Super X Drugs of West Virginia, Inc.

264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Super X Drugs of West Virginia, Inc. and Food Store Employees Union, Local 34'7, Amalga- mated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case 9-CA-4128 January 22, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On July 26, 1967, Trial Examiner Stanley N. Ohlbaum issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Charging Party and Respondent filed exceptions to the Trial Ex- aminer's Decision and supporting briefs, and the Respondent filed an 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 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 the following modifications: The Trial Examiner found, inter alia, that Respondent violated Section 8(a)(1) of the Act, by "disparate and discriminatory" enforcement of its rules against "solicitation" and the doing of "per- sonal work on company time." Respondent ex- cepted to this finding. For the reasons set forth below, we find merit in Respondent's exceptions. On January 5, 1967, Union Representatives Sherwood Spencer, Jack Brooks, and Sesta Pennington entered Respondent's store to remind its employees of a union meeting to be held in a local hotel that evening. The Union had held a meeting among the employees prior to this time, but Pennington, a union steward at the Kroger store ad- jacent to Super X, arranged to have this one at a drugstore across the street from Respondent's premises. On the earlier occasion she had contacted ' We agree with the Trial Examiner that Respondent did not violate Section 8(a)(5) of the Act . Although we do not adopt all of the rationale the Trial Examiner developed to support that conclusion , we are satisfied employees by telephone to inform them of the time and place of the meeting. Spencer, Brooks, and Pennington entered the store in the early afternoon during working hours. They did not ask Emanuel Borinsky, Respondent's store manager, for permission to engage employees in even a momentary conversation, but immediately proceeded to confer successively with several em- ployees, each of whom was performing her regular job assignment. For the most part Spencer talked to the em- ployees. After exchanging the usual amenities, he conveyed a standard message : the Union had called a meeting that evening and would appreciate a large gathering of employees. Spencer repeated this to each of the employees, although a few had already received advance notice of the meeting. Each en- counter was relatively brief, but there were a suffi- cient number of them to consume approximately 20 minutes of store working time. Customers in the vicinity of distracted employees were neglected. At some point during their tour of the store, it became apparent to Assistant Store Manager Fredil that the union representatives had not entered the premises for business purposes. He directed Borin- sky's attention to this fact. Borinsky approached Spencer and said: "Sir, if you are here on Union business, please do not talk to our employees while they are working. This is their work time ... would you please leave the store." Borinsky repeated this request twice more, but the only. immediate response he received was a pointed observation from Spencer and Pennington concerning the extent of employee ownership of the store. Both Spencer and Pennington also informed Borinsky that "you don't know it but you've just done us a great big favor ... you have done just what we wanted you to do." Then, continuing to ignore Borinsky's re- peated plea to depart, Spencer,. Pennington, and Brooks proceeded to contact two additional em- ployees in the selling area. After concluding his conversation with the last employee, Spencer turned to Borinsky and inquired whether Borinsky intended to stop following him. Borinsky answered Spencer with yet another request to leave the store. Spencer then asked what Borinsky would do if he did not leave. Borinsky replied that he would call the police. Spencer and Pennington promptly offered Borinsky a dime to make the call, the former indicating that it would ac- complish nothing as the union representatives were not going to leave. Borinsky walked to the rear of the store where he made a telephone call to William Howe, Respondent's personnel director, in Cincin- nati. After pausing briefly to watch Borinsky at the telephone, Spencer, Pennington, and Brooks left the store. However, they continued to peer at that the General Counsel failed to establish that Respondent acted in bad faith in declining to recognize the Charging Party on the basis of the latter's submission of authorization cards. 169 NLRB No. 42 SUPER X DRUGS OF WEST VIRGINIA 265 Borinsky from outside through the store's plate glass window. Respondent has rules against solicitation and the performance of personal work on company time. These are contained in a pamphlet distributed to employees at the time of their hire. The undisputed testimony of several employees reveals that the limited scope of such rules was well understood by the store's personnel. Thus, employee Thompson stated that "we just don't feel free" to talk to any- one during working time and that other employees "do very little ... if any" conversing with non- customers. Employee Raymond Foster told in- surance salesmen on two occasions "that it was against Company policy to talk personal business during working hours." The Trial Examiner assumed the legality of the above rules as promulgated by Respondent and as understood by its employees. Nevertheless he held that Respondent had violated Section. 8(a)(1) of the Act by enforcing its rules in a "disparate and dis- criminatory" manner. Of vital importance to this conclusion is the Trial Examiner's finding that "substantial credible evidence establishes that vari- ous types of solicitation, chit chat, and gossiping with visitors were openly carried on by employees in the store, in selling areas during working time, with the knowledge and acquiescence of manage- ment." On this point the record does not sustain the Trial Examiner's finding. Although the Trial Ex- aminer discredited Borinsky's denial that he knew 'of violations of Respondent's rules, there is a paucity of affirmative evidence that Respondent knowingly tolerated a variety of infractions, while singling out for inhibition Spencer's efforts to com- municate with store employees. For example, no employee called as a witness by the General Coun- sel and credited by the Trial Examiner2 could testi- fy to Borinsky's knowledge of, and acquiescence in, any serious departure from the rules relating to sol- icitation and personal work on company time. In- deed only two of these employees, Griffith and Thompson, could recall any incident where Bonn- sky permitted a deviation from company policy.3 These incidents occurred when, shortly before the adjoining Kroger store was to close, employees Brooks and Thompson received Borinsky's permis- sion to go next door and make a purchase. Apart from this, the evidence as to other em- ployee violations of Respondent's rules reveals that they were as minor in nature and infrequent as were those described above, and also were committed without Respondent's knowledge. Employee Nunn had the most experience with soliciting efforts from the outside. She testified to the appearance of a newsboy' on a couple of occasions, the single and separate endeavors of two ladies to sell her a book and a ticket to a church barbecue, and the impor- tunings of an insurance solicitor. One of the ladies and the insurance solicitor engaged in their sales ac- tivity as they were checking out purchases through the front aisles. As to the "chit chat and gossiping with visitors," the record indicates that such conversations as oc- curred were what one would normally expect in a retail sales establishment where friendly, courteous service is often reflected in an increase in the volume of profitable activity. Moreover, Respond- ent's store is in a relatively small city.5 Customer and clerk know one another socially as well as on a commercial basis. Consequently, there is a greater opportunity for genuinely amiable exchanges between potential customers and a clerk, who might also enjoy cordial social relationships outside of regular business hours, than there would be in large urban areas, where the typical retail sales transac- tion is usually consummated by strangers. In sum, the record shows that Respondent knew of and permitted only two out of a small number of insubstantial departures from its rules before it sought to bring the activity involved herein to a halt. This is not the kind of disparate and discriminatory enforcement of a lawful no-solicitation rule which would make enforcement thereof against organizing activity on company time unlawful. Accordingly, we find, contrary to the Trial Examiner, that the General Counsel has not proven, by a preponder- ance of the evidence, that Respondent enforced its rules in a "disparate and discriminatory" fashion. We shall therefore dismiss the complaint in its en- tirety. 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. ' These were employees Thompson, Nunn, Griffith, Martin, Sikora, and Alford. S Employee Sikora also testified that she , other clerks , and Borinsky have purchased cigarettes in the store while on duty. In our view this is a customary practice and should not be treated as a violation of Respond- ent's rules . There is no evidence that Respondent so regarded it. 4 Employee Sikora pays her newsboy once a week in the store. She works in the cosmetic department which is located in the front while Borinsky, a pharmacist, fills prescriptions in the rear. There is no evidence that Borinsky knew of this weekly, momentary business transaction between Sikora and her newsboy. 5 1960 population, 18,642. TRIAL EXAMINER'S DECISION PRELIMINARY STATEMENT STANLEY N. OHLBAUM, Trial Examiner: This case was heard before me in Beckley, West Virginia, on April 11-13 and 18-19, 1967 , on complaint of General Counsel of the Board' alleging, and answer of Respondent deny- ing, violations of Section 8(a)(5) and (1) of the National I Issued through the Board's Acting Regional Director for Region 9 on January 31, 1967, upon charge filed by the above Union on December 8, 1966. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Labor Relations Act, 29 U.S.C. Sec. 151, et seq., as amended (Act). All parties appeared and were represented throughout the hearing by counsel or other representative, who were afforded full opportunity to present their evidence and contentions, examine and cross-examine witnesses, propose findings of fact and conclusions of law, and file briefs. Subsequent to the hearing, briefs were received from General Counsel and Respondent, which, together with the evidence, have been carefully considered. Upon the entire record2 and my observation of the wit- nesses, I make the following: FINDINGS OF FACT I. THE PARTIES ; JURISDICTION Respondent, an Ohio corporation duly qualified to do business in West Virginia, has at all material times main- tained and operated a retail drugstore in Beckley, West Virginia. During the 12-month representative period im- mediately preceding issuance of the complaint, Respond- ent's gross retail sales exceeded $500,000, and its purchases and shipments directly in interstate commerce from points outside of West Virginia into West Virginia exceeded $50,000. I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and the Union a labor organization within the meaning of Section 2(5) of the Act; and that assertion of jurisdiction herein is proper. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Issues The issues presented are whether Respondent: (1) has failed and refused to recognize, meet, and bargain with the Union as duly authorized collective-bargaining representative of Respondent's employees in an ap- propriate bargaining unit, in violation of Section 8(a)(5) and (1) of the Act; (2) has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, by ordering such employees' union representatives to leave Respondent's business premises under threat of calling for police to have them removed, in violation of Section 8(a)(1) of the Act.3 B. Facts as Found Credited testimony establishes the following facts: The Super X drugstore chain, founded in 1960 and a wholly owned subsidiary of the Kroger foodstore chain, is organized into various corporations apparently bearing the names of States in which operations are conducted. Headquartered in and centrally controlled from Cincin- nati, Ohio, the Super X chain now consists of some 275 2 Hearing transcript as correct in respect to obvious and typographical errors set forth in "Appendix B," which is omitted from publication. 3 An amendment of the complaint by General Counsel at the hearing, alleging unlawful interrogation of Respondent's employees by its agent and counsel Robert J. Townsend , was dismissed on Respondent 's motion, without opposition of General Counsel, at the conclusion of General Counsel's case. " The Union has had a bargaining relationship with Kroger for 23 years. stores (around 230 in November 1966), located in 24 States from New York to California, with 4 in West Vir- ginia including the Beckley store which was the locus of events to be described. Heading the Super X chain is its president, to whom are answerable vice presidents including an administra- tive vice president (S.W. Stephens) under whom func- tions its personnel director (William J. Howe). Six re- gional directors, each stationed in the heart of his particu- lar region containing 40-60 stores, report directly to the president. Approximately 29 district managers, each sta- tioned centrally in his district containing about 10 stores, report to the regional directors. Approximately 275 store managers report to the district managers. At all material times, Emanuel Borinsky was manager of Respondent's Beckley store, which opened to the public in August 1966 and is adjacent to a Beckley Kroger foodstore under col- lective agreement with the Union Charging Party herein.4 At a union organizational meeting on November 17, 1966, six of the nine employees in an appropriate bargain- ing units at its Beckley store signed authorizations designating the Union to represent them as their collec- tive-bargaining agent. On the following day (November 18), a seventh employee also signed such a designation. There being no evidence of illegality, impropriety, irregu- larity, condition, or limitation in the procurement, execu- tion, or delivery of any of these designations, which are unambiguous and the authenticity of the signatures on each of which has been adequately established, and there being no evidence that any thereof have at any time been canceled, rescinded, or withdrawn, I find that at all times since November 17, 1966, the Union was the duly authorized bargaining representative for six, and at all times since November 18, 1966, for seven, of the nine employees in an appropriate bargaining units at Respond- ent's Beckley store. On November 18, union representatives approached Beckley store manager Borinsky and, exhibiting to him the seven signed authorizations or facsimiles thereof, which Borinsky looked at, requested that the Union be recognized and bargained with. Without expressing doubt as to the authenticity or effect of the signatures on any of the written designations, Borinsky immediately made it clear that he was not empowered to recognize or bargain with a union and at once referred the matter and his call- ers to his supervisor, Super X District Manager G. A. Roessler, whom he telephoned and with whom one of the Union's representatives (Spencer) spoke. District Manager Roessler, likewise stating that he also lacked authority to recognize or bargain with a union, informed the union representatives, that he would forward the request higher for response. This Roessler did, reporting it to Super X Administrative Vice President Stephens in Cincinnati, as well as to Regional Director or Manager Fred Barney. Stephens in turn notified Super X Person- nel Director Howe (also in Cincinnati), who directed its labor consultant, C. T. Van Ausdall (Cincinnati), to noti- fy the Union, which Van Ausdall on December 1 did, Shortly after the opening of the Super X Beckley store, a recognitional- bargaining demand upon Kroger by the Union (which then held no bar- gaining representation designations or "cards" from Beckley Super X em- ployees), upon the basis that the Beckley Super X store was an "accre- tion" to the existing Beckley Kroger store unit, was declined by Kroger for the reason that Super X was a "completely separate operation." 5 I.e., all of Respondent's Beckley store employees excluding office clericals, professionals, guards, and supervisors as defined in the Act. SUPER X DRUGS OF WEST VIRGINIA declining to recognize the Union as bargaining represent- ative, for the stated reason that "We doubt that you represent a majority of our employees in that store." On the same date (December 1) Respondent forwarded for filing at the Board's Regional Office for Region 9, a peti- tion praying that an election be held to determine the representation wishes of its unit employees.6 On December 5 the Union forwarded to Respondent (i.e., to Van Ausdall) copies of the seven employees' representa- tion designations, with a letter demanding recognition and stating that since the Union did not "deem necessary" the election for which the Employer had petitioned, the Union would file charges against the Employer of refusal to bargain if it did not recognize the Union on the basis of the written representation designations. Such charges, forming the basis of the present complaint, are dated December 7 and were filed by the Union on December 8. On December 13 Respondent, through its attorney William F. Sherman, returned these designations to the Union, reiterating its "doubt that you represent a majori- ty of our employees in our Beckley store" and its desire for a Board-conducted election. 1. Borinsky's authority Borinsky, a graduate pharmacist, has been manager of Respondent's Beckley store since it opened in August 1966. As already indicated, the Beckley store was 1 of about 230 Super X chain in November 1966, when Borin- sky was confronted with the Union's recognitional-bar- gaining demand. Beckley is a small? West Virginia com- munity. The record" amply establishes without con- troversion, and I find, that Beckley Store Manager Borin- sky - as well as District Manager Roessler - at no time possessed authority to recognize or bargain with a union. The record" further establishes that the Union's November 18 recognitional-bargaining requests to Borin- sky and Roessler, when passed on to authorized officials in its organizational hierarchy, as well as its December 5 request to Respondent's labor consultant, C. T. Van Ausdall, were declined by Respondent for the stated reason that it doubted the Union's representative status. Credited testimony of Respondent's Personnel Director Howe establishes that it was he who, having the authority,10 made the decision on behalf of Respondent to decline to recognize or bargain with the Union, and in- stead to insist upon a Board-conducted election, based upon: (1) his general experience of some 19 years in the 6 This petition (Case 9-RM-471), filed on December 5, was dismissed by the Acting Regional Director for Region 9 on February 3, 1967, because of his issuance of the complaint herein upon the basis of the Union's charge forming the subject of the instant case 9 1960 U S. census population 18,642 (1966 WorldAlmanac, p. 361). 8 Credited testimony of Respondent's witnesses Howe, Roessler, and Bonnsky. G C Exhs. 3, 4-A, 5, and 7; Resp Exhs 10 and 11; credited testimony of General Counsel's witness Spencer and of Respondent's wit- nesses Howe, Roessler, and Bonnsky 10 Credited testimony of Howe (corroborated in part by that of Borin- sky and Roessler) establishes that Super X store managers and others sub- ordinate to Howe have no authority to recognize or bargain with a union and have never in fact done so, that such subordinates are specifically so oriented , and that all union recognitional demands are relayed to Howe, who passes on them and is the lowest ranking Super X official authorized to pass on them. Howe's credited testimony further establishes that the Super X chain has a central bookkeeping office, at the chain's Cincinnati headquarters (in the Kroger Building), where payrolls, job applications, and W-2 Forms are kept That such a national organization's labor rela- 267 industrial relations field; (2) specific experiences of Super X with Board-conducted election outcomes; and (3) re- ports received by him from Beckley Store Manager Borinsky, to the effect that two of the nine unit employees there had been told by Union Official Pennington "that unless they joined the Union now that the Union would see that they got fired after the Union got in."" Howe's testimony with regard to the first two of the foregoing reasons is uncontradicted and is credited. With regard to the third alleged reason for Howe's re- jection of the Union's recognitional-bargaining demand, credited testimony of Respondent 's witnesses Regina Brooks, Raymond Foster, Borinsky, and Howe establishes that shortly after the seven union authoriza- tions had been signed on November 17-18, an alleged re- mark or remarks by Union Official Pennington to at least Regina Brooks (a unit employee union card signer) that nonsigners of union cards would "lose [their] job[s]" when the Union came in, 12 was relayed by store em- ployees Regina Brooks, Foster, and Wilson to Store Manager Borinsky, who in turn promptly reported it to Respondent' s Personnel Manager Howe around November 25. Although Borinsky reported to Howe that two or three employees had been told by the Union that if they failed to sign up "the Union would see that they got fired after the Union got in ," Borinsky failed to men- tion to Howe that two of the employees from whom he heard this (Foster and Wilson) had not executed union designations (nor that the third employee, Regina Brooks, had signed a union designation) - facts, however, which may have been unknown to Borinsky himself, since the substantial credible evidence fails to establish that his glance at the union cards shown to him by the union representatives on November 18 was other than cursory, or that he had independent knowledge as to the identity of the card signers. Although produced as a General Counsel rebuttal witness, Union Official Pennington did not deny making the indicated statement, as testified to by Regina Brooks (whose' uncontradicted testimony in this aspect, particularly since in part corroborated by Raymond Foster and Borinsky, I therefore credit, not- withstanding misgivings regarding other aspects of her testimony). All circumstances considered, upon the record presented I accordingly find that the described statement was in fact made by Pennington ; that, upon and after receiving from Store Manager Borinsky the latter's report as to Pennington's statement to employees, Respondent's Personnel Director Howe believed that at tions may thus be centrally controlled for purposes of union recognition and bargaming , see Oklahoma Sheraton Corporation, 156 NLRB 681, with which cf. Drug King, Inc., 157 NLRB 343 ii Howe testified that at no time in the 2 years he has been with Respondent has it recognized a umon upon the basis of "cards" alone, without a Board election, even though apparently there is no hard-and-fast company policy not to do so Superex Drugs, Inc., 150 NLRB 972, a 1965 case involving a corporate relative of Respondent , appears to corroborate Howe's position of "asking for an election . . following its past prac- tice" (150 NLRB at 978). According to Howe, he did not doubt the genuineness of the signatures of the seven employees on the cards, but for the reasons set forth above doubted the true representative status of the Union, which a secret election would disclose - apparently particularly in view of what he understood from Borinsky were coercive threats of discharge by the Union to employees in attempting to gain signatures on cards. 12 This could only have had reference to stock clerk Wilson and receiv- ing clerk Foster, the only two unit employees who had not executed union authorization cards. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD least two or three of the total of nine Beckley store unit employees whom the Union was claiming to represent had been threatened with job loss by the Union in con- nection with the solicitation or execution of union designation cards; and that , under the circumstances shown such belief on the part of Howe was not unrea- sonable. 13 2. Incident of January 5, 1967 On January 5, 1967, Union Representatives Spencer, Jack Brooks, and Pennington entered Respondent's Beckley store in order to apprise or remind union card signers there of a union meeting that evening.14 When Store Manager Borinsky learned of this, he at once ap- proached the union representatives and directed them from the store. The union representatives left upon Borin- sky's repeated insistence , coupled with his indication (in response to the union representatives ' inquiry as to what he would do if they failed to leave) that he would call the police, after continuing on their way out to greet and pass the brief message to a few more union employees. is Credited testimony16 establishes that : (1) although the union employees thus spoken to momentarily "inter- rupted" their work (cleaning or merchandise arranging;17 and, in only one case, checking out and receiving pay- ment from a customer for merchandise) while merely shaking hands and saying hello and receiving word as to the meeting, such work "interruption" was entirely insub- stantial, inconsequential , and not realistically a true work interruption ; (2) although the attention of some customers was attracted by what was occurring , 18 no significant or meaningful disruption of Respondent's usual business, operations , or routines occurred, nor was the described activity then or thereafter prejudicial to the carrying on of normal business activities or good order in the store; (3) employees had been and were in effect free to take work "breaks" at their individual discretion; (4) employees were not in practice restricted from reasonable conversa- tion with solicitors, visitors , or friends ;19 (5) there were no signs displayed or posted forbidding or restricting sol- icitation of or communication with employees ; (6) no per- mission had been requested of Respondent by the Union to communicate with the union employees as described. In conjunction with their hire, new employees at the Beckley store received an orientation leaflet listing among "Examples of behavior which will result in disciplinary action, up to and including discharge, de- pending on the seriousness and previous record," the "Doing [of] personal work on company time" and "Violation of Company's no solicitation rule." There is no evidence that "personal work" or the "no solicitation rule" has in any way at any time been defined . Credited evidence20 establishes that the "no solicitation rule" by any reasonable assumed standard (as well as other listed "rules") has regularly been violated or ignored, with knowledge and acquiescence of management (i.e., Store Manager Borinsky, who in effect conceded he is an ad- vocate and practitioner of relaxed administrative methods and easygoing supervisory style of operation , and whose disclaimers of knowledge of what was openly going on I do not credit upon the record presented). Credited evidence21 establishes prevalence in the Beckley store of a loosely permissive habitus of solicitation of working employees by outside vendors (e.g., newsboys, insurance salesmen, book salesmen, charities, and others) and of employees chatting with outside visitors . There is no evidence that on any occasion , other than the described visit of the union representatives on January 5, this was stopped, objected to, or discouraged by management, nor 13 The application of the Charging Party (Union ) and General Counsel, upon which decision was reserved at the hearing , that official notice be taken of Board proceedings 9-CB-1379 , involving charges against the Union by Respondent Employer here , of coercion of its employees by the Union, and General Counsel 's refusal to authorize issuance of a complaint thereon, is hereby granted Charging Party Exhibits 2, 3, 4, and 5 for identification are accordingly received into evidence. The failure to issue a complaint there is not diapositive here. Furthermore , the issue is dif- ferent, The question before General Counsel in the other case was whether sufficient evidence was available to justify prosecution of the Union for in fact threatening or coercing employees as charged. The question in this aspect of the instant case is whether the Employer (Respondent here) reasonably believed its employees had been threatened or coerced by the Union in connection with the solicitation of their signa- tures on the union representation designation cards, so as to justify the Employer in refusing to bargain with the Union upon the sole basis of the employees' signatures on those cards , without a Board-conducted secret election 14 Although the testimony of Union Officials Pennington , Jack Brooks, and Spencer indicates that one or more employees may further have been told that a Board representative would also be present to confer, the em- ployees allegedly involved did not so testify 15 Credited testimony of employees Thompson , Nunn, and Martin establishes that at least they already knew of the union meeting to be held that evening , so that the union representatives ' personal visit to the store on the occasion in question served only as a reminder or added stimulus Union Representative Spencer 's testimony indicates that although he was aware prior to January 5 that a Board representative would be there then, he (Spencer) was unable to ascertain from the unit employees their at- tendance capabilities prior to January 5 or elsewhere than in the store because he did not know which shift (up to 9 p.m. closing) they would be working on, since shift schedules were not posted before Saturday . In this connection , it is officially noticed that although January 5, 1967, was a Thursday and the previous Saturday was December 31, 1966 (ordinarily, at least in the latter portion of the day , a prelude to festivities), since the holiday of January 1, 1967, was a Sunday , the following day, January 2, a Monday, was also a holiday and presumably a nonworkday . There is no established proof as to when the work schedule for the week including January 5 was actually posted or publicized 16 I e, General Counsel's witnesses Thompson , Nunn, Griffith, Mar- tin, Alford , Spencer, Jack Brooks, and Pennington. 17 The Beckley Super X store is basically a self-service establishment, with essentially no customer merchandise service unless requested. None of the salesclerks here (with the possible exception of the clerk at the checkout register to the extent indicated ) was involved with a customer at the time in question 18 I find upon the basis of credited testimony of General Counsel's wit- nesses Thompson , Nunn, Griffith , Martin, Spencer, Jack Brooks, and Pennington that the attention of these customers was attracted or held by the loud and insistent demands of Bonnsky in pursuit of the union representatives, that the latter leave the store at once, rather than by the described action of the latter 19 Respondent's own witness and employee Regina Brooks, openly hostile to the Union, conceded that she has chatted with noncustomer visitors in the store , pointing out that "You can talk and work at the same time" and that "We have been told that we were not to,just stand and gos- sip and talk . Anything in reason , why we are allowed to do that." Store Manager Borinsky conceded that he has never instructed any em- ployee he could not speak with visitors coming into the store to chat; that to his knowledge and without any objection by him, outsiders do visit and chat with employees in the store , and that he has at no time in anyway told employees they may not speak with a union representative coming in to talk to them during working hours 20 Testimony of General Counsel's witnesses Thompson , Nunn, Mar- tin, Alford, and Sikora, and of Respondent's witnesses Regina Brooks, Raymond Foster, and Borinsky. 21 Id. SUPER X DRUGS OF WEST VIRGINIA 269 that any visitor or solicitor had ever been ordered or requested by management to leave.22 C. Applicable General Principles Without attempting to construct a universal slide rule or to explore into refinements, it appears that the Board and courts have evolved a number of complementary guiding principles available in situations of this type, where there is no existing collective-bargaining relation- ship between an employer and a union seeking recogni- tion. These are: (1) Faced with unambiguous union cards validly ex- ecuted by a majority of employees in an approrpriate bar- gaining unit, the cards being untainted by illegality or im- propriety in procurement, an employer may not, in the absence of good-faith doubt as to majority, refuse to ac- cord recognition to the union and insist upon a Board- conducted election as of right.23 (2) "Where the General Counsel seeks to establish a violation of Section 8(a)(5) on the basis of a card showing, he has the burden of proving not only that a majority of employees in the appropriate unit signed cards designat- ing the union as bargaining representative , but also that the employer in bad faith declined to recognize and bar- gain with the union. This is usually based on evidences in- dicating that respondent has completely rejected the col- lective-bargaining principle or seeks merely to gain time within which to undermine the union and dissipate its majority."24 The requirement of burden of proof is met only by substantial credible evidence in the record, as distinguished from suspicion , surmise, or conjecture. (3) Extensive , or at least significant , employer violation of the Act attending the employer's refusal to recognize the union, evidences of unlawful motive on the em- ployer's part , justifying inference of employer bad faith;25 whereas insubstantial violation by the employer, not such as to be realistically coercive or cause rejection of the union by the employees , does not suffice to justify such inference.26 (4) In determining employer good or bad faith in refus- ing union recognition based upon card showing, the Board "considers all the surrounding circumstances as well as direct evidence of motivation."27 "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."28 (5) "Absent an affirmative showing of bad faith, an em= ployer, presented with a majority card showing and a bar- gaining request, will not be held to have violated his bar- gaining 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.1129 In the absence of significant employer violation of the Act, a good-faith doubt by an employer refusing to recognize and bargain upon the sole basis of union cards may be "founded on no more than a distrust of cards. "30 21 There was, to be sure , testimony by Respondent 's witness Raymond Foster (one of the only two nonsigners of union designations ) that he him- self had once sent away an insurance solicitor who approached him while at work , and by Manager Borinsky that he had noticed a similar episode and reaction on the part of Assistant Manager Fredil . It is apparent, how- ever, that self-elected request by an employee approached by an insurance solicitor - based upon desire not to be bothered, or because of being other- wise busy at'the moment , or for many other possible reasons - is in a dif- ferent category from enforcement of such a measure by management, as was the situation on January 5 with the union representatives For aught that appears , the January 5 episode was unparalleled (either as to union callers or other callers) 23 United Mine Workers ofAmerica v Arkansas Oak Flooring Co, 351 U S 62 , 71-72, 74-75; Florence Printing Co. v N L.R B., 333 F.2d 289, 291-292 (C.A. 4). Employer refusal to bargain with the union under such circumstances constitutes violation of Section 8(a)(5) of the Act. Id The question of '7appropriateness " of the bargaining unit need not be separate- ly determined in a representation (R) case, but is determinable in an unfair labor practice case alleging failure or refusal to bargain, in violation of Section 8(a)(5). N L R B v. Primrose Super Market of Salem , Inc., 353 F.2d 675 (C;A. 1), cert denied 382 U S. 830 ; United Aircraft Corp. v. N L R.B., 333 F.2d 819, 822 (C.A 2), cert. denied 380 U S 910; Florence Printing Co v. N L.R.B., supra, 291; Owego Street Supermar- kets, Inc., 159 NLRB 1735 ; Oklahoma Sheraton Corporation, 156 NLRB 681, 682, £n. 1. 24 John P Serpa, Inc., 155 NLRB 99, 100-101 (cited with approval in Pizza Products Corporation v. N.L.R.B. , 369 F.2d 431, 436-438 (C.A 6)), reversed sub nom. Retail Clerks Union , Local 1179 v. N.L.R.B , 376 F.2d 186 (C,A 9), Board decision on remittitur 166 NLRB 336 Accord: Aaron Brothers Company of California , 158 NLRB 1077 , 1079; Ben Duthler, Inc,, 157 NLRB 69, 71-72; Strydel Incorporated, 156 NLRB 1185 , 1186-87 In commenting upon Serpa, the court stated in Pizza, supra, 438. "In such a situation, the Board's order requiring an employer to bargain with a union will not be enforced if there is no substantial evidence on the record as a whole to establish that the employer in bad faith refused ', to recognize and bargain with the union . N.L.R.B . v Great Atlantic & Pacific Tea Co., 346 F 2d 936 (C.A. 5); Fort Smith Broadcast- ing Co . v. 1N.L.R.B., 341 F.2d 874 (C.A. 8); Edward Fields, Inc. v. N L R.B., 325 F.2d 754 (C A. 2) " The Pizza court also (id. at 436-437) took occasion to quote the following language from N L.R.B. v. Flomatic Corporation, 347 F.2d 74 , 78 (C.A. 2) (questioned in United Steelworkers of America [Northwest Engineering Co.] v. N L R .B., 376 F.2d 770 (C A D C.))• "A bargaining order, however, is strong medicine While it is designed to deprive employers of a `chance to profit from a stubborn refusal to abide by the law,' Franks Bros Co . v. N L.R.B., supra, 321 U S. at 705, 64 S Ct at 819 and although it undoubtedly operates to deter employers from adopting illegal instrusive election tactics , its potentially adverse effect on the employees' § 7 rights must not be overlooked See Medo Photo Supply Corp . v. N.L.R B., supra, 321 U S. at 688 , 697-698 (Rutledge, J dissent). That section protects the right of employees to join or refrain from joining labor organizations . And that right is implemented by § 9(c)( 1) which provides for representation elections by secret ballot Since a bargaining order dispenses with the necessity of a prior secret election, there is a possibility that the imposition of such an order may un- necessarily undermine the freedom of choice that Congress wanted to guarantee to the employees , and thus frustrate rather than effectuate the policies of the Act.... moreover it is beyond dispute that secret election is a more accurate reflection of the employees ' true desires than a check of authorization cards collected at the behest of a union organizer " The Board itself recently saw fit to reiterate that "An election 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 "Aaron Brothers of California, supra, 1078. 25 Irving Air Chute Company v . N.L.R B , 350 F.2d 176,182 (C.A. 2), N L.R B v. Delight Bakery, Inc, 353 F 2d 344, 346-347 (C A 6), Joy Silk Mills, Inc., 85 NLRB 1263, 1264, enfd. 185 F 2d 732, 741-742 (C.A.D.C ), cert. denied 341 U.S. 914. 26 N.L.R.B v Flomatic Corporation, 347 F 2d 74, 78-80 (C.A. 2), Aaron Brothers Company of California, 158 NLRB at 1078 , 1080-81; Strydel Incorporated, 156 NLRB 1185, 1187, Harvard Coated Products Co., 156 NLRB 162, Hammond & Irving, Incorporated, 154 NLRB 1071, 1072-73, Clermont's, Inc, 154 NLRB 1397, 1401; Cameo Lin- gerie, Inc., 148 NLRB 535, 538. 27 Hammond & Irving, Incorporated, supra, 1073 28 Aaron Brothers Company of California, 158 NLRB at 1078, 1079. 21 Aaron Brothers Company of California, 158 NLRB at 1078. See also Clermont's, Inc, supra; Hammond & Irving, Incorporated, supra, Cameo Lingerie, Inc., supra; cases cited supra, fns. 24 and 26 36 H & W Construction Company , Inc., 161 NLRB 852, 857. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (6) When the relatively sterile atmosphere desired by the Board in its elections is disturbed through cognizable impropriety31 of any contestant or its privy, occurring between the time of election petition and the election,32 the election will, at the behest of a loser, be set aside and rerun upon restoration of conditions under which a fair and free election can be held. (7) Where an employer, confronted with a bargaining request by a union in fact - whether or not the fact be known to the employer - representing a majority of em- ployees in an appropriate bargaining unit and indicating willingness to establish its status in a reasonable way, out of hand refuses or fails to bargain, but instead embarks upon unfair labor practices to oust the union, an election held thereafter will be set aside at the behest of the de- feated union provided it has timely filed objections to the employer conduct affecting the election.33 If, in such case (i.e., the union having a "card majority"), employer viola- tion of the Act is established in an unfair labor practices case involving the same or related misconduct,34 a bar- gaining order may issue, without requiring another election.35 Where, however, unfair labor practices not af- fecting the election outcome have occurred,36 the election result may be certified notwithstanding a finding of viola- tion of the Act. D. Resolution 1. Respondent's alleged refusal to recognize and bargain with Union (Act, Section 8(a)(5)) All factors shown by the entire record considered, it would seem that "the beacon with the light that guides"37 here is principle (5) adverted to above, as established and reiterated by the Board and currently in force. Finding as 91 E.g., employer preelection speech to massed employees on em- ployer's premises within 24 hours preceding election. Peerless Plywood Company, 107 NLRB 427. That violation of this election requirement does not necessarily constitute an unfair labor practice under Act, Section 8(a)(1), see Johnston Lawn Mower Corporation, 110 NLRB 1955; Peerless Plywood Company, supra; Sparkletts Drinking Water Corpora- tion, 107 NLRB 1462. Coercive or otherwise improper statements in a preelection speech made more than 24 hours prior to election may also justify setting the election aside, even though not violative of Section 8(a)(1). Federal Envelope Company, 147 NLRB 1030, 1044; Ideal Bak- ing Company of Tennessee, 143 NLRB 546; The Lord Baltimore Press, 142 NLRB 328; Dal-Tex Optical Company, Inc., 137 NLRB 1782; The Trane Co., 137 NLRB 1.506. Where, however, such statements violate Section 8(a)(1), they may a fortiori justify voiding the election. Industrial Steel Products Company, Inc., 143 NLRB 336, 347; Dal-Tex Optical Company, Inc., supra, 1786-87; but cf. Hy Plains Dressed Beef, Inc., 146 NLRB 1253, 1257. 32 That this is the critical period for consideration, see Goodyear Tire and Rubber Company, 138 NLRB 453, 454-455; The Ideal Electric and Manufacturing Company, 134 NLRB 1275, 1278. 33 Irving Air Chute Company, Inc., Marathon Division, 149 NLRB 627, enfd. sub nom. Irving Air Chute Company v. N.L.R.B., 350 F.2d 176 (C.A. 2); Bernet Foam Products Co., Inc., 146 NLRB 1277; Joy Silk Mills, Inc., 85 NLRB 1263, enfd. 185 F.2d 732 (C.A.D.C.), cert. denied 341 U.S. 914. 39 Since Bernet Foam Products Co., Inc., supra, fn. 33, the union is no longer put to a choice between (1) seeking to set aside an election on the basis of filing objections to employer preelection misconduct or (2) seek- ing a bargaining order on the basis of filing unfair labor practice charges of employer violation of Section 8(a)(5) and ( 1). Participation in a Board election does not foreclose the loser from thereafter filing an 8(a)(5) charge. Flomatic Corporation, 147 NLRB 1304, fn. 1, modified on other grounds 347 F.2d 74 (C.A. 2). 35 N.L.R.B. v. Boot-Ster Manufacturing Company, 361 F.2d 325 (C.A. I do that Respondent, when confronted with the Union's bargaining demands, entertained a good-faith doubt of the Union's representative status, at least "founded on no more than a distrust of cards"38 under the circumstances shown, it is apparent that, if the Board's principle is to be given effect, Respondent was entitled to insist upon an election, provided it did not engage in concurrent unfair labor practices such as to (1) factually negate the ex- istence of such good-faith doubt, or (2) establish that it in fact rejected (even though giving lip service to) the collec- tive-bargaining principle, or (3) establish that it was mere- ly seeking to gain time to undermine and overturn a union majority among the employees constituting the proposed collective-bargaining unit. Additionally, as has been shown, Respondent has ad- vanced and credibly established three specific further reasons for its refusal to accord the Union the recognition and exclusive collective-bargaining status it sought upon the basis of "cards" alone. These reasons constituted ad- ditional justification for Respondent's insistence upon a Board-conducted election. Thus, it has been held that an employer's past experience involving failure of unions claiming a "card majority" to establish a true majority in Board elections, may serve as a basis for the employer's entertainment of good-faith doubt of union majority based upon "cards," so as to justify the employer's refusal to bargain upon the basis thereof and to insist upon proof through Board election.39 It has also been held that infor- mation reaching an employer as to union improprieties in the solicitation or procurement of bargaining authoriza- tion designation documents may provide valid basis for good-faith doubt on the employer's part as to the true representative status or strength of a union claiming ex- clusivity of bargaining agency for employees, so as to jus- tify employer insistence upon the Board's secret election 6); N.L.R.B. v. Philamon Laboratories, Inc., 298 F.2d 176 (C.A. 2), cert. denied 370 U.S. 919; Irving Air Chute Company, supra, fn. 33; Bernet Foam Products Co., Inc., supra, fn. 33; Joy Silk Mills, Inc., supra, fn. 33. However, a bargaining order will not issue "unless the election be set aside upon meritorious objections filed in the representation case." Irving Air Chute Company, supra, in. 33, at 630. In certain situations, an 8(a)(5) bargaining order remedy has been considered justified based merely upon violation of Section 8(a)(1). Such a situation would exist where a blatant program of defiance of Section 8(a)(1) occurs as a reprisal to a union "bard majority" before the union has had opportunity to make a bargaining de- mand. For examples of cases where 8(a)(5) bargaining orders have been based upon 8(a)(1) violations, see: Summit Mining Corporation v. N.L.R.B., 260 F.2d 894 (C.A. 3); N.L.R.B. v. Caldarera, dlbla Falstaff Distributing Company, 209 F.2d 265 (C.A. 8); D. H. Holmes Company Ltd. v. N.L.R.B., 179 F.2d 876 (C.A. 5; for remedial order, see D. H. Holmes Co., Ltd.. 81 NLRB 753, 756). None of the cited cases involved an 8(a)(5) refusal to bargain, but only 8(a)(1) violations. In the situations encompassed by the foregoing note, diminution or even loss of union majority in the intervening period does not relieve the employer of his obligation to bargain. Ray Brooks v. N.L.R.B., 348 U.S. 96, 102-103; Franks Bros. Company v. N.L.R.B., 321 U.S. 702; Medo Photo Supply Corp. v. N.L.R.B., 321 U.S. 678, 687. 36 Examples would be an isolated minor preelection episode or postelection misconduct. Cf. Hy Plains Dressed Beef, Inc., supra, 1257. 37 Leventhal, J., in United Steelworkers of America, AFL-CIO v. N.L.R.B. [Northwest Engineering Co.), 376 F.2d 770, 773 (C.A.D.C.). 39 H & W Construction Company, Inc., 161 NLRB 852, 857. 39 Peoples Service Drug Stores v. N.L.R.B., 375 F.2d 551 (C.A. 6); Nalco Chemical Company, 163 NLRB 68. In A. L. Gilbert Company, 110 NLRB 2067, 2070, the Board characterized an employer's willingness to submit to immediate election (as herein) as "very strong evidence of good faith." See also Superex Drugs, Inc., 150 NLRB 972, 978. SUPER X DRUGS OF WEST VIRGINIA 271 processes to establish the true facts under controlled, coercion-free conditions .4041 For all of these reasons - both the application of the controlling general principles set forth and also Respond- ent's specific grounds for declining recognition-it is ac- cordingly found and concluded that General Counsel has failed to sustain his burden of proof of establishing by a fair preponderance of substantial credible evidence that Respondent's refusal to recognize and bargain with the Union upon the basis of "cards" alone and its insistence upon a Board election, was in bad faith or otherwise in violation of Section 8(a)(5) or (1) of the Act as alleged in the complaint. 2. Respondent's alleged refusal to permit communica- tion between union and employee union members in its store (Act, Section 8(a)(1)) It will be recalled that on January 5, when Union Representatives Spencer, Brooks, and Pennington en- tered the Super X Beckley store and unobtrusively passed the word to a few of its members employed there as to a meeting that night, they - unlike any other visitors or even solicitors, and apparently without parallel in the history of the store - were stridently pursued by Store Manager Borinsky and summarily directed to leave the store at once. Respondent, at its Beckley store, was presumably free to adopt and enforce evenhandedly a rule forbidding out- siders' solicitation of all kinds in the store'42 or participa- tion by its employees in solicitation, private business, gossip or chitchat during working time43 or in selling areas.44 Respondent claims it did just this by the printed orientation leaflet which it gave to employees when they were hired. Although the wording of the leaflet renders this somewhat doubtful,45 assuming arguendo that Respondent's "no solicitation rule" - whatever it was - applied to the described acts of the union representatives, who could be regarded as not "soliciting" at the time in question - and further assuming the language of the leaflet to be unambiguous , clear, proper, and applicable to the described activity here, it is nevertheless plain from the evidence that such a "rule" was not in practice applied in the Beckley store in accordance with what are now as- serted to have been its intended terms. Indeed , there is an absence of substantial credible evidence that it was ever applied at all. The substantial credible evidence establishes that various types of solicitation, chitchat, and gossiping with visitors were openly carried on by em- ployees in the store, in selling areas during working time, with the knowledge and acquiescence of management. Furthermore , the store practiced so loose a "system°" of taking informal "break time" at the ungoverned in- dividual discretion or idiosyncrasy of employees them- 40 Peoples Service Drug Stores v. N L.R B., 375 F.2d 551, 2827-28 (C A 6), N L.R B. v Bedford-Nugent Corp., 317 F.2d 861, 865 (C A. 7), Spero Sunlamp Division, Cooper-Hewitt Electric Co, Inc., 162 NLRB 1148, 1161 ; Briggs IGA Foodliner, 146 NLRB 443, 446 41 The Union hinted broadly at the hearing that any statements (i.e , by Union Official Pennington) to solicited unit employees that they would be fired if they did not join the Union referred, or were intended to refer, only to the subject of an eventual union security provision - permissible by West Virginia law under Sections 8(a)(3) and 14(b) of the Act- in any col- lective agreement to be negotiated after the Union's representation status was lawfully established. However, the statements credibly ascribed to Pennington and not negated by her, were not so couched or circum- scribed, nor is it likely they were so understood by the employees in- volved. Moreover, such a contention apparently suggests a duty on the part of Respondent's Personnel Director Howe (to whom Pennington's statements were relayed by Beckley Store Manager Borinsky) to ascertain the identity of Bonnsky' s informants, whether they were union designa- tors, precisely what they had been told, whether there was tangible evidence or indication of "spill-over" of any coercive union remarks from union nondesignators to the ranks of union designators , etc , and that Howe' s failure to make such inquiry rules out his claim of good-faith doubt of the Union's representative status However, to turn presence or absence of good-faith doubt upon such inquiry would be : (1) to preclude as matter of law existence of good-faith doubt without such inquiry; (2) to ignore the small size of the unit and to hold unreasonable as matter of law Employer belief that the Union coercion of two or three out of nine unit employees was sufficient indication that similar coercion might also have been exercised against sufficient others (i.e , only about two more) to negate the claimed union majority, (3) to brush aside Howe's other described and independently valid bases for doubting the Union's majon- ty, and (4) to ignore Howe's, "good-faith doubt," under applicable Board decisions already noted, based on "no more than a distrust of cards" and preference for the Board's secret election processes . Indeed, even if any inquiry made by Howe had resulted in his learning no more than that two or three unit employees (including two nonsigners of union designations) had been possibly threatened or coerced as indicated, considering the small size of the unit it could not be held as matter of law that any judgment on his part that a few others (signers) might have been similarly' coerced would have been unreasonable Cf. N.L R B. Y. Bedford-Nugent Corp., 317 F.2d 861, 863 (C A 7). All circumstances considered , Howe's failure to make further inquiry after receiving Bormsky's report - inquiry itself potentially not without hazard as unlawful intrusion into the pro- tected privacy of employees' organization activities (cf., e.g. , Johnnie's Poultry Co., 146 NLRB 770, 775, enforcement denied on other grounds sub nom. N.L R B v Johnnie's Poultry Co, 344 F.2d 617 (C A. 8); Surprenant Manufacturing Company v N.L.R B , 341 F.2d 756, 762-763 (C.A 6) - was not inconsistent with "good-faith doubt" as to the Union's representative status here. 42 Cf Bonwit Teller, Inc. v. N.L.R.B., 197 F.2d 640, 642, 645 (C.A 2), cert. denied 345 U S 905, The May Company, 136 NLRB 797, 798, fn 4, enforcement denied 316 F.2d 797 (C.A. 6), Marshall Field & Com- pany, 98 NLRB 88, enfd. as modified 200 F 2d 375 (C.A 7), May De- partment Stores Co. (Famous-Barr Company), 59 NLRB 976, 981, enfd as modified 154 F 2d 533 (C.A. 8) 43 Cf Republic Aviation Corp. v N L R.B., 324 US 793, Bonwit Teller, Inc. v N L R B., supra, fn. 42; Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 617, 621, 623, The May Company, supra, fn 42; Marshall Field & Company , supra, fn 42; May Department Stores Co. (Famous-Barr Company), supra, fn. 42, at 980. 44 Cf. Bonwit Teller, Inc. v. N.L.R.B., supra, fn. 42, The May Com- pany, supra, fn 42; The GreatAtlantic & Pacific Tea Company, Inc, 123 NLRB 747, enfd. as modified 277 F.2d 759 (C A 5), Marshall Field & Company, supra, fn 42 ; May Department Stores Co (Famous-Barr Company), supra, fn 42, at 981; cases cited supra, fn 42 , and infra, fn. 47 45 In this regard, the leaflet merely lists among "store policies" : "doing personal work on company time" and "violation of Company's no solicita- tion rule." Since, as already indicated , the "Company's no solicitation rule" was nowhere defined , it is unfeasible to attempt to determine its validity based upon its speculative nature. Unduly, unnecessarily, oppre- sively, or unfairly broad or restrictive, as well as disparately purposed or applied, employer interdicts of communications not only among em- ployees themselves but with outsiders (including union organizers), have been condemned as violative of the Act. See, e.g , N.L.R B v. Babcock & Wilcox Co , 351 U.S. 105; Republic Aviation Corp. v. N L R B , 324 U.S 793; N L R B v. Whitfield Pickle Company, 374 F 2d 576, 578-579 (C A. 5), N.L.R B. v. United Aircraft Corp , 324 F.2d 128 (C A. 2), cert denied 376 U.S 951, N L R.B. v Walton Manufacturing Company, 289 F 2d 177, 180-181 (C.A. 5); N L R.B v Monarch Machine Tool Co, 210 F 2d 183, 187 (C.A. 6), cert. denied 347 U.S. 967, cases cited supra, fn. 42-44 However, as indicated above, substantial credible evidence establishes that the actual practice observed in the store was one of ex- treme permissiveness and in effect total tolerance by management of vari- ous varieties of activities appearing to be of the general character pur- portedly proscribed by its employees' orientation leaflet 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD selves, that it is unfeasible to attempt to determine whether or not employees could fairly be treated as on self-elected "break time" when some of this occurred. Although Respondent was privileged to adopt and apply rules of the nature it now contends these were, it could not, without violating the Act, invoke and enforce them for disparate , antiunion purposes or in discriminato- ry, antiunion fashion, as here, with an eye cocked at union representatives46 but closed to others.47 Particularly considering the vague and undefined character of the "rules" in question'48 the easygoing store practices with regard to visitors and chatting, the loose "break time" practices in effect permitting employees to suspend work and take short intervals off at their own in- dividual discretion, the fact that the employees' work was not realistically interrupted nor the store routines disturbed, and the extremely brief and transitory nature of the greeting and terse message conveyed'49 a fair over- view of the described episode of January 5, gauged in the context of the record as a whole, indicates that Borinsky's peremptory direction to the union representatives to remove themselves from the store forthwith - spiritedly delivered and reiterated crescendo in view of employees - was rather glaringly disparate, being uniquely leveled at the Union, and thereby discriminatory and in diminution of employees' Section 7 rights. I find that Respondent's sudden rigid total proscription upon receipt of any communication by its employees, when they received a brief message from the Union on January 5 of a meeting to be held that evening, was on the record here presented disparate and discriminatory, in violation of Section 8(a)(1) of the Act.5° 3. Does Respondent's violation of Section 8(a)(1) war- rant a bargaining order remedy? There remain for consideration the questions whether Respondent's described violation of Section 8(a)(1) was such as to be inconsistent with or otherwise to rule out existence of good-faith doubt on its part as to the Union's representative status; and whether the 8(a)(1) violation was of such character or extent as to constitute a pollu- tant to the coercion-free atmosphere desired by the Board in elections stamped with its certificate , so as through Respondent's fault to preclude a fair election, thereby jus- tifying reliance upon the "cards" as the best available measure of employee sentiment and, accordingly, is- suance of a bargaining order without an election. The answer to these questions must be in the negative. To begin with , it is evident that the January 5 violation of Section 8 (a)(1) by Borinsky , a minor local supervisor without authority to recognize or bargain with the Union, occurring substantially later than Respondent's justified refusal to bargain with the Union on the basis of "cards" alone, was in no way inconsistent with past, contem- poraneous, or future good-faith doubt by Respondent as to the Union's true representative status. Nor may the described infraction of Section 8(a)(1) fairly be con- sidered of such character or substantiality as to render a fair election contest no longer feasible, justifying - much less necessitating - reliance upon "cards" alone to prescribe the "strong medicine" 51 of a peremptory bar- gaining order without an election. Manifestly , the lone violative incident of January 5 did not constitute a coercive additive to antecedent facts of sufficient potency to alchemize Employer good-faith doubt of union representative status into bad-faith doubt or no doubt.52 Where a bargaining order is issued without an election , in the face of employer opposition under cir- cumstances claimed by the Charging Party to be com- parable to those here , it is on the theory that unfair labor practices deliberately perpetrated by the employer are of such order and magnitude that the employer has rendered a fair election impracticable if not impossible . Joy Silk Mills, Inc., 85 NLRB 1263, 1264, enfd. as modified 185 F.2d 732 (C.A.D.C.), cert. denied 341 U.S. 914. It is ap- parent that the described episode of January 5 was no such pollutant . There is accordingly no compelling neces- sity nor persuasive warrant for a bargaining order as distinguished from an order based upon the outcome of a 49 The record is not without indication that Borinsky's eye was indeed cocked that way. To begin with, there is no evidence of comparable en- forcement of store "rules." Furthermore, employee Thompson, an im- pressively credible witness, testified that in September Borinsky, pointing out to her two men standing outside the store, instructed her to report to him if they entered the premises in the future since they were "Union men." Borinsky denied the incident. I credit Thompson. 41 Cf. N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105, 112; Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793, 803, fn. 10; N.L.R.B. v. Hill & Hill Truck Line, Inc., 266 F.2d 883, 886 (C.A. 5); Bonwit Teller, Inc. v. N.L.R.B., 197 F.2d 640, 646 (C.A. 2), cert. denied 345 U.S. 905; Ward Manufacturing, Inc., 152 NLRB 1270,127 1; Whitfield Pickle Company, 151 NLRB 430,43 1, fn. 1, enfd. as modified 374 F.2d 576 (C.A. 5); The Wm. H. Block Company, 150 NLRB 341; Aluminum Extrusions, Inc., 148 NLRB 1662, 1663, fn. 2; Miller Charles & Company, 148 NLRB 1579, enfd. 341 F.2d 870 (C.A. 2); Standard Manufacturing Company, 1,47 NLRB 1608, 1609; Montgomery Ward & Co., Inc., 145 NLRB 846, enfd. as modified 339 F.2d 889 (C.A. 6); Revere Camera Company, 133 NLRB 1658, enfd. 304 F.2d 162 (C.A. 7); Memphis Publishing Com- pany, 133 NLRB 1435; Marshall Field & Co., 98 NLRB 88, enfd. as modified 200 F.2d 375 (C.A. 7); May Department Stores Co. (Famous- Barr Company), 59 NLRB 976, 979; Peyton Packing Company, 49 NLRB 828, 843-847, enfd. 142 F.2d 1009, 1010 (C.A. 5), cert. denied 323 U.S. 730. 48 As stated by the Board in Sarkes Tarzian, Inc., 157 NLRB 1193, fn. 2, "ambiguity with respect to the intended coverage of the rule can best be resolved by examining its application." Here it is plain that Borinsky's ap- plication of the so-called "rules" was disparately, it would even seem uniquely, leveled at the Union. 49 Unlike Randall's, 157 NLRB 86, and District 65, Retail, Wholesale & Department Store Union (B. Brown Associates, Inc.), 157 NLRB 615, cited by Respondent, the Union's representatives here were not attempt- ing to organize or solicit , but merely transitorily passing along to its own members the briefest kind of message of a meeting that night - in a context of otherwise starkly inconsistent permissiveness on the part of manage- ment regarding other varieties of chitchat by visitors and even solicitors with employees. I cannot agree with Respondent's colorful characteriza- tion of what occurred here as "a group of union agents invaded its store, interfered with working employees and customers in selling areas and created a scene ....... 51 Respondent's contention that the January 5 incident was "instigated, perpetrated and provoked .... in an effort to manufacture evidence to bolster its weak 8(a)(5) charge against Respondent" (Resp. brief, p. 41) is purely speculative, and I find that it is not established by substantial credi- ble evidence or any justifiable inference on the basis thereof. 5' Anderson, J., speaking for the Second Circuit Court of Appeals in N.L.R.B. v. Flomatic Corporation, 347 F.2d 74, 78 (C.A. 2); with which cf. Leventhal, J., speaking for the District of Columbia Circuit in United Steelworkers of America v. N.L.R.B. [Northwest Engineering Co.], 376 F.2d 770, 771 , questioning the Second Circuit's application of the princi- ple in the factual context involved in Flomatic and declining to apply it in Steel workers, and reminding (cf. Franks Bros. Company v. N.L.R.B., 321 U.S. 702) that "the choice of remedies is primarily within the province of the Board." 52 See discussion supra, section II, C. SUPER X DRUGS OF WEST VIRGINIA fair election,53 which the Board regards as preferable to "cards" as a barometer of employees ' real representation desires. 54 It is accordingly found that Beckley Store Manager Borinsky's described lone action on January 5, 1967, fairly weighed upon the balances of surrounding circum- stances, was not of such character as to negative ex- istence on Respondent's part of a good-faith doubt as to the Union's majority, nor sufficiently coercive or other- wise of sufficient gravity to justify a bargaining duty violation finding or bargaining order.55 56 Upon the foregoing findings and the entire record, I make the following: CONCLUSIONS OF LAW 1. Super X Drugs of West Virginia , Inc., Respondent herein, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Food Store Employees Union, Local 347, Amalga- mated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Charging Party herein , is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. It has not been established by substantial credible sa Provided, of course, that coercion free, sterile "laboratory condi- tions" (General Shoe Corporation, 77 NLRB 124, 127) in which Board elections are required to be conducted, continue to prevail. If, through ac- tion of or ascribable to either side, such conditions are destroyed, election may be delayed until they are restored (supra, section II , C); or, in case of charge and substantiated finding of significant employer unfair labor prac- tice, altogether forfeited and a bargaining order still nevertheless hereafter issued (supra section If, C.) General Counsel's reliance upon Snow & Sons, 134 NLRB 709, enfd. 308 F.2d 687 (C.A. 9), is misplaced, since Snow involved an employer's attempted renege upon his agreement to recognize the union based upon "cards." Herein, Respondent at no time agreed to recognize the Union, nor did Bormsky (or Roessler) have authority to pass upon any recogni- tion demand. See in John P. Serpa, Inc., 155 NLRB 99 (reversed sub nom, Retail Clerks Union, Local No 1179 v N L.R.B, 376 F.2d 186 (C A. 9), Board order on remittitur, 166 NLRB 336, which the Board similarly distinguished from Snow upon the ground that in Snow the em- ployer had reneged upon his original agreement to recognize the union based upon "cards" (155 NLRB at 101, fn. 4), the person to whom the cards had been,presented was authorized to extent recognition, the instant case is a fortiori distinguishable from Snow. 54 Aaron Brothers of California, 158 NLRB at 1078, 1079. 55 Cf., e.g., N.L.R.B. v. Flomatic Corporation, 347 F 2d 74, 77-80 (C A 2) and Steelworkers v. N.L R B. [Northwest Engineering Co.], supra; Converters Gravure Service, Inc., 164 NLRB 397; Hercules Packing Corporation, 163 NLRB 264; Poray, Inc., 160 NLRB 697; Hammond &, Irving, Incorporated, 154 NLRB 1071 With the foregoing cf. Drug King, Inc., 157 NLRB 343. 56 Substantially subsequent to General Counsel having rested his case and shortly prior to conclusion of Respondent's defense - i e , on the fourth day of hearing and shortly before Respondent rested - the Charging Party (Union) sought to amend the complaint so as to allege sundry other infractions by Respondent ; viz., coercion of an employee around November ': 18 by rescheduling night assignments , discrimination by granting special benefits to an employee (i.e., shift assignment to enable the employee to attend a nursing course which the employee had previ- 273 evidence that, as alleged in the complaint herein, Re- spondent Super X Drugs of West Virginia, Inc., has re- fused or is refusing in good faith to bargain collectively with the Charging Party Union. 4. By the conduct set forth in section II which has been found to constitute unfair labor practices, Respond- ent Super X Drugs of West Virginia, Inc. has interfered with, restrained, and coerced its employees in the exer- cise of rights guaranteed to them by Section 7 of the Act, and thereby has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices , I shall recommend the customary order in cases of this nature, designed to effectuate the policies of the Act. [Recommended Order omitted from publication.] ously arranged to take), preemployment interrogation as to union views, and intimidation of an employee on the eve of this hearing for complaining to Respondent's counsel about her work schedule. When asked by the Trial Examiner to indicate whether he concurred in the Charging Party's application, counsel for General Counsel expressed concurrence only in such part as not time-barred by Section 10(b) of the Act, conceding that the proposed matter as to alleged preemployment interrogation was barred under Section 10(b). There was no indication that General Counsel had investigated any of these matters. Giving all circumstances the weight they appeared to deserve, the Trial Examiner denied this tardy applica- tion. Considerations underlying this ruling by the Trial Examiner included the unsatisfactorily explained omission of these matters in the original complaint and also in the first amendment thereto (subsequently eliminated on Respondent's application, without opposition) during the first week of hearing herein; the precipitate timing of the proposed further amendment, without satisfacory explanation of the failure to provide fair advance notice thereof; the failure of the Charging Party to adhere to the Trial Examiner's express requirement during the first week of hearing, to make timely application - i.e., during the first week of hearing - in the event amendment were to be sought; the failure of General Counsel to move to amend his own complaint , the extreme untimeliness of the Charg- ing Party's application, close to the end of Respondent's defense and therefore of the entire hearing, necessitating as it would have the recalling of witnesses and relitigation of this already prolonged case ; the basic un- fairness toward Respondent of litigating in such fashion ; and the extreme shallowness of the proof adduced on the allegations proposed to be added. Nevertheless , while not allowing such amendment under the circum- stances described, the Trial Examiner permitted the proof already in the record with regard to these matters to remain in the record , and further specified that the ruling was without prejudice to the filing of new charges by the Charging Party if so advised. Even were the application to be treated in the nature of a motion to conform pleadings to proof, upon the record presented none of the matters in question has been established by that fair preponderance of substantial credible evidence which the law requires.