Clark's Stores

CLARK'S STORES M. N. Landau Stores , Inc., d/b/a Clark's Stores and Local 1459, Retail Clerks International Associa- tion, AFL-CIO M. N. Landau Stores, Inc., d/b/a Clark's Stores and Local 1262, Retail Clerks International Associa- tion, AFL-CIO Clark's Dundalk, Inc.; Clark's Brooklyn Park, Inc. and Retail Store Employees Union, Local 692, Retail Clerks International Association , AFL-CIO Clark's Springfield , Inc.; Clark's Gamble Spring- field, Inc.; Clark's Landau Springfield , Inc. and Local Union No. 1552 , Retail Clerks International Association, AFL-CIO. Cases 1-CA-4904, 1-CA-4932, 3-CA-2516, 5--CA-3060, 5-CA-3067, 5-CA-3082, 9-CA-3451, and 9-CA-3487. November 16, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On December 30, 1966, Trial Examiner Frederick U. Reel issued his Decision in the above consolidated proceedings, finding that the Respond- ents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Trial Ex- aminer's Decision. The Trial Examiner also found that the Respondents had not engaged in certain other alleged unfair labor practices, and recom- mended that those allegations of the complaints be dismissed. Thereafter, the General Counsel and the Charging Parties filed exceptions to the Trial Ex- aminer's Decision and supporting briefs, and the Respondent filed cross-exceptions and a supporting and answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 I We have previously granted the motion of the Charging Party in the Springfield cases to withdraw its 8(a)(5) charge, and have dismissed the 8(a)(5) charge without considering its metits. ' We hereby correct the Trial Examiner's Decision as to the name of 273 Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with respect to the cases involving the stores at Holyoke, Massachusetts (Cases 1-CA-4904 and 4932), and at Baltimore, Maryland (Cases 5-CA-3060, 3067, and 3082). With respect to the store at Springfield, Ohio (Cases 9-CA-3451 and 3487), we adopt the findings, conclusions, and recommendations of the Trial Examiner, except as they pertain to the al- leged violation of Section 8(a)(5).' Finally, with respect to the Glens Falls and Saratoga Springs 2 New York (Case 3-CA-2516), we adopt the findings, conclusion, and recommendations of the Trial Examiner, with the following additions and modifications. 1. The Trial Examiner found that, in December 1964, Godfrey and Williams, head guard and assistant head guard, respectively, of the Glens Falls store (both of whom were also employed as police officers of that city), observed employees en- tering and leaving a union meeting in Glens Falls. Accepting the testimony of both that they were discharging their routine duties as police officers, and in the absence of any affirmative evidence that they were told to spy on the employees or reported the names of any employees attending the meeting, the Trial Examiner did not find that there was any unlawful surveillance in violation of Section 8(a)(1), as alleged in the complaint. We find merit in the ex- ceptions of the General Counsel and the Charging Party to his failure to so find, as the weight of the evidence requires a finding of unlawful surveillance. Thus, when the organizers commenced entering the Glens Falls store, earlier in the month of December, Store Manager Dunne told the guards to "keep their eye" on the organizers. They did so, and Dunne never retracted these instructions. In- deed, Dunne and Assistant Store Manager Eastman discussed with Godfrey which employees Dunne and Eastman thought were for the Union. Thereafter, on December 10, Williams, whose beat covered several blocks, observed employees who were entering the union meeting and shook his head at them in a negative fashion. Two hours later, Wil- liams was still standing in the same place and Godfrey, who supervises police activity throughout the city, was with him. At that time they observed employees leaving the meeting. Under the circum- stances, and in the absence of any demonstrated reason for Williams' continued bresence outside the union meeting hall, we find that Godfrey and Wil- liams were engaged in surveillance of the em- ployees who attended the meeting and that, in doing this locality , since there is no Saratoga , New York, and Saratoga Springs is obviously the store location involved , some 20 miles from the Glens Falls store herein 168 NLRB No. 43 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD so, they were acting within their authority as Respondent's agents to "keep an eye" on the or- ganizing campaign. Moreover, other conduct by Godfrey and Williams which the Trial Examiner found unlawful further served to confirm this con- clusion. Thus, the Trial Examiner found that Wil- liams, in accordance with his instructions to "keep an eye" on organizers,3 unlawfully threatened em- ployee Palmer and warned employee Joiner in con- nection with their union activity, and Godfrey un- lawfully conveyed an impression of union surveil- lance to employees Morehouse and Myette. 2. The Trial Examiner also found that Godfrey, a supervisor, admitted that, in December 1964, he discussed the Union with two female employees and suggested that the girls in the store could ap- proach Dunne as a group without a union and ob- tain the improved working conditions they desired. Reasoning that Godfrey's suggestion was only a friendly personal expression, and noting that the employees were strong union supporters and re- jected his suggestion, the Trial Examiner found that such suggestion was only isolated and did not vio- late Section 8(a)(1). We cannot agree. It is true that the conversation was a friendly one and that the two employees openly displayed their union adherence and rejected the suggestion that they would obtain benefits if they refrained from union adherence. But such a suggestion has been recognized to be an in- terference with Section 7 rights and thus violative of Section 8(a)(1), and we so find here.4 Moreover, the illegality of the remarks is not cured by the casual nature of the conversation or the personal relationship of the parties thereto,5 nor by the im- mediate rejection of Godfrey's suggestion by the two union adherents.6 3. The Trial Examiner also found that, in Janu- ary 1965, Clark, a supervisor and agent of the Respondent, told employee French that a "big layoff" was in prospect but that she would not be laid off as long as she minded her own business and stayed out of trouble. When French asked Clark if this was a threat, he denied that it was but asked, "What are you going to do, run to the Union?" The Trial Examiner, characterizing the foregoing merely as "a conversation," did not find it violative of Sec- tion 8(a)(1). We disagree. Clark's own question ad- dressed to French, as to whether she was going to run to the Union, evidences his recognition that French took his statement as a threat of layoff if she engaged in union activity. The fact that French de- nied that she would go to the Union does not negate the coercive effect of such a threat. Arkansas Grain Corporation, supra. Accordingly, we find Clark's statement to be a threat of reprisal if French en- gaged in union activity and thus a violation of Sec- tion 8(a)(1). 4. In late January, 1965, Montero, the head cashier on the night shift, interrogated employee Doran as to whether anyone from the Union had been around recently. The Trial Examiner found that such interrogation was not attributable to the Respondent, as Montero was not a supervisor. His reason for so finding was that Montero performed substantially the same duties as Myette, the head day cashier, who the parties agreed was not a super- visor. We disagree with the Trial Examiner's con- clusion that Montero was not a supervisor for the following reasons: (1) because of the parties' agree- ment that Myette was not a supervisor, Myette's duties, unlike those of Montero, were not fully litigated, and there is here no evidentiary basis for using Myette's admitted status as determinative of Montero's; and (2) because Montero worked nights, when most of the management hierarchy were not present, she had need to exercise super- visory authority and in fact did possess and exercise such authority. Thus, the record shows that: (a) she was told by Respondent's New York headquarters that she would have charge of the night girls on the registers, and New York management informed the girls of this fact; (b) Montero responsibly directs from 6 to 16 girls in packing and cash register work, e.g., she schedules who is to work and effects trans- fers to and from the registers, packing, and other de- partments; and (c) she possesses and has exercised the power to recommend which employees are to be retained during a layoff. Under the foregoing cir- cumstances, we find that Montero is a supervisor within the meaning of Section 2(11) of the Act, that Respondent held her out as such to employees, and that, through her interrogation of Doran, Respond- ent violated Section 8(a)(1) of the Act. 5. The Trial Examiner found that the Respond- ent did not violate the Act by its refusal to recog- nize the Union as the representative of the Respond- ent's employees in its Glens Falls and Saratoga Springs stores that no bargaining order was neces- sary to remedy the violations of Section 8(a)(1). We do not agree as to Glens Falls.' Early in December 1964, the Union began openly organizing and, as found infra, by December 22, 1964, had obtained authorization cards signed by a majority of employees in the Glens Falls store.8 On December 22, 1964, the Union sent to Respondent's New York office a telegram in which the Union claimed to represent a majority of the employees in the Glens Falls and Saratoga Springs S We note also that these instructions were followed by Godfrey with respect to employee Noonan , who was found by the Trial Examiner to have been unlawfully intimidated by Godfrey and Dunne 4 Henry Colder Company, 163 NLRB 105 'Arkansas Grain Corporation, 160 NLRB 309 6 Murray Ohio Manufacturing Company, 155 N LRB 239 ' As we are fi nding the single-store unit appropriate and there are no un- fair labor practices at Saratoga Springs, it would, of course, be inap- propriate to order bargaining for the Saratoga Springs store 8 There is no evidence that the Union sought to organize employees in the Saratoga Springs store There are no union authorization cards in evidence from employees at that store CLARK'S STORES stores, including leased departments;9 offered to produce the authorization cards it had obtained for check by an impartial and disinterested person; and demanded recognition and bargaining. The New York office replied by letter the same day, declining to recognize the Union. Contemporaneously with the Company's reply, the Company's area super- visor, the Glens Falls store manager, the assistant store manager, and other management personnel engaged in the extensive and serious violations of 8(a)(1), as found herein, including systematic inter- rogations, surveillance, intimidation,-and threats to employees who had engaged in union activity. Also contemporaneously with such 8(a)(1) conduct, the Respondent filed a petition in Case 3-RM-314 in which Respondent asserted that the unit requested by the Union was inappropriate because it included the two stores and leased departments. 10 The Trial Examiner found, as to the unit question, that the two-store unit in which the Union sought recognition was inappropriate, because the two stores were "unrelated in any significant respect," but that "the Glens Falls store constitutes a separate unit." We' agree with the unit finding of the Trial Examiner. Sav-On Drugs, Inc., 138 NLRB 1032, 1033. The Trial Examiner further found, and we agree, that even though the Union's requested two-store bargaining unit was inappropriate, a bargaining order defined to a unit of employees at the Glens Falls store might be appropriate. Under our view of the case, such bargaining order confined to the Glens Falls store, which we find separately is an ap- propriate unit, is required to remedy Respondent's unfair labor practices at that store, since it appears that the Union did represent a majority in an ap- propriate unit limited to the Glens Falls store on December 22, 1964,11 and since the Respondent's subsequent unfair labor practices were of a kind cal- culated to dissipate that majority and to preclude a fair resolution of the questions concerning representation. We find that employees in the leased or licensed departments at Glens Falls, other than the Central Market, should be included,in the unit. Under the terms of the leases between the Company and all of the lessees or licensees (Topsy's International, Inc., Morton Shoe Company, Jewelco Inc., Richlin Corp. of Glens Falls, Eastern Merchandising Corp. and Nu-Enamel, Company), other than Central Market, the Respondent has control over the em- ployees to be hired and retained by the leased de- partments and, has explicit authority to settle and determine labor disputes. In the case of the Central 9 One leased department, the Central Market, was excluded It is evident from the Company' s petition in Case 3-RM-3 14 that the Com- pany was aware of this exclusion 10 In this RM petition , the Respondent stated that the unit in which the Union claimed recognition was comprised of 88 employees , including 12 275 Market , no such control exists. Except for the Cen- tral Market , which handles groceries, is separately located , and opens earlier, the leased departments are in the same work areas as all other departments, and their employees have the same working condi- tions as other employees of the Respondent. In view of the foregoing circumstances, and particu- larly in light of the control exercised by Respondent over the employees and the labor relations of its licensees, we find that Respondent and the licen- sees are joint employers , and that the employees in all leased departments except Central Market should be included in the unit. K-Mart, a Division of S. S. Kresge Company, 159 NLRB 256. Other facts relevant to the unit and the Union's majority as of December 22, 1964 , are as follows: Glens Falls Payroll On December 22, 1964, the date on which the Company received the Union's request for recogni- tion, there were 102 names on the Glens Falls store payroll - these are contained in Appendix A at- tached hereto. Of these, it appears from the uncon- tradicted testimony of Dunne, whom we credit, that the following 34 names represent temporary em- ployees who we find should be excluded: Carol Acken, Barbara Allen, Dorothy Aurelia, Linda Barot, Nancy Baugh, Dorothy Bennett, Dorothy (Estelle) Brayton, Shirley Cross, Helen Dickson, Karen Dowmont, Joanne Dudley, Georgeanne (Georgia) Flanders, Carmela Gilbert, Kay Gilbert, Dorothy Griffin, Mary Jane Judson, Anita Kanner, Marilyn Lewis, Nancy Mansell, Mary Lou Mc- Donald, Alice McEashron, Joanne Minson, Dorothy Mosher, Jean Morehouse, Barbara Par- sons, Audrey Pikul, Wanda Reed, Donna Roberts, Jane Schumann, Kenneth St. John, Sharon Thatcher, Sandra Tripp, Blanche Wood, and Ger- trude Wood. Although Dunne expressed some uncertainty whether Joan Brownell was a temporary or per- manent employee, his uncontradicted testimony shows that Brownell was hired during the week ending August 22, 1964, and worked about 3 nights a week until September 12, 1964, when she left the Company's employ. She returned to work during the week ending December 5, 1964, and left the week ending December 26, 1964. As Brownell was hired to work during the Christmas season only, it is clear, and we find, that she was a temporary em- ployee who should be excluded from the unit. We shall also exclude Joan Wilcox from the unit, as she quit' the Company's employ on December 21, the employees in the leased departments " The Trial Examiner did not explicate his reasons for finding that the Union possessed a majority among the Glens Falls employees Ac- cordingly, we set forth our applicable findings infra with respect to the Union's majority in the appropriate unit 336-845 0 - 70 - 19 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD day before the Union's request for recognition, and has not returned to work. Thus, excluding the foregoing 36 employees, the resultant Glens Falls store payroll figure for the unit is 66. The following disputed categories in Glens Falls remain for our disposition: (a) Name not on Glens Falls payroll: Lois Clark's name does not appear on any payroll in evidence in this case. Respondent asserts that she was a temporary employee. However, the uncon- tradicted testimony of Dunne shows that she left on December 19, 1964, to enter the hospital and, fol- lowing a stay in the hospital, returned to work in January, in accordance with Dunne's promise to her in the hospital that her job would be kept open for her return. Under the circumstances, we agree with the General Counsel that Lois Clark was a permanent employee on sick leave status following December 19, and thus should be included in the unit. (b) Alleged supervisors: The Respondent con- tends that the duties of Montero and Reinack are not those of supervisors, as alleged in the com- plaint, and that they should be included in the unit. Since we have found, supra, that Montero is a su- pervisor, we shall exclude her from the unit. Similarly, we agree with the Trial Examiner's find- ing that Reinack is a supervisor, as well as a representative of Respondent, by virtue of his "management-trainee" status. We find, therefore, that he should be excluded from the unit. (c) Alleged temporary employees: The Respond- ent contends that the names of Dee Sullivan and Linda Wood should be excluded from the unit because they were temporary employees. The Charging Party and the General Counsel would in- clude them as regular employees for different reasons; respectively, that they must be considered permanent because they worked for 6 months, and that they were high school girls who were regular employees who were laid off, as customary, when a layoff impends. We find that both employees should be included in the unit because it appears from the evidence in the record that they both worked regularly from June 1964 through December 1964, when they were included in a layoff because they were high school students rather than because their jobs were temporary. (d) Alleged quit: The Respondent contends that James Donovan should be excluded from the unit because he gave notice to Dunne, prior to the Union's demand for recognition, that he would have to leave to go to work for the U.S. Post Office in Denver. The General Counsel would include Donovan in the unit because he was at work on December 22, 1964, and left that day to work tem- porarily with the post office for the Christmas season. It appears that Donovan returned to his job with the Company following his temporary Christ- mas work. Under these circumstances it would ap- pear, and we find, that Donovan was on leave as a regular employee and thus should be included in the unit. In accordance with our foregoing findings, we compute the number of employees on the Glens Falls payroll to be included in the unit at 65.12 Leased Department Payrolls On December 22, 1964, there were 22 names on the payrolls of the leased departments, excluding the Central Market. These names are contained in Appendix B attached hereto. Jewelco, Inc: We find from the testimony of Mar- garet Pincheon, which we credit, that Wilhelm and Burns were regular employees of the Respondent and Jewelco, Inc., as joint employers, on December 22, 1964, and should be included in the unit. We shall, however, exclude Pincheon as she is a super- visor who hired these employees. The only disputed name appears to be that of Andrews, who is similar in status to Donovan, supra, whom we have in- cluded. Andrews was hired by Pincheon in March 1964. She was not considered to be temporary ac- cording to Pinchebn, and worked until December 24, 1964, when she left because she became pregnant. She gave notice of her leaving in November as permanent. As she was a regular em- ployee at work on December 22, 1964, we shall in- clude Andrews in the unit. Richlin: We find from the testimony of Robert Bridges, which we credit, that Bridges is a super- visor in the Richlin concession and should be ex- cluded. Based on his credited testimony, we find that Lewis Floyd was a regular employee on December 22, 1964, and thus should be included in the unit. The Charging Party would exclude the other two named employees, Judy Smith and Henry Hunt. The General Counsel agrees as to Smith, but would include, Hunt. Smith attends college out of town and was hired in early December 1964 for the Christmas season. She left shortly after December 22, 1964, to return to college. We find that Smith is a temporary employee who should be excluded. Henry Hunt was hired the 'second or third week in November 1964, and worked until February 1965. According to the testimony of Bridges, who hired Hunt, Hunt asked for a temporary job to last until the company for which he had been working ended its shutdown due to a strike. Although the record does not affirmatively show the circumstances under which Hunt's employment was severed in February, we infer that Hunt's job was only tempo- rary, and we shall, therefore, exclude him from the unit. 12 By adding Lois Clark to the unit , and excluding Montero and Reinack. CLARK'S STORES Eastern Merchandising: Ann ditto was the only employee in this concession as of December 22, 1964, and had been the only employee for a con- siderable period. Except for Easter time, there had been no one else in the department. Contrary to the Respondent's contention, and in agreement with the Charging Party and the General Counsel, we find from the record that she is not required regularly to exercise supervisory authority and is an employee to be included.13 1 "1 Morton's Shoe: The payroll for this concession for the week ending December 19, 1964, lists the names of Larry Ballard, manager, Erma Gilchrist, Josephine Funicello, Elizabeth . Sheerer, and Kathleen Durkee. We shall exclude Ballard from the unit because the record shows he is a super- visor. As, such payroll was conceded by the Respondent to be the same as of December 22, 1964, and as Ballard in his,testimony named only Durkee as temporary, we infer that all the others, i.e., Gilbert, Funicello, -and Sheerer, were regular employees on December 22 and shall include them in the unit.14 In his testimony Ballard expressed some uncertainty as to what were Durkee's actual days of work, but stated that he Wag certain she worked full time until November- 7, 1964. Ballard thought she worked only I day, or not at all, since November 1964. Since there is no evidence that Durkee was at work as a regular employee on December 22, and in agreement with the Charging Party, we shall exclude Durkee from the unit. Nu-Enamel: Albert Constantine is the only name appearing on the payroll of this concession as of December 22, 1964. Constantine was employed there from November 4, 1962, through December 27, 1964. No other employee worked with him. The Respondents contend that Constantine is a super- visor because he was the manager of tthe concession and was authorized to spend money from petty cash when he needed help to unload a truck. Constantine testified that he spent money for such purpose on infrequent occasions amounting to not more than six times in 2 years. It appears that Constantine also used petty cash to obtain other help on sporadic occasions and that, in his absence, Dunne may have directed store personnel to "cover" the Nu-Enamel concession. Under the foregoing cir- cumstances, we find that Constantine's duties were primarily those of a salesman and, that he -neither possessed nor exercised regular duties of a super- visor, as defined in the Act. Accordingly, we find that Constantine is an employee who should be in- cluded in the unit. • Topsy's: This concession's payroll for the week ending December 19, 1964, which Respondents concede is also applicable on December 22, 1964, "Eastern Camera and Photo Corp, 140 N LRB 569, 571. 14 We do not accept Ballard's retraction on cross-examination in an at- tempt to show that Sheerer was temporary. It is apparent from the testimony of both Ballard and Sheerer that she is a regular employee and 277 lists the following names : Florence Lawson, An- nette Joiner, Joe Noonan, Thomas Le Pan, Phyllis McDonald, Henry Palmer, and Kathleen Crothy. In agreement with the parties, we shall exclude Lawson from the unit as a supervisor, and Palmer and Crothy as temporary employees, and shall in- clude Noonan as a regular employee. Thomas Le Pan was working at a snackbar of this concession for some time prior to and including December 22, 1964; he was still working there as of April 1965. Joiner was also working there during this period of time at the snackbar, under Lawson, and did not become manager of the concession until Lawson left in January 1965. McDonald was a full-time em- ployee who worked on December 22, 1964. Ac- cordingly, we shall include in the unit Le Pan, Joiner, and McDonald. Thus, in agreement with the Respondents and the Charging Party, we find a total of 12 employees in the unit among the leased departments. From the employees whom we find herein to be included in the unit, the General Counsel submitted in evidence 58 signed cards bearing the signatures of employees authorizing the Union to represent the signers and dated between October 1964, and January 21, 1965.15 All of them were authenticated by the signer or by an employer or organizer who witnessed the signing, or who was informed by the signer that it was his or her signature. We accept the testimony of the witnesses in this regard.'6 The Respondent questions the authorization cards which it claims were signed by individuals who it contends should not be included in the unit-or cards solicited by Constantine, who it contends is a super- visor. We have rejected these contentions, of the Respondent in our findings, supra. The Respondent also would exclude the cards obtained by or- ganizers Forsythe and Lynch, on the ground that the Union promised to waive initiation fees for those employees who signed cards, and, in the case of Lynch, on the additional ground that he informed the employees that the cards were for the purpose of getting an election at the store. The record does not support these contentions. As we find all 58 cards to be valid, and as the unit consists of a total of 77 employees (12 in the leased departments and 65 in the other departments), including the card signers, we find that the Union had a majority in the appropriate unit at all relevant times. The record establishes that, at the time it made its demand for recognition, the Union represented 52 - a majority - of the employees in the appropriate unit. The Trial Examiner, however, concluded that the unfair labor practices he found were only "iso- lated" and did not either establish Respondent's bad faith in declining to recognize the Union or tend was employed as such on December 22 Is All but six of these cards were signed before December 22, 1964 16 The Colson Corporation v. N.L.R B, 347 F 2d 128 (C A. 6), cert. denied 382 U.S. 904; Lifetime Door Company, 158 N LRB 13 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to dissipate the Union's majority so as to prevent a fair resolution of the question concerning represen- tation through a Board-conducted election. In addi- tion to the unfair labor practices found by the Trial Examiner, however, we have found many addi- tional 8(a)(l) violations. We cannot agree, there- fore, that Respondent's violations were isolated, or that they did not tend to dissipate the Union's majority status, and to destroy the conditions for a free and fair election. Accordingly, we find that it is necessary, in order to remedy the unfair labor practices, committed and to restore the status quo ante, to issue a remedial order requiring the Respondent to bargain with the Union, upon request.17 Under these circumstances, we find it-un- necessary to decide whether Respondent had vio- lated Section 8(a)(5) as well, for the remedial order for such violation would be no different from that which we are ordering to remedy the 8(a)(1) viola- tions. THE REMEDY Having found that the Respondent, M. N. Lan- dau Stores, Inc., d/b/a Clark's Stores, has engaged in unfair labor practices in addition to those found by the Trial Examiner, we shall order it to cease and desist' therefrom and take certain additional affirma- tive action to effectuate the policies of the Act. As we have found that this Respondent has en- gaged in serious and extensive 8(a)(1) unfair labor practices which are of a kind calculated to dissipate the Union's majority and which prevent the holding of a fair and free election, we shall order the Respondent to bargain, upon request, with the Union to remedy its 8(a)(1) violations. Upon the basis of the foregoing, and upon the en- tire record in these consolidated cases; the National Labor Relations, Board hereby makes the following: ADDITIONAL AND AMENDED CONCLUSIONS OF - LAW 1. Respondent, M. N.Landau Stores,,Inc., d/b/a Clark's Stores at its Glens Falls, New York, store, has, by Manager Dunne's and'Guard Supervisor Godfrey's intimidatory treatment of -employee Noonan; by Assistant Manager Eastman's directive to employee Joiner not to talk to` organizers; by Godfrey's statement to employees that Dunne had a list of those who had joined the Union; by store guard Williams' threats to- employees. Joiner and Palmer; by Godfrey's and Williams' surveillance-of a union meeting ; by Godfrey' s suggestion to em- ployees that they deal with Dunne directly rather than through the. Union; by department ' head Reinack's interrogation of, and warning to, em- ployees Joiner and Palmer; by department head "Better Vat-U Stores of Mansfield, Inc, 161 NLRB 762, and cases cited in fn 2 thereof - Clark's threat to employee French ; and by Super- visor Montero's interrogation of employee Doran in a coercive manner , interfered with , restrained, and coerced employees in their exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. All employees employed at Respondent's Glens Falls, New York , store, including employees in the leased or licensed departments, but excluding employees of the Central Market , store managers, assistant store managers , watchmen , guards, and supervisors as defined in the Act , constitute a unit appropriate for the purposes of collective bargain- ing, within the meaning of Section 9(b) of the Act. 3. At all times since December 22, 1964, Local 1262, Retail Clerks International Association, AFL-CIO, a labor organization herein , has been, and now is, the exclusive representative of all the employees in the above appropriate . unit, for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting comn'lerce within the meaning of Section 2(6) and (7) of the Act. ORDER• Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below, and hereby orders that the Respondents, Clark's Gamble Corporation d/b/a ' Clark's Discount Department Store (as successor to Clark's Springfield, Inc., Clark's Gamble Spring- field, Inc., and Clark's Landau Springfield,Hnc.), Springfield, Massachusetts, and M. N. Landau Stores, Inc., d/b/a Clark's Stores, Glens Falls, New York, their officers, agents, successors, and as- signs, shall take the action set forth in the Trial Ex- aminer's Recommended Order, as so modified: . 1. Insert in lieu of paragraph II,'A, of the Trial Examiner's Recommended Order the following: "A. Cease and desist' at its Glens Falls, New York, store, from intimidating employees because they conversed with union organizers; forbidding employees to converse with organizers, advising employees that it has a list of employees who have signed union cards, spying on union meetings, inter- rogating employees as to union activity; threatening employees that by signing a union card,they would jeopardize their jobs, or in any other manner inter- fering with, restraining, or coercing its employees (including employees in leased departments) in the exercise of their rights under Section 7 of the Act." 2. Insert the following as new subparagraph I of paragraph II, B, and renumber present subpara- CLARK'S STORES graphs 1 and 2 of said paragraph , 2 and 3 , respec- tively: "1. Upon request, bargain collectively with Local 1262 , Retail Clerks International Associa- tion, AFL-CIO, as the exclusive representative of the employees in the following appropriate unit, with respect to rates of pay, wages, hours of em- ployment , and other terms and conditions of em- ployment, and, if an agreement is reached , embody such understanding in a signed agreement . The unit is: All employees employed at its Glens Falls, New York, store , including employees in the leased or licensed departments , but excluding employees of the Central Market , store managers , assistant store managers , watchmen , guards, and supervisors, as defined in the Act." 3. The notice attached as Appendix B to the Trial Examiner's Decision is modified by deleting the indented paragraph of said Appendix and insert- ing the following: WE WILL NOT intimidate employees because they conversed with union organizers , forbid employees to converse with organizers , advise employees that we have a list of employees who have signed union cards, spy on union meetings, interrogate employees as to union ac- tivity, threaten employees that by signing a union card they will jeopardize their jobs, or in any other manner infringe on employees' rights under Section 7 of the Act. WE WILL, upon request, bargain collectively with Local 1262, Retail Clerks International Association , AFL-CIO, as the exclusive representative of employees in the following appropriate unit , with respect to rates of pay, wages, hours of employment , and other terms and conditions of employment , and, if an un- derstanding is reached , embody such- un- derstanding in a signed agreement . The unit is: All employees employed at our Glens Falls, New York , store, including em- ployees in the leased departments , but ex- cluding employees of the Central Market, store managers , assistant store managers, watchmen , guards, and supervisors, as defined in the Act. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it al- leges unfair labor practices not found herein by the Board. APPENDIX A Carol Acken Barbara Allen Dorothy Aurelia Patricia Basque Linda Barot Nancy Baugh Judy Beane Dorothy Bennett Fred Bennet Shirley Bordeau Jane Brady Dorothy Brann Estelle Brayton Nancy Brownell Joan Brownell Marion Campbell Patricia Caprood Georgianna Carpenter Jerry Clark Linda Conlon Janet Cook Shirley Cross Sophie Corlew Phlllis Croft Sarah Cure Cheryl Dean Charmaine De Lucca Helen Dickson James Donovan Diane Doran Karen Dowmont Diane Dubay Linda Dumont Joanne Dudley Joan Dupell Patricia Fallon Georgia Flanders Rhea Frasier Libbie French Carmela Gilbert Kay Gilbert Concetta Gifford Judy Gonyea Wade Greenough Dorothy Griffin Robert Hoag Margaret Hunt Mary Jane Judson'. Anita Kanner Grace Keneally -Anne La Barge Marilyn Lewis Nancy Mansell Marylou MacDonald Alice McEachron Joyce McNeil Liesolotte Miller Dawn Mingo 279 Joanne Minson Shirley Montero Dorothy Mosher Joyce Moses Jean Morehouse Jane Myette Louise Nash Blanche O'Rourke Sylvia Palmer Doris Parker Barbara Parsons Georgia Paul Audrey Pikul Wanda Reed Mark Reilly Daniel Reinack Donna Roberts Marion Roberts Betty Rowland Marie Sahl Barbara Schultz Jane Schumann Julia Singleton Lorraine Springer Loretta St. John Gary St. John Kenneth St. John Dee Sullivan Sharon Thacher Sadie Thompson Laura Toomey Charlene Tracy Sally Trapasso Denise Traver Janis Tripp Sandra Tripp Sharon Tromblee Florence Viele Theresa Whaley Joan Wilcox Blanche Wood Lynda Wood Gertrude Wood Janet Zwolak APPENDIX B JEWELCO, INC. J. Andrews J. Byrnes M. Wilhelm M. Pincheon THE RICHLIN CORPORATION OF GLENS FALLS, INC. Robert Bridges Lewis Floyd Henry Hunt Judith Smith , . 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD EASTERN MERCHANDISING CORPORATION including my observation of the witnesses , and after due consideration- of. the briefs and memoranda filed by the Ann Gitto parties, I make the following: MORTON'S SHOE Larry Ballard, Mgr. Kathleen Durkee Josephine Funicello Erma Gilchrist Elizabeth Sheerer NU-ENAMEL COMPANY Albert Constantine Topsy's Kathleen Crothy Annette Joiner Florence Lawson Phyllis McDonald Thomas Le Pan Joe Noonan Henry Palmer TRIAL EXAMINER'S DECISION FINDINGS OF FACT 1. THE HOLYOKE CASES A. Statement of the Case These cases , I-CA-4904 and 4932, originated with charges filed February 26 and March 19, 1965, and a consolidated complaint issued September 29, 1965. The complaint alleged' that the Respondents , M. N. Landau Stores, Inc., d/b/a Clark's Stores and Clark's Discount Store, had unlawfully refused to bargain with the Union representing a majority of the employees at the Holyoke, Massachusetts , store , and that Respondents had unlaw- fully interrogated ' and otherwise interfered with, restrained , and coerced Holyoke employees with respect to their union activities. At the conclusion of General Counsel 's affirmative case (presented at Springfield , Massachusetts , on April 19, 1966), Respondents moved to dismiss the Holyoke case for failure of General Counsel to establish a pima facie case . I indicated on the record that I inclined to the view that the motion was well founded , but deferred rul- ing, pending the filing of memoranda , and adjourned the hearing with respect to the Holyoke case. Upon con- sideration of the memoranda thereafter filed by the parties and on the entire record ,2 I hereby grant the mo- tion to dismiss, pursuant to the findings set forth below. INTRODUCTORY STATEMENT FREDERICK U. REEL, Trial Examiner: This proceeding, heard at Washington, D.C.; Baltimore, Maryland; Spring- field, Ohio; Springfield, Massachusetts; and Lake George, New York, in November 1965 and or various dates in March, April, May, June, July, and September, 1966, originated with separate charges and complaints in Regions 1, 3, 5, 9, 13, and 25, of the Board. Common to each of the complaints was an allegation that the Respond- ent named therein had unlawfully refused to bargain with the Charging Party as representative of the em- ployees in the particular store or stores named in the com- plaint. Apparently for that reason, and because the labor policy of the Respondents allegedly emanated from a sin- gle national headquarters, the General Counsel on Oc- tober 5, 1965, consolidated these cases for hearing. On November 12, 1965, Respondents moved to sever the cases; this motion I denied on December 10, 1965. How- ever, on February 18, 1966, 1 granted General Counsel's unopposed motion to sever and dismiss the case originat- ing in Region 13, and on September 28, 1966, 1 severed and dismissed the cases originating in Region 25 on mo- tion of the Region Director who advised that the surviv- ing issues in those cases (the bargaining allegations hav- ing already been dismissed pursuant to an unopposed mo- tion of the General Counsel) had been amicably settled. This Decision, therefore, deals only with the cases aris- in in Regions I. 3, 5, and 9. referred to hereinafter as the Holyoke, Glens Falls, Baltimore, and Springfield cases, respectively. Upon consideration of the entire record,' ' General Counsel's motion to correct certain errors in the transcript is hereby granted. B., The Union's Organizing Drive and Request for Recognition3 In the fall of 19644 the Union staged an organizational campaign among the employees working at the Holyoke store. At the hearing, 47 signed authorization cards were introduced in evidence; we may assume, without decid- ing, that this constituted a majority of the employees in the appropriate bargaining unit. On November 13, the Union wrote the Company claiming majority status at the Holyoke store, requesting recognition and bargaining, and offering to `prove its majority by submitting its authorization cards for checking by any impartial person. The Company promptly replied, by letter from its New York headquarters on November 16, that it "has no way of proving" whether the Union represented a majority, and suggesting that the matter be resolved by "a proper procedure under the rules of the ... Board." On Friday, December 4, union counsel in Boston wrote the Com- pany's New York office enclosing photostatic copies of L Over objection of Respondents, I permitted General Counsel to inquire further into the Holyoke matter in cross-examining an officer of the Respondents on September 20, 1966. 3 The pleadings establish that the Holyoke store is one of a chain of retail department stores operated by the Respondents named in the com- plaint in that case, that it annually receives over $50 ,000 worth of merchandise directly from outside Massachusetts, that its annual sales ex- ceed $500,000, that Respondents (jointly called the Company for pur- poses of the Holyoke case) are there engaged in commerce within the meaning of the Act , and that the Charging Parties in the Holyoke case, consisting of the Retail Clerks International Association and various of its locals, jointly called the Union for purposes of the Holyoke case, are a labor organization within the meaning of the Act. 4 All dates in this portion of this Decision refer to the year 1964 unless otherwise indicated. CLARK'S STORES 281 the authorization cards and again requesting bargaining. Company counsel responded from his Boston office on December 8 that the Company had "no knowledge what- ever as to the circumstances and manner under which the Union obtained the authorization cards," or that the Union "represents an uncoerced majority of the em- ployees." The Company stated that it therefore declined to recognize the Union, but that it was about to file a representation petition with the Board, as the Company "feels that any existing question of representation raised in [the Union's] letters . . . should be resolved by the .. . Board." 5 Store Manager Lounsbury testified that he had ex- amined the photostatic copies of the cards the Union mailed to the Company, and had compared them with the signatures of the employees. He could not remember when he did so, but he thought Company Counsel Tepper had asked him to do so, during a meeting in the store. He recalled writing either Boston counsel or the Company's New York office that the signatures appeared genuine. C. Alleged Interference General Counsel urges that on two occasions the Com- pany was guilty of unlawful invasion of employee Section 7 rights. According to employee Gloria Fontaine,6 in early December she was summoned to Store Manager Lounsbury's office where she spoke with Joseph Mc- Nally, area supervisor over a number of Clark stores, who asked her if she had been visited by union represent- atives and if she had "signed anything allowing the Union to come in and take a vote." Fontaine replied that she had been visited and had signed a card. Her testimony continues: Q. And was there any further conversation? A. He told me that some unions weren't legally recognized and that he wanted to make sure that this union was legitimate, and he asked me if they had shown me any identification. I told him that they had given me their cards, and he asked to see them. He asked if I had them with me. I told him I had them in my purse, and he asked to see them, and I went and got them and showed them to him, and he copied the information down from the cards'arid'said he'd check in to the legitimacy of the union. On cross-examination she added: Q. Am I correct in saying that Mr. McNally as- sured you at the time that he was talking to you in Mr. Lounsbury's office that none of this would result in any recriminations against you? A. Yes. Q. He made that quite clear, didn't he? A. Yes, he did. Q. And he did say that he was asking you the question because he wanted to make sure that these were legitimate union representatives who were coming around suggesting something to this effect? A. Yes. Q. And when you showed him the two calling cards, do I state it correctly that Mr. McNally said these are legitimate representatives of the union? A. He said they seemed to be legitimate. Q. They seemed to be, he said to you, legitimate representatives of the union; and this was about the extent of the conversation? A. Yes. McNally substantially confirmed Fontaine's testimony. He also testified that he asked several super- visory employees whether, when the Union approached them, the Union had represented that the Company "wanted the union in the store," a question McNally put "because [he] had heard this rumor." One person to whom McNally put this question was Clarence Bessette, a department manager, who according to company coun- sel was not a supervisory employee, although McNally had apparently regarded him as one. McNally, called as a witness by Union Counsel Pyle, testified as follows: THE WITNESS: I asked him if he was approached by the union on the basis that Clark's wanted the union in the store, and his answer was no; and that was the end of the conversation. Q. You don't mean that is all you asked him? A. That is all I asked. D. Conclusions With Respect to the Holyoke Case McNally's conversations with Fontaine and Bessette are too innocuous and too isolated to serve as foundation for a finding of violation of Section 8(a)(1), and also are far too insubstantial to establish that the Company at Holyoke resorted to unfair labor practices which prevented the holding of a fair election . See Hammond & Irving, Incorporated, 154 NLRB 1071; John P . Serpa, Inc., 155 NLRB 99; Strydel Incorporated, 156 NLRB 1185; Harvard Coated Products Co., 156 NLRB 162; but cf. N.L.R.B . v. C. J. Glasgow Co., 356 F. 2d 476,479 (C.A. 7); N.L.R.B. v. Superior Sales, Inc., 366 F.2d 229 (C. A. 8). General Counsel contends that because Lounsbury ex- amined the authorization cards and determined that the signatures were authentic , this case falls into the line ex- emplified by Fred Snow d/b/a Snow & Sons , 134 NLRB 709, enfd. 308 F .2d 687 (C.A. 9); Dixon Ford Shoe Co., Inc., 150 NLRB 861; and Jem Mfg., Inc., 156 NLRB 642. Those cases are all distinguishable on the ground that the employer had either agreed to bargain , or had ac- tually started to bargain on the basis of 'a card check. ' The Company did in fact file such a petition on December 10, and it was the subject of hearing on March 26 and April 9, 1965, primarily as to whether certain employees were in or out of the bargaining unit The day after that petition was filed , however, i e., on December 11, 1964, the Union filed a charge (Case I-CA-4825) alleging a refusal to bargain On December 16, the Regional Office advised the Company that the Com- pany's representation petition would be held in abeyance pending disposi- tion of the charge . On January 8, 1965, the Regional Office, after in- vestigation , dismissed the charge The Union promptly filed a new charge (Case I-CA-4860, filed January 12, 1965 ) repeating the allegation of refusal to bargain and adding an allegation of discriminatory discharge and other acts This charge was dismissed by the Regional Office on January 29, 1965. On February 26, 1965, the Union filed the charge in Case I-CA-4904 , initiating the instant proceeding, and alleging violations on a nationwide basis of Sec 8(a)(1), (2), (3 ), and (5) All but the 8(a)(1) and (5) allegations were dismissed on October I, 1965 The charge in Case I-CA-4932, filed March 19 , 1965, and limited to the Holyoke store, al- leged violations of Sec. 8 (a)(1) and (5), and three discriminatory discharges , but the complaint before me does not include any allegations of discrimination in this store 6 In the hearing on the RM petition , the Company contended that Fon- taine, the head cashier, was a supervisor For purposes of ruling on the motion to dismiss, I will assume she was an employee 282 DECISIONS OF NATIONAL Here the Company never challenged the authenticity of the signatures, which is all Lounsbury checked, but it did expressly challenge "the circumstances and manner under which the Union obtained the authorization cards" and whether the Union "represents an uncoerced majori- ty.,, Moreover, General Counsel is in error in asserting in his brief that Lounsbury's check of the cards preceded the letter of December 8 in which the Company refused to accept the cards as proof of majority. The Union mailed the cards to New York on Friday, December 4. Even if they were received there on December 5, it is in- conceivable that they were somehow transmitted to coun- sel in Boston , carried by him to Holyoke, and checked there by Lounsbury, in time for him to have written a letter to counsel in Boston which counsel had received by December 8, the date of his letter to the Union. General Counsel also states in his brief that the Company "filed an RM petition ... in which it took the position, after having examined the cards, that many of the card signers were supervisors." But this position was taken, not in the petition filed December 10, but in the hearing on the peti- tion months later. On this record, it seems clear that promptly after the Union mailed its authorization cards to the Company, the Company responded by filing an RM petition. The only reason this petition was not processed and an election conducted was that the Union filed a seriesof unfair labor practice charges. So far as this unit is concerned, these charges were groundless, and at best General Counsel has unearthed two minor inquiries, far short of conduct which would preclude a fair election. It was the Union, not the Company, which delayed and prevented resolu- tion of the issue as to the Union's majority status. Even assuming, arguendo, that the Company violated the Act elsewhere and demonstrated hostility to the bargaining process, at Holyoke the Company did nothing improper and did its best to obtain a prompt election to settle the matter. General Counsel argues that the Company's con- duct elsewhere reflects adversely on its good faith at Holyoke. It is at least as fair to argue that the Company's demonstrated good faith at Holyoke (demonstrated by its prompt filing of an RM petition and its noninterference at that store) reflects adversely on General Counsel's con- tentions elsewhere. I therefore conclude that the motion to dismiss the complaint in Cases I-CA-4904 and 4932 should be granted. 7 I1. THE SPRINGFIELD CASES A. Statement of the Case These cases, 9-CA-3451 and 3487, originated with charges filed January 22 and February 24, 1965, and a consolidated complaint issued April 14, 1965. The com- plaint alleged that the three corporate Respondents 7 In the event the Board or higher reviewing authority disagrees with this disposition of the matter (compare the difference in approach between the Board and court cases cited above ), the case should be remanded to permit the Company to introduce evidence with respect to the Holyoke case " At the hearing it was stipulated that these three Respondents at this location now operate the store as "Clark 's Gemble Corporation d/b/a Clark's Discount Department Store " This entity and its predecessors at LABOR RELATIONS BOARD named therein8 had violated Section 8 (a)(1) of the Act by various acts of interference , restraint , and coercion, had violated Section 8(a)(3) by discriminatorily discharging one Eula Ramsey, and had violated Section 8(a)(5) by refusing to bargain with the Charging Party in the Spring- field case, Local 1552 of the Retail Clerks, which in this section of this Decision is referred to as the Union. Evidence relating to this complaint was heard at Spring- field, Ohio, on March 17 and 18 , 1966;9 some additional evidence with respect thereto was taken at Baltimore, Maryland , on September 20, 1966. B. The Business of the, Company and the Labor Or- ganization Involved The Company operates a discount department ' store at Springfield , Ohio, where it is admittedly engaged in com- merce within the meaning of the Act and within the Board's jurisdictional standards . The Union is a labor or- ganization which in the fall of 196410 started an organiz- ing campaign in the Springfield store. C. The Union's Organizing Drive and Request for Recognition By January 18, 1965, the Union's organizing campaign had resulted in its obtaining signed authorization cards from 47 employees in the Springfield store, which we may assume, arguendo, constituted a majority of the em- ployees in an appropriate bargaining unit. On this date the Union sent a telegram to the New York office of the Company claiming majority status , offering to submit to a card check , and requesting recognition. The telegram concluded that if no reply was received by January 20, the Union "will assume that [the Company ] refused to recognize the Union as the bargaining representative chosen by a majority ...." The Company received the telegram but made no response.l i One month later, on February 16, at a union meeting , the union organizers asked the employees at the meeting to sign the following letter, addressed to the head officer of the Company in New York: We, the undersigned employees of Clarks Discount Department Store, 205 East Leffel Lane, Springfield, Ohio , wish to enjoy the rights of collec- tive bargaining . We have, prior to and from this day forth , authorized the Retail Clerks Union , Local No. 1552, AFL-CIO, 4127 East Second Street , Dayton, Ohio, to represent us for the purpose of collective bargaining, respecting rates of pay, hours of employ- ment , and other conditions of employment in ac- cordance with the applicable law. It has been brought to our attention that the top management of Clarks has refused to recognize our rights to freely choose a bargaining representative to speak in our behalf. This has caused us to become deeply concerned , knowing that our Employer is af- Springfield are herein called the Company I hereby correct the transcript of that hearing to substitute the word for "you" at p 295,1 4 All dates in this section of this Decision refer to the fall and winter months of 1964-65 unless otherwise indicated 11 According to Company Officer Bloom, the telegram was mislaid in the New York office CLARK'S STORES 283 filiated with various organizations, which are, in themselves, a form of Union. We respect our Employer's right to affiliate them- selves with. an organization of their choosing and we firmly believe our Employer should respect our rights to affiliate with the Retail Clerks Union, Local No. 1552. We have been led to believe that our Employer had our best interests at heart, in fact, prior to our wishes of becoming organized, we felt that our Employer was a fair and well meaning organization, however, since we have exercised our guaranteed rights to self- organization, our Employer, through his actions, has made us doubt his feeling toward us, the actual back- bone of his organization. We, the undersigned, take the position as free American Citizens, that we' are entitled to join a Union of our choice and that this right must be recog- nized. Further, if our Employer continues to refuse to recognize our choice of a bargaining representa- tive, the Retail Clerks Union, Local No. 1552, we, the employees of Clarks, will take whatever lawful steps may be necessary to prove our sincerity to our Employer, of our desires to be organized. The letter was signed by 52 people, 44 of whom signed at the meeting, and 8 of whom signed later at their homes. At least two of the signers, Eula Ramsey and Delores Wallace, had left the payroll some weeks before signing the letter. The Union sent this "round robin" letter to the Company's New York office, accompanying it with another letter requesting recognition. The Company received the letters on Tuesday, February 23, and promptly referred the matter to its counsel, who im- mediately filed an RM petition which was docketed in the Board's Cincinnati office on Monday, March 1. The Re- gional Office dismissed this petition on April 20, 1965, because of the issuance of the complaint in the Springfield case. D. Alleged Interference General Counsel urges that the record establishes the following items of company interference with employee rights under Section 7. 1. Employee Delores Wallace testified . that on December 3, 1964, only 2 days after she was hired, Richard Burkhardt, manager of the hard goods depart- ment and a supervisor within the meaning of the Act, identified certain individuals, then present in the store, as union organizers, told her that both the Union and the Company were going to have meetings, and then stated: "I would like for you to talk against the Union at the store meeting." Wallace testified that she replied, "No, I will not do anything for the Union while I am in the store and I won't do anything against the Union," and that Burk- hardt then walked away. Burkhardt denied having made such a request of Wallace, and testified that Wallace her- self initiated a conversation about the Union, pointing out to him the presence of the organizers and volunteering that she was not in favor of the Union, a position she ex- pressed on several occasions. Burkhardt also testified, in- consistently, that Wallace had expressed herself several times as being for the Union. 2. According to the testimony of employee Eula Ram- sey, one day in December 1964 she and three other em- ployees were seated at a lunch table in the store when Store Manager Edwards came by (as he often did) and joined them, observing:"I am surprised to find how many of you old girls are still here that signed for the union the last time," a reference to an unsuccessful union campaign in 1963. According to Ramsey, one of the girls replied that she had made no response to the Union's overtures, Ramsey herself said: "I think we all have our beliefs," and Edwards then ended that part of the conversation by stating, "I would find out where my union dues go" and making a vague reference to the Union's "promises." Ed- wards denied that the episode occurred and also denied knowledge of who had "signed for the Union" during the 1963 campaign. 3(a) Employee Efthimia Gounara testified that in January 1965 Arthur Thomas, who was then a depart- ment head and whose supervisory status at that time is in issue, asked her "What [she] was thinking about the Union," to which she replied, "I don't know anything about this." He continued, according to Gounara, that she would have to pay $5 a month to the Union and would get nothing from it. Thomas denied that the Union was mentioned in this conversation. (b) Gounara testified that the conversation continued with her complaining to Thomas that she was underpaid compared with a recently hired employee and Thomas' replying "Well, don't worry, I'll fix it up." Gounara testified that the next day Store Manager Edwards ad- vised her she was receiving a 5-cent-an-hour increase, and shortly thereafter Thomas told her: "You see what the Company did for you? You asked and you had it. But if the Union was here, you wouldn't get anything from the Union." Although it is clear that Gounara received a raise at that time, Thomas in effect denied making the re- mark attributed to him, for he testified after mentioning the problem to Edwards he next heard of the matter when Gounara told him she had received the raise. According to Gounara's testimony, the week after she signed the letter of February 16, 1965, urging the Com- pany to recognize the Union, the 5-cent pay increase she had received the preceding month was not reflected in her pay. She testified that when she inquired at the office, the girl there told her "We got an order from the manager to take away the nickel," and when she spoke to Thomas about it, he said: "When you get on my back you won't get a thing. You got the nickel raise because I thought you were working for me. But you are working for the Union. Now, go and ask them and get your nickel back from them. Don't ask me." Gounara further testified that she next spoke to Edwards, who said he would "straighten it out," and the next week the nickel increase was restored. Thomas denied making the statement Gounara attributed to him, and denied knowledge that she had ever had the nickel increase rescinded. Company records reflect that Gounara received 5-cent increases in January and in March 1965, and do not reflect any reduction in her pay 12 11 General Counsel moved on June 10, 1966, to reconvene the Spring- In March 1965 1 expected to get a regular five cent wage in- field hearing to take rebuttal testimony from Gounara In support of this crease When I did not receive the wage increase on the pay day after motion, General Counsel submitted an affidavit from Gounara reading in March 10, 1965, it was my feeling and belief that they were taking it pertinent part as follows (Footnotes continued on following page) 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. The Discharge of Eula Ramsey Eula Ramsey was employed by the Respondent from June 1962 until her discharge on January 22, 1965. Her job was to mark "hard lines," which entailed marking the prices on the merchandise to be displayed in that depart- ment. As noted above, Ramsey testified, but Edwards de- nied, that in December 1964 Edwards had referred to a group of four or five employees, including Ramsey, as some of the "old girls ... that signed for the Union the last time," to which comment Ramsey said she replied: "I think we all have our beliefs." In mid-January 1965 at a meeting in the store , Ramsey made a prounion comment, as did several other employees, including one Eva Glad- man. On January 21 Ramsey noticed that an order of electric toothbrushes had been marked with the wrong price. She tried without success to locate Richard Burkhardt, the de- partment manager. Failing to find him , she went to see Bartell, a New York official of the Company, who hap- pened to be in the Springfield store that day. She ex- plained the problem to Bartell, adding that she had failed in her efforts to reach Burkhardt. Bartell told her to cor- rect the markings. Late the next afternoon she was called to the office, where Assistant Manager Clement told her she was discharged, adding that "We hear as though you are dissatisfied." She asked him to send for Edwards, who came accompanied by Burkhardt. She testified that Ed- wards gave her no explanation and that Burkhardt stated: "You got your answer on your orders," a phrase which conveyed no meaning to her. Burkhardt testified that he was rebuked by Bartell for being unavailable when Ramsey tried to reach him, and that later that day he mentioned the episode to Edwards, who said they would discuss it the next day after Bartell and the other visiting supervisor from New York had left. The following morning, according to Burkhardt and Ed- wards, they and Assistant Manager Clement discussed the matter, and agreed that Ramsey should be discharged. Both Edwards and Burkhardt testified that Edwards told Ramsey, after Clement had called them to the office, that she was being discharged because she had put them in a bad light by going over their heads to Bartell, and that this was merely the culminating episode in a series of an- noyances which she had caused by what Edwards termed her nervous, excitable condition. F. Concluding Findings as to the Springfield Cases With respect to the discharge of Ramsey , I find on this record that it is attributable to the irritation of Burkhardt and Edwards over her conversation with Bartell , rather than to her union activity. She was not a particularly ac- tive proponent of the Union , certainly not more so than Eva Gladman, who was promoted to a department head notwithstanding her outspoken support of the Union. Burkhardt was apparently smarting from his rebuke at the hands of Bartell, and Edwards was apparently disturbed that his -effort to impress his New York supervisor with a smooth-running operation had miscarried. The most telling point in Ramsey's favor is her testimony that Cle- ment in discharging her said she appeared "dissatisfied," a not uncommon euphemism for "engaging in union ac- tivity." Clement, who is no longer employed at the store, did not testify. But even assuming that he used this ex- pression, and even assuming that the Company knew from Ramsey's attendance at a union meeting and her re- marks at a company-called meeting that she favored the Union, the record is clear that the Burkhardt-Bartell in- cident was the immediate cause of her discharge, and I can find little more than a suspicion, if that, that her sup- port of the Union was even a minor contributing factor. This, of course, is not to say that her discharge was "justified," or that the stature of Burkhardt and Edwards is in any way enhanced' by their action in venting their ir- ritation on an employee whose fault appears at worst to have been overzealousness in the store's interest, but these are matters for the Company's conscience, not for disposition under the Act. With respect to the alleged violations of Section 8(a)(1), I credit Delores Wallace's testimony over the incon- sistent versions proffered by Burkhardt, and find that he did ask her to speak in opposition to the Union. Such a request from a supervisor, particularly as in this case the supervisor who hired the employee just 2 days before, in- terferes with the employees' right to support a labor or- ganization and 'violates Section 8(a)(1). I also credit Ramsey's testimony that Edwards re- marked to a group of employees one day: "I am surprised to find how many of you old girls are still here that signed for the union the last time." I do not, however, find the statement violative of the Act. Edwards was the store manager at the time of the previous campaign, but so far as this record shows there had not been any charges, let alone findings, of discriminatory discharges at the time of his comment quoted above. Under these circumstances his statement is not a "warning ... that past support of the Union by other employees had caused them to lose their jobs," as the complaint alleges. The comment may fairly be construed,as nothing more than an expression of surprise that employees who had wanted a union were sufficiently satisfied with their jobs to continue in them after the Union's defeat rather than to seek work else- where. The statement does indicate some knowledge of the union sympathies of particular employees, but, aside from the fact that the complaint alleges no surveillance, implied surveillance, or interrogation by Edwards, the awareness in December 1964 of who had supported the Union in an election held in 1963 falls somewhat short of establishing illegal action by the Company. I should add (Footnotes continued from preceding page) away from me and this is how I expressed it on the witness stand I now realize that the wage increase was not, in fact, given and taken away but merely withheld. When my pay envelope did not contain the wage incrase the pay day after March 10, 1965, t went to the office [where the office employees] informed me that they had been instructed by Mr Ed- wards not to give me the customary five cent wage increase. I then went to Mr. Thomas and complained to him that they had taken the five cent wage increase away from me I used the same method of expressing myself to Thomas as I did in my testimony on March 17, 1966 I stated it this way because I felt that Clark's was, in fact , not giving me something that I was entitled to After I talked to Thomas , I immediately complained to Store Manager Edwards about Clark's not giving me the five cent wage in- crease. About a week later, or the following pay day, I received the five cent an hour wage increase. I denied the motion to reopen the record to take Gounara 's testimony. Ac- cepting the foregoing affidavit as an "offer of proof," I find that the episode would add nothing to the order recommended below. CLARK'S STORES 285 that even were I to find Edwards' statement a violation of Section 8(a)(1), my conclusions as to the alleged refusal to bargain, discussed infra, would not be altered. I credit Gounara's testimony that Thomas asked her what she thought of the Union, learned of her dissatisfac- tion with her wages, and the next day, after she had received an increase in pay, pointed out to her that the Company had promptly met her request, adding: "But if the Union was here, you wouldn't get anything from the Union." This testimony, in my view, sustains the allega- tions of the complaint which attribute unlawful interroga- tion to Thomas and the granting of a wage increase for the unlawful purpose of undermining the Union. The com- plaint alleges no violation in any'later reducing of Gou- nara's pay, and I make no finding with respect to the con- versation she claims to have had with Thomas some weeks later; see footnote 12, supra. The Company con- tends that Thomas was a department head and a manager trainee but not yet a supervisor at the time of his conver- sation with (iounara. But assuming, arguendo, that he was not a supervisor (and I note that his recommendation that her pay be raised carried weight), his position in the Company was such that the employees would reasonably regard him as representing management policy, so that the Company is liable for his statements. N.L.R.B. v. Solo Cup Company, 237 F.2d 521 (C.A. 8); N.L.R.B. v. Des Moines Foods, Inc., 296 F.2d 285 (C.A. 8). Turning finally to the question of refusal to bargain, it is General Counsel's theory that the Union represented a majority in an appropriate unit, that the Company did not have a good-faith doubt of this majority, that the Company's unfair labor practices prevented the holding of a fair election and that under a host of cases, largely stemming from Joy Silk Mills, Inc. v. N.L.R.B., 185 F.2d 732 (C.A.D.C.), cert. denied 341 U.S. 914, a bargaining order should issue. In my judgment, however, applicable here are such cases as Aaron Brothers Company of California, 158 NLRB 1077; Strydel Incorporated, 156 NLRB 1185; Harvard Coated Products Co., 156 NLRB 162; Ben Duthler, Inc., 157 NLRB 69; Hammond & Irving, Incor- porated, 154 NLRB 1071; and Clermont's, Inc., 154 NLRB 1397. In each of those cases, notwithstanding the fact that the employer committed some 8(a)(1) violations, the Board declined to issue a bargaining order based on a card majority, as the unfair labor practices did not establish rejection of the collective-bargaining principle or prevent the holding of a fair election. In the instant case, Burkhardt's request of Wallace that she speak against the Union (which she declined), and Gounara's conversations with Thomas, culminating in her receiving a wage increase and in a pointed reference by Thomas that she would not have fared as well had the Union been in the shop, are insufficient, especially in a unit of well over 80 employees, to invoke the Joy Silk line of cases. In this connection it should be noted that the Company, upon receiving the "round robin" letter of February 16, promptly filed an RM petition, and is not even alleged to have committed any unfair labor practices within several weeks of that date. If the Union could muster a majority to sign the "round robin" after the commission of unfair labor practices, it cannot be said that those practices prevented the holding of a fair election. Cf. Oklahoma Sheraton Corp., 156 NLRB 681. Although I believe, as indicated above, that controlling Board authority requires the dismissal of the bargaining allegation in the Springfield case, I should add that on this record I find that the Union did in fact represent a majori- ty of the employees at the time of the "round robin" letter. Such a letter, addressed directly to the employer, inherently commands more confidence as representing the desires of each signatory than does a card intended, primarily, if not exclusively, for the eyes of the Union. Moreover, the fact that the Union was able to attract a majority of the employees to a meeting as late as Februa- ry, several months after the campaign had started, is not without significance in assessing the Union's strength. Assuming that the "round robin" letter was signed by a majority of the employees, however,13 the question still remains whether the Company violated the Act by insist- ing on an election to resolve the issue. It cannot be said that the employer showed hostility to the collective-bar- gaining principle when he promptly filed an RM petition and refrained from further unlawful conduct. Further, if the Union had confidence in the letter as representing its quantum of support'14 it could have proceeded to a speedy election on the employer's petition, which raised no unit issues . The Union by failing to take that route has, in effect, gambled on winning bargaining rights by establishing significant unfair labor practices. This it failed to do, and I am therefore constrained by the Board precedents cited above to dismiss the bargaining allega- tion of the Springfield case. 111. THE GLENS FALLS CASE A. Statement of the Case This aspect of the matter, heard at Lake George, New York, May 17-20, 1966, originated with a charge filed January 7, 1965, by Local 1262, Retail Clerks Interna- tional Association, AFL-CIO (which in this section of this Decision is referred to as the Union), and a complaint issued September 23, 1965, alleging that M. N. Landau Stores, Inc., d/b/a Clark's Stores (hereinafter referred to as the Company for purposes of this section), had violated Section 8(a)(1) and (5) of the Act at its stores at Glens Falls and Saratoga, New York. At the opening of the hearing the complaint was amended over the Company's objection to add additional allegations of 8(a)(1) viola- tions. The complaint was further amended during the course of the hearing to allege that one Godfrey, originally alleged to be an "agent" of the Company, was also a "supervisor."15 13 Of the 52 signatures , 2 were shown to be of former employees. No payroll for the period is in evidence ; colloquy of counsel indicates 4hat the material the Company furnished in response to subpena was not suffi- ciently clear for General Counsel's purposes (see tr. 177-181, 316-317). The RM petition filed by the Company at that time estimates the unit at 80, and it seems a reasonable inference that except where the record in- dicates to the contrary, persons on the mid-January payroll were still em- ployed I month later. 19 The Company asserted at the hearing that it doubted the Union's majority status , notwithstanding the appeal signed by a majority , because the Retail Clerks in other instances had asserted majorities and then lost elections. In no other case, however, had the Company received such a "round robin" letter. In view of the prompt filing of an RM petition and the absence of serious unfair labor practices, I cannot make a finding of "bad faith" by the Company. But see N.L.R.B. v. Superior Sales, Inc, 366 F.2d 229 (C.A. 8); N L.R.B v C. J, Glasgow Co., 356 F 2d 476,479 (C.A. 7). 15 The pleadings establish that the Company operates discount depart- ment stores at Saratoga and Glens Falls, where it is engaged in commerce within the meaning of the Act and within the Board' s jurisdictional stand- ards, and that the Union is a labor organization within the meaning of the Act. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Unfair Labor Practices I The bargaining issue During an organizing drive in the Glens Falls store in the late fall of 1964, the Union obtained signed authoriza- tion cards from a majority of the employees in that store. On December 22, 1964, the Union sent the Company's New York office a telegram, in which the Union asserted that it represented a majority of the employees in a unit consisting of the Glens Falls and Saratoga stores, offered to 'produce the authorization cards for a card check by "an impartial and disinterested person," and demanded recognition and bargaining. The Company replied by letter that same day, declining to recognize the Union, stating that the Company "has no way of knowing" whether the Union represented a majority, and suggesting that the Union pursue the matter by using the processes of the Board. One month later the Company filed an RM petition which the Regional Office dismissed after issuing the complaint in this case. Although the Union's bargaining demand was fora two-store unit, "I find that a unit of two stores, unrelated in any significant respect, would not be appropriate and that the Glens Falls store constitutes a separate unit. For reasons which will become evident, I see no need to ex- pand on my grounds for finding the single-store unit. The fact that the Union's demand was made for an inap- propriate unit would not, however, dispose of the case, for if the Union had a majority in the Glens Falls unit and if company unfair labor practices tended to dissipate that majority and to prevent a fair resolution of the question concerning representation, an order confirming the Union's majority status could reasonably be entered to restore the status quo ante and to prevent the Company from profiting by its own wrong. Hence, here, as in the Springfield and Holyoke cases discussed above, the con- trolling issue is whether the Company committed unfair labor practices of such a nature as to render appropriate the issuance of a bargaining order. 2. The violations of Section 8(a)(1) a. Alleged violations by admitted supervisors -Store Manager Philip Dunne and Assistant Store Manager Merrill Eastman are admittedly supervisors within the meaning of the Act. Each of them is charged with, violating Section 8(a)(1) in the latter part of January 1965, Dunne in connection with employee Noonan and Eastman in statements to employee Joiner. The Noonan episode: On the afternoon of January 19, 1965, Joe Noonan, a 17-or 18-year old boy, was at work at the snackbar in the store, when Union Organizer Wal- lis came in. Noonan asked Wallis how the union drive was going, and Wallis replied that a majority of the em= ployees had signed authorization cards. Wallis then asked if Noonan wanted a card, and, receiving an affirmative reply, handed one to Noonan, who took it into a back room, signed it, and promptly returned it to Wallis. This exchange was observed at some distance by Charles Godfrey, a local police sergeant, who also was employed by the Company as its chief guard in the Glens Falls store, and who in this latter capacity was under standing instructions from Store Manager Dunne to "keep an eye" on the union organizers to see that they did not distrub employees during working time. Godfrey hastened to tell Dunne that an organizer had been talking to Noonan, and at Godfrey's' urging Dunne and Godfrey immediately went to where Noonan was at work and asked him to ac- company them to the office of a Justice of the Peace to make a statement as to what had transpired between him and the organizer. Noonan, who appeared "frightened" when he saw the store manager and the chief guard ap- proaching, agreed to go with them at once, and in response to his question as to whether he was in trouble was reassured by Godfrey that it was the organizer, not Noonan, who was in trouble for wrongful action. The three went to the office of the Justice of the Peace, ac- companied by another youthful employee, Frederick Bennett, who knew where the official lived. There Noonan gave a statement describing the episode recounted above. The Eastman-Joiner episode • Annette Joiner, who had left the Company's employ by the time of the hearing, testified that in mid-January 1965, while she was working at the snackbar, she visited a table during a "coffee break" with two union organizers Shortly thereafter, ac- cording to Joiner, Assistant Store Manager Eastman told her not to talk to the organizers, and she replied that she had the right of free speech, that she would talk to whom- ever she wanted to whenever she wanted to, and no one would tell her otherwise. Eastman denied the episode, re- membering only that he had'told Joiner that she should not be sitting at a table-when the snackbar was busy. I credit Joiner's disinterested and detailed version, and I note that in another respect her testimony was cor- roborated by that of Williams, a company witness. b. Alleged violations by the guards As noted above, Charles Godfrey, a local police of- ficer, is the head guard at the Glens Falls store. He has several assistants who were hired pursuant to his recom- mendations, and whose hours of work he schedules. Among them were Charles Williams and Harold Osborne, who like Godfrey are also members of the local police force. The complaint alleges that all three men are agents of the Company, and was amended to allege that Godfrey is also a supervisory employee, an allegation I find sustained by the evidence just noted. As to Osborne, the complaint alleges unlawful inter- rogation in December 1964. The evidence establishes that at that time he asked Manager-Trainee Jerry Clark if Clark knew who the union organizers were. The context of the conversation is not shown on the record, but it may be noted that this occurred early in the union campaign and that the guards had been instructed to "keep an eye" on the organizers. More serious allegations are leveled at Godfrey and Williams: As to Williams, the complaint alleged that he kept a union meeting under surveillance, that he told em- ployees they'would lose privileges if the Union came in, and (by amendment at the hearing) that they would be discharged if they talked to organizers As to Godfrey, the complaint names him as engaged in the surveillance with Williams, alleges violations in connection with the Noonan episode described above, and also alleges that he suggested to employees that they form their own group to deal with the Company, that he told them the Company knew who had signed cards, and that he told them to re- port the names of other card signers. The evidence that Williams and Godfrey engaged in surveillance establishes that they were present on the CLARK'S STORES 287 street in the vicinity of a union meeting early in December, that Williams saw the employees both enter and leave the meeting, and that Godfrey was with Wil- liams when they left. Both men testified that at the times in question they were discharging routine duties as police officers of Glens Falls, and there is no affirmative evidence that they were told to spy on the employees or that they reported to management the names of any em- ployees attending the meeting. The meeting was held in a building located only a few doors from the main inter- section in,Glens Falls. Perhaps even a "naif, simple- minded" judge would find the circumstances suspicious, but even one with the Holmesian prescription of "something of Mephistopheles" could not find enough in this record to transmute the suspicions into a finding of surveillance. . Williams admitted telling employee Joiner that if the Union came in "things will tighten up." Employee Palmer testified that Williams told her that she would get into trouble talking to members of the Union, and that Dunne had said anyone caught talking with union members would be discharged. I credit Palmer's testimony over Williams' denial, except that it is probable that the stric- ture Williams expressed was in terms of talking to or- ganizers rather than mere members of the Union. Wil- liams was under orders from Dunne to see to it that the organizers did not distrub employees during working hours; and Williams (who explained his admitted remark to Joiner as just the product of his own imagination based on "different sources" including experiences of his brother) could well have mistranslated Dunne's words into the language to which Palmer credibly testified. Godfrey, whose participation in the Noonan and "sur- veillance" episodes has already been described, admitted that one evening in December 1964, while discussing the Union with two of its employee supporters at a restau- rant, he suggested that the girls in the store could ap- proach Dunne as a group without a union and obtain the improved working conditions they desired. He denied an episode, testified to by employee Jane Myette, in which Godfrey in December 1964 allegedly asked employee Jean Morehouse to turn over to him the names of girls who signed union cards and also stated that Dunne al- ready had the names of those who had already signed. Myette, who stated that she overheard Godfrey's re- marks to Morehouse, testified that Godfrey was smiling or laughing as he made them, but that she took seriously his statement that Dunne had a list of card signers. I credit Myette's testimony, based on consideration of her demeanor as contrasted with that of Godfrey, and the latter's admittedly faulty recollection of events in the period in question. c. Alleged violation by alleged supervisors (I) The allegedly unlawful statements General Counsel alleges that Shirley Montero, Jerry Clark, and Daniel Reinack were supervisory employees and that each of them engaged in unlawful interrogation. Late in January 1965, Shirley Montero, the head night cashier, asked employee Diana Doran "if anyone from the Union had been around recently." During that same month Jerry Clark, a "manager-trainee," told employee Libby French that a "big layoff' was in prospect but that she would not be laid off as long as she minded her own business and stayed out of trouble. When French asked Clark if this was a threat he replied: "No, I am not threatening you. What are you going to do, run to the Union?" to which she rejoined that she was not, that she did not have to run to anybody, and that Clark should go away and leave her alone. Two employees testified concerning alleged conversa- tions they had with Daniel Remack, a management- trainee in charge of the drug department. -According to Sophie Corlew, an employee in that department, Reinack asked her the day after a union meeting in December 1964 whether she had attended the meeting adding that he hoped she had not signed a card as she would be jeopardizing her job to do so Corlew further testified that the following month, after the Union had voted to strike, Reinack on various occasions asked her "if we were planning to -walk out that particular day or when we were planning to walk out, or if this was the time we were going to do this." According to employee Annette Joiner, after the strike had started, Reinack asked her "in a kidding way" when and where the next union meeting was to be. Reinack, admitting that he "might have" asked Corlew whether she had attended a union meeting, denied -the other statements attributed to him. Based on my observa- tions of the witnesses, I credit the testimony of Corlew and Joiner. (2) Alleged supervisory status of Montero, Clark, and Reinack Shirley Montero, the head night cashier, performed du- ties substantially similar to those of Jane Myette, the head day cashier, who all parties agree is not a supervisor. The only appreciable difference appears-to be that Montero has the authority to tell the women employees at night when to take their "coffee breaks," and allows them from 12 to 15 minutes. This added responsibility and discretion do not, in my judgment, lead to a determination that Mon- tero is a supervisor and Myette is'not. I therefore find that Montero is not a supervisory employee Remack and Clark were "management-trainees" or "department heads," a classification common to the vari- ous Clark's stores involved in this-litigation. Such an em- ployee is hired as a potential store manager, although many of them leave the Company before attaining such status. He is in charge of a department within the store and is thus "trained on the job" for his potential manager- ship. As a "department head" he has no power to hire or fire, but he 'does give directions to the other clerk or clerks in the department, who are aware of his status as "head" and as "manager-trainee." Usually such manager- trainees are salaried, rather than hourly paid, and are car- ried on the "New York payroll" rather than that of the store in which they are working. Their position as known potential managers tends to separate their interests from those of ordinary rank-and-file employees, and in any event as "department heads" they are cloaked with authority to direct the other clerks in the discharge of their duties. Such direction is minimal in the case of a discount department store, but I find it sufficient to establish that in the ordinary case department heads are supervisors. Further, as management-trainees' they are regarded by employees as representing company policy, and their statements are properly attributable to the Com- pany. See International Association of Machinists, Tool and Die Makers Lodge No. 35' (Serrick Corp.) v. N.L.R.B., 311 U.S. 72, 80, H. J. Heinz Company v N.L R B., 311 U.S. 514, 520, N.L.R.B. v. Fiore Bros. Oil 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Co. & Amalgamated Union Local 355, 317 F.2d 710 which together constitute a single unit appropriate for (C. A. 2). bargaining, and which are part of the Landau chain along d. Conclusions with respect to the alleged violations of Section 8(a)(1) at Glens Falls Summarizing the foregoing discussion, I find that the Company violated Section 8(a)(1) of the Act by the fol- lowing acts: (1) Store Manager Dunne's and Guard Su- pervisor Godfrey's intimidatory treatment of Noonan; (2) Assistant Store Manager Eastman's directive to Joiner not to talk to organizers; (3) Godfrey's statement to em- ployee Morehouse in employee Myette's presence that Dunne had the names of the employees who had signed union cards;'6 (4) department head Reinack's conversa- tion with Corlew in which he asked if she had attended a union meeting and told her that she would be jeopardizing her job if she signed a union card; (5) the statement of store guard Williams to employee Joiner that "things will tighten up" if the Union came in; and (6) Williams' warnings to Palmer not to talk to union organizers. Although Williams was a mere store guard, not a super- visor, he had been instructed to "keep an eye" on or- ganizers, and his statements may well have been prompted by what he regarded as the natural implication of his instructions. Under these circumstances the Com- pany is liable for his conduct under the doctrine of National Paper Company, 102 NLRB 1569, 1571-72, set aside 216 F.2d 859, 868 (C.A. 5);17 see also Restate- ment (Second) Agency, §§ 230-231 (1938). I find no violation of Section 8(a)(1) in Osborne's iso- lated query of Clark, in the alleged "surveillance" by the police officers, in Montero's inquiry of Doran (Montero not being a supervisor), or in Clark's conversation with French. Godfrey's suggestion that the employees act as a group without the Union was nothing but a personal ex- pression of his own, expressed in friendly, informal con- versation with two strong supporters of the Union, who immediately and unequivccally rejected Godfrey's sug- gestion. In the light of all these circumstances I find that this isolated reference to the formation of an employee group apart from the Union did not violate the Act. Having found only isolated -violations of Section 8(a)(1), I conclude that here as in the Springfield, Ohio, case, discussed above, the unfair labor practices are not sufficient to invoke the Joy Silk doctrine, and that a bar- gaining order is not called for here to remedy the 8(a)(1) violations. I should add that I would reach the same result, even if I am in error in finding the two-store unit inappropriate, and even if Godfrey's suggestion that the employees act in concert without the Union be held an unfair labor practice. with the other stores discussed above as well as many others. On February 18, 1965, Retail Store Employees Union, Local No.'692 (referred to in this section of this Decision, as "the Union" or "the Charging Party") filed a charge against the two stores (collectively referred to in this section as "the Company," or "the Respondent") al- leging a refusal 'to` bargain in December 1964, after protracted negotiations. On March 1, 1965, the Union's International filed'a charge alleging nationwide violations of Section 8(a)(1), (3), and (5) by M. N. Landau Stores, Inc., specifically including the Baltimore stores. On March 16, 1965, the- Union filed 8(a)(1) charges against the Company. These three charges formed the basis of a complaint issued by Region 5 on October 5, 1965 ( and, later consolidated with the other cases in this proceed- ing), alleging violations of Section 8(a)(5), (3), and (1) of the Act. More specifically, the complaint alleged that on or about November 4, 1963, the Union was selected as the bargaining representative of the Company's em- nloyees; since on or about December 30, 1964, the Com- pany refused to bargain in good faith with the Union; on or about February 13, 1965, the Company withdrew recognition from the Union; and the Company's actions of December 30, 1964, and February 13, 1965, violated Section 8(a)(5) and (1) of the Act. The complaint also al- leged that the Company in other respects violated Section 8(a)(3) and (1) of the Act, but those allegations were withdrawn pursuant to an informal settlement during the course of the proceeding. This Decision, therefore, deals only with the "bargaining" aspect of the Baltimore case. 2. General Counsel's motions to dismiss When the Baltimore case came on for hearing, General Counsel stated that he was unable to prove the allegation of the complaint that the Union enjoyed majority status in November 1963, and moved to dismiss the "bargain- ing" allegations . Counsel for the Union represented that it could produce evidence to establish its majority as of November 1963. 1 thereupon denied General Counsel's motion to dismiss; the Company took an interlocutory ap- peal, and the Board affirmed the. ruling. Subsequently the Union introduced into evidence 81 authorization cards as to which the signatures were autheniticated, and proffered 14 more cards as to which it could not authen- ticate signatures. As the, Union contended that the unit consisted of 174 employees, it conceded that it could not prove that it had majority status in November 1963. At this point, General Counsel again moved to dismiss the "refusal to bargain" allegations of the Baltimore com- plaint. The Union opposed this motion , arguing that IV. THE BALTIMORE CASES because the Company extended recognition in November 1963, bargained in 1964, and indeed signed a contract in A. Statement of the Case December 1964 (never in effect because not ratified by the Union), the'Company could not defend its alleged 1. The pleadings refusal to bargain in December 1964 and February 1965, on the ground, that 'the Union lacked a majority in The Baltimore cases involve two stores known as November 1963. The Union contended, in effect, that Clark's Dundalk, Inc., and Clark's Brooklyn Park, Inc., although passage-of time and turnover of employees 18 Godfrey was "laughing" when he told Morehouse to turn in to' him the names of new card signers and "smiling" when he said Dunne hau a list of those who had already signed . Myette thought he meant the latter statement to be taken seriously. I find it an unlawful statement even if ut- tered with a smile N.L.R B v A P Green Fire Brick Company, 326 F 2d 910,914 (C A 8) " In declining to enforce the Board's Order in National Paper, the court observed that the guard in that case was employed by an independ- ent contractor and had acted in direct violation of express orders of his own employer Williams in the instant case was employed directly by the Company and was not violating express orders. CLARK'S STORES 289 prevented it from proving its earlier ,majority, the Com- pany was estopped to deny that the Union had had a majority, and the burden of proving lack of majority or good-faith doubt of majority at the time negotiations broke off was on the Company. General Counsel and the Company opposed the Union's position on two grounds . They argued , first, that as a matter of procedure the theory of the complaint was not that now espoused by the Union but rested on the premise that the proof of majority in November 1963, was an essential part of the affirmative case , and that the Charging Party could not vary from the theory urged by General Counsel . Second, the General Counsel and the Company contended that the theory now espoused by the Charging Party was untenable as a matter of law. I ex- pressly reserved ruling as to the latter, point , but denied the motion to dismiss insofar as it rested on the alleged impropriety of permitting Charging Party to sustain the allegations of the complaint on a theory different from that urged by General Counsel . Noting that the complaint alleged as unfair labor practices refusals to bargain on December 30, 1964 , and February 13, 1965 , 1 ruled that the Charging Party had a right to support those allega- tions even though it might differ with General Counsel as to the nature of the proof necessary to give rise to the obligation to bargain . Again the Company took an inter- locutory appeal , which the Board denied without preju- dice to the rights of any of the parties -to challenge in its exceptions to this Decision the validity of my ruling in this respect. The Charging Party therefore was permitted to in- troduce evidence in support of the complaint . At the con- clusion of Charging Party's case , Respondent moved to dismiss the case for failure of the Charging Party to establish a primafacie case. I indicated on the record that I inclined to the view that the motion was ' well founded, but deferred ruling pending the filing of memoranda. Upon consideration of the memoranda thereafter filed by the Charging Party and the Respondent ,'and on the entire record, I hereby grant the motion to dismiss, pursuant to the findings set forth below.18 B. The Bargaining Between the Parties and the End of Negotiations In the late fall of 1963 , the Union requested the Com- pany to recognize and bargain with it as the statutory representative of the Company's employees . The Com- pany agreed to do so , but negotiations did not commence until the summer of 1964 , as the Union was occupied in the interim with a strike in the retail 'food stores in the area. The Company met with the Union on several occa- sions in the late summer and fall of 1964 ,'and early in November 1964 the negotiators (company counsel and Alvin Akman , a union officer) reached agreement on a contract , subject to ratification by the employees. The Union thereupon called meetings of the employees of the two stores for the purpose of ratifying the contract. Only a small number of employees attended the meetings (less than 40 in a unit of nearly 200), and the vote was "overwhelmingly" against ratification of the contract. Akman advised company counsel of the small turnout, and of the overwhelming rejection of the contract, and urged that the Company resume negotiations and in- crease the wage rates which were the cause of the em- ployees' dissatisfaction with the contract. In the following month , December 1964, the company and the union negotiators again reached agreement on a contract, which they signed subject to ratification by the employees. Again the Union called meetings of the em- ployees, this time obtaining an attendance of from 40 to 50. The employees again overwhelmingly refused to ap- prove the contract. On December 30 Akman advised company counsel that the contract had been rejected, that Akman was "not happy" over the small number that had attended the meetings , and that "the main point of issue was still wages." Akman urged that bargaining be resumed. Com- pany counsel replied, according to Akman's testimony, that "he thought he had reached the bottom of the well, and could not go any further, that he would talk to New York [company headquarters]. He then said that if anything came up that he would let me know." Asked by union counsel to testify as to the "precise response" of company counsel to the request for further bargaining, Akman testified: "To the effect that he felt that he had gone as far as he could go. He indicated he would try New York, but he did not hold much hope for it. If there was any change, he said he would let me know." The Union heard nothing further from the Company, and on January 26, 1965, the Union commenced a strike in an effort to compel further bargaining . According to Akman's testimony, the Union asked only "a select group of employees to come out on strike and to picket." Dur- ing the strike, Akman happened to meet company counsel and asked "what if anything we could do about negotia- tions." Counsel replied emphatically "that he was not about to talk about Clark's." Company counsel filed an RM petition with the Board, and thereafter ignored a written request from the Union, dated February 23, 1965, asking for a resumption of bargaining. C. Conclusions With Respect to the Baltimore Bargaining After bargaining in good faith with the U nion and twice reaching tentative agreement , the Company learned on December 30, 1964, that the Union had rejected the latest contract because of the employees ' dissatisfaction over wages . The company negotiator told the union negotiator that the Company would make no further con- cessions , and that if company headquarters advised otherwise , he would so notify the union negotiator. At this point the parties had bargainined to an impasse, and the Company's refusal to engage in further negotiations did not violate Section 8 (a)(5). Moreover, the Company had been apprised of the small attendance at the ratifica- tion meetings, and was therefore warranted in questioning the Union's majority status in February 1965 when the Company filed an RM petition with the Board . 19 I con- clude , therefore, that the allegations of the complaint al- '" See fn 7, supra '" The parties stipulated that the alleged 8(a)(1) and (3) violations which were informally settled were not to be considered in determining whether the Company violated Sec 8(a)(5) In any event these alleged violations' occurred after the breakoff of negotiations in December 1964 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD leging unlawful refusals to bargain in December 1964 and February 1965 should be dismissed.20 CONCLUSIONS OF LAW 1. Respondent 21 at its Springfield, Ohio, store, by Hard Goods Manager Burkhardt's request of employee Wallace that she speak against the Union, by department head Thomas' interrogation of employee Gounara as to her union views, and by the granting of a wage increase to Gounara for the purpose of discouraging support of the Union, has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Sec- tion 2(6) and (7) of the Act. 2. Respondent at its Glens Falls, New York, store, by Manager Dunne's and Guard Supervisor Godfrey's in- timidatory treatment of employee Noonan, by Assistant Manager Eastman's directive to employee Joiner not to talk to organizers, by Godfrey's statement to employees that Dunne had a list of those who had joined the Union, by department head Reinack's interrogation of, and warn- ing to, employee Corlew, and by store guard Williams' threats to employees Joiner and Palmer has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 3. Except as found in the two foregoing conclusions, Respondents have not engaged in the unfair labor prac- tices alleged in the complaint. THE REMEDY I shall recommend that the appropriate Respondents be directed to cease and desist from their unfair labor prac- tices and that they post appropriate notices of com- pliance. Accordingly , upon the foregoing findings and conclu- sions, and upon the entire record, I recommend , pursuant to Section 10(c) of the Act, issuance of the following: ORDER 1. Clark's Gamble Corporation d/b/a Clark's Discount Department Store (as successor to Clark's Springfield, Inc., Clark's Gamble Springfield, Inc., and Clark's Lan- dau Springfield, Inc.), its officers, agents, successors, and assigns, shall: - A. Cease and desist from asking employees to speak against union organization, interrogating employees as to their union views, promising or granting wage increases to discourage union activity, or in any other manner inter- fering_ with, restraining, or coercing its employees (includ- ing employees in leased departments) in the exercise of their rights under Section 7 of the Act. B. Take the following affirmative action necessary to effectuate the policies of the Act: 1. Post at its store in Springfield, Ohio, copies of the attached notice marked "Appendix A. "22 Copies of such notice, to be furnished by the Regional Director for Re- gion 9, after being duly signed by an authorized represen- tative of the Company, shall be posted immediately upon receipt thereof, and be maintained 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 any other material. 2. Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of the receipt of this Decision, what steps the Company has taken to comply herewith.23 II. Respondent M. N. Landau Stores, Inc., d/b/a, Clark's Stores, its officers, agents, successors, and as- signs, shall: A. Cease and desist at its Glens Falls, New York, store from intimidating employees because they con- versed with union organizers, forbidding employees from conversing with organizers, advising employees that it has a list of employees who have signed union cards, in- terrogating employees as to their union activity, threaten- ing employees that by signing a union card they jeopardize their jobs, or in any other manner interfering with, restraining, or coercing its Glens Falls employees (including employees in leased departments) in the exer- cise of their rights under Section 7 of the Act. B. Take the following affirmative action necessary to effectuate the policies of the Act: 1. Post at its store in Glens Falls, New York, copies of the attached notice marked "Appendix B."24 Copies of such notice, to be furnished by the Regional Director for Region 3, after being duly signed by an authorized representative of the Respondent, shall be posted im- mediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, in- cluding 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. 2. Notify the Regional Director for Region 3, in writ- ing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.25 20 1 find it unnecessary to reach the question whether the complaint should also be dismissed because the evidence fails to establish that the Union enjoyed majority status in November 1963 Since the Company recognized and bargained with the Union for 13 months thereafter, it may be that the burden of showing a lack of majority in November 1963 was on the Company 2) For purposes of these conclusions, the term "respondent" applies to the corporate entity operating the particular store involved in the particu- lar conclusion of law 22 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for "the Recom- mended Order of a Trial Examiner" in the notice I n the further event that the Board's Order be enforced by 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 " 29 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read, "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Com- pany has taken to comply herewith 2n See fn 22, supra 2s See fn 23, supra CLARK'S STORES APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: All our employees have the right to join or assist Local Union No. 1552, Retail Clerks International Union, AFL-CIO, or any other union , and also have the right not to join or assist any union. WE WILL NOT question our employees as to their union activity, promise or grant benefits for the pur- pose of discouraging union activity, ask employees to speak for or against any union, or in any other manner interfere with their exercise of the above rights. CLARK'S GAMBLE COR- PORATION D/B/A CLARK'S DISCOUNT DEPARTMENT STORE Employer Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3686. 291 APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: All our employees have the right to join or assist Local 1262, Retail Clerks International Association, AFL-CIO, or any other union, and also have the right not to join or assist any union. WE WILL NOT question our employees as to their union views, forbid them from talking to union or- ganizers during nonworking hours, maintain a list of employees who sign union cards, advise employees that by signing union cards they jeopardize their em- ployment, or in any other manner interfere with their exercise of the above rights. M. N. LANDAU STORES D/B/A CLARK 'S STORES Employer Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, The 120 Build- ing, 120 Delaware Avenue, Buffalo, New York 14202, Telephone 842-3100. 336-845 0 - 70 - 20