only occasionally , and no one , so far as this record shows, was designated to watch Vence or to check his inventory against receipts. 99 It is to be noted that at the time he testified Brown was manager at Bridgeton. 211 reject as totally lacking in merit Respondent 's contention that certain cards were tainted because they were obtained by Leon Brown who, for 4 days during August, acted as an interim supervisor at Bridgeton pending the arrival of Spindler. As to the conten- tion that Campbell distributed the wrong cards , the cards were valid and unambiguous applications for membership in the Clerks. zs Ranagan's card, dated July 7 , 1965 , was obviously dated in error Union organization did not start until August 17 and Ranagan testified that he signed his card about the last week in August. DEE'S OF NEW JERSEY, INC. 217 Plone made his telephone call to Lowenschuss demanding recognition at the Bridge- ton store. (General Counsel's Exhibits 10-17, 19, 20, 22, and 23.) Dee's payroll for this period, August 15 to September 1965, contains the names of 19 employees. (General Counsel's Exhibit 21.) This payroll included Spindler, the manager, who was ineligible and two truckdrivers who were represented by another union. Cow- fer was hired September 13, the period between the telephone call from Plone to Lowenschuss (September 10) and the letter from Plone to Lowenschuss (Septem- ber 16) demanding recognition at Bridgeton. Regehley had voluntarily quit on September 7 so his name should not be computed either on the payroll or among the union cards. Vence, in view of the finding that his discharge was discrimina- tory, should be computed on both lists. Recapitulating, I find that the Clerks on September 10 represented 11 employees in a unit of 14 and 11 in a unit of 15 on September 16. Their majority was decisive on both dates. No charge of refusal to bargain was filed by the Clerks on either date. Instead, on Setpember 17 it filed a petition for an election and, after intermediate proceedings, lost the election 8 to 1. The Clerks allege only two unfair labor practices which would warrant setting the election aside and issuing an order to bargain against Respondent. The first, Respondent's alleged participation in or authorization of the withdrawal petition by Lind, has already been disposed of by the dismissal of the allegation. The second, the offer of reinstatement to Vence conditioned upon his signing a withdrawal petition, has been found an unfair labor practice. The sole question remaining is whether this unfair labor practice had sufficient impact upon the employees to warrant setting the election aside under the Bernel Foam rule. (Bernel Foam Products, Co., Inc., 146 NLRB 1277, reversing Aiello Dairy Farms, 110 NLRB 1365.) In Bernel Foam the Board reverted to the Davidson rule (M. H. Davidson Company, 94 NLRB 142) which held that a union may proceed to an election with knowledge of unfair labor practices committed during the preelection period and, if defeated at the polls, may file objections to the election and charge the employer with a refusal to bargain, assuming it had a majority in the appro- priate unit at or prior to the time of filing the petition.26 In Bernet Foam the union had a majority on November 12, and demanded recognition which was refused pending a Board election. On the day before and on the day of the election the employer committed certain unfair labor practices and the union lost the election. It thereafter filed objections to the election and also filed 8(a)(5) charges. Only the charges were considered by the Board in Bernel Foam. Having found that the union had a majority at the time of its demand and refusal and that the employer utilized the time between that date and the date of election to dissipate the union's majority by unfair labor practices it ordered the employer to bargain with the losing union. It does not appear that any fault can be found with that decision and the rationale of Aiello was rather effectively destroyed. It also appears that such a reversal was well within the discretion granted the Board to formulate labor policy. I find a substantial distinction in the facts, however, between this case and Bernel Foam. Here the unfair labor practice, the unlawfully conditioned offer of reemployment, affected a single employee, Vence. There were, during the period between the filing of the petition and the election, neither promises of benefits nor threats of reprisals directed to the employees as a group. There is nothing in this record to show that any employee except Brown knew of the offer to Vence. Had other employees known of this conditional offer to Vence it might have convinced them that prounion employees were not eligible for reemployment but evidence of communication of this fact is lacking. Had Vence's discharge occurred after the filing of the petition a different conclusion might well have been reached but con- sideration of this discharge is barred by the Board's own cutoff rules. I cannot find any evidence that this lone remaining unfair labor practice, to which no pub- licity appears to have been given (Spindler in fact insisted on secrecy throughout), could have had an impact sufficient to affect the results of the election. Brown, who did know of the offer and who offered to prepare the petition, stated that in a conversation with Read, an organizer for the Clerks, he told Read that they (the Clerks) "hadn't done anything for Jimmy Vence and not even as much as a box of groceries and I told him I was tired of the whole thing . . . . I told him I didn't want anything more to do with it." While the date of this conversation is not fixed it is obvious that it occurred after Vence was terminated. 28A demand for recognition and a refusal are, of course, prerequisite to filing charges under Section 8(a) (5). 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Had the Clerks filed an 8(a)(5) 'charge when they had obtained a majority and after'the commission of the unfair labor practices heretofore found a"far different question would have been presented, for, in view of David Dion's testimony that he knew everyone had signed, the defense of good-faith doubt would not have been available to the Respondent.27 The Clerks elected, however, to proceed to an elec- tion and in view of the language in Irving Air Chute Company, Inc., 149 NLRB 627, 630, I feel bound to overrule the objections and dismiss the complaint insofar as it alleges violation of Section 8(a)(5). In Irving Chute the union did represent a majority of the employees and petitioned for an election. The Board found that the employer seized upon the filing of the petition as an excuse for failing to meet with the union and utilized the preelection period to undermine the union's majority. It ordered the employer to bargain with the union. The Board did, how- ever, and this I find controls the instant case, state: We will not grant such relief [an 8(a)(5) order], however, unless the elec- tion be set aside upon meritorious objections filed in the representation case. Were the election not set aside on the basis of objections in the present rep- resentation case, we would not now direct a bargaining order even though the unfair labor practice phase of this proceeding itself established the employ- er's interference with the election. While this case is not on all fours with that hypothesized in the dictum above, a similar approach to the problem has been followed by me in reaching the con- clusion that the obpections to the election should be overruled and the 8(a)(5) charge dismissed. It is true that here the employer did commit an unfair labor practice during the preelection period by its conditional offer to reinstate Vence. But I have been unable to find evidence that this offer was known to any employee except Brown who, if his statement to Read is to be credited, had already lost interest in the Clerks. In this case the violation was serious, but, for the reasons stated, its impact on the voters and upon the results of the election was nil. I think it rests within the realm of conjecture to hold that had the offer to Vence been unconditional and had he accepted he would have been able to reactivate the interests of the employees in the Clerks to an extent that the vote, so decisive, would have been reversed.28 Even the Board has held that not every minor viola- tion of the statute committed after the union achieves majority status will suffice to support a bargaining order. Hammond & Irving, Incorporated, 154 NLRB 1071; Harvard Coated Products, Co., 156 NLRB 162. Few problems have given the Board more difficulty recently than the determi- nation of whether a bargaining order should issue based on card check proof of majority status 29 The cases are myriad but the decisions, unfortunately and per- haps inevitably, are not characterized by the immutability of Meredith's "army of unalterable law." To the extent that classification is possible there are at least seven situations which continually confront the Board. 1. The employer may agree to a check of the cards against his payroll for the appropriate unit and agree to be bound by the result assuming, of course, that he is not concurrently faced with a valid claim from another union. 71 In Gruber's Food Center, Inc, 159 NLRB 629, I found an 8(a) (5) violation where unfair labor practices were committed prior to the filing of the petition. The petition by the union was subsequently withdrawn and the 8(a) (5) charge filed. 29Cf. N.L.R.B. V. Frank C. Varney Co, Inc., 359 F2d 774 (C.A. 3), where the unfair labor practices consisted of interrogation of two employees in a unit of eight. Since the union lost the election by a vote of 4 to 4, the court found the Board justifiably set aside the election. The unlawful interrogation of either employee might well have affected the result of the election. "The unreliability and undesirability of using authorization cards as proof of a union's majority is now generally accepted, even by Board members themselves. (See address of Chairman McCulloch before the Labor Relations Section of the American Bar Association, 1962.) It may be that a new policy is needed and that an employer who engages in no unfair labor practices is entitled to a secret ballot to determine whether his employees desire representation by a labor organization. The need for such reevaluation may be compelled by the use of cards ambiguous as to their purpose on their face-and nothing could be simpler than drafting a clear and unambiguous authorization card-and by mis- representations as to the purposes of the cards in soliciting signatures. Cf., however, U.M.W. v. Arkansas Oak Flooring Co., 351 U.S. 62. DEE'S OF NE W JERSEY, INC. 219 2. He may assert a good-faith doubt 30 that the cards represent an uncoerced and bona fide majority and request a Board election by secret ballot . Assuming he commmits no unfair labor practices during the preelection period or other con- duct which would warrant setting the election aside he does no violence of the statute. 3. An employer may reject a card check and request a Board determination of the appropriateness of the unit if the unit is contested 31 4. An employer may assert a good-faith doubt of the union's majority as an excuse for rejecting a card check but if the doubt is asserted for the purpose of gaining time in which to undermine the union 's majority he is guilty of an unfair labor practice .32 Stated another way, an employer may not raise the defense of good-faith doubt in the context of unfair labor practices designed to destroy that majority. 5. When an employer rejects a card check offer and the union proceeds to an election it may, if it loses the election due to unfair labor practices committed between the filing of the petition and the date of the election , file objections to the election and charges against the employer under Section 8 (a)(5). This is true even though the union knew of the unfair labor practices prior to the election date.33 Not every minor violation of the statute committed after the union's majority has been achieved will support a bargaining order, however.34 6. Where the union has clearly established its majority status but has made no bargaining request and the employer has then engaged in unfair labor practices "The words "good faith doubt" have become words of art in labor law and mean, to quote from Humpty-Dumpty, precisely what the Board says they mean, no more , no less. In Laystrom Manufacturing Co , 151 NLRB 1482 , the employer had bargained with the union in the past, had had contractual relations with it, had committed no unfair labor practices, but had asked, at the end of the contract term , that the union establish its majority at a new election . The request was based on the close vote (17-13) at the last election and a subsequent turnover in personnel of 16 employees . The Board , however, found an unlawful ietusal to bargain on the ground that a showing of doubt required more than an employer's mere assertion and more than proof of the employer's subjective state of mind. It would appear , to give this language normal scope, that an employer must have in his possession independent objective evidence that the union's majority had been lost In John P. Serpa, hze, 155 NLRB 99, the employer did not respond to the union's request for recognition despite the fact that the union had displayed its cards , constitut- ing a majority , to the part owner and general manager of the plant . The Board found that the General Counsel had not sustained his burden of proof of bad faith on the part of the employer. Evidence of bad faith required , in the Serpa case, a showing that the employer had either rejected the bargaining principle or had sought time to undermine the union . Yet in Laystrom ( set aside 359 F 2d 799 (C.A. 7) ), it could hardly be said that an employer who had had contracts with the union and who was willing to continue bargaining conditioned upon the results of the election had rejected the bargaining prin- ciple or that , since he had committed no unfair labor piactices , he was seeking time to undermine the union The record in Serpa, reveals no proof in the possession of the em- ployer of the union's lack of majority . His refusal was based on his hope, as the Trial Examiner expressed it, "that the union would go away." In Ben Duthler, Inc , 157 NLRB 69 , the Board found the employer , Ben Duthler, guilty of a refusal to bargain at his Grand Rapids store where , following a demand for recogni- tion and a refusal, the employer committed unfair labor practices . It did not find the same employer guilty at his Kalamazoo store despite the union 's majority and demand and the absence of any "objective" proof that it did not represent a majority at that store despite the employer' s previous unfair labor practices at Grand Rapids and its demonstrated hostility toward the union. The Board again found that the General Counsel had not sus- tained his "burden of proof " that Respondent had acted in bad faith. ii Cf. Tom Thumb Stores, Inc., 123 NLRB 833, where the Board held that an employer who refuses to bargain for a traditionally appropriate unit upon the bare claim that it is inappropriate is guilty under Section 8(a) (5), if the Board finds the unit appropriate. 83N.L.R.B. V. Joy Silk Mills, Inc, 185 F.2d 732, cert. denied 341 U S. 914. as Bernel Foam Products Co , Inc , 146 NLRB 1277 ; Irving Air Chute Company, Inc., 149 NLRB 627. a Hammond & Irving, Incorporated, 154 NLRB 1071 . No consideration has been given in this case to those decisions in which the employer 's conduct, although it does not con- stitute unfair labor practices , warrants the setting aside of the election. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD designed to destroy that majority the employer may be ordered to bargain on the basis of his violations of Section 8(a)(1) and (3).35 7. Then there is the situation in the instant case which I find controlled by the dictum in Irving Air Chute, supra. An employer upon learning of union organiza- tion in his plant takes immediate steps, including unfair labor practices , to destroy its majority. The union then files a petition for an election. Following the filing of the petition and to the date of the election the employer commits no substantial violations of the Act . The union loses decisively and files objections which are overruled under cutoff rule of the Goodyear case.36 The Board has said in Irving Chute, quoted supra, that under such circumstances it will not issue a bargaining order against the employer despite the unfair labor practices which were designed to destroy the union's majority before the filing of a petition. The defense of the union to this rule is withdrawal of the petition before the election and resort to Section 8(a)(5). This brief summary does not pretend to include all of the multifarious situations which arise when the parties first become locked in the "deadly embrace" of initial organization. If and when further clarification or refinement is required or the ingenuity of the parties creates a necessity for further rulemaking the Board has been conferred with such authority in the wide grant of policymaking powers ceded by the Congress.37 I find, for the reasons stated, no merit in that allegation of the complaint which alleges violation of Section 8(a)(5) in Case 4-CA-3790, and further recommend that the objections in Case 4-RC-6528 be overruled and that the Regional Director certify the results of the election. N. THE REMEDY Having found that the Respondent engaged in and has engaged in certain unfair labor practices it shall be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discharged James Vence in violation of Section 8(a)(3) and (1) of the Act and having also found that it refused to reinstate him in violation of Section 8(a)(3) and (1) of the Act, I shall recom- mend that he be offered full and immediate reinstatement to his former or sub- stantially equivalent position without prejudice to his seniority and other rights and privileges. I shall also recommend that Respondent make him whole for any loss of pay he may have suffered by reason of said discrimination in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and conclusions and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. By interrogating its employees for the purpose of ascertaining why they wanted a union in the plant ; by offering its employees a reduction in hours to discourage membership in the Union and by threatening an employee with demo- tion because of his union activity, Respondent violated Section 8(a)(1) of the Act. 2. By discharging an employee because of his union activity and by offering him reinstatement conditioned upon his signing a statement repudiating the Union, Respondent violated Section 8(a)(3) and (1) of the Act. ss Western Aluminum of Oregon Incorporated , et at., 144 NLRB 1191 . See also the decision of the Trial Examiner in Gruber's Food Center, Inc., supra. w Goodyear Tire and Rubber Company, 138 NLRB 453 ( Members Rodgers and Leedom dissenting). This case applied the same cutoff date to both contested and uncontested representation cases. In all cases conduct occurring after the filing of the petition would be considered where timely objections were filed. 87 The Board's future decisions will require scrutiny to determine whether the use of this unquestionably correct statement of the law of evidence indicates a strategic withdrawal from the advanced position of such decisions as Laystrom and Johnn,e's Poultry Co., 146 NLRB 770 (also reversed 344 F.2d 617 ( C.A. 8) ), or has no substantive significance at all. For late citations on this issue see Strydel Incorporated, 156 NLRB 1185 , Drug King, Inc., 157 NLRB 343. PUBLICITY ENGRAVERS, INC . 221 3. The aforesaid unfair labor practices found are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 4. Respondent did not engage in a refusal to bargain in good faith in violation of Section 8(a)(5) and ( 1) of the Act. 5. Respondent did not engage in conduct which would warrant setting aside the election in Case 4-RC-6528. [Recommended Order omitted from publication.] Publicity Engravers, Incorporated and Baltimore Local 2-P of the Lithographers and Photoengravers International Union, AFL-CIO. Case 5-CA-3315. October 21,1966 DECISION AND ORDER On May 2, 1966, Trial Examiner Joseph I. Nachman issued his Decision in the above-entitled proceeding, finding that the Respond- ent had not engaged in certain unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel, the Respondent, and the Charging Party filed exceptions to the Decision and supporting briefs.' 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 [Chairman McCulloch and Members 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 Ex- aminer's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommen- dations 2 of the Trial Examiner, with the following modifications : We agree with the Trial Examiner that the Respondent did not vio- late Section 8(a) (1) of the Act by offering higher wages to employ- ees to induce them to abandon their strike and return to work. How- ever, we do so only on the following ground. We have previously held 'The General Counsel also filed a motion to submit a supplemental memorandum in sup- port of exceptions . The motion is granted. 2 Member Brown, while dissenting in C & M Construction Company, 147 NLRB 843, agrees that the facts of this case support a finding that the Union had acquiesced in the Respondent's untimely withdrawal from the multiemployer bargaining unit. For example, the Union here admitted that it recognized that at least one section of the contract was still a subject for bargaining when it met with the Respondent after the other employers had signed the contract . Furthermore , although the notice of withdrawal , confirmed in writing, had been clear and unequivocal , the Union only objected to the withdrawal as untimely after the Union and the Respondent failed to reach any agreement at their sepa- rate bargaining session. 161 NLRB No. 16.