Sprouse-Reitz Co., Inc.

378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sprouse-Reitz Company, Inc. and Retail Clerks Union Local 324, Retail Clerks International As- sociation, AFL-CIO. Case 21-CA-7383 November 22, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN National Labor Relations Act, as amended , hereinafter called the Act. Pursuant to notice , a hearing was held before me at Santa Ana, California , on April 18 , 19, and 20 , 1967. All parties were represented at the hearing and were afforded full opportunity to be heard , to introduce relevant evidence , and to file briefs with me . The parties waived oral argument and on June 12 filed briefs with me. Upon consideration of the entire record and the briefs of the parties , and upon my observation of the witnesses, I make the following: On August 1, 1967, Trial Examiner James T. Barker issued his Decision in the above-entitled proceeding, finding that the Respondent had not en- gaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and Charging Party filed exceptions to the Trial Examiner's Decision with supporting briefs and Respondent filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 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 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. I We agree with the Trial Examiner that the decision of the court in Retail Clerks Union, Local 1179, AFL-CIO v. N L R B, 376 F 2d 186 (C.A 9, 1967), does not compel a finding of a bad-faith refusal to bargain in the present case The instant case is factually distinguishable, based upon the findings that here the Union made no significant tender of its cards to Respondent, and Respondent neither inspected the cards nor in- dicated its actual or possible acceptance of the Union 's claim of majority. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES T. BARKER , Trial Examiner : Upon a charge filed on November 17, 1966 ,' the Regional Director of the National Labor Relations Board for Region 21, on Janu- ary 23, 1967, issued a complaint and notice of hearing alleging violations of Section 8(a) (1), (3), and (5) of the i Unless otherwise specified all dates referred to herein relate to the calendar year 1966. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is an Oregon corporation engaged in the operation of a chain of retail stores in 10 Western States of the United States, including a store in Stanton, Califor- nia. In the course and conduct of Respondent's business operations during the 12-month period preceding the is- suance of complaint herein, the Respondent received gross revenue valued in excess of $500,000. During the same period of time, Respondent received goods valued in excess of $50,000 which goods were transported to its various places of business in interstate commerce directly from States of the United States other than the State of California. Upon these admitted and undisputed facts, I find that at all times material herein, the Respondent has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Ii. THE LABOR ORGANIZATION INVOLVED Retail Clerks Union Local 324, Retail Clerks Interna- tional Association , AFL-CIO, hereafter called the Union, is admitted to be a labor organization within the meaning of Section 2(5) of the Act , and I so find. III. THE UNFAIR LABOR PRACTICES A. The Issues The principal issues posed by the complaint are (a) whether Respondent violated the Act by discharging em- ployees Norra Pomeroy and Ola Stearman because they had engaged in union or concerted activities ; (b) the inclu- sion in the bargaining unit of employees Pomeroy and Stearman and of employees Laura Vanderwaal and Bar- bara Cook ; and (c) whether, on or about August 6 and/or September 15, repectively , the Respondent unlawfully refused to bargain collectively with the Union. B. Pertinent Facts 1. Respondent's operations Respondent's principal office is in Portland, Oregon. The Stanton, California, store - the only branch of Respondent's operation involved in this proceeding - is under the management of Alfred Cook. Cook reports directly to District Manager Jack Watkins, who is headquartered in Laguna Beach, California, and who has under his direction and supervision 23 retail stores. Wat- kins is responsible for the direction of personnel em- 168 NLRB No. 56 SPROUSE-REITZ CO., INC. 379 ployed by the stores in his district and for the oversight of operations of each store , including the responsibility for implementing all policies emanating from the Portland, Oregon , headquarters. Alfred Cook became manager at the Stanton store in September 1965. As manager he has direct supervision over the personnel employed in the store and is charged with general responsibility of store operation and of or- dering merchandise for the store. 2. The employee complement During the payroll period ending August 6, Respond- ent employed Irene Cullum, Evelyn Rickett, Laura Vanderwaal, Richard Finefrock, and Barbara Cook, the wife of Manager Alfred Cook.2 Laura Vanderwaal was terminated during the payroll period ending August 6.3 During the payroll period end- ing September 18 which encompasses the September 15 date, alleged by the General Counsel as an alternate date upon which the Union demanded recognition, in addition to Cullum, Rickett, and Finefrock, Respondent also em- ployed Rose Marie Leabo, Norra Pomeroy, and Ola Stearman. The General Counsel conceeds the propriety of Leabo's inclusion in the bargaining unit pertinent herein and also urges the inclusion of Pomeroy and Stear- man. On the other hand, while not contesting Leabo's in- clusion, Respondent asserts that both Stearman and Pomeroy were temporary employees who had been hired merely to accomplish certain duties in connection with the reorganization and refurbishment of stock and the relocation of store counters and fixtures. Subsequently, on September 8, Ola Stearman and Norra Pomeroy duly signed authorization cards.5 Subsequently the cards of Rickett, Vanderwaal, and Cullum came into the possession of Robert Giffan.6 4. The August 6 bargaining demand Robert Giffan testified that by June 24 or 25 he had received the authorization cards of three of Respondent's employees. He testified further that through a conversa- tion with Evelyn Rickett he ascertained the number of employees in Respondent's employ. He thereby deter- mined mathematically that the Union 'represented a majority of the employees. On August 4 Union Secretary and Treasurer Arthur Berland directed a letter to Frank Selover who, until November 17, served as Respondent's labor relations representative.7 Selover received the letter on August 6 in the due course of the mail. The letter read as follows: This is to advise you that Retail Clerks Union Local 324 represents a majority of the employees working at the Sprouse Reitz store located at 11332 Beach Boulevard, Stanton, California. Verification of the majority status has been established by a cross check of authorization cards against the employers payroll records , certified by Raymond E . Vierrerrer, C.P.A., a copy of which is enclosed herein. We would appreciate your contacting this office to arrange for a meeting at a time and place mutually agreeable to both parties to commence negotiations. 3. The union organizational effort In mid-June employee Evelyn Rickett contacted Robert Giffan, business representative of the Union, for the purpose of learning the procedures necessary for the employee to follow in obtaining union representation at the Stanton store. During the conference Giffan in- structed Rickett with respect to the use of union authorization cards as a method of obtaining employer recognition of the Union. Giffan furnished Rickett with several blank authorization cards which she took with her and later used in obtaining employee signatures. On June 24 Rickett executed an authorization card and, thereafter, she gave cards to Irene Cullum and Laura Vanderwaal. Laura Vanderwaal executed a card on June 24 and Irene Cullum executed one dated June 25.4 At approximately this point in time Rickett conversed with Richard Finefrock, a 17-year-old youth employed as a stockboy. Finefrock informed Rickett that he was not interested in becoming affiliated with the Union. 2 The parties stipulated the exclusion of Eileen Rohmer The evidence of record leaves no doubt that during the payroll period ending August 6, 1966, Barbara Cook was in the employ of Respondent, albeit on leave of absence due to the illness of her infant child The evidence also reveals that during payroll penods preceding August 6 and following August 6 Barbara Cook worked substantial periods in the employ of Respondent 9 Her termination is not herein alleged as violative of Act The precise time of her termination - subsequently considered - is relevant to the al- leged status of the Union as the majority representative of employees on August 6, on which date it is stipulated an agent of Respondent received the Union's bargaining demand, dated August 4. 4 The parties stipulated as to the authenticity of the signature contained on the Cullum card. They did not stipulate as to the accuracy of the June 25 date contained thereon. However, there is no evidence of record cast- 5. Company responses to bargaining requests a. Management told of "union trouble" Subsequently on August 10 Jack Watkins spoke with Selover by telephone and Selover informed Watkins that the Company had union "trouble" in its Stanton store. Selover asked Watkins what he knew of this. Watkins as- serted that he had no information but that he would be in the area and would check into the matter. Watkins in- formed Selover that if he heard anything concerning the- Union he would let Selover know. Selover asserted that he would be in touch with the union organizers and if he obtained any information he would communicate it to Watkins. During the conversation no mention was made of the Union's demand letter of August 4.8 Commencing on August 10 and for a 2-week period thereafter Watkins served as manager of the Stanton store while Alfred Cook was on vacation. Watkins did not mg doubt on the accuracy of this date 5 All of the foregoing is predicated principally upon the credited testimony of Evelyn Rickett as supported by that of Robert Giffan, Norra Pomeroy, and Laura Vanderwaal 6 The testimony of the record indicates that after executing her card Irene Cullum displayed some reluctance concerning the wisdom of having done so However, her doubt was not followed by any overt action seeking to accomplish a retraction of the authorization The testimony of Evelyn Rickett and of Robert Giffan reveals that the card of Irene Cullum was mailed by Cullum to the Union and was ieceived by Giffan through the mails 7 The parties so stipulated " The testimony of record is to this effect, and in his brief the General Counsel conceeds that Selover failed to mention the demand letter 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD converse with Cook concerning the Union until Cook returned from vacation on August 24. Upon Cook's return Watkins asked him if he knew anything about union activity in the store and whether he was aware of any dissatisfaction among his employees . Cook informed him that he had heard nothing.9 Watkins stated that Selover had informed him that the Union claimed to represent the majority of the employees and had signed authorization cards from them Watkins instructed Cook to say nothing to the employees concerning the Union but urged him to remain alert. He told Cook that he would check with him later. Thereafter, on September 1, Giffan conversed with Selover by telephone . During the conversation Giffan asked Selover what response the Company was going to make to the Berland letter of August 4. Selover stated that he would have to consult with Jack Watkins , the dis- trict manager of the Stanton store. The conversation between Selover and Giffan was a brief one and appears to have terminated on this note. b. Management learns of demand for recognition Soon thereafter in early September Watkins again con- ferred by telephone with Selover. 10 Selover asked Wat- kins if he had obtained any further information with respect to the union organizational effort at the Stanton store . Watkins responded that he had not. He stated, however, that he had conversed with Cook and that Cook was of the opinion that there were no employees that would be interested in joining the Union . Selover stated that he had had a demand for recognition from the Union. Watkins responded , in substance, that the Company should extend recognition only after a Board election. c. Management analysis ofunion strength Within the ensuing few days, Watkins again conversed with Cook. During this conversation Watkins and Cook discussed employees Evelyn Rickett , Irene Cullum, Richard Finefrock , and Barbara Cook. Alfred Cook discounted the likelihood of his wife having any interest in union representation and, similarly , based upon his per- sonal friendship with Richard Finefrock, expressed the opinion that Finefrock would not be interested. Watkins expressed the conviction that Irene Cullum , a long-term employee who had indicated satisfaction with her work would not seek union representation. Cook and Watkins reached no consensus with respect to Evelyn Rickett.I I Watkins credibly testified he contacted Selover and in- formed him that he and Cook had "checked employment cards and the best [they] could come up with was a two and two situation ." He stated that neither he nor Cook thought the Union represented a majority and that Selover should so inform the Union. d. Respondent denys recognition Thereafter, on September 15 Selover contacted Giffan by telephone . Selover stated that he had spoken with Watkins and asserted it was the Company's position that the Union did not represent a majority of the employees. Giffan responded that he had obtained additional authorization cards from "new-hires. "12 Selover responded that he would again contact Watkins and would be in touch with Giffan. e. Union majority again challenged On September 22 or 23 Selover conversed with Wat- kins by telephone . Selover requested Watkins to furnish him with a list of all permanent employees at the Stanton store. During the conversation Watkins observed that all "extra help" had been "eliminated." 13 On September 26 Selover again contacted Giffan by telephone . 14 Selover stated that the Company was of the opinion that the Union did not represent a majority of the employees . During the conversation Selover stated that the Respondent presently employed four employees and asserted that employees Stearman and Pomeroy had been terminated . There then followed a discussion of the ter- mination of employees Pomeroy and Stearman that had transpired on the previous Saturday. With respect to the Company's position regarding the Union's majority status, in asserting that the Company employed only four employees , Selover mentioned the name of one employee. In response Giffan stated that he had a card for that employee . Thereafter Selover ran through the list of employees then on the payroll, men- tioning Evelyn Rickett , Irene Cullum , Richard Finefrock, and Barbara Cook. As Selover mentioned the name of Rickett and Cullum , Giffan answered that he had cards for them. However, with respect to Finefrock and Bar- bara Cook he asserted that he did not have signed authorization cards for them. However, Giffan stated that Barbara Cook was the manager's wife and was not car- ried on the payroll as an employee and was not con- sidered to be part of the unit. Selover asserted that Bar- bara Cook was part of the four employee unit. During the conversation the status of Laura Van- derwaal was discussed. Giffan stated that he had her sign the authorization card but the fact of her prior termination was also discussed . The conversation turned to the discharge of employees Pomeroy and Stearman . Giffan asserted that he was going to file charges with respect to their termination. 15 "Giffan testified that sometime between July 12 and August 4 he called on Cook at the Stanton store and informed him that the Union represented a majority of the employees and warned him against harrass- ment of the employees . Giffan testified there had been reports of har- rassment He conceded that he made no demand for recognition I do not credit the testimony of Giffan concerning this alleged visit The testimony of record is uniform in establishing that Cook undertook no discussion of the Union , or of its organizational efforts, at least -assert- edly-until Stearman and Pomeroy were discharged in September The testimony of Cook himself, while not directly refutive of Giffan's testimony , may be interpreted only as a denial of having been informed of union activity or of the Union' s claim to majority status In the circum- stances, I credit Cook 10 Jack Watkins placed their conversation as having occurred in Sep- tember I am convinced that Giffan's call to Selover stimulated this con- versation between Selover and Watkins 11 The foregoing is based upon a composite of the credited testimony of Jack Watkins and Alfred Cook. 12 Documents in evidence reveal that at that point in time Norra Pomeroy, Ola Stearman , and Rose Marie Leabo were "new -hires " The former two worked full time and the latter part time " Jack Watkins so testified " Giffan testified that between September 15 and September 26 he had made "repeated" calls to Selover. 15 The foregoing is predicated upon a careful analysis of the testimony of Robert Giffan both on cross-examination and direct examination, in- cluding an analysis of statements contained in Giffan's pretrial affidavit and his response to questions propounded to him on cross -examination by counsel for Respondent f. Further union demands SPROUSE-REITZ CO., INC. 381 On October 28 Arthur Berland contacted Selover by telephone. During this conversation Berland inquired of Selover as to the Company's intentions with respect to the Union's request for recognition. Berland also stated that the Union desired to commence negotiations. Selover responded that the Union did not command majority status in the unit. Selover stated that he would endeavor to contact the company representatives and the conversation ended on this note. Subsequently on November 4 Berland and Selover again conversed by telephone. Selover stated that the Company doubted the Union's majority status. 16 6. Pomeroy and Stearman employed Jack Watkins testified credibly without contradiction that when he assumed the managership of the Stanton store dunng Cook's vacation he found the store in "very bad shape" and that he observed there was an urgent need for the relocation of the toy counters in order to avoid a pilferage problem which he observed to exist. Watkins and Cook credibly testified that upon Cook's return from vacation Watkins discussed the condition of the store with Cook and informed him of the pilferage problem which he had discovered. Watkins apprised Cook of certain actions which he deemed essential in order to solve the deficiencies which he felt existed in the store. He instructed Cook to relocate certain counters in the store and noted the need for separating and sorting counter and under stocks. He advised Cook that he should hire additional full-time employees for a few weeks in order to rearrange the merchandise and make the counter changes he felt were essential." Within a few days thereafter Cook placed in the store window a "saleslady wanted" sign. Ola Stearman was in- terviewed by Cook and hired on August 29 and Norra Pomeroy on August 30. Alfred Cook credibly testified that upon interviewing and hiring Stearman and Pomeroy he explained to each of them that the work for which they were being hired would be temporary work and would include changing of coun- ters and cleaning up the store and getting the store ready for the back-to-school, Halloween, and Christmas seasons to follow. He indicated to them that the work would be of some 2 to 4 weeks' duration. Contrary to Cook, however, Stearman and Pomeroy testified that not until after they commenced working did Cook inform them that their employment was of a tempo- rary nature. Thus Stearman testified that a day or two after she was hired Cook informed her that he planned to employ a full-time salesgirl and that in 2 to 4 weeks, when they had completed the temporary work for which they had been employed, he would retain either Stearman or Pomeroy, whomever, in Cook's judgment, was the su- perior employee. Similarly, Pomeroy testified that soon after she was employed Cook informed her that she had been employed to "change things around." Pomeroy further testified that Cook stated he did not know how long the employment would last but that he anticipated it would last from 3 to 4 weeks. Additionally, Pomeroy testified that approxi- mately 2 weeks after she was initially employed Cook mentioned the subject of employee benefits to her. Ac- cording to Pomeroy she inquired why, if she were to be only temporary, Cook was discussing this with her. Cook stated that as far as he was concerned she would be a per- manent employee. Pomeroy further testified that she then informed Cook she desired to know her status because she planned to purchase some furniture and did not wish to go into debt if her employment were only temporary. Cook denies the substance of the foregoing testimony of Stearman and Pomeroy. Specifically, Cook denies hav- ing discussed with Stearman the need for an additional employee and the retention of one; and denies having discussed the company benefits with Pomeroy. He further denies having informed Pomeroy at any time that she was a permanent employee. However, he conceeds that he did discuss with Pomeroy her stated intentions to purchase some new furniture. In this regard, according to Cook, Pomeroy informed him that she had purchased fur- niture and she hoped that she could continue to work in order to pay for it. Cook stated that he would like very much to call her back for the Christmas season. I credit Alfred Cook in this respect and find that, con- trary to the testimony of Stearman and Pomeroy, he did not, as alleged by them, inform them either, specifically or inferentially, that they were being considered for or had achieved permanent employment status. The evidence of record is strongly supportive of the finding, which I make, that the employment of Stearman and Pomeroy was intended to be of a temporary nature only. This being so, I do not accept the testimony of Stearman and Pomeroy that they were not apprised by Cook at the time of their employment interview of the temporary na- ture of their work. Rather, I credit the testimony of Cook that upon interviewing and hiring both Stearman and Pomeroy he told them candidly that their employment was for a 2- to 4-week period. The version of Stearman and Pomeroy to the effect that within a day or two after their employment Cook conveyed to them for the first time that their employment was temporary and not per- manent is, in my opinion, highly implausible. Nothing had transpired dunng the few days between their hire and Cook's allegedly belated articulation of their status to have caused a change of mind on Cook's part. Cook had discussed the Union with Watkins prior to interviewing both Stearman or Pomeroy. He did not again converse with Watkins about the Union until after the time Stear- man and Pomeroy assert they were informed by Cook that their employment was temporary. Thus, Cook had no reason for suddenly changing his mind concerning the nature of their employment in the few days that elapsed between the hire of Stearman and Pomeroy and the time he assertedly first told them they were temporary. Con- vinced, as I am, that at all times Cook intended the em- ployment of Stearman and Pomeroy to be temporary, I credit his testimony and reject that of Stearman and Pomeroy. 16 The foregoing is predicated upon the undisputed testimony of Arthur question, it was a practice of the store to hire additional temporary em- Berland During the conversation Selover stated that he personally had no ployees in order to handle the demand for back-to-school merchandise doubt concerning the Union's majority status . and for Halloween and Christmas merchandise which commences to ar- t' Watkins also testified credibly that dunng the season of the year , in rive in the store dunng the months of August and September 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Further, in face of the deficit which the Stanton store was accumulating during 1966, there is no justification for finding that Cook intended to retain either or both the em- ployees as permanent employees and held out this prospect to them.18 7. The discharge of Pomeroy and Stearman On Saturday, September 24 Norra Pomeroy and Ola Stearman were discharged by Alfred Cook. Stearman and Pomeroy were informed of their respective discharges during separate interviews which transpired on the morn- ing of September 24 in the office of Alfred Cook. Stear- man was called into the office first. Cook told her that the work for which she had been hired had been completed and that she had done a good job. Cook further stated that if she had not found employment before Christmastime he would welcome her back. Stearman responded by stat- ing that she desired to find a regular job and that perhaps she would go to work with her daughter at a nearby clean- ing establishment. Soon thereafter Cook spoke with Pomeroy in his office. He informed Pomeroy that the work for which she had been employed had been completed and that there was no more work for her.19 Cook stated that Pomeroy had done an excellent job and that if she had not found employment before the Christmas season he would employ her at Chnstmastime. Pomeroy observed that she needed work because she had to pay for some furniture which she had purchased. Cook stated that she could remain until Wed- nesday, September 28 if she desired. Additionally, Cook suggested two places of possible employment, and thereafter gave her a written recommendation.20 Alfred Cook credibly testified that he chose his Christ- mas help from among applicants who had made applica- tion for holiday work just prior to the Christmas season which commenced in November. He further testified credibly he did not contact either Stearman or Pomeroy to offer them Christmas employment. He also testified that he had learned that Stearman and Pomeroy had ob- tained employment subsequent to their discharge.21 8. The employment status of Barbara Cook Barbara Cook, the wife of manager Alfred Cook, was initially employed by the Respondent at its Stanton store in May 1966. She was employed in the job category sales- clerk and worked on an "as needed" basis. She was hourly paid but received none of the employee benefits accorded other permanent employees. During normal store operating hours Barbara Cook spent the majority of her time straightening counter stock. In addition, while working on the sales floor, she greeted and assisted customers, and, during busy periods, waited on customers at the checkout counter. She occasionally operated the cash register. Moreover, during normal operating hours, Barbara Cook had occasion to work in the stockroom and also to perform miscellaneous main- tenance and cleanup duties. Further, occasionally, as required, she made up the weekly payroll and performed other clerical duties. Moreover, outside of normal operating hours, Barbara Cook worked with her husband during late evening hours accomplishing certain renovating and rejuvenating work designed to improve the physical condition of the store; and also worked during these hours to accomplish a physical transfer and rearrangement of merchandise and store fixtures. Additionally, during nonoperating hours Barbara Cook decorated windows.22 Barbara Cook did not conform to the regularly scheduled lunch and break schedule required of other personnel and her working hours during normal store operating hours followed no established schedule. In this regard, they were uniform neither with respect to report- ing time or number of hours worked per day. On the days in which she worked Barbara Cook often reported to work at 10 or 10:30 a.m. with her husband, whereas the store opened at 9:30 a.m. She worked more frequently after 6 p.m. than she did during daytime operating hours.23 On many occasions, as found above, Barbara and Alfred Cook worked past closing hours until 10 or 12 p.m. performing store-related tasks .24 11 I credit the testimony of Alfred Cook and Jack Watkins to the effect that just prior to the hire of Stearman and Pomeroy, Watkins hired two stockboys to commence the cleanup work he regarded as essential to be performed in the Stanton store I further credit the testimony of Cook to the effect that these stockboys performed work in the upstairs portion of the store and not on sales floor where Stearman and Pomeroy later per- formed their duties. Additionally, I credit Cook's testimony to the effect that during the tenure of Pomeroy and Stearman an additional stockboy, Jerry Lindenstem, was employed as a replacement for one of the previ- ously hired stockboys who resigned after working during one pay period only Further, I credit the testimony of Cook that while Stearman and Pomeroy were in the employ of the Company, Roberta Fell was hired to perform certain clerical work on company records " While, in addition to their principal tasks of moving counters and relocating and sorting stock, both Stearman and Pomeroy assisted customers in their selection of merchandise , Pomeroy , unlike Stearman, appears to have worked at the cash register on occasions 20 The foregoing is predicated upon the credited testimony of Alfred Cook To the extent that the testimony of Nona Pomeroy and Ola Stear- man is inconsistent with that of Cook , I do not credit it Specifically, I do not credit the testimony of either Stearman or Pomeroy to the effect that in discharging them Cook asserted that the reason for their discharge was Union related "trouble" that had arisen in the store In the circumstances, as Cook had been instructed by his superior , Jack Watkins, to remain silent in his discussions with employees regarding the question of union representation, and as the Company had refrained theretofore from engag- ing in conduct calculated to discograge union activity on the part of em- ployees, it is inherently implausible , in my view , to assume that Cook would have so blandly engaged in the indicting behavior attributed to him by Pomeroy and Stearman Moreover , militating against Pomeroy's ver- sion of the discharge interview , is the testimony of Pomeroy herself in- dicating that Cook offered her 3 days additional employment as a means of softening the financial impact of her discharge. It is quite unlikely that this offer of further employment would have been articulated in conjunc- tion with a confession of antiunion motivation borne of a strategem designed to deplete the unit of union followers 2 1 Cook was told by Stearman's daughter that Stearman was employed and was contacted by telephone by Pomeroy who was soliciting subscrip- tions for a newspaper 2 2 The foregoing is predicated upon a composite of the credited testimony of Barbara Cook, Alfred Cook, and Robert Brooks I rely on the testimony of Robert Brooks to the extent that it supports the testimony of Barbara and Alfred Cook relative to their late evening and after hour work 23 During the months of May through August 1966 the store remained open until 9 p.m 5 days per week Prior to May and commencing in Sep- tember the store remained open only 1 night per week until 9 p in. On the other days the store closed at 6 p in. 24 The foregoing is predicated upon a composite credited testimony of Barbara and Alfred Cook. I have considered the testimony of Evelyn Rickett and Laura Vanderwaal concerning the daytime working hours of Barbara Cook and conclude that it is not inconsistent with the testimony of Barbara and Alfred Cook SPROUSE-REITZ CO., INC. 383 The payroll records of Respondent reveal that Barbara Cook was paid during the designated payroll period for the following number of hours: Payroll Period Ending Hours 5/7 24 5/14 24 5/21 18 5/29 40 6/4 40 6/11 24 6/18 24 6/25 24 7/2 15 8/27 3 9/3 24 10/1 40 10/8 32 10115 40 10/23 40 10/29 40 11/5 32 11/12 16 11/19 40 11/26 19 12/10 40 12/17 24 12/24 8 Alfred Cook credibly testified that during the period July 19 through 30 Barbara Cook did not work because of the illness of their infant daughter. He further credibly testified that during the payroll period August 6 through 20 he and his wife were on vacation. Additionally he testified that during the 3-week period September 10 through 24 Barbara Cook was ill and did not work. Laura Vanderwaal, whose duty it was to keep payroll records for certain of the employees - but not for Barbara Cook - credibly testified she disputed the Company's practice of compensating Barbara Cook for more hours than she actually worked. Subsequently, according to Al- fred Cook he explained to employees Cullum and Rickett that, with knowledge of higher management, Barbara Cook was being paid for 40 hours work as a means of compensating him and his wife for their overtime work .2.5, A composite of the credited testimony of record reveals that during normal store operating hours when Barbara Cook would work she frequently brought her in- fant daughter to the store with her. When Barbara Cook worked on the stock or in the store office the infant was kept in a crib in the stockroom. When Barbara Cook was performing tasks on the sales floor of the store, the infant was kept in a crib near her. Although during duty hours other female store person- nel wore dresses or skirts and blouses, on many occasions when she was working on stock during normal store operating hours Barbara Cook wore slacks.26 9. The employment status of Laura Vanderwaal Laura Vanderwaal commenced working for Respond- ent on November 15, 1965. She last worked in Re- spondent's employ during the payroll period ending August 6, 1966. During the term of her employment by Respondent she was employed as a general salesgirl and cashier. During the payroll period ending August 6 Vanderwaal was credited for 16-1/2 hours regular worktime and for 23-1/2 hours sick leave. Upon her termination she was compensated for 40 hours. Alfred Cook credibly testified that during the period of August 1 through 4 he was out of the store attending a store opening in a nearby community. He testified that upon returning to his home on the evening of August 4 he was informed by his wife that Laura Vanderwaal had failed to open the store at 10 a.m. on Thursday morning as it had been her responsibility to do. Alfred Cook testified further that on the following day, Friday, August 5, Vanderwaal was not at work and he was informed by one of the employees that Vanderwaal was ill. Cook further testified that on the morning of August 5 he filled out an employee termination slip for Vanderwaal and caused a salary check to be prepared reflecting her pay for the week ending August 6 and a week's vacation due Vanderwaal. He further testified that he informed Jack Watkins of Vanderwaal's termination the following morn- ing, Saturday, August 6, and that the termination forms were forwarded to the Portland home office on Saturday, August 6. On the other hand, Laura Vanderwaal testified that she became ill during the morning of Friday, August 5, and that at noon or I p.m. informed Alfred Cook of her illness and requested the balance of the day off. She testified that Cook granted her this time off and also informed her that if she were not feeling well on the following day, Satur- day, August 6, a normal working day for her, she need not report to work. Vanderwaal did not work on Saturday, August 6, and reported to work on August 8 at the normal work com- mencement time. Soon after her arrival, and before she commenced work, Cook informed her that she was being discharged for having failed to open the store on Thursday at 10 a.m. as instructed. Cook presented her with her final paycheck. Upon a careful evaluation of the evidence of,record, I am convinced that the testimony of Alfred Cook more ac- curately reflects the events that transpired during this period of time than does that of Laura Vanderwaal. Ini- tially, the evidence establishes that Vanderwaal was credited with 23-1/2 hours sick leave during the payroll period ending August 6. She did not work on Saturday. On Friday, the store remained open for approximately 11-1 /2 hours in accordance with the established Friday operating schedule. As Vanderwaal conceeded she took no sick leave early in the week of August 6, only by ab- senting herself on Friday and Saturday, and for a portion of the day on Thursday, could Vanderwaal have been en- titled to 23-1/2 hours of sick leave compensation during the payroll period ending August 6. Thus, in view of the foregoing, and in view of the further certitude shown by Alfred Cook with respect to the events that transpired on August 5 - including his conviction that he did not speak with Vanderwaal on that day and did not have occasion to grant her permission to leave work - I am convinced 25 Evelyn Rickett testified that Cook asserted his wife was being com- 26 She also wore slacks while decorating the store windows during off pensated for 40 hours work as a means of reimbursing him for his over- duty hours time 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that, contrary to the testimony of Laura Vanderwaal, she left work due to illness on Thursday, August 4, when Cook was away from the store, and did not report to work again until August 8. Additionally, there is no evidence of record to cast doubt on the testimony of Alfred Cook to the effect that he prepared the termination slip for Vanderwaal on Au- gust 5. I find that he did and I further find that he in- formed Jack Watkins of Vanderwaal's termination on the morning of August 6 as he and Watkins testified. However, I conclude and find that it was not until sometime on August 6 that the payroll voucher for Van- derwaal was prepared. I do not accept the testimony of Alfred Cook to the effect that the voucher was prepared on August 5, for the voucher reflects sick leave pay for a period encompassing the Saturday, August 6, date on which Vanderwaal did not work because of illness. It would thus have been impossible for Cook to have prepared the voucher on Friday, August 5, and to have included the sick leave pay data. However, I do credit Cook's testimony to the effect that the voucher and paycheck presented to Vanderwaal had been prepared prior to her discharge interview on the morning of August 8. C. Conclusions 1. The alleged discriminatory discharges I conclude and find that Norra Pomeroy and Ola Stear- man were terminated not because they had engaged in union activity but solely because the temporary work for which they had been employed had been accomplished and there remained no need for their services. I have found that both Pomeroy and Stearman were in- formed when they were interviewed for hire that their work was to be of a temporary nature and was expected to last a maximum of 4 weeks. I have further found, as a fact, that they were employed as temporary employees. I further find that when on or about September 22 or 23, Jack Watkins instructed Alfred Cook to terminate the employment of Pomeroy and Stearman, the stock and counter work for which they had been employed had been accomplished. But despite these findings there remains the questions whether Respondent had knowledge of the card-signing activity of either Pomeroy or Stearman; whether, as con- tended by the General Counsel, Pomeroy had attained the status of a permanent employee and was discharged to serve antiunion purposes; and whether, assuming a negative resolution of the last stated issue, the termina- tion of either Pomeroy or Stearman, or both of them, from their temporary employment was accelerated to serve an- tiunion purposes. With respect to the issue of knowledge the evidence establishes that on September 15 Respondent's agent, Selover, was told by Union Representative Giffan that the Union had signed up the "new hires." Pomeroy and Stearman were the full-time employees in this category; although the reference could, as well, have applied to the regular, part-time employee Leabo. On or about Sep- tember 22 or 23 Watkins spoke with Selover by telephone. Selover requested Watkins to send him a list of all permanent employees. During the conversation Watkins indicated that all "extra employees" had been "eliminated." At approximately this point in time the decision to terminate Pomeroy and Stearman was made. It is the General Counsel's contention that Giffan's ad- visory to Selover concerning the sign up of "new hires" - communicated to Watkins by Selover on or about Sep- tember 23 - actuated Watkins' decision to terminate Pomeroy and Stearman. I view the record differently. If it is assumed - there being no direct support for a finding otherwise - that on September 22 or 23 Selover conveyed to Watkins Gif- fan's assertion concerning the signing of the new hires, the unrefuted evidence of record, brought out on cross- examination by the General Counsel, and buttressed by statements in the pretrial affidavit of Watkins, is, none the less, to the effect that, on September 22 or 23 Watkins in informing Selover that all temporary employees had been "eliminated" from the unit spoke in terms of a fait accom- pli." Clearly, Watkins' statement to Selover, cast in the past tense, requires a finding, which I make, that before his September 22 or 23 conversation with Selover, Watkins had issued instructions to Cook to terminate Pomeroy and Stearman. Thus, Watkins' instructions to Cook could not have been predicated upon the in- formation concerning the card-signing activities Of "new hires," osteusmly communicated to him by Selover during their conversation of September 22 or 23. Accordingly, the General Counsel's claim that Respond- ent discharged Pomeroy and Stearman as an antiunion device is substantially diluted. To be certain, Respondent had general knowledge of union activities extant among the employees, but, in my view of this record, including my conviction that Pomeroy and Stearman were hired as temporary em- ployees to accomplish work of no continuing and recur- ring nature, it is not likely, absent knowledge of the card- signing activity of Pomeroy and/or Stearman, that Respondent would consider it necessary to take punitive action against either of them as a deterrent to the Union's organizational efforts, or in order to defeat the Union's claim of majority status. With respect to the alleged change in the status of Pomeroy from temporary to permanent employment, I find that the evidence does not sustain the contention of the General Counsel. Initially, the testimony of Pomeroy regarding the alleged assurances given her by Cook con- cerning her future employment status is convincingly de- nied by Cook and gains no substantial support from the objective evidence of record. The evidence concerning her purchase of furniture, assertedly in reliance upon Cook's assurances of permanent employment, derogates from rather than strengthening the General Counsel's case. Thus, Pomeroy testified that approximately 2 weeks after her August 29 hire, Cook for the first time in- dicated her employment would be permanent and thus gave her assurances which caused her the next day to order furniture for her home. The record reveals that within 5 days of being employed Pomeroy ordered ap- proximately $1150 worth of furniture and 4 days thereafter placed an additional order for $600 worth of 27 Assessing this statement in context with Selover's request for a list of permanent employees and of Watkins ' subsequent act of supplying such a list, the reference to the "elimination" of temporary employees assumes no antiunion connotation but merely connotes a factual categorizing and differentiation between employees who were considered permanent and therefore includable in the unit and those whose employment was fleeting and not includable. SPROUSE-REITZ CO., INC. furniture. Thus, viewing Pomeroy's own testimony in its most favorable light, it is clear that when she made these purchases she had received no assurances of permanent employment from Cook. The conclusion required is that her purchase of furniture bore no causal relationship to her employment by Respondent and carries no substan- tial probative weight in resolving favorably to the General Counsel the conflict between the testimony of Cook, on the one hand, denying any promise of permanent employ- ment to Pomeroy, and Pomeroy's testimony, on the other. The General Counsel further contends that with the discharge of Vanderwaal from her position of full-time salesclerk, there arose a need for the services of Pomeroy to augment the partially depleated sales staff. However, this overlooks the evidence revealing that after Van- derwaal's discharge, Rose Marie Leabo was employed on a part-time basis and during October and November worked, in terms of hours, at a level in excess of 25 per- cent of the 40 hours per week previously worked by Van- derwaal; and the evidence revealing that Barbara Cook began to work a significantly greater number of daytime hours soon after Vanderwaal's termination. The increase in hours worked by Barbara Cook was of even greater im- pact in meeting Respondent's manpower needs as it oc- curred at a time when the total store operating hours per week had been reduced by discontinuation of the late- closing practice that had been in effect during Van- derwaal's tenure. Contrary to the General Counsel, I do not view the continued employment of Leabo- who was in Respond- ent's employ for all of the payroll periods during which Pomeroy worked-and the greater utilization of Barbara Cook's services as indicative of Pomeroy's intended per- manent status. On the record before me, only the rarest exercise of occult power or the unwarranted elevation of surmise to the status of fact would justify a substitution of judgment for that reached by Respondent as to the best means of filling its manpower needs. That management may have preferred to operate through use of a regular part-time employee and through increased use of the ser- vices of the manager's wife, Barbara Cook, rather than through the use of a full-time employee is reasonable when viewed in the light of Respondent's profitless operations and the limitations imposed by its established wage/gross sales ratio. I am further unable to find merit in the General Coun- sel's contention that the termination of Stearman or Pomeroy was accelerated out of antiunion considera- tions. The record strongly supports the conclusion that the cleanup work for which both were employed had been accomplished. The terminations occurred at a normal in- terval, at the end of a pay period, and at the conclusion of a workweek. The failure of Respondent to give advance notice of the impending termination, viewed in context of record evidence showing the absence of further need for the services, and in context of its previous instructions to both employees that their employment was for a 3- to 4- week period, carries little impugning affect. Nor do I find Respondent's failure to subsequently offer either Stearman or Pomeroy Christmas work to be indicative of a hostility toward them. Cook had reason to believe each had obtained other employment; and neither Stearman nor Pomeroy approached Cook in search of Christmas work. Considering that Cook made his selec- 385 tion of Christmas help from among applicants who had af- firmatively indicated a desire for employment, the great number of temporary employees employed by Respond- ent in its variety store operation, and the frequency of turnover among part-time personnel, I am not persuaded that Cook's failure to take the initiative in locating Stear- man and Pomeroy and offering them interim, temporary Christmas work may be viewed as persuasively suggest- ing antiunion motivation in the discharge actions here in- volved. I find that the temporary employment of neither Stear- man nor Pomeroy was prematurely terminated to serve antiunion purposes. I further find that their respective ter- minations did not violate Section 8(a)(1) or (3) of the Act. 2. The alleged refusal to bargain a. The composition of the unit On August 6, at which time I find the Union perfected its written demand on Respondent for recognition, em- ployees Cullum, Rickett, Finefrock, Vanderwaal, and Barbara Cook were in Respondent's employ. I find that Vanderwaal was carried on Respondent's payroll records until the close of business on August 6, and is to be in- cluded in the collective-bargaining unit in which the Union sought recognition. On the other hand, I find that Barbara Cook must be excluded from the unit. My conclusion with respect to Laura Vanderwaal is predicated upon evidence revealing that she was compen- sated for a full 40-hour week which included pay for Saturday, August 6. 1 conclude therefore that in making up the termination slip it was Cook's intention to have Vanderwaal's termination take effect at the close of busi- ness on Saturday, August 6, and, that the usual operative effect of the termination slip which on August 5, Alfred Cook completed was to be postponed. Contrary to the testimony of Alfred Cook, if it were indeed the intention of Cook to have Vanderwaal's termination become effec- tive immediately upon completion of the termination slip, it seems apparent that he could have easily provided for the immediate tolling of Vanderwaal's compensation ef- fective August 5 and, upon completion of her final payroll check, paid her for a period coinciding with the alleged point of termination He did not do this. Thus I am con- vinced that Cook decided on August 5 to terminate Van- derwaal but to carry her to the end of the pay period which ended on August 6. When Vanderwaal did not re- port to work on August 6, Cook nonetheless adhered to his decision deferring only the rendering of notice to Van- derwaal who could not be reached by telephone. Barbara Cook, as wife of the store manager, is ex- cluded from the unit because of the special status as an employee which she enjoyed and which dictates her ex- clusion on policy grounds .L11 Thus, not only does she enjoy a latitude and flexibility in her lunch hour, and in her reporting and quitting time, but her hours of work per week vary and she is permitted personal accomodations not granted other employees to care for her infant on store premises during working hours and to interrupt her work schedule to do personal shopping. Moreover, part of her duties are of a clerical and maintenance nature dis- similar to the duties of employees in the unit and she does not share in the employee benefits accorded other per- manent employees in the unit. Additionally she possesses 11 See International Metal Products Company, 107 NLRB 65 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD special responsibilities, not shared by other employees, to devote her efforts affirmatively to the creation of customer good will and to directly assist the manager in performing work tasks closely related to his managerial responsibilities and interests, and not directly related to the work tasks of other unit employees.20 b. The Union's majority The Union's demand letter of August 4 was received by Respondent's labor relations advisor, Frank Selover, on August 6, and thus the Union's majority is to be mea- sured from the latter date.30 On August 6 the appropriate unit in which the Union sought recognition and bargain- ing was comprised of Irene Cullum, Evelyn Rickett, Laura Vanderwaal, and Richard Finefrock. All, save Finefrock, had executed valid authorization cards. Thus, when Respondent's agent, Frank Selover, received the Union's demand, the Union commanded majority status. Selover did not communicate the Union's demand to any representative of management until early September. On September 15 the Respondent informed the Union that it was declining recognition and desired a Board election. However, at this time the Union reiterated its bargaining demand. But, in a unit comprised of four employees - Cullum, Rickett, Finefrock, and Rose Marie Leabo'31 the Union commanded only two authorizations.32 Accordingly, it lacked a majority, and was, as a con- sequence no longer entitled to recognition unless its loss of majority was attributable to unlawful conduct of Respondent.33 c. The Respondent's good faith declination The Respondent's alleged refusal to bargain collective- ly in good faith with the Union in accordance with the requirements of Section 8(d) of the Act, arises in a con- text free of accompanying unfair labor practices or unlaw- ful conduct on the part of Respondent calculated to inter- fere with employee organizational rights or designed to undermine or defeat the Union. There had been no prior bargaining relationship involv- ing Respondent at its Stanton store and the Union. There is no substantial credible evidence that Respondent at any time after learning of the Union's organizational ef- forts, or after receiving a bargaining demand from the Union even broached the subject of unionization with its employees. The unit in which the Union sought recognition and bargaining was a small one. Theoretically comprising the unit on August 6, at the time the original bargaining de- mand was communicated, was the store manager's wife, Barbara Cook; a personal friend of the store manager, Richard Finefrock; a long-time employee of the store, Irene Cullum; an employee whose tenure had approxi- mately 9 months, Laura Vanderwaal; and an employee of some 10 months standing, Evelyn Rickett. By September 15 these employees - absent Laura Vanderwaal who had been lawfully terminated - were joined by a newly hired regular part-time employee, Rose Marie Leabo and by two temporary employees Ola Stearman and Norra Pomeroy. When the Union's demand letter was received by Respondent's labor relations advisor on August 6, he im- mediately endeavored to contact Jack Watkins, the Com- pany's divisional manager and the responsible company official to whom he would logically convey such informa- tion. Watkins, whose supervision of some 23 retail stores requires frequent absence from his office, returned Selover's call on August 10. Selover informed Watkins that the Union was endeavoring to organize the em- ployees at the Stanton store. Watkins expressed surprise and promised to investigate the claim and speak further with Selover. Watkins was disadvantaged in his opportu- nity to accurately assess the extent to which the Union had successfully marshalled employees' support by the absence on vacation of the store manager, Alfred Cook. Upon the August 24 return from vacation of Cook, how- ever, Cook and Watkins discussed the matter. Cook dis- claimed knowledge of dissatisfaction among his em- ployees and discounted the Union's claim of a following. Cook and Watkins decided upon a course of quiet vigilance designed to best provide them with an informed insight into the extent of the Union's following among the employees. They did nothing to undermine the Union or derogate from its following. Thereafter, at a time when the Union had again contacted Selover in order to ascer- tain the Company's position with respect to the Union's bargaining demands, Selover again contacted Watkins and for the first time informed him the Union demanded recognition. Watkins was insistent upon a Board election. However, Cook and Watkins immediately undertook a detailed discussion and evaluation of the employee com- plement from the standpoint of the likelihood of the union allegiance of each individual employee. They eliminated two employees in the small contingent - one on the basis of her marital relationship to the manager and another upon the basis of his friendship with the manager. From their analysis, Watkins and Cook omitted Van- derwaal whose lawful termination had so closely coin- cided in time to the receipt of the Union's demand letter. " Wagner's Food Mart, 146 NLRB 1650, 1653, 1656-57 , See also Sullivan Surplus Sales, Inc, 152 NLRB 132, 154-155 Cf Payless Drug Stores, 150 NLRB 518, 521, Giordano Lumber Co, Inc, 133 NLRB 205 Allegheny Pepsi-Cola Bottling Company, 134 NLRB 388 31 I find Leabo to have been a regular part- time employee includable in the unit The General Counsel at the hearing and in his brief asserted her proper inclusion and evidence of record reveals that her employment both from the standpoint of continuity and of hours worked warrant her inclu- sion 32 Although Norra Pomeroy and Ola Stearman had signed authonza- tion cards on September 8, they were temporary employees and were not includable in the unit Moreover, the fortuitous affect of their lawful ter- mination upon the Union's majority may not be assessed adversely against Respondent Hvidsten Transport, 82 NLRB 1236 13 Joy Silk Mills, Inc , 85 NLRB 1263, enfd in relevant part, 185 F 2d 752 (C A D C.), cert denied 341 U S 914 No purpose is served by postulating the ultimate decision which would be dictated by findings contrary to those here made , i e , that Pomeroy and Stearman , or either of them , were permanent employees , or were discharged for antiunion purposes Suffice to find that , under the facts of record, as I view them , the obligation , if any, upon Respondent to recog- nize and bargain with the Union , finds it predicate in the August 6 demand of the Union , transmitted to management in early September , and under, by view of the facts , was neither amplified nor diminished by the events of September 15, or by the fortuity of the union majority status as of that date This is so because, clearly , whatever the effect of the failure of Selover to communicate to management before early September the Union's demand for recognition and bargaining , by early September- the first few days thereof- prior to the discharge of either Pomeroy or Stear- man, management did become fully apprised of it, and accorded the Union's demand legal effect of a continuing nature SPROUSE-REITZ CO., INC. 387 Her unit placement posed a close legal issue; patently not of the variety so simple of resolution as to cast doubt upon the good faith of the evaluators. Additionally they concluded that the long tenure of Cullum and her outward manifestations of equanimity and job satisfaction, rendered her favoritism of the Union unlikely. Upon these evaluations Watkins and Cook reached the conclu- sion that the Union could not command a majority and that an election should resolve the issue. This was communicated to Selover, and the following day, on September 15, Selover summarized manage- ment's position in his conversation with Giffan. How- ever, on behalf of the Union, Giffan reiterated its right to recognition as the majority representative of the em- ployees in the unit. The parties next conversed on Sep- tember 26. Then, for the first time, Giffan disclosed the basis of the Union's majority claim by designating by name the employees who had signed authorization cards. Three of the five card signers had been terminated. Each for cause; two because they were temporary employees only. The Respondent, in response, reiterated that the question of the Union's majority should be decided by an election. The Union did not further attempt to document the validity of its claim of majority status. No face-to-face meeting of management or counsel with union representa- tives was held where cards were proferred. Upon the foregoing, I conclude and find that Respond- ent did not violate Section 8(a) (5) and (1) of the Act. In Aaron Brothers Company of California, 158 NLRB 1077, 1078 the Board held: While an employer's right to a Board election is not absolute, it has long been established Board pol- icy that an employer may refuse to bargain and insist upon such an election as proof of a union's majority unless its refusal and insistence were not made with a good-faith doubt of the union's majority. An elec- tion by secret ballot is normally a more satisfactory means of determining employees' wishes, although authorization cards signed by a majority may also evidence their desires. Absent an affirmative show- ing of bad faith, an employer, presented with a majority card showing and a bargaining request, will not be held to have violated his bargaining obligation under the law simply because he refuses to rely upon cards, rather than an election, as the method for determining the union's majority. Here, the Trial Examiner, in effect, found that good faith was missing because Respondent did not offer any evidence "warranting a conclusion that the Union's claim [of majority] was inaccurate or un- supportable." But where, as here, there is no prior bargaining relationship between the parties, as the Board recently held in John P. Serpa, Inc., it is the General Counsel who must come forward with evidence and affirmatively establish the existence of such bad faith. Whether an employer is acting in good or bad faith in questioning the union's majority is a determination which of necessity must be made in the light of all the relevant facts of the case, including any unlawful conduct of the employer, the sequence of events, and the time lapse between the refusal and the unlawful conduct. In my view of this zase, the only evidence adduced by the General Counsel from which bad faith might be in- ferred is the time lapse between the advice of Selover to Watkins that the Union was seeking recognition and de- manding bargaining negotiations and Respondent's first, definitive refusal communicated approximately 2 weeks later on September 15.34 As Selover had no independent authority on behalf of Respondent to grant or to withhold recognition, and as the managing agents possessed of such authority were blameless in their failure prior to early September to become fully apprised of the full measure of the Union's August 6 communication, I find no warrant for attribut- ing to Respondent bad faith during the period of August 6 through early September arising from their failure to respond to the Union's August 6 demand. Moreover, the failure of Respondent to reply dunng the 2-week period preceeding September 15 is not, in my view, indicative of bad faith. Upon becoming aware of the nature of the Union's demands, Watkins, who is charged with oversight and labor relations responsibility for 23 stores, met with Cook and undertook an in depth evalua- tion of potential sources of union allegiance among the employees. Upon reaching a conclusion in this regard, the Union was contacted and advised that its claim to majori- ty status was considered specious and an election was desired. Respondent acted with reasonable promptness for so far as Watkins and Cook were aware, the Union had established no deadlines and Respondent had com- mitted itself to none. Management was entitled to a reasonable time in which to assess the validity of the Union's claim,35 and in the circumstances, absent urgen- cy dictating priority status, the serious business of union recognition received the timely attention of management. Moreover, precedent does not dictate a finding of bad faith merely upon a showing by the General Counsel of a significant time lapse between bargaining demand and refusal. The Serpa case36 is not to the contrary. While, in Serpa a time lapse was a decisional factor, it is clear that the decision of the court in Serpa turned on facts render- ing Serpa quite distinguishable from the case at bar. Beyond the absence of deadline considerations adverted to above, here, contrary to Serpa, the Union had made no significant card proffer, and the Respondent had engaged in no inspection of the cards nor did it indicate its ac- ceptance, tacitly or otherwise, of the Union's claim of majority. Moreover, here, unlike Serpa, immediately upon becoming fully apprised of its legal position Respon- dent without delay communicated its response to the Union and urged a Board election. The delay between early September and September 15, which I find was oc- casioned solely in order to provide management with a reasonable opportunity for guaging the accuracy of the Union's claim of a following, was punctuated by no hostile action suggesting or disclosing an antiunion mo- tive. When, on September 26, Giffan made what may be characterized as a verbal "card showing," by specifying the identity of employee card signers, the Respondent defined in detail the basis - reasonable in my view - for its 34 Watkins' insistence upon an election as a prerequisite to recognition municate a rejection of the demand to the Union until after his assessment communicated to Selover dunng their early September conversation was had been completed not vacuous for he had discussed the Union 's strength with Cook 35 See Retail Clerks Union, Local 1179, Retail Clerks International As- Moreover , it is clear his mind was not closed on the subject of recognition sociation , AFL-CIO v. N L R B , 376 F 2d l86 (C A 9) because he undertook an analysis of employee sentiment and did not com- 36 Supra, in 35 336-845 0 - 70 - 26 388 DECISIONS OF NATIONAL insistence upon an election. It is no moment here that the analysis upon which the declination of recognition was predicated may have been faulty; it is pertinent merely to find that it was not actuated or premised upon bad faith. In view of the foregoing and upon the record as a whole, I find no basis for concluding that the Respondent rejected the collective-bargaining principle and sought to gain time in which to undermine the Union.37 Further, I impute no bad faith to Respondent arising from its un- willingness to accept at face value, the Union's card- based claim to majority status articulated in its August 4 demand letter and more specifically described during the September 26 telephone conversation between Giffan and Selover.3S Thus, I conclude and find that in the 3' Hammond & Irving Incorporated, 154 NLRB 1071, cf Joy Silk Mills, Inc, supra a" Cf Fred Snow, Harold Snow and Tom Snow, dlbla Snow & Sons, LABOR RELATIONS BOARD absence of accompanying unfair labor practices revealing bad faith or antiunion hostility on the part of Respondent, and in the absence of a prior, established bargaining rela- tionship between the parties, the General Counsel has failed to adduce proof which supports a finding of bad faith on the part of Respondent in insisting upon the Board-conducted election as a means preferable to the reliance upon authorization cards for resolving the claim of majority advanced by the Union.39 RECOMMENDED ORDER Upon the foregoing, I shall recommend that the com- plaint be dismissed in its entirety. 134 NLRB 709, enfd 308 F 2d 687 (C A. 9) a" Aaron Brothers Company ofCalifornia, supra 11